Here the supreame power in the time of Parliament by both Houses is declared to belong to the King At the beginning of every Parliament all Armes are or ought to be forbidden to be borne in London Westminster 7 Ed. 2. 4 pars instit 14. or the Suburbs This condemnes the multitudes coming to Westminster and the Guards of armed men All who held by Knights service 1 Ed 2. de Militibus and had twenty pounds per annum were distraynable ad Arma militaria suscipienda This agrees with the Records of ancient time continued constantly in all Kings times but at this Parliament 3. November 1640. The King out of his Grace discharged this duty which proves that the power of warre and preparation thereto belongs not to the two houses but only to the King The two Spencers in Ed. 2. time hatched to cover their Treason this damnable and damned opinion viz. Ed. 3. Calvins Case Cook l. 7. fol. 11 That Ligeance was more by reason of the Kings politique capacity then of his person upon which they inferred these execrable and detestable consequences First if the King demeaned not himselfe by reason in the right of his Crowne his Lieges are bound by Oath to remove him Secondly seeing the King could not be removed by suite of Lawe it was to be done by force Thirdly that his Lieges be bound to governe in default of him All which tenets were condemned by two Parliaments the one called exilium Hugenis in Ed. 2. time the other by 1. Ed. 3. cap. 2. All which Articles against the Spencers are confirmed by this last Statute the Articles are extant in the booke called vetera Statuta The separation of the Kings person from his power is the principall Article condemned and yet all these three damnable detestable and execrable consequents are the grounds whereupon this present time relies and the principles whereupon the two Houses found their Cause The Vâ—lleine of a Lord in the presence of the King cannot be seized Plowdon Com. 322. 27. ass pl. 49. for the presence of the King is a protection for that time to him This shewes what reverence the Lawe gives to the person of a King Reges 33 Ed. 3. ayde de Roy. 103. Fitz. sacro oleo uncti sunt capaces spiritualis jurisdictionis But the two Houses were never held capable of that power Rex est persona mixta cum sacerdote 10 H. 7.16 habet Ecclesiasticam spititualem jurisdictionem This shewes the Kings power in Ecclesiasticall Causes The Lands of the King are called in Law Com. Sur. Littl. Sect. 4. patrimonium sacrum The Houses should not have medled with that sacred Patrimony The King hath no Peere in his Land 3 Ed. 3.19 and cannot be judged ergo The two Houses are not above him The Parliament of 15. Ed. 3. was repealed for that it was against the Kings Lawes and Prerogative 4. pars instit fol. 52. This shewes cleerely the Propositions sent to Newcastle ought not to have beene presented to his Majesty for that they are contrary to the Lawes and his Prerogative The Lords and Commons cannot assent in Parliament to any thing that tends to the disinherison of the King and his Crowne 4 pars Cookes instit fol. 14.42 E 3. Parliament Roll num 7 Lex consuetudo Parliamenti to which they are sworne This condemnes the said Propositions likewise To depose the King to imprison him untill he assent to certaine demands A warre to alter the Religion established by Lawe or any other Lawe or to remove Councellors 25 Ed 3. cap. 2 to hold a Castle or Fort against the King are offences against that Lawe declared to be Treason by the resolutions herein after mentioned by that Law men are bound to ayd the King when warre is levied against him in his Realme King in this Statute must be intended in his naturall body and person that only can die for to compasse his death and declare it by overt Act is declared there by Treason To incounter in fight such as come to ayde the King in his warres is Treason Compassing of the Queenes death of the Kings eldest sonne to coyne his money to counterfet his Great-Seale to levie warre against him to adhere to such as shall so do are declared by that Act to be high Treason This Statute cannot referre to the King in his politique capacitie but to his naturall which is inseparable from the politique for a body politique can have neither wise nor childe nor levy warre 21 Ed. 4 14. nor doe any act but by the operation of the naturall body A Corporation or body politique hath no soule or life but is a fiction of the Lawe and the Statute meant not fictitious persons but the body naturall conjoyned with the publique which are inseparable The clause in that Act R. 2. 11 anno cap. 13 4 pars instit fol. 42 that no man should sue for grace or pardon for any offence condemned or forfeiture given by that Act was repealed by a subsâ—quent Act in 21. R. 2 holden unreasonable without example and against the Law and custome of the Parliament This condemnes the proposition for disabling the King to Pardon 4. pars instit fol. 42. The Act of 11. R. 2. so much urged by the other side was an Act to the which the King consented and so a perfect Act yet Note the Army then about the Town Note that that Law is against private persons and by the 3. cap. thereof the Treasons there declared are declared to be new Treasons made by that Act and not to be drawne to example it was abrogated 21. R. 2. and revived by an usurper 1. H. 4. to please the people and by the tenth chap. thereof enacts that nothing shall bee Treason but what is declared by 25. Ed. 3 16 R 2 cap 5. The Regality of the Crowne of England is immediatly subject to God and to none other Plaine words H. 4 shewing where the supreme power is The Commission of Array is in force and no other Commission Rot. Parlm 5. H. 4. numb 24. an Act not printed this Act was repealed by 4 5. P. M. cap. 2. this repealed by the Act of 1. Jacobi and so it is of force at this day for the repealing Statute is repealed 4. pars institn fol. 51. 125. published sit hence this Parliament by the desire of the house of Commons their Order is printed in the last leafe of the Commentaries upon Magna Charta Syr Edward Cooke by their party is holden for the Oracle of the Law A booke alowed by Syr Nat Brent called the reason of the war fol 95 who wrote the said fourth part in a calme and quiet time and I may say when there was no neede to defend the authority of the Commission of Array For that objection That that Commission leaves power to the Commissioners to taxe men secundum
