WHether the right which the King hath to Hull, and all other Forts of strength for the defence of the Kingdom be by discent from the Blood-Royall, or by way of trust.

And for my part, I conceive He hath it by way of trust: but to re­solve this question, I shall take leave of my selfe to use my owne me­thod. Which shall be first to shew the strongest arguments that can be urged by them of the contrary opinion, who stand so much upon the discent, as to drown the trust; and afterwards I shall prove that notwithstanding all that they can say, he hath it by way of trust only.

First then to argue for his discent thus I prove it: If He have it in His naturall capacity, then he hath it by discent; but He hath it in His naturall capacity, ergo,

The consequence will not be denied, for I Intend by His naturall capacity, as Charles the Sonne and Heire apparent of King Iames His Father of blessed memory; and if it be granted He hath it so, then surely the consequence must stand good.

Then for the Minor, that He hath it in that capacity, thus I prove it.

If the Treason which he commits that keepes one of those Forts, and levieth War against the King and His Liege people be against the King in His naturall capacity, then the minor is good; and that that Treason when any one commits, it is against him in that capacity, thus I prove it.

But I desire not to be mistaken, for I aym not at the worthy act of Sir Iohn Hotham; for I hold it not levying of War within the letter of the Statute of 25. Ed. 3. if it were an offenc [...] th [...]t might tast of Trea­son (but I hold it is not) yet being out of the words of that Statute the Parliament and not the King himselfe nor his [...]ge are to Judge of it by vertue of a clause in that act by which their [...]erdecess [...] [...]ve re­served that power for them:

But to goe forward with what I am to prove, viz. that s [...]ch a Tea­son as is mentioned before, nay any Treason is against him in his na­turall [Page 6] capacity: it appeares by the forme of indictment for Treason, for they must and doe alwaies conclude contra ligeantiae suae debitum and so Cooke lib. 7. Calvins case: which words proove that Treason is against him to whom ligeance is due, and then pray if it be against him to whom ligeance is due, is it not against the natu­rall King, that is, against the King in his naturall capacity? for all that knowes but the definition of the politique capacity will confesse that ligeance or homage cannot bee done to such a body as is invisi­ble.

And therefore of an Alien enemy come and possesse himselfe of any of the Kings Forts, and levies warre against him, and then is taken, this is Treason and yet our law in this case doth refuse to try him as out of its jurisdiction because he cannot bee tried by indictment, for being no liege man to the King, the indictment cannot conclude that it was contra ligeantiae suae debitum: and therefore hee shall bee put to death by Matiall law: and so it was in 15. H. 7. Parking War­becks case, who being an Alien borne in Flanders fained himselfe to be one of the sonnes of Edward the Fourth, and invaded this Realme with great power, with an intent to take upon him the dignity royall: But being taken in the warre, it was resolved by the Justices that hee could not be punished by the Common Law; but before the Con­stable and Marshall (who had speciall commission to heare and deter­mine the same according to Marshall Law) he was sentenced to bee drawne, hang'd, and quartered, which was done and executed accor­dingly: and this appeares in the booke of Griffeth Attorney Gene­rall and in the booke of Hobert Generall to Henry the Seventh, and you may reade it likewise in Calvins case Cooke Lib. 7. fol. 6. b. and cases to the same purpose may reade in 4. Mar. br. 32. & 3. & 4. Ph. & Mar. Dyer. 144.

I shall not raise arguments to prove that Ligeance is due to the King in his naturall capacity, as it was adiugded in 6. Iacobi neither shall I mention how that the words of the letters pattents of qenizti­on be that the Patentee shall behave himselfe tanquam verus et fide­lis ligeus domini regis, which proves that ligeance is due to the King in his naturall capacity, for all this is not to my purpose, but because the Kings Majesty himselfe whom I never think on but with reverence hath made use of the last argument, and others may and doe urge the for­mer, I shall sert downe the definition of the Kings politipue capacity out of which the reader himselfe (thgogh but of slender Iudgment) may have reason sufficient to answer all the arguments hither to which seeme to be of such force.

The definition of it is this, it is a body framed by the polocy of man, invisible, immortall, not subject to any infirmity, nonnage, or in­fancy, so tis definid in Calvins case.

