[Page] [Page] 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.

[...]

[Page] 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 [Page] 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 [Page] 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 [Page] 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 any one of these blessings.

If the major part of the Members require from thee, thy life, thy estate, thy fortune, thy friend, or what ever else is most dear unto thee: It is, say they, a breach of Pri­viledge of Parliament, not to submit thy self to the block, and render all to their lusts.

And if thou hast in this War, acted against thy King, thy case is still worse, for by that War, the Law is de­stroyed, and so thou hast been an Instrument of thine owne and the Kingdomes ruine. Yet of that faction against the King, there be two sorts of people: The one for self-ends, against their owne knowledge: the other misled, and so pursuing (although an erroneous one) their owne consci­ence.

For those of the first ranke, I feare (like unto Judas) their owne souls render themselves hopelesse of pardon, which I presume (like unto Catiline) makes them judge themselves in no security, but by attempting worse evils, which doubtlesse begat that barbarous Vote and declarati­on of the Members, not to make further Application to their King. And for those of the latter ranke, how far their following the dictamen of their owne conscience, in point of Divinity may excuse them, I will not dispute, but, certaine I am by the constitutions of this Realme, in Temporall things, it neither extenuates the crime, nor mi­tigates [Page] the punishment. In our Law, it is a Maxime, and a just one too: Ignorantia Juris non excusat. If not knowne the Law, be a Plea, or justification in facts of Treason, mur­der, felony, trespasse or the like, both King and people were without protection, either of life, person, or estate: It were easie for every Malefactor to pretend ignorance of the Law. Therefore when the difference between the King and the two Houses first happened, every Subject at his perill ought so far to have rectified his judgement, as to have in­formed himself which side the Law obliged him to adhere unto: yet not by that obliged to impossibilities; for, al­though most men (in many particulars) are unknowing of the Law; every one (even of the meanest capacity) may as easily learne from whom he is to be informed thereof, (the Judges of the Realme) as a sick man may find out where his Physitian dwels.

Now for want of so much consideration as to make en­quiry, whether (by the Laws of England) the King, or the Members, was therein to be obeyed, that sort of peo­ple were surprised, quitting their Allegeance to their King, adhered to the Members their fellow Subjects, and inga­ged in this horred Rebellion: Therefore in strictnesse of Law, as guilty of Treason, as those of the former ranke.

And thus by receding from that one principle in sub­mitting to the true Iudge of the Law, this desolation is come upon the whole Kingdome. Had the King been suffered to enjoy his lawfull power of Soveraignty: The Iudges of the Realme their Offfce of declaring the Law, by which the King governs, and the Parliament (that is, the King and the two Houses joyntly its proper authority, viz. When necessity requires to make new Laws, or change the old: Had the Divines, the Lawyers, and espe­cially the Members of the two Houses, kept themselves [Page] within their owne spheares, and every one submitted unto, and obeyed his lawfull Superior, the knowne Law of the Land had continued in force, and consequently we had still been a most flourishing people.

But it is never too late to amend: and if every one would herein begin at home, the worke were instantly done: but although it cannot be expected that all men will do their duty, yet for those who were cheated into this Rebellion, their judgements being once rectified, it were not onely against the rules of charity, but of reason likewise, to con­ceive they should not with much more Zeal endeavour to restore the King and the people to their freedome, then (grounding upon an erronious conscience) they prosecuted theirs, and their owne confusion.

Now to shew, that the honest vulgar people (which are infinite in comparison of the Seducers) were by the Incendiaries of these Westminster men intrapped into this Rebellion. That by the Laws of the Land (every mans onely true guide) all the Subjects of the Realme ought in that War to have adhered unto the King; That by the peoples disobedience therein, the knowne Law is subverted, and themselves inslaved: That untill the King be restored unto His just rights, the knowne Law set on foot, and a submission to the true Judges thereof, the people are not to hope for other, then increase of misery: And that by doing this, (which is both in their power, and the peoples duty to performe) is the scope of this Treatise.

And herein, let none heretofore active against the King (by reflecting upon the Law, which as before appears, doth judge him a Traytor) be deterred from doing his du­ty; That were (in example of Judas) to revenge themselves upon their owne persons: They doe thereby become the Authors of their owne ruine; for as we have the seate of [...]

[Page] [...] then by attributing it to the Parliament: Therefore much more is the arrogancy of the Members to claime that unlimited autho­ty without the King.

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. p. 49.

Wherein is shewed, that the Members are neither qualified, nor of a composier fit to Judge the Law: And that if the King or the two Houses have that power, the known Law is destroyed, and the people inslaved.

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. p. 64.

Wherein it is shewed, to be most preposterous for the Members to assume it; And that all persons condemned, and executed by their sentence, or the sentence of their nominall Judges (whether guilty or not guilty) are murdered, and all other proceedings void in Law.

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 subject themselves. p. 69.

Wherein is shewed, that Soveraigne power of Government, power to make Lawes, and power to judge the Law, are three feverall things; and by the constitutions of England ought to be in three severall hands: The first is in the King, the second in the King and the two Housis, and the third in the Judges. That the Mem­bers having usurped all these, have destroyed the Law, and insla­ved the people.

CHAP. VIII.

That the Militia of the Kingdome by the knowne Law of the Land is inherent in the Crowne, and at the absolute command of the King and none else. p. 89.

Wherein is shewed the true use of the Militia, the grosse absurdity of the Members claime thereunto: And that their usurpation here­in hath undone the Kingdome.

[Page] CHAP. IX.

That all persons who have promoted this War in the name of King and Parliament, and all such as have acted therein, or adhered thereun­to, are guilty of Treason. p. 100.

CHAP. X.

That the Subjects of this Nation, are not only commanded from do­ing violence to the Kings Person, or prejudice to His authority, but are obliged with their lives and fortunes, to assist and preserve His person, and just rights from the fury of His enemies both forraigne and dome­stick. p. 112.

CHAP. XI.

That those persons at Westminster, who call themselves, The Par­liament of England, are not the two Houses, nor Members of the Par­liament. p. 113.

CHAP. XII.

Results upon the premises.

That the people of England under the government of the King, ac­cording to the Laws of the Realme are a free Subject. p. 125.

CHAP. XIII.

That the people of England under the government claimed by the Members of the two Houses, are absolute slaves. p. 128.

CHAP. XIV.

How the Subjects of England were brought into this slavery. p. 132.

CHAP. XV.

The way how to restore the people unto their former Liberty. p. 135.

The Preamble, or Introduction to the insuing Discourse, wherein are contained the Mo­tives which induced the Authour to take up Armes for the KING against the Forces raised by command of the Members of the two Houses of PARLIAMENT.

WHen the unhappy difference between His Majesty and the two Houses began to appear, I endea­voured to satisfie my self of the cause thereof; which I found to be thus:

The Members formed a [...] concerning the 25. Febr. 1641. Militia of the Kingdome to this effect, viz. That certain persons by them therein named, shall have power to Call together, Mu­ster, and Arme all the people of the Kingdome, and Conduct them into any part of the Realme to suppresse rebellious Insur­rections or Invasions in such sort as the Members (without the King) shal signifie: this power to continue so Long and no longer then those Members please, and disobedience therein to be puni­shed by the Members and none else.

This being presented to the King, He refused to confirm it with His Royall Assent: The Members thereupon, stiling it, An Ordinance of Parliament without the King, declared it a Law: By which in words, not onely the Militia of the Kingdome, and the Government of the Realm, was taken from the Crowne, and removed to the Members, but an Arbitrary power usurped by them to signifie and declare what Facts were Rebellion, and what not; and accordingly by pretext and colour thereof caused the people to be Arrayed, Armed, and Mustered: And so in effect the Kings Sword and Scepter wrested out of His hands by His owne Subjects.

And further, the Members pretending the King (not consen­ting [Page 2] to that Law) was Evil-counselled by like Ordinances, raised Armies, appointed the Earl of Essex their Generall, authorized them by War to Kill and slay their fellow Subjects, and to re­move from the King those pretended bad Counsellours.

The King by His Proclamation inhibited all Persons from ad­hering unto them, and required His Subjects obedience unto Him 27. Maii 1642. their King.

Hereupon I seriously bethought my self, whether I was obliged herein to obey the King, or the Members; and resolved the Laws of England ought to be my guide, which I found to be thus:

That this Nation is governed by a known Law, that Law expoun­ded by the Judges of the Realme, Those Judges appointed and authori­zed by the King our only Supream Governor, unto whom alone all the people of England are obliged (in point of Soveraignty and Govern­ment) to submit themselves.

Then I considered in whom the power of the Militia was be­fore the making of the aforesaid Ordinances.

Secondly, [...] [...]teration those Ordinances made:

For the first, I found that the Militia of the Kingdome by the known Law was inherently in the King.

For the latter, that no New Law can be made, or the Old chan­ged but by the King, with the assent of the two Houses of Parliament: And finding the King therein to dis-assent, I did without scruple resolve the law was not altered, therefore the Militia still in the Crown, and consequently, that it was my duty herein to obey the Kings Command, not the Members.

Then I considered what was the offence of a Subject to joyne with those Forces raised by the Members, which I found, to be the crime of High, Treason.

And lastly, it being the duty of every Subject not onely to de­cline opposing his Soveraigne, but to assist Him against all disloyall actions, I took up Armes for Him, (and in His defence) in this War: Since which, I have met with some Objections against these my proceedings, which with my Answers to them, I have set down in this ensuing Discourse.

And first, concerning the grounds of the Law.

CHAP. I. That the Lawes of England consist in generall customes, particular Customes, and Acts of Parliament.

MOst evident it is, that from the subduing of this Nation, by the Romans, (which is about 1700 years agoe) the people of this Realme have been governed by a Mo­narchicall power, first under the Roman Emperours, then under the Saxons, awhile under the Danes, again under the Saxons, and lastly, under the Norman Conquerour and his Proge­ny untill this day; yet by what particular Laws those former Kings governed, no authentick Author beyond the time of Wil­liam the Conquerour doth make it appear. But certain it is, after that Conquerour had in a Battle slaine Harold, and vanquished his Army (which is neer 600 years since) the people of this Na­tion submitted unto him as King of England, who being in pos­session of the Crown agreed to Govern by known Laws: Now Vide Pref. Cok. 8. Report. whether those were new Laws introduced, or the old continued (as to this purpose) is not materiall: But by that very same Law (as by severall Acts of Parliament it appeareth) divers of his Suc­cessours Kings, (calling unto them for their advice such of their Subjects as they thought fit) by Acts of Parliament made new Laws, and changed the old; but succeeding Kings since that have herein limited themselves, insomuch as by the Constitutions of the Realme (as now it is setled) the Law of England consists in these three particulars:

1. Generall Customes, as thus, the eldest Son to Inherit his Fa­thers Preface to Cok. 4. Report. Land; the Wife to enjoy a Third part of her Husbands Inheri­tance for her Dower; these, and such like, are generally Law Coke 9. fol. 75. Plo. 195. 319. throughout the Kingdome, therefore called the Common Law.

2. Particular Customes, as thus, in some places the yongest Son, in other places all Equally Inherit their Fathers Land; these, and such like, are particular Customes, being fixed to particular pla­ces, [Page 4] and by antient, constant, and frequent use, is become Law there, although not generally throughout the Kingdome.

3. Acts of Parliament made by the King with the assent of the two Houses: All which together, that is to say, The Common Law, particular Customes and Acts of Parliament make the Law of England. By this Law all men are protected in their Persons and Estates, wherein there is no difference between King and People, for neither King nor Subject hath, or can justly claime any right in­terest Cokes Preface 4. Report. or authority, but such as He is intitled unto by the Com­mon Law, by Particular Custome, or by Act of Parliament.

In the next place it is shewed when the two Houses were In­stituted, and what is a Parliament.

CHAP. II. What is a Parliament, and how, and when the two Houses were Instituted.

AS it is necessary for a Common-wealth to have a Law, so every known law must be grounded upon certain rules: Therefore be it composed with never so much care, the people cannot be well governed, unlesse some persons have power in some things to alter the old and make new Laws. Emergent oc­casions are oft such as require raising mony, and other things to be done which the prescribed rules of a known Law cannot war­rant; which persons so authorized to make Laws in this Nation, are called the Parliament.

And that those Persons at this time consist of the King and both Houses joyntly, is a thing most obvious to all men, but how long it hath been so is uncertaine: For although all the Sages of the Law, and judicious Historians agree, (and therwith reason it self concurreth) that ever since we have had Lawes, some persons have had power in some things to alter and make new Lawes, which might properly be called a Parliament, yet untill long af­ter the Norman Conquest. I doe not finde it cleared what was a Parliament, or what Persons had that power: But upon perusall of the Statutes themselves, (which I conceive in this case to be the [Page 5] best proof) I confesse I am much inclined to believe, that untill the Raigne of King Edward 1. there was not any formed body or known persons whom the King was obliged to summon unto a Parliament for the making of Lawes; wherein I shall begin with the first Law of that nature, which at this day binds the peo­ple: And therein we cannot goe beyond the ninth year of the Raigne of King Henry 3. that of Magna Charta being the first, Magna Chart. 9 H. 3. upon serious perusall of which Act, the Charter of the Forrest, and the Statute of Ireland enacted the same year by the words thereof The Charter of the Forrest, 9 H. 3. I am induced to believe (although (doubtlesse) with the consent of divers of His Subjects) that they were made by the sole power of the King. Stat. of Ireland, 9 H. 3.

In the Preamble of the Statute of Merton made 20. Hen. 3. are these words, viz. It is provided in the Court of our Soveraigne Lord Stat. of Merton made 20 H. 3. the King, holden at Merton before William Arch-bishop of Canter­bury and others His Bishops and Suffragans, and before the greater part of the Earls and Barons of England there being Assembled, for the Coronation of the King and His Queen, about which they were all called, where it was Treated for the Common-wealth of the Realme; And then were made diverse Acts of Parliament; By which it clearly seemes to me, That the Persons consenting to the Lawes then made, were not summoned to a Parliament, but to the Kings Court, and not called to make Lawes, but to solemnize the Coronation of the King and His Queene, Those Treated with Bishops, Earls and Barons, not the Commons, nor all the Bishops, Earles and Barons, only such as the King thought fit to be pre­sent at His and His Queenes Coronation, And none of them cal­led by Writ.

Likewise in the Preamble of the Statute of Marlbridge made 52 Hen. 3. are these words, viz. For the better Estate of this Stat. of Marle­bridge, made 52 H. 3. Realme as it behoveth the Office of a King (the more discreet men of the Realme being called together) as well on the higher as on the lower estate, &c. So that to this Parliament it seemes only such Lords and other discreet men of the Common-wealth (such as the King thought fit) were summoned.

But in the Preamble of the Statute of Westminster first made Westminst. the 1. made 3 E. 1. 3 Edw. 1. are these words, viz. These are the Acts of King Edw. 1. by His Councell, and by assent of Arch-bishops, Bishops, Abbotts, [Page 6] Priors, Earles, Barons, and all the Commonalty of the Realme being thither summoned, because our Soveraign Lord the King had great desire and zeal to redresse the State of the Realme: By which it ap­pears that to the making of Lawes at this time there was a great and generall concurrence, for besides, Arch-bishops, Bishops, Ab­botts, Priors, Earles, Barons, and all the Commonalty, the Kings Councell gave their advice therein, and consented there­unto.

But by subsequent Acts of Parliament, it seemes to me such a generall Assembly was not necessary, For in the Statute of Bigamy made the next year, being 4 Edw. 1. are these words, viz. In the Stat. of Bygamy made 4 E. 1. presence of certaine Reverend Fathers, Bishops of England, and others of the Kings Councell as well the Justices as others did agree they should be put in writing for a perpetuall memory.