therefore they are no body with out the King The death of the King dischargeth all mainprise to appeare in any Court or to keepe the peace 24 Ed. 3â—48 1 Ed. 4.2 2 H. 4.8 1 H. 7.10 1 Ed. 5.1 The death of the King discontinues all pleas by the common law which agreeth not with the virtuall power insisted upon now Writs are discontinued by the death of the King Ed. 6. 1 Ed. 6. cap. 7. Patents of Judges Commission for Justice of the peace Sheriffs Escheators determined by his death where is the virtuall power All authority and jurisdictions spirituall and temporall is derived from the King therefore none from the houses 1 Ed. 6. cap. 2. His Majesties subjects 2.3 Ed. 6. cap. 2.11 H. 7. cap. 1. Calvins Case Sa. pars Cooke according to their bounden duties ought to serve the King in his warres of this side or beyond the seas beyond the seas is to be understood for wages This proves the power of warres and preparation for warre to be in the King It is most necessary â—oth for common policy and duty of the Subjects 5.6 Ed. cap. 11. to restraine all manner of shamefull slaunders against their King which when they be heard cannot but be odible to his true and loving Subjects upon whom dependeth the whole unity and universall weale of the realm This condemnes their continuing of the weekly pamphlets who have beeue so foule mouthed against his Majesty The punishment of all offenders against the Lawes Q. Mary belongs to the King and all jurisdictions doe and of right ought to belong to the King 1 Mar. Pl 2.6.2 This leaves all to his Majesty All Commissions to levy men for the warre 4.5 P. M. c. 3 Q. Eliz. 10 Eliz. Pl. 315 are awarded by the King The power of warre only belongs to the King It belongs to the King to defend his people and to provide Armes and force No speech of the two houses Roy ad sole government de ses subjects Corps naturall le Roy politique sont un corps Plow 234.242 213. Calvins Case 7. pars fol. 12. Plow com 213. that is The King hath the sole government of his Subjects the body politique and the naturall body of the King make one body and not divers and are inseparable and indivisible The body naturall and politique make one body and are not to be severed Plow 934. 243 213. Calvins Case 7 pars fo 12. Ligeance is due to the naturall body and is due by nature Gods Law and mans law cannot be forfeited nor renounced by any meanes it is inseparable from the person Every Member of the House of Commons 1 Eliz. cap. 1. 5 Eliz. cap. 1. Cawdries Case 5 pars fol. 1. at every Parliament takes a corporall Oath That the King is the supreme and only Governour in all Causes in all his Dominions otherwise he is no member of that House the words of the Law are In all Causes over all persons The said Act of 1. Eliz. is but declarative of the ancient Lawe 43 Eliz. 3 pars inst it fo 12. Cawdries Case ibid. The Earle of Essex and others assembled multitudes of men to remove Councellors adjudged Treason by all the Judges of England To depose the King or take him by force 39 Eliz. Hil. 1 Jacobi ibid. to imprison him untill he hath yeelded to certain demands adjudged Treason and adjudged accordingly in the Lord Cobhams Case Arising to alter Religion established or any Lawe 39 Eli. Brads Case fol. 9 10. By all the Judges of England ibid. 10 Eliz. Plow 316 is Treason so for taking of the Kings Castles Forts Ports or shipping Brooke treason 24.3 4. Philip and Mary Dyer Staffords Case concerning Scarborough The Lawe makes not the servant greater then the Master nor the subject greater then the King for that were to subvert Order and Measure The Lawe is not knowne but by Usage 10 Eliz. Plow 319. and Usage proves the Law and how Usage hath beene is notoriously knowne The King is our only Rightfull and Lawfull Liege Lord and Soveraigne K. James 1 Jaco cap. 1. 9 Ed 4. fol. 8. Wee doe upon the knees of our hearts agnize constant Faith Loyalty and Obedience to the King and his Royall progeny in this high Court of Parliament where all the body of the Realme is eyther in person or by representation We doe acknowledge that the true and sincere Religion of the Church is continued and established by the King And do recognize as we are bound by the Law of God and Man the Realm of England and Imperiall Crowne thereof doth belong to him by inhaerent byrthright and lawfull and undoubted succession and submit our selves and our posterities for ever untill the last drop of our blood be spent to his rule and beseech the King to accept the same as the first fruits of our Loyalty and Faith to his Majesty and his Posterity for ever and for that this Act is not compleate nor perfect without his Majesties assent the same is humbly desired This proves that the Houses are not above the King that Kings have not their titles to the Crowne by the two Houses but by inhaerent byrth-right and that there can be no Statute without his expresse assent and destroyes the chymera of the Kings virtuall being in the Houses To promise obedience to the Pope 3 Jac. cap 4 23 Eliz cap 1. or any other State Prince or Potentate other then the King his Heires and Successors is Treason And therfore those persons who call the Houses the Estates offend this Lawe Such Bills as his Majesty is bound in Conscience and Justice to passe K. Charles Collection of Ordinances fo 727. 1 pgrs ibid. fol. 728. are no Lawe without his assent To designe the ruine of the Kings person or of Monarchy is a monstrous and injurious charge Vbi Lex non distinguit non est distinguendum ibid. fol. 865. all the aforesaid Acts and Lawes doe evidently prove the Militia to belong to the King that the King is not virtually in the two houses that the King is not considerable separately in relation to his politique capacity that the King is not a person trusted with a power but that it is his inherent byrth-right from God nature and lawe and that he hath not his power from the people These Lawes have none of those distinctions of naturall and politique abstractum concretum power and person in Caesars time this Island had Kings and ever since which is almost 17 hundred yeeres agoe No King can be named in any time made in this kingdome by the people A Parliament never made King for they were Kings before the Parliaments are summoned by the Kings Writts which for Knights Citizens and Burgesses begins thus viz. Rex vic Wilts Saltem Quia Nos de avisamento assensu Consilij nri pro quibusd arduis urgentibus negotiis