And who cannot gather a reason (from hence) sufficient to deny the last Consequence; and say that though treason commited against the King by keeping of those sorts from him be treason against his na­turall capacity, yet it doth not follow that he hath them, it hath capa­city: for the King hath but two capacities, his naturall and his polli­tique: now according to the definition of the latter their can be no treason committed against that cappacity it being an inanimate and invisible body, therfore needs must indictments conclude the treason to be against the natuerall capacity; but if that should bee a good consequence that therefore he holds them in that capacity, then the next consequence would be that hee might sell them when hee please, which is directly against the Law, as was resolved by the whole Par­liament in Ed. the thirds time, at which Parliament King Iohn his re­signing his Crowne and Kingdome of England to the Pope, being dis­cussed, upon mature deliberation, the Lords both Spirituall and Tem­porall, and all the Commons resolved with one accord that no King can put his Realme nor his people under such subjection without their assent, and contrary to his oath.

The next argument may be urged is this, if immediately upon the death of any King the next heire is compleatly & absolutely King with­out any essentiall ceremony or act to be done, expost facto: then hee that comes in as next heire hath it by discent and not by way of trust. But when a King dieth, immediately the next heire is King without any especiall ceremony. ergo,

For the Minor thus I prove it, it is expressly said in Calvins case, that the King holds the Kingdome of England by birthright inherent by discent from the bloud Royall, whereupon succession doth attend, and therefore tis usually said to the King his Heires and Successors, where the word Heires is first named & in primo Maria Dyer. 92. a. tis expressly said, that the customes are annext to the Crowne, and the King hath an inheritance in them.

In the first yeare of King Iames his raigne if I mistake not; before his Majesties Coronation Watson and Clarke Seminarie Preists, were of opinion that his Majestie was not compleat and absolute King be­fore his Coronation: Now if that were not Law, the minor must needs fall for then though a right to the Crowne discended, yet it was in the power of others to make him compleatly King by turning his [Page 8] possession in Law (as it were) into an actuall possession, or else to hin­der him from ragining: But you shall find it resolved (by all the Iudg­es of England then being) con rary to the opinion of those Preists that presently by the descent his M [...]jesty was compleatly and abso­lutly King without that cerimony, and that Corronation was but a Roy [...]ll ornament and outward sollemnisation of the discent: for ex­ample.

You sh [...]ll find that Henry the sixt was not crownd untill the eight yeare of h [...] Raigne: and yet divers men before his Coronation were attain ed of treason, which clearly proves he was King before that cerimony was performed, for if he had not beene King how could any man h [...]ve beene attainted of treason for treason is a breach of allege­ance and if there had been n [...] King there could be no allegeance due, and [...]f no ligeance had been due, no bre [...]ch of it could be made, and then no treason; and this is made manifest by the reports of the 5. 6. 7. years of the same King which you may read at large in Cooks reports lib. 7. fol. 11. a.

Another argument to prove that when any King of Eng. dies, his next Heire is King presently by discent, without any ceremony, may be this: If he should not be King presently upon the death of the Father or Ancstour, but must stay for some other ceremony to be done; then there would be an interregnum in Eng. which the Laws will not suffer.

And to prove that the Laws do not suffer an inter regnum, 'tis easily gathered from the case in 9. E. 4. 51. where it is sayd, that if the King be seized of land by a defeaseable title, and dieth seizd this discent shall toll the entry of him that hath right, which proves that he that is next King coming in as Son, hath it by discent, otherwise the entry of him that hath right could not be taken away: and it proves likewise, that he must not stay for His Majesty till some Act or other be done, for then there would be an inter regnum till that Act or ceremony were past, and when that Act or ceremony were past, then he should be in (as it were) from that Act, and then the entry of him that hath right cannot be taken away, and so is Litleton in his chap. of discents.

There is likewise another case in our books, from whence you may draw the same conclusion, viz. If the Prince commit treason or mur­der, he must be tried according to Law as well as another subject, for he is but a Subject for there can be but one King at the self same time, in the selfe same Kingdome: But now if the King dyes before the Prince be tried the very immediate discent of the Crown purgeth him of his treason or murder, or what ever his fact be, so that he shall not be arraigned, or tried for it.

Which case proves that he hath the Crowne immediately upon the discent; for if there were any ceremony that were essentiall to making him King, that ceremony might be delaid and the Prince might be attainted.

If the Disseisor of an Infant convey the Land to the King who di­eth seised, this is such a discent as shall take away the entry of the Infant, and so are the Books of 34. H. 6. 34. and 45. Ass. pl. 6. & Plowd. com. 234. which proves clearly the discent. tis part of the oath of allegiance which is used to this day in every Leet, That you shall be true and faithfull to our Soveraigne Lord King Charles and his heirs; which word heires, proves the discent.