And 6 Edw. 1. The King and His Justices made an exposition of certaine of the Articles upon the Stat. of Glocester. In the Preamble 6 E. 1. of the Statute of Mortmaine are these words, viz. We therefore Stat. of Mort­maime made 7 E. 1. intending to provide convenient remedy by the advise of our Prelats, Earles, Barons, and other our Sujbects being of our Councell have pro­vided, &c.

In the Preamble of the Statute called Articuli super Chartas, it Articuli super Cart. 28 E. 1. it thus expressed. viz. Forasmuch as the Articles of the Great Char­ter hath not been observed, because there was no punishment upon the Offenders, &c. our Lord the King at the request of His Prelats, Earles and Barons Assembled in Parliament hath enacted certaine Articles, &c.

In the Statute of Eschetors made at Lincolne, 29 Edw. 1. are Stat. of Eschea­tors made 29 E. 1. these words, viz. At the Parliament of our Soveraign Lord the King, by His Councell it was agreed, and also commanded by the King Himself, That from thenceforth it should be observed and done according to the advice of the Reverend Father William Langton, Bishop of Coventry and Lichfield, and Treasorer to the King, John Langton then being Chancellour, and other of the Councell then being present before the King, &c. By these Acts it still seemes to me, That both for the Lords and for the Commons, as the King plea­sed, sometimes were called more, sometimes fewer, sometimes part of the Commons, sometimes all, and somtimes none of them, yet the power one and the same; for at all the times aforesaid, [Page 7] severall Statutes were made, which to this day binde the people equall to any Act of Parliament made since.

Whereupon, I conceive that the two Houses of Parliament were not originally composed with the beginning of the Law, for as by the aforesaid Acts of Parliament it doth appear in the Raign of King Edw. 1. being the ninth King after the Conquerour, and in time above two hundred years from the Conquest (all which space we were governed by the same Law we now have) there was not any formed Body, known Persons, or Assembly, whose consent was necessary to joyne with the King to make an Act of Parliament; but it seems that when the King conceived it fit to make a Law, He called to Him such of His Subjects either of His Councell, or others, as He thought most proper to be consul­ted with concerning that present occasion; if it concerned mat­ter of Law (as in these of the exposition of the Statute of Glouce­ster, and the Statute of Bigamy, and other such Acts) the Judges and other of His Councell learned were principally consulted with; if it concerned the people in generall, as that of the Sta­tute of Will. 1. and other such like, the people of all sorts were called to advise with the King what Laws were to be made. And so I conceive it was from that time upward to the Conquest.

Therefore when any Book or History makes mention of a Parliament in those daies, that Assembly (as I conceive) was no other but as aforesaid. And rare it was for any King in those times to consult with any other in making Laws but the Prelats, the Peers, his Privy Councell, the Judges, and other persons lear­ned in the profession; yet doubtlesse never concluded any matter of moment without consent of such his people as were proper to be advised with therein.

Nor do I conceive it was in the power of any King after Wil­liam Coke. Calvins case. b. 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 [Page 8] 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 Stat. 33. H. 8. cap. 21. two Houses; which constitution of the two Houses, and this power which the Members have to consent unto, or refuse laws pro­pounded Coke. 8. fo. 20. b. 12 H. 7. 20 H. 8. Dyer. 59. 60. 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 Ʋs, Our Heires in Our Realm, without the good 34 E. 1. c. 1. 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 ground­work 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 [Page 9] 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 Statute of Sta­ple made 27 E. 3. 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 7 H. 4. cap. 15. 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, 1 H. 5. cap. 1. 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 Stat. 33 H. 8. cap. 21. Coke. 8. fo. 20. 11 H. 7. 27. 7 H. 7. 14. Dyer 59. 60. Co. 4. Inst. p. 25. 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 Stat. 24 H. 8. ca. 12. Coke. 5. f. 28. 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 [Page 10] 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. Coke. 8. fo. 20.

Besides, at this day after a Law is made by Act of Parliament, the execution of that Law is by the Kings sole Authority, the pow­er to pardon the transgressours thereof, and Authority to di­spence Coke. 7. fo. 36, 37. 2 H. 7. 6. Co. 7. 14. Plo. 502. 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 [...]. f. 59. p. 19. Coke 8. fo. 20. 12 H. 7. 20 H. 8. Plo. 79 4 H. 7. 18. 7 H. 7. 15. 33 H. 6. 17, 18. 12 H. 7. 20. Just. Hutton a­gainst Ship­money. 32. 33. 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 Legisla­tive power not in both Houses together. The Kings ne­gative Voice. 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; [Page 12] 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 Co. 1. Instit. fo. 1. 12 H. 7. 20. 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, [Page 13] 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 Coke. 4. P [...] Institutes 46. Rot. Parl. 1 H. 5. nu. 26. ipso facto, the Parliament is dissolved, because the King (who was head, to advise with whom, and by whose Writ, and command the Members were summoned) is dead. Yet in that case, the successour King if he please might call a new Parl. But when the King dies without heire, there is no succeding King to summon it, And so the constitution of Parliament, and the whole Law and Government (the fountaine of all which being stopped) would be suspended, if not ended, and the people left without Law; Then it might be granted Mr. Pryn, That the strongest party concurring in that case would governe: yet that is no proof that the Members had thereby power to make Laws: And there­fore more absurd it is to conclude upon Mr. Pryns reason, That the two Houses at this day (whilst the King and the blood Roy­all are in being) have that power.

Then for his objections upon Authority, or presidents happe­ning since the beginning of the English Monarchy. Kings (saith he) have no voice in reversing judgements, or damning Patents in Parliament, therefore they have not a voice in passing Bils for publike Laws.

Answer.

Mr. Pryns words must be understood one of these wayes, viz. That these judgements are reversed, and Patents damned by Act of Parliament, or else in the ordinary way of proceedings of Law, as in a Court of Justice; if he meane by Act of Parliament, he one­ly beggs the question. And false it is to say the King hath not a negative Voice in every Act propounded for a Law. If he meane by judiciall proceedings, as in a Court of Justice (which I conceive he doth) then the case truely stated is but thus; The Lords House in Parliament time is a Court of Judicature, and (amongst other things) the Members of that Assembly have power (the cause being regularly brought before them by writ of errour, and by the ad­vice of the Judges and not else) to reverse erroneous judgements [Page 14] given in the Kings Bench, wherein it is true the King hath no Voice; but that nothing disproves His negative Voice in making Laws: if so, that reason serves as well to exclude the Commons as the King, for in reversing judgements in the Lords House, the Members of the lower House have no Voice, & so if this argument of Mr. Pryns be of force, the Lords without King or Commons have power to make Laws by Act of Parliament. Then for dam­ning Patents, neither the Lords, nor the Commons, nor both Hou­ses joyntly have power judicially, or finally to determine the va­lidity of any Patent or grant of the King: That properly apper­taines to the Judges of the Kings Bench, of the Common Pleas, and other Courts of Justice, before whom (as afterwards it is more clearly shewed) such cases may be judicially brought to tri­all, wherein neither King, Lords, or Members of the Commons House hath Voice.

And for the rest of his arguments, they rather prove the con­trary, then that which Mr. Pryn infers upon them: Kings (saith he) have in former times shewed their reasons why they denied to passe Bils presented unto them by both Houses, which proves that those Kings had power to deny them, else they could not shew cause of their refusall, no more then Mr. Pryn can render reasons of his being at Westmiuster, unlesse he have been there. But Mr. Pryn knowes all Kings have most frequently rejected Bils passed by both Houses (and Bils declared by the Members to concerne the publike good) without rendring their reasons for the same.

And for the power of the Protector to confirme Bils passed by both Houses, if that be granted, that in some cases of imminent ne­cessity the Protectors consent might make good, and perfect such Bils, it nothing proves the absolute power of both Houses with­out the King, but rather the contrary, and plainly demonstrates the imperfect power of the two Houses, who cannot without the consent of a Protector in such cases make any compleat and bin­ding Laws, Therefore (if not stronger) the same it must be, when we have a King no infant, and Reigning without a Protector.

But saith Mr. Pryn in Countries where Kings are elective, by the death of the Present King, untill a new one be chosen: the people having no King over them may make binding Laws. Here although I be­leeve Mr. Pryn cannot for other Countries make his position [Page 15] good, yet this admitted to him, rather disproves his argument against the Kings negative Voice; for of his owne shewing it ap­pears, that in those Countries where Kings are elective, after such time as the people have chosen a King, they cannot make Laws without Him, And if so where Kings are elective, much more they cannot where Kings are hereditary. Therefore by Mr. Pryns owne argument it followeth, that in this Nation, neither the people, nor the two Houses without the King, have power to make Laws. For we have no interregnum, there is not with us any time of va­cancy Coke. 7. 30. of a King, eo instante upon the death of the precedent King, the Crowne is vested in the successour.

And for the two Houses refusall to grant the King Aide by Subsidies and the like, That disproves the Kings power of His negative Voice in Parliament, as the Kings refusall to confirme Bils passed by both Houses prove that the King at this day may make Lawes without them.

But saith, he if Kings will not passe Laws presented unto them by both Houses, they may be compelled thereunto, for Kings (saith he) have been so forced, as King H. 3. in that of Magna Charra and o­ther Statutes.

Answer.

To admit that a Judge of a Court of Judicature may be forced to declare his opinion, or to give judgement against his owne con­science, seemes to me to be so absurd, as I cannot but suppose that Mr. Pryn himself would grant it to be most unreasonable, and even to be destructive of the Law it selfe. If the King should as­semble powers, and by force compell the Lords, or Commons to passe Laws by Him propounded, it would be judged an act of high Tyranny, and I beleeve Mr. Pryn would conceive Laws so obtained bound not, And if so in that case, (if he be not extreame partiall) he must upon the same ground agree, that the King in the like case ought not to be forced. He doubtlesse hath the same authority, the same rules, and motions to be guided by His Con­science as a Subject hath. And methinkes the Law should protect the King from the violence of the people, asmuch as it preserves them from the force of their King, certainly it is (at least) reci­ [...] [Page 18] mony or Oath taken is actually vested in the King succeeding, upon which the Law saith, that although in hoc individuo Hen. Rex Coke 7. fo. 30. moritur, yet the King in His politick capacity never dieth.

Besides, if the King at His Coronation should refuse to take an Oath, we have no more Law to compell Him thereunto, then we have to force Him to be Crowned. And as it is not material to the right & power of the King whether he be Crowned, or not, so it is inconsiderable to the people to have Him sworne, for if we had no municipall Law, the King unsworne were bound in Conscience to govern the people by naturall equity. But we have a knowne Coke 7. Calvins case fo. 17. Law by which both King, and Subjects, (the one by a directive power, the others by both directive and coercive) are regulated, and every one protected in his just rights, and this, whether the King be Crowned, or not Crowned, whether he take an Oath or no Oath.

Secondly, admit Kings obliged to take an Oath at their Coro­nation, yet even by the Members owne shewing, they are not bound to take it in the words by themselves mentioned, And of all the Kings past, they instance but seven who have taken any Oath, and but three of those seaven (admitting that Oath in French and the other in Latine to be one, and the same) they name to have taken it: And of these three, offer proof but for one, And themselves shew that the Oathes taken by the other four, viz. King H. 8. King E. 6. King James, and King Charles differ in the very words in question, and render a quite other sense, viz. of that of King H. 8. they set downe the words thus, viz. (And affirme them which the Nobles and people have made and chosen with my con­sent. And that of King Ed. 6. thus, viz. Doe you grant to make no new Laws, but such as shall be to the honour of God, and the good of the Common-wealth, and the same shall be made by consent of your people, as hath been acoustomed. And for the Oaths of King James▪ and King Charles they say the word (choose) was left out.

So that upon the whole matter that which hath been, or can be said herein is but thus: Some Kings at their Coronation have taken an Oath, but that any King is obliged so to doe, or being obliged that he ought to pursue the foresaid words, it neither doth, nor can be made good.

[Page 19] 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 Coke, Calvins case fo. 17. (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 Vid. preface Co. 8. Rep. 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 [Page 20] 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 Common­wealth 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 [Page 21] 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 Coke, Calvins Coke. fo. 15. Coke 7. fo. 33. of that House (the Prelates excepted) but He, or His Ancestors, from whom he claimes his Peerage, derives that honour from this King, or from His progenitors Kings of England since the Nor­man Conquest: And for the Prelates, And their power as Peeres to sit in that Assembly, it was founded by the Kings too.

It is now, and ever was in the sole power of the King of En­gland for the time being, by Patent, or by Writ of summons, to create and call to that House, without stint or limitation, as many, and what persons He thinkes fit; which creation, and the Kings Writ of summons is their Commission, The words whereof follow, viz. Carolus, &c. charissimo, &c. Comiti. Arundell. Quia de advisa­mento & assensu Consilii nostri pro quibusdam arduis & urgentibus negotiis, &c. quoddam Parliamentum nostrum apud civitatem no­stram West. 1. Die Maii prox. futur' teneri ordinavimus, & ibidem vobiscum, cum Prelatis, magnatibus & proceribus dicti regni nostri colloquium habere & tractatum, vobis sub fide & ligeantiis quibus no­bis tenemini, firmiter injungentes mandamus quòd personaliter, &c.

So that, to the institution of the Lords House, and the power which the Members of that Assembly have to sit, and Vote in Par­liament, the people are not at all consulted with in any particular.

And for the Commons House, the institution thereof, and the Commission which the Members of that Assembly have, is derived from the King too; That which the people act and do therein, is only to elect the Knights of the Shires, Citizens, and Burgesses; and therein too their authority is by the Kings Writ, the direction whereof they are bound to pursue: It is not in the power of the Inhabitants of any County, or towne, to adde unto, or lessen the number of persons to be elected, or to inlarge or limit the authori­ty of those chosen: But former Kings (as before is shewed) some­times called more, sometimes fewer, and at their pleasure created new Corporations, and gave them power to send Burgesses. And every King had, and at this day hath authority, to enable and com­mand [Page 22] 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: eos (que) 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 [Page 23] 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 Plo. fo. 79. 4 H. 7. fo. 18. 7 H. 7. fo. 15. 33 H. 6. 17, 18. 12 H. 7. fo. 20. Dier fo. the Duke of Norfolks case. 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: The Parl. rols. 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.

[Page 24] 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 s'avisera) that is, He will advise whether to confirme them or not: It seemes to me strange to conclude thereupon, Ergo, the two Houses may make Laws without Him, that is plainely a non sequitur, but it doth directly imply, that the King hath election to make it a Law, or no Law, else it were in vaine for Him to advise upon it.

And the words of King Rich: 2. (admitting that story to be true) saying He conceived Himselfe bound by His Oath to consent un­to that Law, shewes first, that it was in His power to consent, or not to consent; secondly, that the Members could not do it without Him; thirdly, that it was only an obligation upon His Conscience. And that He, because He conceived it to be a just Law, thought Himself tied in conscience to confirme it.

Upon the whole matter clear it is, (admitting the King to have taken an Oath in the words mentioned by the Members) it rather proves the Kings power of a negative Voice, then disproves it.

But the Members (I am confident) know that the King nei­ther did, nor was oblieged to take the aforesaid Oath; The King pursuing former presidents recorded in the Exchequer, tooke the Oath in words, and according to the Ceremony as followeth, viz. After the Sermon is done the King ariseth and goeth to the Altar, and there the Archbishop administreth these questions.

And the King Answereth.

Bishop.

Sir will you grant and keep and by your Oath confirme to the people of England the Laws and Customes to them granted by the Kings of England your Lawful & Religious Predecessors; And namely, the Laws, Customes, and Franchizes granted to the Clergy, by the glo­rious King S. Edward your Predecessor, according to the Laws of God, the true profession of the Gospel established in this Kingdom, and agree­able to the Prerogative of the Kings thereof, and the ancient Customes of the Realme?