might have farther given these reasons if it had so pleased him for the same first that this Bill destroyes the writt whereby they are made two houses of Parliament the King in the writt to the Lords being Cum praelatis Colloquium habere secondly they have bene in all Parliaments since we had any and voted but in such wherein they themselves were concerned And there have bene Bishops here sithence we were Christians and the fundamentall law of the kingdome approves of them if any of them were conceived offensive they were left to justice and his Majestie would put in in-offensive men in their places but sithence his Majestie hath passed the Bill for taking away their votes in Parliament it is a law that binds us so farr Upon the whole matter the law hath notably determined that Bills agreed by both houses pretended to be for the publique good are to be jâ—dged by the King for in all Kings reignes Bills have been preferred by both houses which allwayes are pretended to be for the publique good and many times are not and were rejected with Roy s'avisera or Roy ne veult This Parliament begunne the third of November 1640 before that time in all the Kings reigne no armed power did force any of the people to do any thing against the law what was done was by his Judges officers Referees and Ministers from that time untill the tenth of January 1641 when the King went from London to avoyd the danger of frequent tumults being a yeare and three months Privy Councellors and all his Justices and ministers were left to the Justice of the law there wanted no time to punish punishable men The Sphaere of the house of commons is to represent the grievances of the Contrey to grant aydes for the King upon all fit occasions extraordinary to assent to the making or abrogating of lawes The Orb of the house of Lords to Reforme eronious judgments given in the kings Bench to redresse the delayes of Courts of Justice to receive all petitions to advise his Majestie with their councell to have their votes in making or abrogating of Lawes and to propose for the common good what they conceive meete Lex non cogit ad imposibilia subjects are not to expect from Kings impossible things so many Judges Councellors Sheriffes Justices of the peace Commissioners Ministers of State that the King should over looke them all cannot be it is imposible The King is virtually in his ordinary Courts of Justice so long as they continue his Courts their charge is to administer the lawes in being and not to delay deferre or sell justice for any commandment of the King Wee have Lawes enough instrumenta boni saeculi sunt boni viri good ministers as judges and officers are many times wanting the houses propose new Lawes or abrogation of the old both induce novelty the law for the reasons aforesaid makes the King the only judge who is assisted therein by a great number of grave learned and prudent men as aforesaid For the considerations aforesaid the Kings party adhered to him the law of the Land is their byrth-right their guide no offence is committed where that it is not violated they found the commission of Array warranted by the law they found the King in this Parliament to have quitted the Ship money Knighthood-money seven Courts of Justice consented to a trienniall Parliament seâ—led the Forest bounds tooke a way the Clerke of the Market of the houshold trusted the house with the Navie passed an act not to dissolve this Parliament without the houses assent no people in the world so free if they could have beene content with Lawes oathes and reason and nothing more could or can be devised to secure us neither hath beene in any time Notwithstanding all this we found the King driven from London by frequent tumults that two thirds and more of the Lords had disserted that house for the same cause and the greater part of the house of Commons left that house also for the same reason new men chosen in their places against law by the pretended warrant of a counterfet Seale in the Kings name against his consent levying warre against him and seizing his Ports Forts Magazines and Revenue and converting them to his destruction and the subversion of the law and land laying taxes on the people never hard of before in this Land devised new oathes to oppose forces raysed by the King not to adhaere to him but to them in this warre which they call the Negative Oath and the Vow and Covenant By severall wayes never used in this kingdome they have raised monies to foment this warte and especially to inrich some among them namely first Excise secondly Contributions thirdly Sequestrations fourthly Fift Parts fiftly Twentieth Parts sixtly Meale-mony seventhly Sale of Plundered goods eightly Loanes ninthly Benevolences tenthly Collections upon their Fast-dayes eleventhly new Inpositions upon Marchandizes twelvethly Guards maintained upon the charge of private men thirteenthly Fifty Subsidies at one time fourtenthly Compositions with such as they call delinquents fiftenthly Sale of Bishops lands c From the Kings party meanes of susistance are taken before any indictment their Lands seised 1 R. 3. cap. 3. Bract li. 3. c. 8. Stanford 192. Sir Ger. Fleetwoods Case 8. pars Cook 7. H. 4. laste leafe their goods taken the law allows a Traytor or Fellon attainted Necessaria sibi familiae snae in victu vestitu where is the covenant where is the petition of right where is the liberty of the subject Frst We have ayded the King in this warre contrary to the negative oath and other votes Our warrant is the twenty fifth of Edward the third the second Chapter and the said resolutions of all the Judges Secondly Wee have maintained the Commission of Array by the Kings Command contrary to their votes We are waranted by the statute of the fifth of Henry the fourth and the judgment of Sir Edward Cooke the Oracle of the Law as they call him Thirdly We maintained Arch-Bishops and Bishops whom they would suppresse Our warrant is Magna Charta and many statutes more Fourthly We have maintained the booke of common prayer they suppresse it Our warrant is five Acts of Parliament in Edward the sixt and Queene Elizabets time 5. Peschae 35. Elizabeth inter placita Coronae in Banco Regis New booke of Entries fol. 252. Penry for publishing two scandalous Libels against the Church government was indicted arraigned attainted and executed at Tyburne Fifthly We maintained the Militia of the kingdom to belong to the King they the contrary Our warrant is the statute of the seventh of Edward the first and many statutes sithence the practise of all times and the custome of the Realm Sixthly We maintained the counterfeiting of the great Seale to be high Treason and so of the usurpation of the Kings Forts Ports Shipping Castles and his Revenue and the Coyning of money against them Wee