And thus I have shewed you other arguments, which may be used to destroy the trust: but according to my promise in the beginning, I must now shew where the fallacie and their mistake lyes that use those arguments. And it lyes in the consequence; for though the King comes to the Crowne by discent, yet it does not follow that therefore he hath it not by way of trust: for without doubt, the trust descends with it and the trust is that onely which he hath by discent: for, as I said before, if the King had such an estate by discent, as they conceive he hath, then he might sell the Crowne, or dispose of it as he pleased.

The Parliament did give Henry the eight power to dispose of the Crowne to whom he pleased, by his Letters Patents or last Will; but when he intended to goe in person against France, and therefore desired to have the Crowne setled because he would not breake that trust his people had reposed in him; you shall finde that in 35. of that King, the Crowne was setled by a Parliament then holden; and in the Preamble of that Statute that King himself did acknowledge the trust and confidence his people had formerly reposed in him.

And to prove farther that a trust doth descend to the King of Eng­land with his Crown I shal shew how Kingoms first began, and I shal take a difference betweene Kingdomes ruled by royall government, and Kingdomes of politique governance: and that was the difference made in answer to the Prince, who demanded how it came to passe, quod Rex unus plebem suam reguliter tantum regere valeat, sed regi alteri potestas hujusmodi denegatur Fortescue de laudibus legum An­gliae, cap. 10. and I hope the same difference which did satisfie the Prince, will satisfie any troublesome spirit of these times.

For the first, the Kingdome ruled by royall government, I shall shew you how it first began, as it appeares by the Author last coted, [Page 10] cap. 12. and it was thus; Men in times passed excelling in power, and being greedy of glory and dignity, did many times by plaine [...] subdue unto them their neighbours the Nations adjoyning, and compelled them to doe them service, and to obey their com­mands, which commandements afterward they decreed to be unto these people very Lawes; and by long sufferance of the same, the people so subdued, being by their subduers defended from the inju­ries of others, agreed and consented to live under the Dominion of the same their subduers, thinking it better for them to be under the empire of one man, which might be able to defend them against o­thers, then to be in danger to be oppressed by all sich as would offer them wrong by violence: and those subduers thus ruling the people unto them subdued, tooke upon them to be called Rulers which our language tearmes Kings; reges a regendo, eorum quoque dominatus tantum regalis dictus fuit; and their rule or domination onely was named royall or Kingly, Fortescu.

Now in such a Kingdom I beleeve no trust was anext to the Crown, for that King usurpt and compelled them to obedience; and tis such a Kingdome that those who are so violent against the Parliament doe imagine this Kingdome of England to be, or else would have it so. But outs is the Kingdome of Politique and Regall governance, and it hath raised it selfe into a body, whereof the King is the head; & ut non potest caput corporis phesi ei nervos suos commutare, nequè membris suis propriae vires & propria sanguinis alimenta denegare; sic neque rex qui est caput corporis pollitici mutare potest leges corpo­ris illius, nec ejusdem populi substantias proprias subtrahere, recla­muntibus eis aut invitis, Fort. cap. 13. fol. 32.

Sicut in naturali corpore, ut dicit Philosophus, cor est primum vi­vens, habeus in se sanguinem quem emittit in omnia ejus membru un­de illa vegetantur & viuunt: So in the body politique (sa th For­tesc. fol. 31.) the intent of the people is the first lively thing having within it blood, that is to say, politique provision for the utility and wealth of the same people, which it dealeth forth and imparteth as well to the head as to all the members of the same body, whereby the body is nourished and maintained.

So that you see hereby that our Kingdome of England is not of a Royall Government onely, neither is the Crowne of so divine a temper as to enable the King to rule by the Law within his owne brest; no you see the intent of the people is the primum vevens, which like the heart, emittit sanguinem both to the head and all the mem­bers.

And thus the Kingdome of England out of Brutes retinue of the Troians which he first brought out of the coasts of Italy and Greece, first grew to a politique and regall Dominion; & ad tutelam legis subditor [...]m, ac corum corporum ac bonorum, rex talis erectus. For [...]. 32. and the same Author goes forward, & ad hanc potestatem a popu­lo effluxam ipse habet, quo non licet et potestate al [...]a populo suo Do­minari.