King.

I grant and promise to keep them.

Bishop.
[Page 25]

Sir will you keep peace and godly agreement intirely (accor­ding to your power) both to God, the holy Church, the Clergy and the people?

King.

I will keep it.

Bishop.

Sir will you (to your power) cause Law, Justice, and di­scretion in mercy and truth to be executed in all your Judgements?

King.

I will.

Bishop.

Sir will you grant to hold and keep the Laws and rightfull customes which the Commonalty of this your Kingdome have, And will you defend and uphold them to the honour of God so much as in you lieth?

King.

I grant and promise so to doe.

Then one of the Bishops reads this admonition to the King before the people with a loud voice, Our Lord and King, we beseech you to pardon, and to grant, and to preserve unto us, and to the Churches committed to our Charge all Canonicall priviledges, and due Law and Justice, And that you would protect and defend us as every good King in His Kingdomes ought to be protector and defender of the Bishops and the Churches under their government.

King.

With a willing and devoute heart I promise and grant my pardon, and that I will preserve and maintaine to you and the Chur­ches committed to your Charge all Canonicall priviledges, and due Law and Justice, And that I will be your protector and defender to my power by the assistance of God, as every good King in His King­dome in right ought to protect and defend the Bishops and Chur­ches under their government. Then the King ariseth and is led to the Communion table where he makes a solemne Oath in sight of all the people to observe the premises, And laying His hand upon the Booke saith,

The things which I have before promised I shall performe and keep, so help me God and by the Contents of this Booke.

Now for the King to oblish Episcopacy, to destroy the whole Government of the Church established by Law, for the King (so far as in Him lies) to transfer unto His Subjects that regall power which is inherently in His Person, to change the Monarchicall Go­vernment into a confusion, to reduce his Subjects (being a freeborne people) unto a perpetuall slavery under their equals and fellow Sub­jects, certainly cannot stand with this Oath. All which in the pro­posals [Page 26] made to Him by the Members (nay more, and worse then words can expresse) is required, and by most Barbarous and inhu­mane cruelties attempted to be forced from Him. Now having done with this Oath, I shall proceed further to examine the lega­lity of the Members doctrine, to exclude the King from His nega­tive Voice.

It is an undoubted maxime in every Law, that no Person, Court, or Assembly can Act or do any thing concerning the publike affaires of the Kingdome or Common-wealth without Commission, which stands with all the reason in the world, else it followeth, that every one hath equall power to make Laws, Act, and do what he thinks fit. And by the constitutions of this Realme, every Person, Court, or Assembly, must derive its authority by one of these wayes, viz. by the Kings grant, by Act of Parliament, or by custome and use: if by the Kings grant, the Patent it selfe declares the persons authori­sed; if by Act of Parliament, the Statute names the men; if by cu­stome and use, that use and custome is their Commission. For ex­ample, if the King by His Commission authorize twenty persons, or any ten of them, whereof A. B. or C. to be one to determine a felony, if seventeen of the twenty, in the absence of A. B. and C. execute that Commission, all their proceedings are void, as done without Commission, seventeen strangers not named in the Com­mission, might as well act therein as they.

And if the Commission be by Act of Parliament, none can ex­ecute that Commission but those authorized by the Statute. And the like holds when custome and use is the Commission, unlesse that custome and use warrant the persons to act, it is done without au­thority, and so void.

Then for the point in question, The Members of the two Hou­ses have no grant from the King, nor is there any Act of Parlia­ment to enable them to make Laws, nor doth custome warrant it: For untill this Parliament, they never made Law without, and a­gainst the Kings consent, nor claimed power so to do.

But say the Members in the foresaid Declaration, If there be not an agreement between His Majesty and His Parliament, either Nov. 2. 1642. His Majesty must be Judge against His Parliament, or the Parlia­ment without His Majesty, for (say they) that question whereupon the safety of the Kingdome depends, must not be undetermined: And [Page 27] (say they) if His Majesty against His Parliament; why not as well of the necessity in the question of making a Law, without and against their consent, as of denying a Law against their desire and advise? The Judge of the necessity (say they) in either case, by like reason is Judge in both. Besides, (say they) if His Majesty in this difference of opinions should be Judge, He should be Judge in His owne case: But the Parliament should be Judge between His 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 [Page 28] 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 [Page 29] 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 [Page 30] by excluding the King from His negative Voice, the Mem­bers have made themselves Judges in their owne case: By our wofull experience we now find there is none, either to umpire, or mediate, between the Members and the people; And so the Mem­bers by this have assumed an arbitrary power.

Nor doth this power of a negative Voice in the King, take away, or lessen the authority of any Court of Justice; Every Court of Judicature, pursuing its Commission, hath power to determine the interest, both of King and people, and that without assent ei­ther of King or Member: The knowne Law is their ground to judge by, not the opinion of the King, or of either, or both Houses.

Nor can the King in this be said to Judge out of his Courts, or against the two Houses of Parliament, for the King and the two Houses have herein equall power, that is, every one of them a ne­gative Voice, they are all together joyntly Judge of that high Court of Parliament, but no one, or two of these bodies is Judge thereof: So that by the Kings, and either Houses having a negative Voice, it cannot be said they Judge each other, out of that, or any other Court of Justice.

But some object, that if the refusall of the King shall hinder the ma­king of Laws, the Common-wealth is in danger to suffer, for (say they) the King may be refractory, and deny to passe good Laws.

Answer.

No humane Law can preserve a Common-wealth from every mischief. That Law which avoideth the most inconveniencies, is the best Law. It is granted that the will of the King, or of either House, by refusing to passe a Law propounded, may prove mis­chievous: But upon pretence of necessity, to give power to the King, and either House, or both Houses (without the King) to alter the Law, or to make new Laws, were more dangerous, If that rule serve them to make good Laws, it enables them to make bad ones too. If they be Judge when to make one Law, they are Judge to make as many, and what Laws they please; they who have this power, may declare what they list to concerne the safety of the Kingdome. Once breake this rule; That no new Law can be made with consent of the King and the two Houses, and there is no [Page 31] 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. [Page 32] 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 Plo. fo. 79. 4 H. 7. fo. [...]18. 7 H. 7. fo. 15. Dier. fo. The Duke of Norfolkes case Iustice Hutton against Ship­money, fo. 32. 33. Coke 8. fo. 20. of any one or two of these bodies alone, hath the strength or force of a Law, our Law takes no notice thereof, like a verdict for life, lands, or goods, in which case the major part of the Jury, determineth not the que­stion, all twelve must agree, else it is no verdict, for the question being fact, some one of the Jury may have better knowledge there­of, then all the rest.

So in this case, by the constitutions of the Realme, no new Law can be made, or the old altered, without a joint concurrence of the King and the two Houses. It is that united body, which at this day (as to the Legislative power) represent the whole Kingdome. The Members of the Commons House alone, do not in that man­ner represent the Commons of England, the Lords & the Peers, and the King for Himself, but all together do represent the whole King­dom, no one, or two of these bodies, can herein be said to represent only any part; every common person doth herein, by the Laws of England, asmuch depend upon the judgement of the King and the Lords, as upon the Members of the Commons House. And so do the King and the Lords upon those Members; for the King, the Lords, and Commons (as now by consent of former Kings it is set­led) are herewith joyntly trusted. As if three Lords authorize three severall persons to sell their Lands, if two of them sell, it binds not, therefore in judging that sale void, no man is injured, the Lords are seized of their Lands as before, and the persons trusted have the same power, that is, joyntly concurring to sell, and by that sale [Page 33] 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 [Page 34] 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, [Page 35] 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 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 [Page 36] 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, Declaration a­gainst the Scots papers. p. 63. 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 [Page 37] 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 Idem. pap. 71. 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 [Page 38] 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 Declaration a­gainst the Scots papers. p. 67. 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 Th [...]ir Votes dated. 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 Stat. 1. & 5. E. 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 Declaration a­gainst the Scots papers. p. 70. 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 [Page 39] 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 Plow. fo. 79. 4 H. 7. fo 18. 7 H. 7. fo. 15. 33 H. 6. fo. 17, 18. 12 H. 7. fo. 20. Dier. fo. 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. The Duke of Norfolkes case Iustice Hutton against Ship-money, 32. 33. Coke. 8. fo. 20.

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 [Page 40] 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 [Page 41] 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. 31 H. 8. c. 8. should be equivalent to an Act of Parliament, one other Act which declared both Queen Mary 28 H. 8. c. 7. and Queen Eliz. to be bastards, one other which in words 35 H. 8. ca. 1. 31 H. 8. c. 14. 1 Ed. 6. c. 1. 2 E. 6. c. 1. 1 Ma. c. 1. 1, & 2. P. & M. c. 8. 1 El. c. 1, 2, 3. 5 El. c. 1. 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 Propositions sent to New­castle. The 4. Bils sent to the Isle of Wight. The Houses Votes dated to have no fur­ther Addresses to their King. 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, nor any people from free Subjects become more absolute slaves, then the English­men are and will be.

And being thus brought into misery, that which is still worse, our selves and posterity to the end of the world, are likely to live under this vassallage without hope of redemption, if not by Gods mercy timely remedied. For it cannot be imagined that the Members, so long as they have power over their Prince and other [Page 42] His good Subjects, and whilst their persons, estates and Fortunes are thus at their will and pleasure, it cannot be imagined (I say) that by their owne judgement (against themselves) or sentence, we shall be enfranchized.

Now if I appeale to any rationall man (not prejudicated as a person herein particularly concerned) whether that Law which declares such Acts of Parliament to binde, or that which judgeth them void be the more prudent, wholesome, and reasonable Law: I dare be bold to conclude, that sentence herein will be given for the latter. And since it followeth that some Acts of Parliament may, and ought to be adjudged void, that being granted, reason dictates to every man of sense, that not the Members, but some o­ther knowne persons must determine which Statutes bind the peo­ple and which are invalid.

Now that the Judges of the Realme have power not only to de­termine which Acts of Parliament are binding and which void, but to expound the meaning of every Act, is no new doctrine, it is the knowne Law, and the common practice of the Kingdome, which is the Law it selfe. In the bookes of our Law it is declared for a fundamentall ground, Coke 8. f. 118. D. & St. l. 1 c. 6. fo. 10. That such Statutes as are against Common-right, repugnant, or impossible, are void, and that they ought to be so declared by the Judges of the Realme; For exam­ple, by the Statute of Carlile made 35. E. 1. it is ordained that the 35 Ed. 1. c. 4. Seale of the order of the Cistercians and Augustines shall be kept in the custody of the Priour and foure others, and that any deed, sealed with any other seale, shall be void: and this Statute is judg­ed to be void in Law, and that the Priour notwithstanding this Law, and against the expresse words thereof, sealing deeds with any other seale, those deeds are judged good, for the Priour could 27. H. 6. title Annuity 41. Coke 8. fo. 118. not seale with that seale in the custody of the other four, and therefore that Statute repugnant in it selfe, and so void.

It is likewise declared by the Judges, Coke 8. f. 111. that where a Statute gives power to A. to determine all pleas happening within his mannour, in that case A. shall not have power to determine such pleas as concerne himselfe, and the same it were if the Statute should in expresse words grant to A. that authority, for it is re­pugnant to reason and common justice, that any man shall be judge in his owne case.

[Page 43] It is resolved by the Judges of the Realme, that divers prero­gatives are so inseperably annexed to the Crowne, as that they can­not be severed by Act of Parliament; for example, by a Statute made 23 H. 6. c. 10. it is enacted that no man shall continue Sheriffe of a Shire above one year, and by that Act declared in 23 H. 6. c. 10. these words, that all Patents from the King of that office of She­riffe for yeers, for life, in taile, or in fee shall be void, any clause or words of non obstante put into such Patents notwithstanding. Now thisStatute, as to the Kings power is by the Judges of the Realm declared void, and although that Statute was never repealed, all Kings since might have granted that office for life, in taile, or in fee, and grants thereof have been made accordingly, contrary to the expresse words of that Statute, yet resolved to be good: 2 H. 7. 6. b. Co. 7. 14. P. Com. 502. b. And ever since that Act all Kings have most frequently continued Sheriffs in their office for longer time then a year. Even common experience sheweth, that the power of the old Sheriffe, doth not cease or determine untill the King hath made a new Sheriffe, and notice thereof given to the old, which oftentimes happeneth to be after the year: And in Michaelmas Terme 5. and 6. of Queen Dy. 355. 36. Eliz. the Sheriffs (by reason of the great plague then, and of the ad­journment of that Terme wholly) were made and named by the Queen without the Assembly of the Justices in the Exchequer, ac­cording to the common usage, and though for the most part none were named but one of the two which remained in the bill of the year then last passed, yet by all the Justices and Serjeants at Law, it was holden, that the Queen by Her prerogative might have made a Sheriff without any such election, notwithstanding any Statute to the contrary, which appears in Dyers Reports. Dy. 225. 35.

The King is fountaine of Justice & mercy, therefore if it were en­acted that he shall not grant Commissions to determine felonies, or that from henceforth it shall not be in his power to pardon any Crime, or that all such pardons shall be void, such Laws would be void, and would not bind, as being repugnant to Law, government, Coke 7. 37. and reason, to stop that fountaine.

The King by His Prerogative hath authority to dispense with penall Laws, which cannot be taken from Him by Act of Parlia­ment, although in expresse termes it be enacted that all such di­spensations with a non obstante shall be void; which cleerely ap­pears [Page 44] by the foresaid case of the Sheriff, for though by that Statute of 23 H. 6. it is inacted that all Patents of the King shall be void as before, although with a non obstante, yet the Judges at all times have resolved it, as a thing without dispute: That those Patents (although expressely against the words and intent of that Act) with a non obstante are good in Law. And so the bookes take it for a fundamentall ground, that the King may by His Patent with a non obstante dispense with Laws made by Act of Parliament, and put the difference Coke 7. 37. between Acts prohibiting what the Common-Law prohibits Coke 4. fo. 35. in which case the King cannot by His letters Patents with a non obstante (how strong soever it be penned) di­spence with such Acts or any one point of the Common Law of England, which forbids onely that which is malum in se, otherwise it is of Acts prohibiting things not before prohibited by the Law, which are onely mala quia prohibita, the King may dispense with such Acts by His Letters Patents, with a non obstante, though those very Acts expressely say, that such Letters Patents with a non ob­stante shal be void. That Prerogative being inseperable as is shewed before, and not to be abolished by Act of Parliament, no more then His other prerogatives of as high a nature, viz. those of denoun­cing War and concluding Peace, inhaunsing or debasing of Coine or the like, which are flowersinseperably annexed to the Crowne, and most proper for a King, but not sutable with the condition of a Subject, therefore the Judges have resolved they cannot be se­vered by Act of Parliament.

And the same it is when the Law is only declared by Act of Par­liament. If the King and the two Houses declare, that it is not by the Common Law of England, Treason to kill, or to attempt to kill the King, the Queen, or Prince, or that it is not felony to steale, or the like, such declarations are of no effect, they ought not, they do not, they cannot conclude the Judges.

And as every Statute may be judged by them whether it be binding or void, so the meaning of the words thereof must be by the Judges expounded too. It is the true sense which is the Law, not the bare letter, (and this exposition is likewise the office of the Judges as is said before.)