Command under his great Seale which in this warre hath beene used by the Kings command for his Commission to leavy and array men that is no personall command which the law in some cases disallowes but that is such a command so made as all men hold their lands by who hold by Patents All corporations have their Chartera which hold by Charters and all Judges and officers their places and callings Ob. It is objectd the King cannot suppresse his Courts of Justice and that this warre tended to their suppression 7 pars The Earle of Westmerlands Case 1 Eliz. Dier 165. 7 pars Cooke Sol. The answer is the King cannot nor ought to suppresse Justice or his Courts of Justice nor ever did But Courts of Jnstice by abuser or non user cease to be courts of Justice when Judges are made and proceedings in those courts holden by others then Judges made by the King and against his command under the great Seale and his Majestie is not obeyed The case of discontinuance of Processe but the votes of the houses they cease to be the Kings Courts and are become the Courts of the houses and his Judges breaking that condition in law of trust and loyalty implied in their Patents are no longer his Judges they obey and exercise their places by virtue of writts and processes under a counterfet Seale The King only can make Judges the twenty seventh of Henry the eighth Chapter the twenty fourth Justices of the Peace c. twenty eighth of Henry the eighth Dier the eleventh the Kings Patent makes Judges The cheefe Justice of the Kings Bench is made by the Kings writt only of all the Judges The great Seale is the key of the kingdome Avticuli super chartas cap. 5. and meete it is that the King should have the key of his kingdome about him 2 pars instit 552. which confutes their saying that the King got the Seale away surreptitiously The King and he only may remove his Courrs from Westminster into some other place Britton sol 23. at Yorke the Termes were kept for seven yeares in Edward the sirst's time but for the Court of Common pleas the place must be ceataine for the Kings Bench and Chancery the King by the law may command them to attend his person alwayes if it seeme so meete unto him but the removing of the Common pleas must be to a place certaine and so notified to the people All the bookes of law in all times agree 34. Assis pl. 24. 22 Ed. 4. Fitz jurisdiction last placit 6 H. 7.9 6 Eliz. Dier 226. that the King may grant couusance of all Pleas at his pleasure within any County or precinct to bee holden there only and remove the Courts from Westminster to some other place for the Common Pleas the place must be certaine and so notified to the people and adjourne the termes as hee sees cause All which the two houses have violated Plebs sine lege ruit Some seeming objections of Master Prinn's seettered in divers books answered and the truth thereby more fully cleared Ob. 1 The first of Henry the fourth reviveth the statute of the eleventh of Richard the second and repeales to the twelfth of Richard the second whereby certaine persons were declared traytors to the King and kingdome being of the Kings party Sol. True but note the eleventh of Richard the second A Parliament beset with 40000 men and the King assents to it so an Act and besides the first of Henry the fourth declares that that treasons mentioned in the act of the eleventh of Richard the second being but against a few private men shall not be drawn into example and that no Treason should be but such as the twenty fist of Edward the third declares 9 Ed. 4. fol. 80. All these are Acts passed by the King and the three estates not to be drawne into example in a tumultuous time by a besieged Parliament with an army and the confirmer 〈◊〉 Henry the fourth being an usurper makes that act of the first of Henry the fourth to secure himselfe Also what is this to the votes of the two houses only at this time Ob. 2 The Court of Parliament is above the King for it may avoid his Charters Commisions c. granted against the law Sol. And the Law is above the King By the same reason you may say that the Courts of Chancery or any of the Courts of law at westminster are above the King for they make of no effect the Kings Charters which are passed against the law and the King is Subject to law and sworne to maintaine it Again it is no Parliament without the King and the King is the head thereof he is principium Caput finis of a Parliament as Medas tenendi Parliament hath it and two houses only want principium Caput finis of a Parliament and it is a sorry Parliament that wants all these And therefore to say that Parliaments are above the King is to say that the King is above himselfe Ob. 3 The Parliament can enlarge the Kings prerogative therefore it is above him Sol. If the King assent otherwise not and then it is an act of Parliament and otherwise no Act. Ob. 4 Bracton saith God the Law and the Kings Court viz his Earles and Barrons are above the King viz in Parliament as Master Prinne expounds it Sol. Where is then the house of Commons Indeed take God the Law and Earles and Barrons together it is true but to affirme that the Earles and Barrons in Parliament are above the King the King being the head of the Parliament and they one of the members how an inferior member is above the head is hard to cenceive besides that position destroyes all Master Prinns discourse who attributes so much to the house of Commons Ob. 5 The King is but one of the three estates of Parliament and two are greater then one therefore above Sol. The Leggs Armes and trunke of the Body are greater then the head and yet not above nor with life without it The argument holds for quantity but not for quality and in truth the King is none of the three estates but above them all the three estates are the Lords Sprirituall the Lords Temporall and the Commons Cooke their Oracle in his Chapter of Parliaments Folio the first Ob. 6 In corporations the greater number of voices make all the Acts of the corporation valid therefore so in Parliament Sol. By this reason the Kings assent is needlesse and to no end and all the Acts of Parliament formerly mentioued and law bookes have quite mistaken the matter which with unanimous voice requires the Kings assent as necessary Besides the Corporations are so constituted by the Kings Charters that the greater number of votes shall make their Acts valid Ob. 7 The King as King is present in his Parliament as well as in all other his Courts of Justice how be it he is not there