And see the Prince himselfe acknowledgeth as much to his Chan­cellour being satisfied with the difference before taken; for in the 14. chapter of the same Author fol. 34. sayes the Prince, effugasti c [...]ncellarie, declarationis tuae lumine tenebras, quibus obducta erat a [...]dmentis cridae: So that said he, I doe most evidently see that no Nation did ever of their owne voluntary minde incorporate them­sel [...]es into a Kingdome for any other intent, but onely to the end, [...] thereby they might with more safety then before maintaine t [...]selves [...]d enjoy their goods from such misfortunes and losses [...] [...]ey s [...]od in feare of; for if they had not bin, saith he nullam ob­ [...] [...] [...]em super ipsos rex hujusmodi: which proves without [...] di [...]cent of a trust.

An [...] [...] further proofe that our Kingdome is not of regall onely, but also of a politique governance: see Fort. fol, 25. b. where you may read word for word what I have penned. viz. the King of England cannot alter nor change the Lawes of his Realme at his pleasure; for why? principatu namque nedum regali, sed & pollitico, suo populo Dominat [...]r. And were it otherwise, the King might take away the lives and [...]states of any Subjects at his pleasure; but in our Kingdome non stat [...]ro ra [...]one voluntas.

And as much may be gathered from the words of Severus the Emperour, who being at Yorke, and one lying prostrate at his feet c [...]a­ving pardon for some small fact he had committed, in the midst of his fury forbore to strike, saying, tis not my hand must governe the Empire.

And the same Emperor shortly after ended his life in the City of Yorke with these words, I found the State troublesome every where, and I leave it quiet even to the Britaines, and the Empire sure and firme to my children if they be good, but unsure and weake if they be bad.

My Lord Cooke in the first part of his Institutes, fol. 60. b. observes that Littleton speakes of the Kings prerogative but twice in all his Booke, and in both places, saith Cooke, he makes it part of the Lawes [Page 12] of England; so that hence we may gather, that though the working braines of these times plead his Prerogative to him, y [...]t that cannot enable him to doe what the Law forbids: for his Prerogative is but what power the Law gives him, and that power cannot be made greater without the assent of the whole Realme; Fort. fol. 40. ca. 18. and what is the reason of this our happinesse, that the King cannot make new Lawes, dam old ones without the Subjects consent, but this? because our Kingdom is not governed with a power onely roy­all but also politique.

Aristotle in 3. Pollitic. saith, melius est civitatem regi viro optimo quam lege optima: it is better for a City to be governed by a good King then by a good Law. But for as much as every King is not such a man, therefore Saint Thomas, in the Booke which he wrote to the King of Cyprus of the governance of Princes, wisheth the State of a Realm to be such, that it may not be in the Kings power to oppresse his people with tyranny.

For my part I did not looke upon our gracious King when I coa­ted this; for of himselfe I take him to be that vir optimus, were he not misled and drawne to such engagements as will ruine himselfe, his posterity and Kingdome, if not by those of his best Councell pre­vented; I meane the Parliament, who are engaged both for the safe­ty of the Kings Majesties person and posterity, of themselves and the whole Kingdome, to strike all those who perswade his Maje­sty to doe such acts as make the Lawes seeme but as cobwebs, which by his Prerogotive may be stretched, nay broken.

Some there are which Object, that the Kings Majesty hath bin pleased to passe many gracious Acts already, and therefore seeing we have so many tokens of his good intent, why should he be doubted, or his intent questioned?

Truely the Parliament and all the rest of his Subjects, must ac­knowledge his Fatherly care of them, in those Acts expressed: But if he be perswaded, nay resolved to breake those Acts againe by vi­olence, what are we the better to say we have beene happy in the making those Acts, the breach of which is ten times a greater misery? if a Father breeds his Sonne well, or allowes him well whilest hee lives, but when hee dyes, leaves him nothing where­by both hee and his children, and his childrens children may be the better, surely the care and piety of a Father is not in him com­pleat. So Kings, if they make part of an age happy by governing [Page 13] well, or making good Lawes, but at last breakes them againe, and does not leave them as Testaments, whereby a perpetuity of good may descend to their Countrey; they are but mortall and transi­tory benefactours.