For example, by a Statute made 1 Eliz. it is enacted that all lea­ses made afterwards by any Bishop of his Church-lands, exceeding El. not prin­ted. [Page 45] 21. years or three lives shall to all intents and purposes be judged void, and yet it hath been adjudged, both in the Kings Bench, and in the Common Pleas, that a lease for an hundred years, is not void against that Bishop himselfe who was lessor, wherein the Judges expound the meaning of the Law-makers to be thus, that their in­tent was onely for the benefit of the Successours, not to releive any man against his owne Act, therefore such leases made after the Statute, exceeding twenty one years, or three lives, are voidable on­ly by the successours if they please, and adjudged not void against the lessour himselfe, contrary to the expresse words of the Sta­tute: And in like manner, are other infinite Acts of Parliament expounded by the Judges, wherein it is a maxime in Law that their exposition of Statutes ought to be according to the rules of the Coke 3. fo. 13. & 77. Plow. fo. 352. Common Law, by which it appears the Members are not the in­terpreters, for they know not the rules of the Law.

Besides, the Parliament cannot be the finall expounders of Sta­tutes for these reasons. 1. It appears before that it is not the bare letter, but the true sence and meaning of the words, which is the Law. And the King and the two Houses cannot declare the meaning of those words, but by Act of Parliament, they cannot (saith our Law) otherwise speake, what ever they Act, or doe, in any other way, is extrajudiciall: if the King and both Houses unanimously deliver an opinion, (without reducing it to an Act of Parliament) concerning the meaning of a former Statute, it is of no more nor greater force, or effect, then for the Judges of a Court of judicature, to give their opinions in a point of Law, in a case not judicially depending before them, such an opinion binds not, nor is pleadable in a Court of Justice.

And besides the absurd inconvenience, and the impossibility to have an Act of Parliament to determine every question arising upon Statutes, it may so happen, as that the King and the two Hou­ses can never give an end to one controversie: For example, sup­pose an Act be made to explaine the meaning of former Sta­tute ambiguously penned, the words of this Act must have a mea­ning too, and may admit of severall interpretations as well as the former Act did, and severall persons as they are therein concer­ned, may differ in the exposition thereof, and so irreconcileable as not to be ended without the authority of a Judge, and this may [Page 46] fall out upon every Act of explanation upon explanation in infini­tum, and consequently by that way there cannot to the end of the world be a finall determination of the difference.

2. The validity of every Statute, and the exposition thereof, at the will of every person concerned, may regularly be brought be­fore the Judges of the Law, but cannot judicially depend before the Parliament. For example, every Statute is binding, or void; if binding, it concerns the Subject in his person or estate, and when it is put in execution, the ministers, or actors therein, may (at the will of him interrupted thereby) be sued in the Court of Common Pleas, or in some other Court of Justice, by an action of trespasse, by which suite what ever the Act of Parliament is, both the vali­dity of the Statute, and the meaning of the words thereof, is sub­mitted to the Judges of that Court, and to their judgement; As suppose this case to arise upon the foresaid Statute of 23 H. 6. that one who hath continued Sheriff above one year by vertue of a Writ directed to the Sheriff of the same County, doth arrest the body of A. who for this brings his action of trespasse in the Com­mon Pleas, in which the Sheriff justifies by vertue of the Writ, A. replies, pleads the Statute, and shewes, that the year was ended be­fore the arrest, upon which the Sheriff demurs in Law; by these pleadings the whole fact is confessed on both sides, the Sheriff doth acknowledge his year was out before the arrest, and A. confes­seth the arrest was by vertue of the Kings Writ directed to the Sheriff, and so the question being matter of Law, it is to be deter­mined by the Judges of that Court, wherein the sole doubt is, whe­ther that Statute be binding, or void: for if binding, judgement ought to be given for the plaintife A. because the Statute being good, the defendant was not Sheriff after his year ended when he made the arrest, and so had no authority; if void, it ought to be given for the Sheriff, for then the Law is not by it altered, and so he was Sheriff at the time of the arrest, although his year was out.

Now in this case no man can deny, but that the Judges must give judgement, else the Court of Common Pleas (which were absurd to imagine) hath not power to determine an action of trespasse, and judgement being given (as in this case it ought to be) for the Sheriff (because it is already resolved and received for [Page 47] a knowne truth that the foresaid Statute binds not the King, this duty of the Subject to serve the King in person (saith the booke) Coke, Calvins case. fo. 14. being due by the Law of nature, cannot be severed by Act of Parliament) it is finall. And so if it were enacted that a Member of the Commons House, or any other subject by name, should not be condemned, or punished for murder, who afterwards commits the fact, for which being arraigned at the Kings Bench bar, he pleades the Statute, the Judges even against the expresse words, and intent of that Act, ought to give sentence of death. And contrari­wise if by Act of Parliament it were enacted that all Pardons for fe­lony to be granted by the King, should be judged void, after which a subject commits felony, obtaines the Kings pardon for it, is ar­raigned at the bar, and pleads this pardon, it ought to be allowed being duely pleaded, and the Justices in such case ought not to condemne but to acquit the prisoner: And these judgements (as to any appeale to the Parliament) are finall; they cannot be brought before the King and the two Houses by any suite, or action at Law: They cannot judicially determine any 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 [Page 48] 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 Law­maker, 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 D. & St. fo. 18. Plo. 399. 563. Dyer 313. 231. Coke 147. Co. 8. 118. 33 H. 6. fo. 18. Co. 8. fo. 18. 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 Declaration 2 Nov. 1642. 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 [Page 49] 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 The Houses Votes dated. 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.

[Page 50] 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 [...] H. 5. c. 1. 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 Stat. 23, H. 6. c. 15. 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 [Page 51] 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 [Page 52] 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 Coke, Calvins▪ case. fo. 15. Coke 7. fo. 33. 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 [Page 53] 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 Dav. reports fo. 29. 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, Litleton fo. Coke 9. fo. 27. Davies reports fo. 29. 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 Litleton fo. 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 Coke 8. f. 145. principally by prescription. Custome and use is their Commis­sion: The said Courts were not erected by Patent, nor by Parli­ament, yet every one of them hath its proper and peculiar ju­risdiction: The Chancery for Equity, the Kings Bench for Pleas of the Crowne, the Common pleas for reall actions, and other mat­ters of the Law; The Exchequer for the Kings Revenues: And every one of these Courts is circumscribed within its own bounds.

The Chancery (unlesse it be in some particular cases warranted by custome) hath not power to determine questions of Law; nor the other three Courts matter of Equity: The Common pleas not to intermeddle with the Pleas of the Crowne, nor the Kings Bench (unlesse occasioned by breach of the Kings peace) with questions concerning title of Lands; And none of them hath authority to extend beyond its bounds in any one particular: All which is made good, by authority and reason; For authority it is resolved in the bookes of the Law, that if the Judges of the Common pleas Coke 10. fo. 76, 77. 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 [Page 54] corrupted, he forfeits not his estate, and if executed, Co. 10. fo. 76. 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, Co. 10. fo. 76. 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 Co. 10. fo. 76. 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 Co. 10. fo. 74. 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: [Page 55] 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 Stat. 37 E. 3. cap. 15. 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, [Page 56] the Lords (depending therein on the advice of the Judges) have so auntiently, as the beginning thereof cannot be made appear, by licerse of the King, upon Writs of Error, reversed erronious Judge­ments given in the Kings bench: But as the Lords have this autho­rity by Prescription, so they are excluded from all other power of judicature, but that which custome and use doth warrant; for, Pre­scription, is all the Commission they have. Neither Grant from the King, nor Act of Parliament they have for a Court of justice.

Now to give power to the Lords house, or to the Commons house, to inlarge their Commission, or Jurisdiction, the same incon­veniences would thereupon ensue, as by suffering other Courts to doe the like; if the Members of the Commons house, should at this day, take upon them to give an Oath, and this legally intitle them to it, by the same reason they might, (as now the present Members of that Assembly in effect doth) without King, or Lords, assume the whole Government.

And for the two Houses jointly, they are not a Court of judica­ture; they have therein no Commission at all, neither from the King, nor by Act of Parliament, nor by Prescription.

And for the Parliament, that is, the King and the two Houses, that body cannot properly be said a Court of Justice. The Office of a Judge is, upon a Question depending before him, to declare what the Law is; but the office of the Parliament, is only to make new laws.

By this it appears, that neither the Members of the Lords house, nor of the Commons house are qualified to be Judges of the Law, nor have they either jointly, or severally Commission for that pur­pose.

And lastly, admit every Member of either house in Learning sufficiently qualified to make a Judge, their composure considered, they are not capable jointly to perform that Office; they being two distinct bodies, their proceedings severall and distinct, it can­not be expected, but they shall frequently differ in Opinion and judgment: therefore were they never so learned, should the King grant unto them power of judicature, or should they have that authority given them by an Act of Parliament, the Lawes of England would judge both that Grant and Statute absolutely void Coke 8. 118. as a thing most incongruous against sense, and reason.

[Page 57] 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: Coke 8. fo. 76. 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, Ʋbi 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 [Page 58] 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 Co. 5. f. 8. vid. the Kings An­swer to the Pe­tition of right. 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 [Page 59] Crowne. 2. That the Lords after the cause is brought before them, proceed by the advice of the Judges, which is indeed the essentiall part of the prescription: To have a profession of Law, Courts of judicature erected, persons learned in that profession appointed Judges thereof, it were most preposterous to have the proceedings of these Judges (even in the most difficult points of the Law) exa­mined, reversed, and controlled, by persons ignorant in that pro­fession.

By the constitutions of England, no man is capable to be a Judge, unlesse he have understanding in the Law to performe that office. Therefore shall the King grant to one who is most learned, a Judges place to him, and his heires, as to his heires it were void, and the same it were, if such a grant were made by Act of Parliament: And so consequently if the Lords should prescribe that time out of mind, they, and their predecessours, Lords of the Parliament, in Parliament time, have (without mentioning it to be with the ad­vise and assistance of the Judges) reversed erronious Iudgements given in the Kings Bench, or in any other Court of Iustice, it [...] be disallowed, judged as an evil use, not consonant to the rules of Law or reason, it were (without any disparagement to their Lordships) all one (if not better) when the question is whether the Iudges of the Court of Kings Bench, erred in judgement, to have it determined by casting of lots, for whether right or wrong judg­ment were given, if the Lords determine it, it is but chance whe­ther they pursue the Law or not: And if by lot expence of money is saved.

Therefore cleare it is, to examine a judgement given in the Exchequer Chamber, by a writ of error brought in the Lords House, is (in effect) for the same persons to judge whether them­selves erred or not, and so whether the Lords have, or have not this power, the Iudges of the Realme Co. 11. Lord La Wards case. Coke prefac. third report. are still depended up­on; And in case the King, and the two Houses make an Act of Parliament, concerning the same thing, when that Act is passed, from them (as before appears) an appeale lieth (by an action or suite at Law) unto the Judges, who have power to determine whether that Statute be binding or void, and therefore clear and manifest it is, that in matters of Law the last and finall sentence, is the Iudges of the Realme.

[Page 60] But me thinks for a Nation which hath been governed so many hundreds of years by a known Law, and under it, so flourishing a people as the Subjects of England have been, and yet not to be agreed, who are the finall Judges of the Law, is so grosse a thing, as that all forraigne Nations hearing of it, cannot but accompt us men to have lost our wits. In every constitution it is oftentimes difficult (even amongst the learned in the profession) in some par­ticular questions arising, to determine what the Law is: But not to know what persons have Authority to decide those questions, is most ridiculous.

The Judges of the Law ought to be so conspicuous, as that all persons, even from the most learned unto the most ignorant, may equally alike discerne the men: Which considered, I conceive it necessary not only for the information of the vulgar people of England, which have herein been grosly deceived, but for the Vindication and Honour of our own Nation, and the Law establi­shed so farre to digresse, as in a word, to shew how this fond que­stion was raised and controverted in this Kingdome, which was thus.

This Nation is governed by a known Law, that Law [...]dgeth the King to be our onely Supream Governour, gives power to the King, with the assent of the two Houses, and no other, to alter that Law, and to make new Lawes, And to the Judges of the Realme it ascribes the power finally to declare the Law: Now such, whose aime is to usurp Soveraignty, or to swallow the wealth of the Nation, cannot hope to effect their ends by sub­mitting to the known Law, That were to commit a crime, & imme­diately submit themselves to the block. Therefore they must either deceive the people by mis-informing them what the Law is, else by strong hand to enforce upon them a new Law for their own purpose. Now that the Members aime was at no lesse then all, is too too apparent: But at the beginning of these distractions, they were not in a condition to force the people, Therefore their Iudgements must be deceived. Hereupon the Plot was, that the Members (in the opinion of the people) should gaine the reputa­tion of being the finall Judge of the Law, which was effected thus: The people by reason of some good Lawes obtained of the King by the Members procurement, were inclinable to believe what­ever [Page 61] they propounded; Then the Members Voted Thus, viz. That when the Lords and Commons declare what the Law of Their Vote. the Land is, it is a high breach of Priviledge of Parliament to que­stion it.

This being published, and the people (by Incendiaries spread throughout the Kingdome for that purpose) by false Calumnies cast upon the King, being grosly abused, the Members work was (in a manner) finished: Then they took upon them the power of the Militia, declared that the Soveraigne power was not in the Kings Person, but virtually in them: And from thence, what made for their advantage (how grosse soever) did but the Members declare it for Law, and good enough: Thus the Iustice seate, even by a sleight became both disputed and usurped: But now the Scales are turned, The peoples understandings are enlightned, they see how grosly they were misled, They finde that whilst the Judges of the Realme declared the Law, both King and Subject were preser­ved in their Persons, lives, and fortunes: That by this usurpation, the known Law is subverted, and consequently, that protection vanished. But as the people have changed their opinions, so have the Members framed a new Argument: They have left the Word, and betaken themselves to the Sword: They having Armies to back them; their will is now the Law, and resolve whilst they can, by force to hold it.

Thus we are fallen into a gulf of misery, whereas had the peo­ple been but half so carefull to have found out the Truth, as they were industrious to effect their owne destruction, these calamities had been prevented: When the difference first hapned between the King and the Members, had not the people leaped into their own ruine, but taken the least consideration thereof; had they be­thought themselves how they were to be rightly informed what the Law was, they must have resolved, that as we had a Law, con­sequently there must so long have been a Judge of that Law; But the Members neither exercised, or pretended any such power, one minute beyond the foresaid Vote.

And for Authority, to make their pretence good, none can be produced, but that their own testimony in this their own case; and in a thing of no lesse concernment, then the gaining of the wealth of the whole Kingdome to their own use, and enslaving the people to [Page 62] their owne pleasure. Hereupon, doubtlesse the people would have concluded, that (not the Members) the Judges of the Realme were the men, unto whom all persons were Obliged to submit for matter of Law.

But it is objected, That this is too great a power for the Judges, for (say they) those persons may, and doe erre in Judgement, and are sub­ject to corruption, as in that case of Ship-money.

Answer.

It is true, the Iudges have erred, and it being granted, that in the case of Ship-mony, they did erre, and were corrupt too, and that it cannot be expected but they shall againe, and againe erre, & be corrupt; yet until we have other Creatures then Men to make choise of for Iudges, this Objection ought to be disallowed: We finde the Members to be no Gods. And for the weight of the bu­sinesse, concluded to be too great for the Iudges; I Answer, that, that power must be in some; To have a Law without a Judge, final­ly to end controversies, were worse then to have no Law at all: And to have a Law, and a Judge of that Law, who understands not the profession, were a degree worse then 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 [Page 63] 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 Vid. the Oath▪ 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, Co. 10. fo. 74. 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 [Page 64] 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 [Page 65] 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.

[Page 66] 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) [Page 67] 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, Coke 5. fo. 62. 9 E. 4. fo. 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, Coke 8. f. 145. 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 [Page 68] 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 Vid. the Votes. 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 name, but the power of Judges, the knowne Law of the Land is their rule to determine every question depending before Vid. the Oath. 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 [Page 69] 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; [Page 70] 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 [Page 71] 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.