To the HONORABLE Societies of GRAY'S Inne and of the rest of the Innes of Court and to all the Professors of the LAW I Have now spent forty five yeares in the Study of the Lawes of this Land being my profession under and by the conduct of which Lawes this commonwealth hath flourished for some ages past in greate splendor and happinesse jam seges est ubi Troja fuit The great and full body of this Kingdome hath of late yeares fallen into an extream sicknesse it is truly said that the cause of the disease being known the disease is easily cured There is none of you I hope but doth heartily wish the recovery of our common parent our native country Moribus antiquis statres Brittannica I call God to witnes that this discourse of mine hath no other end then my wishes of the common good How farr I have been from Ambition my life past and your own knowledge of me can abundantly informe you and many of you well know that I ever detested the Shippe-mony and Monopolies and that in the beginning of this Parliament for opposing the excesses of one of the Bishoppes I lay under three Excommunications and the Examination of seeventy seven Articles in the high Commission Court His sacred Majestie God is my witnesse made me a Judge in the parts of Wales against my will and all the meanes I was able to make and a patent for my place was sent me for the which I have not paid one farthing and the place is of so inconsiderable a benefit that it is worth but 80. l. per annum when paid and it cost me every yeare I served twice as much out of mine own estate in the way of an ordinary and frugall expence That which gave me comfort was that I knew well that his Majestie was a just and a prudent Prince In the time of the Attournyshipps of Master Noye and the Lord Banks they were pleased to make often use of me many referrences concerning suits at Court upon that occasion came to my knowledg as I shall answer to God upon my last accompt this is a truth that all or most of the references which I have seen in that kind I have seen many were to this effect That his majesty would be informed by his Counsell if the suits preferred were agreable to the Lawes and not inconvenient to his people before he would passe them what could a just and pious Prince do more Gentlemen you shall finde the Cause and the Curse of the present great distemper in this discourse and God prsoper it in your hands thoughts and words as the Case deserves Hold to the Lawes this great body recovers forsake them it will certainly perish I have resolved to tender my selfe a Sacrifice for them as Cheerefully and I hope by Gods assistance as constantly as old Eleazer did for the holy Lawes of his Nation Your well-wisher DAVID JENKINS Now Prisoner in the Tower Lex Terrae THE Law of this Land hath three grounds First Custome Secondly Judiciall Records Thirdly Acts of Parliament The two latter are but declarations of the Common-Lawe and Custome of the Realme touching Royall-Government And this Law of Royall-Government is a Law-Fundamentall The Government of this Kingdome by a Royall Soveraign hath beene as ancient as History is The kings prerogative is a principall part of the common Lawe Com. Littl. 344. or the memoriall of any time what power this Soveraignty alwaies had and used in Warre and Peace in this Land is the scope of this discourse That Vsage so practised makes therein a Fundamentall Lawe and the Common-Lawe of the Land is common Vsage Plowdens Commentaries 195. For the first of our kings sithence the Norman Conquest the first William second William Henry the first Stephen Henry the second and Richard the first the Customes of the Realme touching Royall Government were never questioned The said Kings enjoyed them in a full measure In king Johns time the Nobles and Commons of the Realm conceiving that the ancient Customes and Rights were violated and thereuppon pressing the said King to allowe them in the seventeenth of King John the said Liberties were by King John allowed and by his sonne Henry the thyrd after in the ninth yeere of his Reigne confirmed and are called Magna Charta and Charta de Foresta declared foure hundred twenty two yeeres sithhence by the said Charters Now rests to be considered after the Subjects had obtained their Rights and Liberties which were no other then their ancient Customes and the fundamentall Rights of the King as Soveraigne are no other How the Rights of Soveraignty continued in practise from Henry the thirds time untill this present Parliament of the third of November 1640. for before Henry the thirds time the Soveraignty had a very full Power Rex habet Potestatem jurisdictionem super omnes qui in Regno suo sunt Hen. 3. ea quae suut jurisdictionis Pacis ad nullum pertinent nisi ad Regiam dignitatem Bracton temps H-3 lib. 4. cap. 24. Sect. 1. habet etiam coercionem ut Delinquentes puniat coerceat This proves where the supreme power is A Delinquent is hee who adheres to the Kings Enemies Com. Sur. Littl. 261. This shewes who are Delinquents Omnis sub Rege ipse sub nullo nisi tantum Deo non est inferior sibi Subjectis Sect. 5. Bract. ibid. non parem habet in Regno suo This shewes where the supreme power is Rex non habet superiorem nisi Deum satis habet ad poenam quod Deum expectat ultorem Brrcton lib. 5. tract 3. de defaltis Cap. 3. Bracton Lib. 3. Cap 7. This shewes where the supreme power is Treasons Fellonies and other Pleas of the Crowne are propriae causae Regis This shewes the same power By these passages it doth appeare what the Custome was for the power of Soveraignty before that time the power of the Militia of coyning of Money of making Leagues with forreigne Princes the power of Pardoning of making of Officers c. All Kings had them the said Powers huveno beginning Sexto Ed. 1. Edw. 1. Com. sur Littl. 85. Liege Homage every Subject owes to the King viz Faith de Membro de vita de terreno Honore the forme of the Oath inter vetera statuta is set downe We reade of no such or any Homage made to the two Houses but frequently of such made by them It is declared by the Prelates Earles Barrons and Commonalty of the Realme 7. Ed. 1. statuts at large fol 42. that it belongeth to the King and his Royall Segniory straitly to defend force of Armour and all other force against the Kings peace at all times when it shall please him and to punish them that shall doe contrary according to the Lawe and Usage of the Realme and hereunto they are bound to ayde their Soveraigne Lord at all seasons when neede shall be