[Page 72] If Mr. Pryn be asked, what he meanes by the Major part of that Corporation, which he in this place calls the Parliament? His Answer must be one of these, viz. Any two of the aforesaid three bodies, or else, That the King, the Lords, and the Com­mons promiscuously put together, are to Vote as one Assembly, and the greater number of single voices (not distinguishing the severall bodies) to carry it. Grant the first, And then the King, and either House or both Houses without the King have power to make Lawes. Therefore against that, I suppose both Mr. Pryn, and the Members themselves, will conclude. But the latter it is he intends, for by that, the House of Commons shall obtaine the sole power of making Laws: That Assembly being in number, almost treble to the King and the Lords, And so both King and Peer-age excluded; And that not all, but in effect the Gentry too, for the Burgesses are in number, farre more then all the rest. And (as before appears) these Burgesses not onely may, but by the true intent and meaning of the Law ought to be tradesmen.

Then for his particular cases cited for his proof, viz. the Major and Commonalty, the Deane and Chapter, the Bishop, Deane and Chapter, they are all guided by their Charters and foundations, which they ought to pursue; And none of them have power without their head to make any binding Act. viz. The Commonalty without the Major, the Chapter without the Deane, or the Deane and Chapter without the Bishop. And so it is with the Parliament, although both Houses concurre in one opinion, It binds not with­out the Kings consent. And for the election of the Knights and Burgesses, that is very impertinent to the point in question.

Then M. Pryn saith, That if the King propound a Law, it binds not, unlesse it be consented unto by the Parliament. Ergo, the chiefe legislative power is in the Parliament, not in the King.

Answer.

Here M. Pryn according to his wonted sleight, divides the King and Parliament, making them two things, and ascribing unto the two Houses without the King the name and power of a Parliament: Whereas he knowes neither name, nor power is due to them. And for his Argument it makes more for the King, then for the Mem­bers. [Page 73] 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, Coke 7. fo. 36. 37. 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.

[Page 74] 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. Vide the Acts. 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 Ʋsurpers, 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 Ʋsurper to be as binding a Law, as any other, How that proves that the Legislative power is more in the Mem­bers [Page 75] then in the King, is not intelligible: It rather proves the con­trary, it shewes there must be a Kings consent, although an usur­per, else no Law: And if so, stronger it is, when the King reignes by a just Title.

Then saith Mr. Pryn, The King hath little or no hand in making Laws, His is but assenting thereunto. As (saith he) the forme of pas­sing Bils import. For (saith he) Bils being passed both Houses, and pre­sented to the King, his answer is (le Roy le veilt) the Kings wils it.

Answer.

It is the consent which makes the Law, when the Bill is ingrossed, and read in the House: The question by the Speaker is put to the Members, whether it shall be a Law or not, and such as are of o­pinion to passe it, are directed to say I, and those against it no, and being passed both Houses, it is presented to the King, whose answer if He confirme it, is, le Roy le veilt.

So that if any difference be, the Kings words are more prevalent, for before that, it is but a written piece of parchment, not valid, but by tht Kings words, instantly it hath life, and is become a Law binding the whole Kingdome and people; And this (as before is said) is the Kings Law.

Then Mr. Pryn fals to presidents, which he cals proofs. King Ed. 2. and King R. 2. (saith he) were deposed by the Parliament.

Answer.

The case concerning these two Kings, was thus: Against King Ed. 2. after many distractions in the Kingdome, the Queen His Wife, and other of Her adherents, increased the faction, raised a Rebellion, barbarously tooke the King prisoner, and during His im­prisonment, without any lawfull authority, or consent of the King, in His name summoned a Parliament; and by force drew him in words to resigne His Crowne unto His Son, afterwards King Ed. 3. and that of King R. 2. was much to the like purpose: He was drawne to resigne His Crowne to H. of Bullingbrooke. Afterwards King Hen. 4. and these two lawfull Kings, being thus injuriously bereft of their Scepters, were shortly after most barbarously murde­red [Page 76] 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 [...] ­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 [Page 77] 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 Vid. the Act. 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 [Page 78] 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 Coke fo. 8. 35. 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 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 Coke pref. 4 part fo. 1. Co. Caudries case fo. 8. Stat. 16. R. 2. cap. 5. 24 H. 8. c. 12. D. & Stu. f. 43. Dyer 29. Co. 11. 90, 93. Bract. lib. 1. ca. 8. fo. 5, 6. And infinite other bookes. 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.

[Page 79] 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 1 Eliz. c. 1. 5. El. c. 1. 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, [Page 80] 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 Cok. Pref. 4. report. 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 [Page 81] 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 Cok. Calvins case. fol. 11. 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. Cal. case. fo. 10 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 Statute 25. E. 3. 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 Cal. case. fo. 10 the politick body cannot die. Besides, neither the Queen, nor the Prince hath a politick Capacity. Cok. 4. part instit fol. 46. 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 Cok. 7. fol. 30. death, (untill a late Sta­tute made therein) all suites in Law, even between party and party, were discontinued. And at this day, the Chancellor, Cok. 7. fol. 30. 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, Cal. case. fol. 5. fol. 7. 10. 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 Cok. 2. fol. 15. Cal. case. fol. 5. ex Officio, as King is obliged to protect the people: And the Subject in duty is bound to obey their Soveraign, for Cal. case. fol. 5. protectio trahit sub­jectionem, [Page 82] & subjectio protectionem. There be two sorts of Homage, viz. Cal. case. fol. 7. a. b. 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. 3 Jaco. c. 1. 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, 33 H. 8. c. 21. [Page 83] 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. [Page 84] 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 u [...]-Vote) it is indifferent both to King and people, whether to have a Statue, and call it King, or a King by the Members Vote.

Then for the Vote it selfe, (admitting the Members to have au­thority by their Votes to alter the Law, which they have not) it is in it selfe most grosse; We must, say they, be governed by King, Lords, and Commons; But what power is hereby intended for the King, non constat. By the next Vote the Members may declare, they meant hereby, that the King shall not have any authority in his owne person, but still judge the Soveraigne power (as formerly they did) to be virtually in themselves. And if so, it only differs in words from that Vote, whereby they resolved to have no King: In substance it is one and the same.

And if the Members mean (as the words seeme to import) that the power of Government shall be in the King, Lords, and Commons, joyntly, and that this Vote, be so far binding, as to set­tle that government for ever, (which is in it selfe inconsistent with that arbitrary power, they now even by this very Vote assume) it is likewise in it selfe most absurd: It is true, that we having a knowne Law, whereby we are protected in our persons, lives, and estates, to have this Law unalterable, otherwise then by the joynt concurrence of the King and two Houses, is a constitution beneficiall for the Kingdome; but in point of Government, it is a Composier, not onely improper, but destructive to the whole Nation. In every Common-wealth accidents frequently happen, which of necessity require things to be done, yet if not acted with secrecy, hazards the ruine of the people. For example. The King hath intelligence that a forraigne Nation is prepared, and resolved to invade this Kingdome: Hereupon (with great care and secrecy) a designe is laid, to surprize the enemy: In this case, for the King, at the same [Page 85] time, to proclaime his plot, not onely frustrates his designe, but endangers the destruction of the whole Kingdome.

Now admit the King, Lords, and Commons jointly to have the power of Government, and it is impossible whatever the designe be (although the publishing thereof unavoidably destroy both Nation and people) to keep it secret.

First, for the Lords: The Members sit and Vote in that House (of what capacity, or disposition soever) by descent: and experience shewes, that wise men (although Lords too) sometimes beget fooles, Honest men, knaves, and Loyall men, Traytors. And for the Commons House, he who examines his owne Country (be it in any part of the Realme) I am confident will find, the greater number of those, elected Knights, and Burgesses, unfit for Statesmen or Privy Councellors: Nor is it possible, that the multitude (if they had authority to make such elections which they have not) should make choice of apt persons to governe the Kingdome: Then ad­ding hereunto the number of those Members, amounting unto seven hundred or more, and doubtlesse (in point of secrecy) to pro­claime it at the market Crosse, and to advise with them, is one and the same thing.

But admit every Member a perfect Statesman, the composier of that Body consisting of the King, Lords, and Commons, is such, as not onely renders them incapable to governe the Realme, but is in it selfe so pernitious to the Common-wealth, as that it is im­possible for the Divel himselfe to invent (unlesse it be that the two Houses without the King) a plat-forme more apt to introduce confusion, both to Church and State.

When a Capitall or Criminall offender is convict, the knowne Law in point of punishment doth not distinguish of persons: The Judge (whether the offender be capable of pardon or not) must give sentence (according to the nature and quality of the offence) upon every one alike: He hath not power either to pardon, or mitigate the punishment; That is the office of the Su­preame Magistrate: Then, what a Tyrannicall constitution it were, that the King shall not have power to distribute mercy, untill the major part of the two Houses have Voted it, common experience makes it easie to judge.

And on the other side, if the King without that joynt consent, [Page 86] hath not authority to punish offenders: It will be very difficult to bring the most horrid malefactors to triall, be the offence Treason, Murder, Sacriledge, or any other crime, how execrable soever, whilst either House doth omit or refuse to Vote it so, no punish­ment: An infallible way (I confesse) it is to embolden themselves, and all others their adherents to perpetrate all wickednesse under the Sun.

If a dispute happen, whether to make War, or to proclaime Peace, to fight, or not to fight an enemy, and the like, it cannot be expected, but that those three bodies shall (even to the ruine of the Nation) irreconcileably differ in opinion. But it were endlesse to insist upon particulars of this nature, the calamities which have befallen us by the Members arrogating the Soveraigne power of Government, and which daily must ensue, whilst they either con­tinue that usurpation, or shall be suffered in point of Government, to share with the King, words cannot expresse.

Suppose three single persons, had jointly the Soveraigne power of government, no man can imagine, but that they would (even in matters of greatest weight and perill) sterne severall wayes: But in point of Government to adde unto the King, the Members of the two Houses make it a composier far more preposterous, and ab­surd: And consequently to submit to that Vote, to be governed by King, Lords, and Commons, (although it be admitted the Mem­bers intend it a joynt power) were no other, then to introduce contradictions, distractions, and confusion.

Besides, by setling the government in King, Lords, and Com­mons, ipso facto, the knowne Law is subverted, and an arbitrary power introduced; for, as before appears, they who have the Government, and also power to make new, and change the old Law, cannot be guided but by their owne will: Whereas, by observing the constitutions of the Realme, in submitting to the King alone, for matter of Government, unto the King, and the two Houses joyntlie, for making new Laws, or altering the old, and unto the lawfull Judges of the Realme, to expound and declare the Law, all arbitrary power is avoided.

And the King for his assistance in matters of Government, hath (by the Laws of England) three sorts of Councellors, viz. His Great Councell, His Privy Councell, and His Learned Councell. [Page 87] The first is properly the Prelates and Peeres of the Realme, which (besides infinite other testimonies) is proved by the Writ of Sum­mons to every Parliament. The words are these, viz.

Rex Vicecomiti, &c. Quia de advisamento & assensu Concilii nostri, &c. quoddam Parliamentum nostrum apud, &c. 1. die, &c. teneri ordinavimus, & ibidem cum Prelatis, Magnatibus & Proce­ribus dicti Regni nostri colloquium habere & tract. Tibi precipimus, &c. duos Milites, &c. venire facias, ita quod iidem Milites plenam & sufficientem potestatem pro [...]se & Cōmunitate Commitat. predict', &c. habeant, ad faciendum & consentiendum his quae tunc ibidem de com­mun [...] concilio dicti Regni nostri (favente Deo) contigerint ordinari su­antedictis.

And the Sheriffs returne is thus, viz.

Virtute istius brevis eligi feci duos Milites, viz. A. B. qui ple­nam & sufficientem potestatem, &c. habent ad faciendum & con­sentiendum iis quae, &c. de communi concilio Regni Angliae ordinari contigerint.

Thus it is manifest, that it is the Prelates and Peeres, (who have as­sistants unto them the Judges, and others of the Kings learned Councell, and the Masters of the Chancery) whom the King ad­viseth with as His great Councell: It is the office of the Commons (as likewise by this Writ appears) to do and consent unto such things, as the King, the Prelates, and Peeres agree upon.

The second, are such as the King makes choice of to advise Him in matters of State, and are sworne to secrecy; And the third are the Judges of the Realme, and others of the Long Robe, whom the King elects, and are sworne to advise Him in matters of Law.

Now whilst these Councellors keepe within their owne bounds, and faithfully performe their severall duties, the known Law is pre­served, and so every one protected: But when they extend beyond their bounds, confusion ensueth.

Absurd it were for a sick man (concerning his Cure) to advise with a Lawyer, or for any one in point of Law, to take advise of a Phy­sitian. So for the Privy Councellors, to judge the Law, for the Judges to determine matter of State. And the like holds with the Members of the two Houses: They are neither qualified, nor have [Page 88] Commission either to intermeddle with the Law, or the affaires of State, otherwise then the King shall thinke fit to intrust them, by asking them their advise, wherein they are onely to deliver their opinions, not to controle.

Therefore when the two Houses have passed a Bill for a new Law, and have presented it to the King, they have performed their duty, it then rests in the King, whether to make it a Law, or not, wherein it may be necessary for Him to take the advise of His Pri­vy Councell, His learned Councell, or of both. And I conceive that may be the reason, why Kings have used to answer Bils (which they passe not) by these words, le Roy, le veili. By these words of the Writ, viz. Quia de advisamento & assensu consilii nostri, &c. quoddam Parliamentum nostrum, &c. teneri ordinavi­mus, &c. It appears that the King depends upon His Councell, in calling Parliaments, which oftentimes is occasioned upon State-affaires, such as requires the assembling of a Parliament, yet not safe to reveale those reasons to the Parliament men: And so the King, by advise of His Privy Councell, or His learned Councell, may, and oftentimes doth reject Bils presented unto Him by both Houses, and yet not convenient to render His reasons to that mul­titude.

Therefore clear it is, the men at Westminster have extended be­yond their Commission, and so all these Votes are absolutely invalid, not binding either King or people. The King notwithstanding these Votes, is, or whatever the Members shall, or can Vote, will and must be our only Supreame Governour. And consequently these men at Westminster, by breaking their bounds, are themselves guil­ty of those things, which in and by their declarations to the peo­ple, they grossely and falsely aspersed their King with: They have and do arrogate (to use their owne words,) an arbitrary power without, above, against all the Courts of Justice, the Parliament it selfe not excepted. And thereby the knowne Law is subverted, and consequently, they are most palpably guilty of that crime, for which they themselves condemned as a Traytor the late Earle of Strafford, but for attempting to do, and that upon a slender proof too.

Upon the whole matter it may with as much justice & sense be said, that there was yet never one King of England, as to question whe­ther [Page 89] the King for time being hath inherently in His person the So­veraigne power of Government. But that man who hath taken consideration hereof, and yet so absurdly peevish as to remaine unsa­tisfied of the Kings right herein, the whole world must judge Him worse then out of his wits to give it unto the Members. Suppose the Steward of a Lord or Commoner, to claime property in the estate of his Master, I presume the Houses would account him an unjust Judge, who should determine the case on the Stewards be­halfe, upon his owne testimony. So here the Members challenge not onely the Soveraignty due unto their Leige Lord, and King, but an authority arbitrary, over King and people, wherein they have not the least colour of proof, more then their owne affirmation. Be­sides, when a witnesse (although not a party) contradicts himselfe, his testimony becomes invalid: But the Members solemnly upon their Oathes even this Parliament, have declared the King their on­ly Supreame Governour, wherein they swore not for themselves, but on anothers behalfe, that is, for the Kings Interest: So that e­very prudent man in common sense and reason, ought to be­leeve, that which these men have thus sworne for the King; And absolutely to reject this their affirmation contrary to that Oath, and for their owne advantage. And so I conclude this point con­curring with the Lords and Commons 1 Jacobi, that the Imperiall Crowne of this Realme, is, by inherent birth-right, descended and come to this our King Charls. And that (according to the Oathes of these Members and their predecessors in former Parliaments) he is our onely Supreame Governour.

In the next place it is shewed that the Militia of the Kingdom is in the King.

CHAP. VIII. That the Militia of the Kingdome by the knowne Laws of the Realme, is inherent in the Crowne. And at the absolute command of the King and none else.

IT appears before that the King is the onely Supreame Gover­nour, which of it selfe, is sufficient to satisfie any man of judge­ment, [Page 90] that the Militia of the Kingdome is likewise in Him, yet Mr. Pryn by licence of the Commons House hath published a Treatise Intituled thus.

The Parliaments Interest in the Militia.

Whereby he endeavours to prove that the Members of the two Houses (which he miscals the Parliament) have the power o­ver the Militia, the Forts, the Navie and Revenues of the Crown. And begins thus.

It must (saith he) be granted, that the power which His Majesty hath, or His Predecessors enjoyed ever the Militia, the Forts, the Na­vie, Ammunition, and Revenues of the Crowne, was originally gran­ted to His Ancestors, by the Parliament and Kingdomes free con­sent.

Answer.

The Militia, the Forts, the Navy, Ammunition, and Revenues of the Crowne (saith M. Pryn) were granted to the Kings Ance­stors, by the Parliament, and Kingdomes free consent. So that, neither the Parliament, nor the Kingdome, by his owne confession, made the grant, nor who he meanes was this, grantor himself can­not imagine. However, it is not worth the labour to make fur­ther inquiry thereof, for most certaine it is, never any such grant was made. But admit that before the Kings Ancestors enjoyed them, some persons had power and Interest therein, and made a grant thereof to the Kings Ancestors: It is as hard a taske there­by to prove that the Members have title to these things, as to find out this imagined grantor, who never yet was in esse; The Argument is but thus. The Militia, the Forts, the Navy, Ammu­nition, and Revenues of the Crowne, were originally granted to the Kings Ancestors, Ergo, at 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.

[Page 91] 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.

[Page 92]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, Coke 2. fo. 15. Calv. case. fol. 5. ex Officio, is obliged to preserve His people in Peace. Besides, Cok. 7. fo. 16. 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.

[Page 93] 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 Milit [...] be in such hands, as may at all times provide against approaching [Page 94] 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 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 Coke 9. fo. 75. Dyer. fo. 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 [...]rrisons, held, or commanded, no Commanders, Officers or Soul­diers Imployed by Land or Sea, no Commissions concerning War, [Page 95] 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, Mag. Char. c. 20. 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 Castle­guard, 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 7 E. 1. c. 1. 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 E. 1. c. 6. 1 E. 3. c. 5. 4 H. 4. c. 13. 5 H. 4. 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 11 H. 7. c. 1. 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.

[Page 96] By a Statute made 2 Edw. 6. in the Raigne of a child King. The Lords and Commons Assembled in Parliament, declare that it 2 E. 6. c. 11. 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, 4 & 5 P. M. c. 3. 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 1 Jaco. c. 1. 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 [Page 97] 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 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 22 Edw. 4▪ 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 Ʋsurpers 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 Answer to the Scots pap. fol. 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 Idem. fol. 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 [Page 100] 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 [Page 101] 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 Cok. 2. fol. 15. Cok. Calvins case. fol. 5. 7. 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 [Page 100] [...] [Page 101] [...] [Page 100] 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 Cok. Calvins case. fol. 5. to be thus: The King to Command and Govern accor­ding to the Established Lawes of the Realme; The Subject to obey [Page 101] 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. 25 Edw. 3. c. 2. 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, [Page 104] (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 Declaration against the Scots papers. 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 [Page 105] 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, [Page 104] 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 [Page 105] 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. Oath of Su­premacy 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 [Page 106] (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 Declaration a­gainst the Scots Papers. Members having got the power into their owne hands, whether they governe by the Laws of God, or man, although they be the greatest Tyrants in the world, & the highest persecutors of Christian Religion, be it either spirituall or temporall, although never so pernicious, to foul, or body, it must be admitted for good Law and true Gospel.

Thus the people (being drawne to recede from their true princi­ple) have occasioned their owne confusion; Whereas by their obser­ving the Laws of the Realme, these distractions have been avoyded. For by the constitutions of this Kingdome, both King and Subject are regulated by a knowne Law, which Law, permits neither King, nor people to be Judge in their owne case.

If one Subject wrongfully imprison the person of another, seize his Lands, or take away his goods, the party injured, hath his legall remedy, but is not permitted to be his owne carver, or revenger: if he for his owne satisfaction, kill his adversary, it is murder; If he seize his Lands, or take his goods, it is a trespasse.

So in the Kings case, If by His Command, any Subject be impri­soned, [Page 107] or his estate taken from him, against the rules of the knowne Law, that Subject hath his legall remedy against the Kings ministers, wherein, neither the King nor his officers, are Judge. Therefore, if that Subject thus injured, should, to revenge himself kill the King, or seize His Revenues, it were a most barbarous and unjust Law, not to condemne this Act unlawfull. And that being admitted, it must be unlawfull to attempt His death, or to leavy War against Him, for any such cause; And consequently all those facts (although committed upon the grounds aforesaid) are Treason.

Now that person who conceives himselfe to be most highly in­jured, being required to set downe the motives of his taking up Armes against the King, his pretence can be no other then this. That his person hath been imprisoned, his Lands seized, and his goods taken from him. And this (in his judgement) against Law, none but Brutes can conclude, these are legall justifications to act, and do, such things against their King. And so consequently the authors and actors of this War, are guilty of Treason.

But saith Mr. Pryn, The Parliament is not within the meaning of this Statute of 25 Ed. 3. Therefore not Treason for the Members to seize the Kings Forts, Armes, Ammunition and Revenues of the Crowne, for (saith he) the King is a Member of the Parliament, and therefore if the Parliament could commit Treason, the King should commit Treason against himself: And (saith he) the Parliament is a corporation and a Court of Justice, and so not capable of the guilt of Treason.

Answer.

Most true it is, That the King is exempt from the guilt of Trea­son, for all Treasons are committed against Him. But every Subject (which includes all the rest of the people) is capable, both to com­mit the fact, and is subject to punishment for the same. And herein there is no difference of persons. It is no more lawfull for a Peere, then for a pezant, to commit that crime, the place where alters not the nature of that fact, nor doth it availe the actors, in being Members of any Assembly, Corporation, body politick, or Court of Justice. For every one of these Members, or persons, besides their pollitick capacity, hath a naturall capacity too. In which capacity, [Page 108] he is subject to the frailties of man, he may actually breake the Law, and passively suffer for it. But Coke 10. f. 32. the Assembly it selfe, the Cor­poration, the body politick, or the Court of Justice, can neither com­mit a crime, nor is capable of punishment. For example, the Par­liament, that is, the King, the Members of the Lords House, and the Members of the Commons House, their power is onely to make Laws by Act of Parliament. Therefore when the Members of the two Houses in a Parliamentary way, passe a Bill, which the King confirmes with His Royall Assent; Absurd it were to thinke this could be an Act of Treason.

And so it is for the Judges of every Court of Justice, keeping themselves within their jurisdiction, they cannot, in the procee­dings of their owne Court, commit Treason. And the like holds with all Corporations and bodies politick. But if a Member in either House assault or strike his fellow Member, that is a trespasse, and wilfully to kill him, is murther: And by the same reason, to kill the King, although within the wals of the House, is Treason; And that being granted, it followeth that to imagine His death, or at­tempt to kill the King, or agree to levy War against Him, although in that place, is Treason in such Members.

And herein no formall, or seeming Parliamentary proceedings, will alter the case. The putting it to the question, voting the busi­nesse, and setling it by a Major part, or composing it into a formall Law, and calling it by the name of an Ordinance of Parliament, neither alter the nature of the crime, nor takes away the guilt of Treason.

If one who hath acted in this War, be indicted for Treason, who at his arraignment, shewes an Ordinance of both Houses, for his ju­stification. The triall being before a just Judge; It will no more availe him, then Adam was justified, saying Eve tempted him to eat the forbidden fruit. And the Members, who commanded those things to be done, being legally questioned, have no more to say then Eve had. For it was the Serpent who tempted them to com­mit this treason.

The rightfull Judge will informe them, that the Law cannot be altered, but by Act of Parliament. The Judges of the Realme un­derstand not the Language of an Ordinance of the two Houses, nor is any such thing pleadable in a Court of Justice, the Law takes no [Page 109] notice thereof. These things are done by the Members, not in their politick, but in their naturall capacities. They are not Acts of Par­liament, they are unlawfull facts of Parliament-men; And such offenders being attainted and executed, the Parliament suffers not. Besides, it is the fact which the Law doth looke upon: And in this case the greatnesse of the person offending, the number committing the offence, and the place where acted, is so far from extenuating, as that it rather aggravates the crime. For a conservator of the peace, in his owne person to breake it, or a Judge of the Law, to be an example of transgressing it, is more odious then in other men.

Then considering the persons acting, viz. Members of the House of Parliament, the thing acted high Treason, the place where, in those Houses, words cannot expresse the barbarousnesse of it.

Now to conclude this point, I here set downe what facts the knowne Law judgeth Treason, the Members Law therein, and the proof on both sides.

What facts the Law judgeth high Treason, the foresaid Statute of 25 Ed. 3. makes it manifest in these words. viz. Whereas divers opinions have been before this time, In what case Treason shall be said, and in what not, then declares that by the Law of the Land, these par­ticular facts following are Treason.

  • 1. To compasse or imagine the death of the King, the Queen, or the Prince.
  • 2. To violate the Queen, the Kings eldest daughter unmarried, or his eldest sons wife.
  • 3. To leavy War against the King, or to adhere unto His enemies, giving them aid or comforts in this Realme or elsewhere.
  • 4. To counterfeit the Kings Great Seale, the Privy Seale, or His money.
  • 5. To bring false money into this Realme, counterfeit to the money of England.
  • 6. To slay the Chancellor, Treasurer, or the Judges of either Bench, the Justices of Eyre of Assize, and all other Justices assigned to hear and determine, in their places doing their office: And then it is enacted in the negative, that no other thing shall be judged Treason, untill it be declared by the King and His Parliament: And accordingly by severall Acts of Parliament some other things have been made Treason, viz.
  • [Page 110] 7. To deny the King to be our onely Supreame Governour, and so in some other particulars.

The Members Law herein, both Affirmatively and Negatively follow thus.

  • 1. That it is not Treason to imagine the death of the King, the Queen, or Prince.
  • 2. That it is not Treason to Levy War against the King, to adhere unto His Enemies, or to give aide or comforts to them, in England, or elsewhere.
  • 3. That it is not Treason to Counterfeit the Kings Great Seal, or His Money.
  • 4. That it is not Treason to deny the King to be the Supreame Governour.

Then for their Doctrine, in their Affirmative it followeth thus.

  • 1. That it is Treason to endeavour the preservation of the Kings Person from violence.
  • 2. That it is Treason for a Subject to aide the King against His Rebellious Subjects Levying War against Him.
  • 3. That it is Treason to maintain, or affirme, that the King is the onely Supreame Governour.
  • 4. That it is Treason for any Man, to deny the Members (their fellow Subjects) to have the Soveraigne power of Govern­ment.
  • 5. That it is Treason for a Subject, without leave of the Members, to recide or dwell in London.

But it is not possible to instance in all the particulars of the new Treasons: therefore in general, the people must know, that whatever the Members shall say is Treason, They must beleeve it to be Treason. Now for the poofs. The foresaid Statute doth clearly demonstrate what the known Law is. And therewith agrees all the Authorities, Judgements, and Resolutions of the Law.

But for the Members, their Law is so new, as that they cannot look beyond the beginning of this Parliament, nor produce any one Judgement, Resolution, or Opinion to make good any one of their Doctrines; And consequently, their own fictions.

Let them speak out, and all that they can say for themselves, is but thus, viz. We have gotten possession of the Kings Revenue, we [Page 111] have besides that, setled unto our selves a yearly Revenue, amoun­ting to at least thrice treble the profits of the Crown of England: and which is still more sweet, we have the dominion over King and People, we have a power unlimited, to impose taxes and payments upon whom we please, and what summes we thinke fit: their per­sons we have in vassalage, and can take away their lives, when, and for what cause we please; for the obtaining whereof, we did Levy War against the King; we did in that Warre attempt to kill the King, the Queen and Prince; we did adhere unto His Enemies, and gave unto them relief and comforts; we have counterfeited the Kings Great Seal, and His Money; we have, and yet doe most bar­barously imprison the Kings Person; we have subverted both Law and Religion. Now for us to confesse the known Law, and submit our selves thereunto, were no other then to put our necks into the halter: Therefore we must of necessity deny the old, and forge new Lawes. These things considered, I suppose every one (not particeps criminis) in this odious Rebellion, will judge it more abso­lutely necessary for him to endeavour his infranchisement from His slavery, then it was for the Members to commit this foul Trea­son and Rebellion, whereby the people are brought to this Vas­salage.

Upon the whole matter, clear it is, that all those Members of either House of Parliament who consented to the making of any Order or Ordinance, for the promoting of this War, pretended for King and Parliament; and all other persons who have acted therein, consented or adhered thereunto, are guilty of High Treason.

CHAP. X. That the Subjects of this Nation are not onely commanded from doing violence to the Kings Person, or prejudice to His Authority, but are obliged with their lives and for­tunes to assist and preserve His Person and Just Rights from the fury of His enemies, both forraigne and do­mestick.

ALL the people of this Nation are divided thus, viz. King and Subject; which of it self is proof sufficient to make this good. The word King, (as before appears) implies a duty in the King, to protect His people; and the word Subject, a duty in them to assist Him. By the Laws of England, for a servant to kill his Master, is an offence of a higher nature, and the punishment for it, more severe then for the meanest Subject (without such re­lation of service) to kill the greatest Peere; for, besides the Sub­ordination between them, a trust is implyed, the breach whereof, (by an act of that nature) by the Lawes of England is petty Trea­son. Besides, the Law expects from the servant, a personall assi­stance, to preserve his Master from violence or hurt; and in that regard, the Master being assaulted, the servant, by the Lawes of England, may justifie to resist the assailant, in defence of his Ma­sters person. And between the King and His Subjects, the Sub­ordination and Subjection is of a far higher nature. The trust re­posed in the Subject, and his duty to the King, is far more transcen­dent: the King being head of the weal publick. By violating his person (saith our Law) every Member of the Common-wealth suffers: Therefore in assisting Him, we doe defend our selves.

He is Pater Patriae, we are His naturall born Subjects, and so by the Law of nature, obliged to preserve Him from injury.

Now the person of my Soveraigne Leige Lord the King, by an unnaturall Warre, raised and prosecuted by His owne Subjects, being assaulted, and Warre made against His Crowne and Dignity; And the King, having by His Proclamations summoned His Loyall [Page 113] Subjects to assist him: upon serious consideration thereof, I found that nothing was more clear, or pregnant, both by 7 Edw. 1. c. 1. 11 Hen. 7. c. 1. 2 Edw. 6. c. 11 4. 5. P. M. c. 3. Cok. Calvins case. fol. 7. 14. Authorities of the books of Law, and severall Acts of Parliament (by which it is abundantly declared to be our bounden duty to serve the King in His Wars, both against forrain invasions, & domestick insurrections and rebellions.) Then that I was obliged in duty, by the Lawes of this Realm, by the Law of Nature, by the Law of Reason, and by the Law of God, even by that precept of Saint Paul in these words, viz. Let 'every soul be subject to the higher powers, to assist Him against these assaults. And upon these grounds I took up Armes for Him, and 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; [Page 114] 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 [Page 115] 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, Mildemay. 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 [Page 116] 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 as fre­quently as the tyde turnes) that the faction of that House changeth; And accordingly expulsions follow, and new elections are made: So that (admitting this power to expell) it would ease the people of much trouble, for the Members to indorse upon every Writ, the names of such as shall be chosen; Or rather, by their Speaker (after a Vote to that purpose naming the man) to summon him to the House, and so as they Vote out one Member to Vote in onother.