facultates and so make all mens estates Arbitrary the answere is That in levying of publique aydes upon mens goods and estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoide discretion in the assessâ—ments for so it ever was and ever will be By this appeares that the votes of the two houses against the Commission of Array were against the Law The death of the King dissolves the Parliament H. 5 if Kings should refer to the politique capacity it would continue after his death 4. pars Inst 46. which proves that the King connot be said to be there when he is absent as now he is there is no interregnum in the kingdome the dissolution of the Parliament by his death shewes that the beginning and end thereof refers to the naturall person of the King and therefore he may lawfully refuse the Propositions 2 H. 5. 4 pars instit 46 2. H. 5. Chap. 6. to the King onely it belongs to make Leagues with forreigne Princes This shewes where the supreame power is 8. H. 6. H. 6. numb 57. Rott Parl. Cookes 4. pars instit 25. No priviledg of Parliamenr is grantable for Treason Felony or Breach of the peace if not to any one member nnot to two not to ten not to the Major part 19. H. 6.62 The law is the inherritanc of the King and his people by which they are ruled King and people And the people are by the law bound to ayde the king And the King hath an inheritance to hold Parliaments and in the ayds granted by the Commonalty If the major part of a Parliament commit Trason they must not bee Judges of it for no man or body ean be Judge in his own cause and aswell as ten or any number may commit treason the greater number may aswell The King by his letters pattents may constitute a County palatine and grant Regall rights 32. H. 6.13 Plowd 334. this shewes where the supreme power is 17. Ed. 4. rot parl numb 39. Ed. 4. No priviledge of Parliament is grantable for Treason Fellony or Breach of the peace if not for one not for two or more or a major part The same persons must not be Judge and party A corporat body can commit no treason Calvins Case 7 pars fol. 11.12 nor can treason be committed against a corporate body 21. E. 4 13. and 14. but the persons of the men who make that body may commit treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can be committed by or against such a body that body hath no soul no life and subsists only by the fiction of the Law and for that reason the Law doth conclude as aforesaid therefore the stature of 25. E. 3 must be intended of the Kings naturall person conjoyned with the politique which are inseparable and the Kings naturall person being at Holmby Plow com 213. his politique is there also and not at Westminster for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forreigne Prince 19 Ed 4.6 without the Kings consent the league holds and is not broken and therefore the representative body is inferior to his Majesties The King may erect a Court of Common pleas in what part of the kingdome he pleaseth by his letters pattents 22 Ed. 4. Fitz. jurisdiction last placite can the two howses do the like 1. Ed. 5. fol. 8. Ed. 5. 4 Ed. 4.25 5 Ed. 4 29. It cannot be said that the King doth wrong declared by all the Judges and Serjâ—ents at law then there The reason is nothing can be done in this Common-wealth by the Kings grant or any other act of his as to the subjects persons goods lands or liberties but must be according to established lawes which the Judges are sworne to observe and deliver between the King and his people impartially to rich and poore high and low and therefore the Justices and the Ministers of Justice are to be qâ—stioned and punished if the Lawes be violated And no reflection to be made on the King All Counsellers and Judges for a yeare and three months nntill the tumults began this Parliament were all left to the ordinary course of Justice what hath beene done sithence is notorious For great Causes and considerations an act of Parliament was made for the surety of the said Kings person R. 3. 1 R. 3 cap. 15. if a Parliament were so tender of King Rich. the 3. the howses have greater reason to care for the preservation of his Majestie The Subjects are bound by their allegiance to serve the King for the time being against every Rebellion H. 7 11 H. 7. cap. 1. power and might reared against him within this land that it is against all lawes reason and good conscience if the King should happen to be vanquished that for the said deede and true duty and alligeance they should suffer in any thing it is ordeined they should not and all acts of processe of law heereafter to be made to the contrary are to be void This law is to be understood of the naturall person of the King for his politique capasity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this Act. It is no statute 12 H. 7.20 H. 8. 24 H. 8. cap. 12. 25 H. 8. cap. 21 if the King assent not to it and he may disassent this proves the negative voice The King hath full power in all causes to doe justice to all men this is affirmed of the King and not of the two Houses The commons in Parliament acknowledg no superior to the King under God the house of Commons confesse the king to be above the representative body of the Realme Of good right and equity the whole and sole power of pardoning treasons fellonies c. belong to the King 27 H. 8. cap 24. Note as also to make all Justices of Oyer and Terminer Judges Justices of the peace c. This law condemns the practise of both houses at this time The Kings royall assent to any act of Parliament signed with his hand expressed in his letters Patents under the great Seale 33. H. 8 cap. 21 and declared to the Lords and Commons shall be as effectuall as if hee assented in his owne person a vaine act if the King be virtually in the houses The King is the head of the Parliament Dier 38. H. 8. â—â— 59.60 the Lords the principall members of the body the Commons the inferior members and so the body is composed therefore there is no more Parliament without a King then there is a body without a head There is a corporation by the Common law 14 H. 8. fol. 3. as the King Lords and Commons are a corporation in Parliament and
nos statum defensionem Regni nri Angl. Ecclesiae Anglicanae concernentibus quoddam Parliamentum nrum apud B. teneri ordinavimus ibid. cum Praelatis magnatibus proceribus dicti Regni nri Colloquium habere tractatum ipsi vicecomiti preâ—ipimus firmiter injungendo quod facta Pro clamatione in proximo Comitatu tuo post recepsionem ejusd brevis duos Milites gladiis â—inctos c. eligi facias ad faciendum consentiendum hiis quae tunâ— ibidem de Communi Concilio nro Angliae faventi Deo contigerit ordinari super negotiis antedictis ita quod pro defectu potestatis hujusmodi sen propter improvidam electionem Milium Civium Burgensium pred dicta negotia nra infecta non remanerent The King is Principium Caput finis Parliamenti 4 pars instit fol. 3 4. the body makes not the head nor that which is posterior that which is prior Concilium non est Preceptum Conciliarij non sunt Praeceptores for Councell to compell a consent hath not beene heard of to this time in any age and the house of Commons by the Writt are not called ad Concilium the Writts to the twelve Judges Kings Councell twelve Masters of the Chancery are Concilium impensuri and so of the Peeres The Writts for the Cominalty Ad faciendum consentiendum Which shewes what power the representative body hath they have not power to give an oath neither doe they claime it The King at all times when there is no Parliament The Oath of the Justices 18 of Ed. 3. among Statutes of that yeere in Parliament is assisted with the advice of the Judges of the Lawe twelve to uumber for England at least hath two Sergeants when fewest an Attorney and Sollicitor twelve Masters of the Chancery his Councell of State consisting of some great Prelates and other great Personages versed in State affaires when they are fewest to the number of twelve All these persons are alwaies of great substance which is not preserved but by the keeping of the Lawe The Prelates versed in divine Lawe the other Grandees in affaires of State and managery of Government The Judges Kings Sergeants Attorney Sollicitor and Masters of the Chancery versed in the Lawe and Customes of the Realme All sworne to serve the King and his people justly and truly the King is also sworne to observe the Lawes and the Judges have in their Oath a clause That they shall doe common right to all the Kings people according to the established Lawes notwithstanding any command of the King to the contrary under the Great Seale or otherwise The people are safe by the Lawes in force without any new The Lawe finding the King of this Realme assisted with so many great men of Conscience Honour and skill in the rule of Common-wealth knowledge of the Lawes and bound by the high and holy bond of an Oath upon the Evangelists settles among other powers upon the King a power to refuse any Bill agreed upon by both Houses and power to pardon all offences to passe any Graunts in his Minoritie there are many great persons living hold many a thousand pound a yeere by Patents from Edward the sixth passed when hee was but ten yeeres of age not to bee bound to any Lawe to his prejudice whereby he doth not binde himselfe power of warre and peace coyning of Money making all Officers c. The Lawe for the reasons aforesaid hath approved these powers to be unquestionable in the King and all kings have enjoyed them till 3. Nov. 1640. It will bee said notwithstanding all this sence about the Lawes the Lawes have beene violated and therefore the said powers must not hold the two Houses will remedy this The answere to this is evident There is no time past nor time present nor will there bee time to come so long as men mannage the Lawe but the Lawes will bee broken more or lesse as appeares by the story of every age All the pretended violations of this time were remedied by Acts to which the King consented before his departure 10. Jan. 1641 being then driven away by Tumults And the Houses for a yeere and almost three Moneths From 3. Nov. 1640. to 10 Jan. 1641. as aforesaid being a yeere and almost three moneths had time and liberty to question all those persons who were eyther causes or instruments of the violation of any of the Lawes Examine how both Houses remedied them in former times First touching Religion What hath beene done this way Both Houses in Henry the eights time tendred to him a Bill to bee passed called commonly the Bill of the six Articles this was conceived by them to bee a just and a necessary Bill had not Henry the eighth done well to have refused the passing of this bill both houses tendred a bill to him to take the reading of the Scriptures from most of the laity had not King Henry the eight deserved much prayse to reject this bill In Queene Maryes time both houses exhibited a bill to her to introduce the Popes power and the Roman religion had not Queeene Mary don well to have refused this bill Many such instances may be given The two Houses now at Westminstar I am sure will not deny but the refusall of such bills had beene just the King being assisted as aforesaid and why not so in these times For the Civill Govrnment what a Bill did both houses present to Richard the third to make good his title to the Crowne had it not beene great honour to him to have rejected it what bills were exhibited to Henry the eighth by both houses for bastardizing of his daughter Elizabeth a Queene of renowned memory to settle the Crowne of this Relme for default of issue of his body upon such persons as he should declare by his letters Patents or his last will and many more of the like had not this refusall of passing such bills magnified his vertue and rendred him to posterity in a different Character form what he now hath And by the experience of all times and the consideration of human frailty this conclusion is manifestly deduced that it is not possible to keepe men at all times be they the houses or the King and his councell but there will be sometimes some deviation from the lawes and therefore the constant and certain powers fixed by the ancient law must not be made voide and the Kings Ministersâ— the Laws do punish where the Law is transgressed and they only ought to suffer for the same In this Parliament the houses exhibited a bill to take away the suffrages of the Bishops in the upper house of Parliament and have sithence agreed there shall be no more Bishops at all might not the King if he had so pleased have answered this bill with Le Roy s'avisera or ne veult it was against Magna Charta Articuli Cleri and many other acts of Parliament And