Which in effect is exercised at present. We see it is not at all considered, whether the party chosen be fitly qualified for the ser­vice or not. If he be of an humor to concur in opinion with the pre­sent faction, good enough. Hence it is that we find the children, or kindred of those who for the time being sterve the House (of what age or capacity soever) and none else are judged fit for the imploy­ment.

And so admitting this authority in the major part of that Assem­bly: The issuing out of the Writs, the peoples electing, and the returning of the Members, are become but frivolous, and uselesse ceremonies. Therefore the Members no representatives; and con­sequently no House of Parliament.

And for the minor, It needs not the helpe of a Lawyer to make it good; every man of the meanest capacity may judge it. For, if being named in a Patent of Monopoly, or acting therein, because to disable a Member of either House, to sit or Vote, it follows, that no man in the Kingdome is qualified for that service. Every one (in [Page 117] some degree) is guilty of the breach, both of the Laws of God, and of the Realme. Suppose another faction in that House (happening to be the major part present) Order, that every Member, who in any fort hath broken the Kings peace, committed fornication, sworne an Oath, or transgressed the Law of God, or man, be forthwith ex­pulsed the House. If that Order concerning Monopolies be binding, absurd it were to deny this to have the same effect. For every one comprized in each Order, is a transgressour of the Law, and puni­shable according to the quality of the offence: But no one of them, more then the other, (by the knowne Law) is disabled to sit, or Vote in the Parliament: He who hath been an actor in a void Patent of Monopoly, is as capable to be a Parliament man, as another who hath committed fornication, adultery, assaulted or beaten his neigh­bour, or the like.

So that, it appears to be the Order of the House, and the will of the Members, (not the Law of the Land) which doth now (in that Assembly) regulate, and ballance the businesse. Therefore clear it is, that those Members were wrongfully, injuriously, and illegally expulsed the House. So that, if no more were in the case, those persons at Westminster, are not the Commons House of Parlia­ment.

2. Secondly, The Members finding the aforesaid Order of ex­pulsion far too short, still appearing in the House many honest En­glish-men. It was resolved to cast them out by club-law: It was hereupon insinuated unto the giddy multitude, that severall Mem­bers of each House, opposed reformation, and Justice. The names of such Members as discent in Votes from the sense of the present major part, are posted in the streets, and injuriously branded with a character of evill affected persons to reformation. The people here­upon (in great multitudes) swarme to the doores of both Houses, and there (being prepared and instructed accordingly) with hide­ous noise, clamor against Bishops, Popish Lords, and evill affected Members; And (although most ignorant what it is) call for Ju­stice.

Now this violent medicine, was so long, and so often applyed, that the Houses (according as empricks commonly use their pa­tients) absolutely confounded their owne bodies; for of above two hundred Lords, 5. 6. or 7. at this day is a compleat House of [Page 118] Peeres: And in matters of greatest moment, rare it is to have ten of that Assembly to carry the question. And for the Commons House of 500 Members, not 100 of those now permitted to sit or vote there (were at any time by the Law of the Land) Parliament men. And so unlesse the whole World hath hitherto been mistaken, in attributing the powers of those Assemblies to the Major part of the Members, whereas it ought to have been given to the least number. And that by the constitution of the Realme, it is lawfull for a part of them by force, and without lawfull cause, to drive from thence, their fellow Members. We have no House of Par­liament at this day.

Nor is the case of the lower House any thing better by their excrease of number: That forgery of the Kings Great Seal, doth no more authorize the Inhabitants to elect a Knight, Citizen or Burgesse, then should the Speaker of the lower House (in pursuance of the Votes of both Assemblies) counterfeit a deed in the name of the Speaker of the higher House, purporting a conveyance to himself, of that Lords Estate, would legally intitle him there­unto. Besides, were that no counterfeit Seal, The Inhabitants of the County, the free men of the Cities and Boroughs being depri­ved of their freedome of election, not daring (as before is said) to choose other, but such as are intimated to them, to be nominated by the House, or the Souldiers; they are not in Law Members of that Assembly.

Thirdly, the Members, although reduced to so small a number, were not hereby cured of all their griefs: The haunting Ghosts, and inseperable Companions of every Traytor, (feares and Jealousies) still stick close unto them; by driving from the Houses, such as visibly opposed this work of destruction; gave not sufficient con­fidence to the rest of their owne perseverance therein. The consci­ence therfore of every one this elect little remnant, in the next place must be fettered; wherein speciall use is made of that clause con­cerning priviledges of Parliament, contained both in the Protesta­tion and Covenant: The words thereof being generall, to defend all priviledges, the Members declared, that by whom, and when this priviledge is broken; themselves and none else must be Judge, And like Judges in their owne case, they have determined the que­stion, no lesse to their own advantage then by enthralling, not only [Page 119] the Consciences of their fellow Members, but of every Soule in the Kingdome to their sence. In order whereunto (as before appears) they have voted, that every one who shall oppose any result of theirs, is an Infringer of Parliament Priviledges.

Now although the nature of this crime is not yet by them defi­ned; it may (at every instant time) when they think fit, even by one blast of winde be made to exceed the highest Treason: So that, most clear it is, after these Votes, no man indued with honesty or courage, could with safety, sit or vote in either House; Every one not of the tribe, (unlesse he run into his own ruine) must stand mute untill the design of the present prevalent faction be visible: And then (however it suites with his heart) his tongue must chime with that party: And although this rule be exactly observed, yet once having declared himself, he is every houre in danger of de­struction: For when a new faction gets up, (which is very frequent) changing his note, oftentimes preserves him, not from an im­peachment; he is from thence, but dandled as a whelp under a Lyons Paw; when that party thinkes fit, cru hed in pieces.

Now should some of the Judges of any Court of Justice in Westminster-Hall, demean themselves in this manner with their fellow Judges, no wise man would esteeme them to have the power of Judicature: And why a part of the Members of either House should have this Priviledge, more then they, is beyond the reach of the Westminster-men to make it good: By this it appears, that the Members have not freedome of Speech, and consequently no House of Parliament.

Fourthly, admitting the Members had not been injuriously ex­pulsed; And had they been permitted freely to give their opini­ons; yet these men at Westminster have disabled themselves to sit or Vote there; which is proved thus.

Every Traytor, Murderer, and Felon, by the Law of the Land is disabled to sit or vote in Parliament: But these persons are Tray­tors, Murderers, and Felons, Ergo.

The Major needs no proof, every one grants it. And for the Minor, Those men have not onely committed such facts as the Law judgeth Treason, Murder and Felony; but even making it their daily work, are still constant to those their principles. They (as before appears) actually Levyed War against their King, which is [Page 120] Treason: They have actually endeavoured to kill the King, the Queen and Prince, which is Treason: They have counterfeited the Kings Great Seal, which is Treason: They have counterfeited His Mony, which is Treason: They have not onely denyed their King to be the Supreame Governour, but have arrogated the power of Sove­raignty to themselves, which is Treason: They have this Parliament declared it Treason to attempt to change the Law. But themselves have actually subverted both Law and Religion; And have reduced both King and people to their Arbitrary power, which is Treason. They have, and still doe imprison the Person of their King, which is Treason.

Then for Murder, besides their owne consciences (if they have any remorse) inwardly gnawing the fatherlesse children and wid­dowes, of those slaine on both sides in this unnaturall War, raised, and prosecuted by them against King and Kingdome, in swarmes to testifie against them. But this not all, they doe still in colder bloud, and in further abuse of Justice, by pretext and colour of Law, some­times in their own names, other while imitating the ordinary formes of Law, by the mouths of their nominall mock Judges (whose understandings and consciences by their foresaid Order, and with bribes and rewards they have in vassalage) condemne, murder, and put to death the Kings Loyall Subjects as Traytors; and this principally for refusing to commit Treason.

And for felony; That offence is included both in the crime of Treason and Murder; but there needs not that help to prove them guilty thereof. By the Law of England it is felony of death, to steal goods exceeding the value of twelve pence. But these persons (in the nature of robbery) have by force taken from King and People their whole livelihood.

Suppose 20 Troopers to make an Order, that all persons passing through High-gate, shall deliver unto them, all such Money as shall be found about them. If the Troopers (by colour of this Or­der) force the passengers to deliver their Money: It were ridicu­lous to deny this to be robbery. Yet, if that Order made by the Troopers were binding, the fact were lawfull. So here, those men at Westminster have ordered, (which they stile an Ordinance of Parliament) that all the people of England, shall give unto them, the 5 part, and the 20 part of their Estates. That every man, who [Page 121] eats, or drinkes, buyes, or sels, shall pay unto them a certaine summe by the name of Excise. That every County and Towne shall like­wise contribute unto them, and their Souldiers, vast summes of mo­ney. That all the Kings Revenues, shall be disposed of to them, and to their use: That all persons who shall oppose them herein, shall be judged Traytors, and forfeit unto these men their whole estates, and fortunes; And by colour of those Orders we see they do by force seize and take all, to their owne use. Now in regard the foresaid persons at Westminster have not power (as before is proved) to make such Laws, it directly followeth, that the forcing the King and people herein, is unlawfull, and consequently both King and Subject are robbed of their money, and goods: And their estates wrongfully detained from them.

But peradventure these incendiaries at Westminster will object, that although they be guilty of those crimes, yet untill they be judicially con­vict thereof, it cannot be alleadged against them.

Answer.

First, By their owne practice, they have judged this point a­gainst themselves. For (as before appears) without any legall con­viction, they have expulsed almost all their fellow-Members. And that for supposed facts, which if guilty of, disabled not them to sit or vote in the house. So that, these Westminster-men (having to the view of the world committed such facts, as by law disables them to sit or vote) to be judged no Members, themselves must confesse, is (at the most) but lex Talionis.

Secondly, it may appear (even in the judgment of Law) that a man is guilty of treason, murder, or felony, although not attainted, or convicted thereof. For example, one calls another (before any conviction of such a crime) Traytor, Murderer, or Thief. The Per­son thus charged, brings his action of slaunder. In this case, if the Defendant justifie his words: alleaging, that the Plaintif com­mitted such a fact, which the law judgeth Treason, Felony, or Mur­der, and at the triall proved it. The Jury ought to acquit the De­fendant of the slaunder, yet still that Traytor, Murderer, or Fe­lon, is not convict of the fact. Therefore clear it is, a Traytor, is a Traytor. And the people may as well know him so to be, and as lawfully so call him, before attainder, or conviction, as to know a [Page 122] spade to be a spade, and so call it.

Besides, when a treason, murder, or felony is committed, it is the proper office of every petty Constable, and of every Justice of peace; nay, it is the duty of every honest Subject, to apprehend the male­factor, and to bring him to due punishment; wherein, neither pri­viledge 4 Part Insti­tutes. fo. 25. of Parliament, dignity of the Person, or imployment of the Offender, is any protection. It is not only lawful, but the duty of every honest English man, to lay hands upon the Speakers of both Houses, or upon any Peer, or Parliament-man, or any other, having committed the crime of treason, murder, or felony; or justly suspected for the same: And consequently they ought to apprehend the aforesaid Westminster-men.

It is true, that in the ordinary proceedings, no man can be convict of treason, murder, or felony, but by Act of Parliament, or by judiciall proceedings recorded in his life time, yet there is another rule in Law too, viz. that no man shall take advantage of his owne wrong. Therefore, if one before he be convict by such proceedings, be killed in rebellion, and his corps viewed by the chief Justice, Coke 4. fo. 57. he forfeits both lands and goods.

Now suppose 500 ordinary persons (not claiming the power or name of a Parliament) to have committed the crime of treason, murder, or felony; Then assemble to themselves multitudes, out the Judges from their Justice seat, place those of their faction therein; seize the Kings Great Seale; break it in pieces, and counterfeit an other; Imprison the King, and thus stop the course of Justice a­gainst themselves: Grosse it were in that case (because unattainted, or unconvicted) not to declare them Traytors: Should the people in that case, omit by all possible endeavours, to apprehend, and bring them to punishment, (wherein the Law Coke 9. fo. 68. Coke 5. fo. 109. upon resistance doth warrant the killing of them) they were not only disobeyers of the Law, but the cause of their owne misery; Even so it is with the people at this day: There is no difference to be found betwixt those 500 men, and them at Westminster, but the Westminster-mens pretence of authority, which renders them more odious; And there­fore the people ought to be more zealous to apprehend them.

Fiftly, it is an undoubted truth, that whilst the Members are so over-awed, as to act and doe what others command them; It is no free Parliament; and consequently all their proceedings void and [Page 123] null. But those Westminster-men are in that manner awed, Even as they, by tumults expelled their fellow Members, and by their ty­ranny fettered their consciences; themselves are now (by the power of an Army) forced to captivate their owne sence to the will of a few inconsiderable persons; some particular Officers of the Army: The Members do not, they dare not act any thing, but in obedience of the results of a Councell of Warre. Nay more, we see, not to alter, and change opinion (how contradictory soever to former votes, how pernicious to King, Church, or Common-wealth) as they receive commands from thence, is ground sufficient both of an expulsion from the House, and an impeachment of Treason.

Hence it is, That we find such contradictory results, sometimes these persons voting themselves a Parliament, sometimes no Parlia­ment, sometimes much shew of setling a Forme of Religion, they unvote that againe, and declare (upon pretence of satisfying ten­der Consciences) to have none at all. They do (in effect) say, and unsay, vote one and the same thing, lawfull, and not law, even as the Cudgell hangs over them.

And so unlesse persons, whose Soules, and Consciences, are so far in vassalage, as to say, act, and doe, what ever the present prevai­ling Party commands, make the Houses of Parliament, these West­minster men are not they, and consequently if nothing but this were against them, it proves them no Members of Parliament.

Sixtly, admitting these men not disabled by any, or all the fore­said means, yet by their late Votes declaring their resolution, not to make any addresse, or application to the King, nor to permit any from him, they have (by the Law of England) dissolved them­selves; For, setting aside the Kings Writs of summons, the peoples electing the Knights, Citizens, and Burgesses, and the returns there­of made; And the Persons assembled have no more authority to sit, or vote in either House, then any other men. And by those Writs they have nothing else to doe, but to treat with the King concerning the affaires of the Realme. Therefore by waving that, they quit all their imployment. They doe by it clearly publish un­to the world, an absolute deniall to take upon them those things which the King and people intrusted them with, and for which they had Commission. And consequently, what ever they doe is without Commission, or Authority.

[Page 124] But to doe them right, they are in these votes more ingenuous then formerly. There is now a harmony between their words and actions, which heretofore jarred. For, notwithstanding their often Declarations, and high Protestations (even with deep execrations upon themselves if not performed) to make the King glorious, and the people to flourish: The world might (even from the first beginning of the Parliament) see, that all their actions tended to the destruction, both of King and Kingdome.

Now suppose a new gang of four Judges set up in the Court of Kings bench by colour of Authority of these Persons at Westmin­ster, and three of them (by an Order of their own) to expell the fourth: then two of the three to expel the third: & then one of the two to assemble multitudes, and expell the other. And after this the last man by himself alone, or calling unto him two, or three o­ther persons sutable to himself, to judge the Law, and thereby to declare the wealth of the Nation to be their owne, and both the Members, and the rest of the people, to be their slaves: And having got an Army on foot to support their actions; Then to declare that they will have no more relation unto, or medling with the Members; such Persons would quickly be denounced no Judges of that Court; Declared to act without commission, or authority; To be Subverters of the Law, and would be impeached of high Treason against this new State; Even so ought all the people to declare these Westminster-men. It is their case against the King, the people, and the old known fundamentall Laws of England.