have our warrant by the said statute of the twenty fifth of Edward the third Chapter the second and divers others since and the practise of all times Sevenethly We mintayne that the King is the only supreme governer in all causâ—s They that his Majestie is to be governed by them Our warrant is the statutes of the first of Q. Eliza. Chapter the first and the fifth of Q. Elizabeth Chapter the first Eighthly We maintayne that the King is King by an inhaerent birth-right by nature by gods law and by the law of the land 9 Ed. 4. sol 4. They say his Kingly right is an office upon trust Our warrant is the statute of the first of king James Chapter the first And the resolution of all the Judges of England in Calvins case Nynthly We maintain that the politique capacity is not to be severed from the natural They hold the contrary Our warrant is two statutes viz. Exilium Hugonis in Edward the seconds time and the first of Edward the third Chapter the second and their Oracle who hath published it to posterity that it is damnable detestable and execrable treason Calvins Case pars 7. sol 11. Tenthly We maintaine that who aydes the King at home or abroade ought not to be molested or questioned for the same They hold and practise the contrary Our warrant is the statute of the eleventh of Henry the seventh Chapter the first Eleventhly We maintayne that the King hath power to disassent to any Bill agreed by the two houses which they deny Our warrant is the statute of the second of Henry the fift and the practise of all times the first of King Charles Chapter the seventh the first of King James Chapter the first Twefthly We maintayne that Parliaments ought to be holden in a grave and peaceable manner without tumults They allowed multitudes of the meaner sort of people to come to Westminster to cry for Justice when they could not have their will Coll. of Ord. fol. 31. and keepe guards of armed men to waite upon them Our warrant is the statute of the seventh of Edward the second and their Oracle Thirteenthly We maintaine that there is no state within this kingdome but the Kings Majesty and that to adhaere to any other state within this kingdome is high Treason Our warrant is the statute of the thrid of King James Chapter the fourth and the twentie third of Q. Eliza. Chapter the first Fourteenthly We maintayne that to leavy a warre to remove Councellours to alter Religion or any Law established is high treason They hold the contrary Our warrant is the resolutions of all the Judges of England in Quene Elizabeths time and their Orracle agrees with the same Fiftteenthly We maintaine that no men should be imprisoned put out of his lands but by due course of Law and that no man ought to be adjudged to death but by the law established the customes of the Realm or by Act of Parliament Thâ—y practise the contrary in London Bristoll Kent c. Our warrant is Magna Charta Chapter the twenty ninth the Petition of right the third of King Charles and divers lawes there mentioned We of the Kings party did and do detest Monopolies and ship money and all the grievances of the people as much as any men living we do well know that our estates lives and fourtunes are preserved by the lawes and that the King is bound by his lawes we love Parliaments If the Kings Judges counsell or ministers have done a misse they had from the third of November 1640 to the tenth of January 1641 time to punish them being all left to Justice Where is the Kings fault The Law saith the King can do no wrong that he is medicus regni pater patriae spousus regni 11 pars Cookes Reports Magdalen Colledge Case qui per anulum is espoused to his Realme at his Coronation the King is Gods Lieutenant and is not able to doe an unjust thing These are the words of the law One great matter is pretended that the people are not sure to enjoy the acts passed this Parliament A succeeding Parliament may repeale them The objection is very weake a Parliament succeeding to that may repeale that repealing Parliament That feare is endlesse and remedilesse for it is the essence of Parliaments being compleate and as they ought to be of head and all the members to have power over Parliaments before Parliaments are as the time are if a turbulent faction prevailes the Parliaments are wicked as appeares by the examples recited before of extreame wicked Parliaments if the times be sober and modest prudent and not byassed The Parliaments are right good and honorable and they are good Medicines and salves but in this Parliament excessit medicina modum In this cause and warre betweene the Kings Majesty and the two houses at Westminster what guide had the subjects of the land to direct them but the Lawes What meanes could they use to discerne what to follow what to avoide but the Lawes The King declares it Treason to adhere to the Houses in this warre The Houses declare it Treason to adhere to the King in this Warre The Subjects for a great and considerable part of them treason being such a crime as forfets life and estate and also renders a mans posterity base beggerly and infamons looke upon the Lawes and finde the lettr of the law requires them to assist the King as before is manifested was ever subject criminally punisht in any age or nation for his pursuit of what the letter of the Law commands The Subjects of the kingdome finde the distinction and interpretation now put upon the Lawes of Abstractum Concretum Power and Person body politique and naturall Personall presence and virtuall to have beene condemned by the law And so the Kings party hath both the letter of the law and the interpretation of the letter cleared to their judgments whereby they might evidently perceive what side to adbaere to what satisfaction could modest peaceable and loyall men more defire A verbo legis in criminibus poenis non est recedendum hath beene an approved maxime of law in all ages and times If the King be King and remain in his Kingly office as they call it then all the said lawes are against them without colour Coll of Ordinances 777. they say the said lawes relate to him in his office they cannot say otherwise Commissions and pardon in the Kings name and the person of the King and his body politique cannot nor ought to be severed as hath beene before declared 5 Eliz. cap. 1. 1 Eliz. cap. 1. And the members of both houses have sworn constantly in this Parliament that the King is the only supreme Governour in all causes over all persons at this present time For that of verball or personall commands of the King which is objected We affirme few things to be subject thereto by the law But his Majesties