Upon the whole matter, I cannot more aptly parallel these per­sons, then unto those men our Saviour in the Gospel warns us of: They have got within the walls of the Houses of Parliament, but Mat. 7. 15. 16. Iohn 10. 1, 2, 10. entred not in by the dore: They came in Sheeps clothing, expres­sing themselves most zealous to advance Religion, and to preserve the peoples Liberty: But by their fruits, we find them inwardly ravening Wolves; they are like unto those who our Saviour calls thieves, that come to steale, kill, and destroy; they have abolished all Religion, they have taken from the people their Liberty, and (almost to the last drop of bloud) have sucked from them their livelihood. In a word, since they cast off their loyalty, and so ma­king themselves masterlesse; those Wolves are so filled with pride, as that they disdaine all other Creatures; They are so gorged with [Page 125] malice, as that they snarle and pinch at most men they meet, which hath its effects like unto the biting of a mad Dog, scarce curable, but by a medicine prepared with the heart, or liver of that biting Cur. So the world sees when these Westminster men have once fixed their malice, (whether upon those against them, or upon their owne Party, whether he have deserved well, or ill, whether the fact charged upon him be lawfull, or unlawfull) it is a million to one, in fine, he perisheth. Nor can the wit of man find a cure for this grief; but to unkennell these Wolves.

And to effect it, the people of England by the rule of reason, 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, [Page 126] 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) [Page 127] 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 [Page 128] 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.

  • [Page 129]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 Declaration of the House of Commons 17. Janu. 1641. Votes of the Parliament, 12. Maii 1642. Order of the House of Commons 3 Jan. 1641. 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 [Page 130] 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 m [...]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 The Decla­ration in An­swer to the Scots papers fo. 63. Judge upon earth but themselves; and denounce Votes of both Houses. 16 Martii. 1641. 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 [Page 131] 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, Littleton. fo. 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 then was the condition of an English villaine, at the beginning of this Parliament. It is as bad, nay worse then that under the Turke, they have onely one Tyrant, we seven hundred; They one head over their whole body, we two bodies without a head.

And as it is with us in Temporall affaires; the same it is in Spi­rituall things too. The Members have de facto, abolished the Pro­testant Religion: And (both in doctrine and discipline) force mens consciences, how absurd or blasphemous soever it be, to submit to their resolutions: So that if the question be asked, whether the scripture or the Church be Judge, or how a man shall be informed of the truth: These Tyrants make answer, that neither Scripture nor Church is Judge of controversies, but the two Houses. We must no more search the Scriptures, but submit our selves, our souls, and bo­dies to the Votes of the Major part of those two Houses, and thus are the people slaves.

CHAP. XIV. How the Subjects of England were brought unto this sla­very.

IT is true, the people of England, for some time before this Parlia­ment, were grieved with illegall taxations, Monopolizing of Trades, and other things not warranted by Law: And although there wants not meanes (besides a Parliament) to redresse any dis­order arising in the Common-wealth, yet the cause of the distem­pers may be such, as that, (without a Parliament) it would be dif­ficult to reforme them: When the Judges are corrupt, as the Members alledged they were in that case of Ship-money, when the Officers of State, or other persons of power neere the King, occa­sioned the mischiefe, as it was conceived in the businesse of Mono­polies, few (in the ordinary way of proceedings) dare informe, or prosecute. Therefore in such cases a Parliament is necessary: The Members in those things have freedome of speech. And the King having called His Parliament, at the first meeting thereof, expres­sed Himself most sensible of the disorders of the Kingdome, de­clared His desire to have a perfect reformation; His resolution to go­verne according to the knowne Law: such as were authors, or actors of the former distractions, he left them to legall tryall. And to compleat the businesse, promised to concur with the two Houses, in all things tending to reformation.

Thus the Parliament had a happy beginning: and for a good space of time, a progresse sutable. For, such as looke upon the Statutes made this sitting, shall find the worke of reformation (even by the King Himselfe) perfectly compleated; That Judgement for Ship-mo­ney, the busines of Monopolies, and all other visible, and Knowne greivances were taken away: And to prevent the like danger, for after-times, the King passed an Act, for calling a Parliament e­very third year. So that, to the obtaining of the greatest happinesse, that any people in the world can desire, there wanted nothing, but to punish the authors of the former mischiefe, and then for the pre­sent, [Page 133] a dissolution of the Parliament. Then might every one (by ob­serving a knowne Law) have promised to himself security of his person, and challenged property in his estate.

But the sequell shewes that it was not the publick good, it was their owne private, the government and wealth of the whole Nati­on, the Members aimed at.

And as a foundation to it, the plot was to make this Parliament perpetuall. But at the first (it not being thought fit to discover their intention therein) it was pretended that the affaires of the King­dome, required instant supplies of great summes of money, which as they pretended, could not be obtained, but by Loane: And that the people (fearing a suddaine dissolution of the Parliament) would not lend; A Bill therefore is cunningly formed (not at all mentioning for what time the Parliament should sit) in generall words, enacting that it shall not be dissolved, nor adjourned, but with the assent of the two Houses: And the King being informed by the hatchers of that plot, that this Act was for no other end but to procure the Loane of money for the publick good, passed the Bill.

The Members having obtained this Act, and conceiving that thereby the King could not dissolve the Parliament without their consent, then they began their intended worke: From thence no­thing is heard of, in the old Parliamentary way. The prosecution of the Judges in that heavy charge of corruption is, not onely set aside, but some of them (formerly accused to be such high ma­lefactors as to have subverted the knowne Law) are received into the greatest Trevor Ba­ron of Law. favour, as persons most proper to usher in the arbi­trary power of the Members.

Then are the people amused with feares and jealousies, by printed pamphlets, they are grosly abused by being told that the King in­tended to subvert the Law; and governe by His arbitrary power. To abolish the Protestant Religion, and to introduce Popery: The Kingdome therefore (it was resolved) must be put into a posture of defence: The Militia must be taken out of the Kings hands, and setled in the Members. And accordingly by their command, the Kings subjects are mustered, arrayed, and put into a readinesse for War: they are instructed and prepared, to take upon them any en­terprize the Members shall direct. The Fortes, the Navy, the [Page 134] Armes, Ammunition, and Revenues of the Crowne, are taken to the use of the Members.

Thus having prepared, and strengthened themselves, the next thing was further to disinable the King to make resistance: It is therefore falsely and maliciously declared to the people, that it is against the liberty of the Subject (for any cause whatsoever, unlesse upon an actuall invasion) to be forced (by the Kings command) out of their owne County. So that by this doctrine, in case of a forraigne Invasion, the enemy must be landed, he must have footing in the Kingdome, before the people may be gathered together by the King to make defence: But in case of Rebellion (the businesse in hand) if the Rebels once get a formed body, too strong for any one County, the businesse is done: They may, if this be true doctrine, undoubtedly conquer (County after County) the whole Kingdome.

These things being done, it was then conceived opportunely and safe enough, to publish and declare their intent. Then without the King, they arrogate the name of the Parliament of En­gland, take upon them to be the Supreame Court of Justice, to make Laws, and in a word a power arbitrary.

So that the Members have (as an emprick by killing his patient, with improper medicines cures his disease) reformed this Common­wealth; under pretence to restore the knowne Law. The Law it selfe is by them totally subverted: And that which is still more grievous, the people were made voluntary instruments of this tra­gedy, whilst they conceived they fought in defence of the Law, and their owne Liberties, they were therein their owne executioners. They have embrued their hands in the blood of their fellow Subjects, and by their victory, have plunged themselves into the debts of sla­very.

But these things being done in the name of a Parliament (with some persons) they 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 [Page 135] 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: [Page 136] 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 Common­wealth, 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.

[Page 137] Thus for the Medicine: In the next place it is considerable who shall apply it. And for that, as the people were the immediate in­struments of their own thraldome, they ought to be the principall Agents of their own freedome; Their motives to returne to their obedience, are farre greater, then they had to recede from it.

Was any heretofore hindred to exercise his owne opinions in matters of Religion? Was his person imprisoned, taxes and imposi­tions laid upon him, not warranted by the Law? If so, his condition is now farre worse. First, for Religion; The sence of those Mem­bers we now finde is made the rule of every mans faith; he is bound to change his Religion, as the Major part of the Houses shall Vote. The Ecclesiasticall Judges heretofore, were limited in their punishments. The Members are boundlesse. And as they are not guided, either for Doctrine or Discipline, but by their owne will: So in their punishments, they are a large too: Shall the Members Vote, that no man shall use the word Trinity, or call upon our Saviour by the name of Jesus, or what else soever it be? The punishment upon those breaking that Law, may be losse of all his Estate, or death, if the Members please. Then for imprisoments; formerly the Judges had power (by whose warrant or command soever committed) as the cause required, to bail, or set him at liberty. But now once committed by the Members, the cause is not exa­minable; unlesse released by them who committed him (without redemption or examination) in the gaol he must starve and perish.

And for taxes and impositions, it is true, we have heard of Loans and Benevolences, and we know the businesse of Ship-money. But the people are now taxed by Assessements, Excize, and otherwise at pleasure. Peradventure the Excize now laid upon London, ex­ceeds not 20000. l. a week, but by the same Law, that such a summe is imposed, it may be multiplyed to a Million a day. If one County be assessed at 1000. l. a moneth, it may be raised to 10000. l. a weeke. And as these are new wayes to tax the people: The Members by the same rule every day, may devise other new wayes to burthen them. And doubtlesse he, who hath his Estate taken from him by Assessements, or Excize, is left as little to feed him­selfe and family, as if it were taken by way of Ship-money, Loan, or Benevolence: Nor is any mans hunger satisfied, his thirst quen­ched, or his children clothed, by being told that this is done by the [Page 138] 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 [Page 139] 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 hea [...] 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 [Page 140] 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 [...]ese who pardoned, he may be put to death. An estate of Land, an Office, or other power, or autho­rity is by these men given for life, or in fee, be it as strong and ful, as words can expresse it; neither that, nor any other act of these Tyrants binds one minute longer then they please. And all this consonant to these their new principles; for these men tell us their will is the Law, we have no other Judge upon earth, either in soul or body, say they, but themselves.

Farre otherwise it was with the people of this Nation under the King. The King neither hath, nor claimes power to tax the peo­ple, or impose upon their estates, but as the known Law permits: When the King hath once made His grant, either of Land, Office, Power, or Authority, He is concluded; He cannot recall it, or take to himself any thing in Lieu thereof. Therefore shall the King quit His tenants of the foresaid tenures, and put down the Court of Wards? It may properly be said an Act of grace and bounty: And so it is in all other things granted by Him, He is not Judge in His own case, nor hath a power Arbitrary; His Authority and inte­rest, is regulated by a known Law.

Thus appears the different condition of the people, between that in the worst of times under the Kings Government; and what they are now reduced unto, under the men at Westminster. So that, if the people had onely exchanged that Government, for this, it had been miserable enough. Therefore considering the blood which hath been spilt herein, most irksome it must be to every honest soule to think thereof.

[Page 141] But still the peoples case is worse, the former grievances under the King, was no cause of their defection. For, before this War be­gan, they were reformed, Ship-money and all grievances were taken away.

In a word, the people had no other motive to draw their sword against their Soveraigne, but thus: They were by these incendia­ries falsely told that the King meant not what he said, nor intended to keep those Laws he had made. But now every person thus se­duced, by his owne wofull experience finds, that it was these persons at Westminster, who meant contrary to what they pretended. If he looke for the Protestant Religion, freedome of conscience, the Laws of the Realme, Liberty of his person, or property in his estate, due unto [...] subject, not one of them is to be found. But in­stead thereof he finds himselfe (poore man) catched in the Members net, His conscience, His life, His Liberty, His estate, and fortune is now at their arbitrary power.

These things considered, he that thinkes either of this world, or of the world to come, upon his soule, or body, if he love himselfe, or his Country, if he fear God, or honour the King, must instantly make one in this worke to restore that King to his Throne.

Thus for the persons who ought to apply the medicine, the next is to know how it shall be done.

And for that, although considering the calamities this Nation hath suffered, in being brought to bondage: To redeeme it againe may seeme difficult, yet upon consideration had thereupon, it ap­pears to be a thing easily effected.

That of the Members in excluding the King, opposed the Law: Therefore could not be done but by War, and force. But this of restoring the King, pursues the Law, and so proclaimes peace: And as the Members could not have usurped this power, but by War, so they cannot hold it but by force. Instantly upon the Law having its free passage, their Kingdome is at an end; And to every War is absolutely necessary the peoples personall assistance: and money to pay the Soldiers. If either of these faile, the War is ended: And obvious it is, that the persons at Westminster, can have neither of them, but from those, whom by the same persons have been thus brought to thraldome.

So that to perfect all this worke, if every one would do his duty, [Page 142] there would be no danger of bloodshed: Then there needed no wea­pons, not doing, would do the worke; Therefore whether thou bee'st in armes or not, obey thy King according to the Law, make thy payments to whom by Law they are due, pay no Excise, Loanes, Benevolences, Assessements, Tax, Tollage, or other new im­positions by them laid upon thee. And if these Usurpers require these things, as due by Law: Tell them, it is contrary to their owne doctrine. Wish them to read the Petition of right, whereby the Lords and Commons in Parliament declared; That the people ought not to be Taxed with payments of money, but by Act of Parliament; that is, by the King, the Lords House, and the Com­mons joyntly concurring: Put them in minde of their Declarations this Parliament, wherein they call it pernitious The Com­mons House Remonstrance of the state of the Kingdome. 15. Dece. 1642. [...]mpt, to goe about to Tax the people by way of Excise: That it is against the li­berty of the Subject to be charged with payments of money, other­wise then the knowne Law doth warrant; that nothing is more horrid then to have Soldiers Idem. billited, to force upon the people voluntary contributions, or to have new Idem. Oathes put upon them. Yet these, and thousand more exactions laid upon thee, against Magna Charta, the Petition of right, and the knowne Law, thou maist charge them with. And needs no other Judge to condemne them, but themselves, out of their owne mouthes.

And further for thy incouragement herein, be assured, that by this restauration of the King, not onely the people of England ob­taine their freedome, but instantly thereupon, ensueth peace and unity throughout all the Kings Dominions. For by that, the King­domes of England, Scotland, and Ireland, are againe united: The people will then (with great joy and acclamation) according to the foresaid just recognition of the Lords and Commons unto King James, performe their duty, unto this our King Charls; And ac­knowledge Him according to the foresaid Oath of Supremacy, their onely Supreame Governour.

Upon the whole matter, so long as the people continue in this slavery, they are not onely their owne wilfull tormentors, but dis­obeyers of the Laws of God and man. And by quitting themselves from bondage (which is at every instant in their power to do) they performe their duty to both.

FINIS.

ERRATA.

PAg. 8. lin. 11. read, or our. p. 10. l. 20. r. his advice. p. 12. l. 14. r. never had. p. 15. l. 32. r. motives. p. 28. l. 34. r. we having. p. 30. l. ult. r. without consent. p. 32. l. 26. blot the first and. p. 39. l. 28. r. denied. p. 48. l. 29. r. the Law, and l. 31. r. can gaine. p. 53. l. 9. r. have been. p. 58. l. 4. r. I conceive. p. 67. l. 14. blot out the last that. p. 88. l. 11. r. le Roy savisera. p. 98. l. 7. r. he could not. p. 116. l. 26. r. sterne. p. 118. l. 31. r. of this. p. 121. l. 34. blot out and. p. 124. l. 12. r. one. p. 127. l. 2. r. left.

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