I speake not this to incense the Subject against their lawfull Prince, for I know no warrant for that: for, for his Majesties pure selfe. His serious and often protestations command my Faith, both for his maintaining our Protestant Religion, and defence of his Subjects and their Liberttes; and I discerne his words actuated, his building or repairing of Temples, his late Proclamations a­gainst Recusants, his excluding them his Army that will not take the oath of Supremacy and Alleagiance, are for the first: his buil­ding of Shippes in these late times, and his passing the Act for the continuance of this Parliament, are testimonies for the second: onely the danger is, if those malignant spirits about him, should prevaile with him (which I hope is impossible) to adde ill end­ings to those good Acts, by changing the use they were preten­ded for.

Others there are, that grant the KING hath it by way of trust, but yet Object, that by Law a trust cannot be counter­manded; and therefore Sir John Hothams keeping of Hull was against Law.

To which I answere thus; I confesse that by law a trust cannot be countermanded, but yet I shall take a difference between the trust of a private mans estate, and a trust of a kingdome; and if this difference should not stand good, see what a mischiefe would follow; and argumentum ab inconvenients is of great force in law, if that were a good argument, then our case in short were but thus:

We have intrusted the King with the whole Kingdome, and this trust cannot be countermanded by us againe, and if not then the Kings estate in the kingdome, is as good as absolutely his owne in Fee, and if so, then he may doe what he will with the Crowne: and if this mischiefe were remedilesse, what estate or property had any man in his owne fortunes, when they all lay open to so great a hazzard.

Again, though for the avoydance of that mischiefe, it might be thought countermandable; yet that Act of Sir John Hotham is not [Page 14] [...] [Page 15] [...] [Page 14] a countermande but rather a strengthning of it: for by common presumption, the King being but one cannot prie into the actions and intents of all those that have procured his imployments so well as his Parliament may, for plus vident oculi quam oculus: and there­fore they finding such treacherie and falsenesse in them (which the King either does not see, or else is wilfully impolliticke) thought it fit (as it was most seasonable indeed) to imploy another whose faithfulnesse might prevent what they intended against both King and Kingdome; to which truth so soone as his Majesty shall give credit, and by that means they and the Kingdome be secured, his trust will appear the same it ever was, and he more able to discharge that trust reposed in him.

Others there are that doe object the authority of Parliament to be much, but this is not binding which this Parliament does now, because the King doth not joyne with them; for tis no compleat Parliament the head of that body being absent.

But I shall prove by presidents, and reason, upon which law is partly grounded that the Parliament have that power in them which they so carefully make use of.

I confesse my Lord Cooke in the first part of his Institues, thus derives the word Praerogativa: a prae id est ante and rogare, and saith he, it carries with it this sence, when an Act is passed by both houses of Parliament, before it can be made a Law they must praerogare the Kings consent; but this dirivation of the word does, not prove that the King hath an absolute power of denying to passe any Bill that is brought him for the good of the Kingdom: but it signifies on his part aswell, that he cannot of himselfe enact any thing or lay any tax upon his Subject, but he must praerogare too, asking the consent of the Parliament.

Besides, though what they doe cannot be binding by way of Act without his consent, yet by way of Ordinance it may; in term. Mi­cael. 21. E. 3. fol. 60. b. In a case touching the exemption of the Abby of Saint Edmons Berry from the Bishop of Norwich, there was an Ordinance made by the Parliament without the King, and if you turne to the booke you shall finde these words in the judge­ment fuit ordeigne, which you may read likewise in Seldens title of honour: But if I should admit that there were no law to prove their Act legall, yet sure I am there is good reason for it.

As first from the words of the writ nostro quibusdam arduis rebus et [Page 15] gotiis urgentibus statu et diffentionem regni nostri Angliae concer­nentibus; which words rebus arduis et urgentibus negotiis proves they have power upon urgent occasions to do that which at the time of their doing it, they had no law to enable them thereto; for their calling by writ is authorty to enable them to sit in Parliament, and then their consent is law enough to binde us, and therefore if the Parliament doe grant Subsidies by way of Ordinance and the Kings hand is never put to it, yet it is sufficient enough to force a Paiment from us because the Countries are bound by Indentures seald to the Sheriffe at the time of their election to stand to what they shall con­sent to in Parliament whom they have chosen: but by way of Act6 it cannot force us, because it cannot be pleaded as an Act but that upon a demurrer it will be overruled.

Now if the Parliament could do nothing but what they had a law to enable them to do, what need the Country seal Indentures to wand to what they doe, when as that law the Parliament went by, would force them to obey it without that waxen ceremony.

Besides if the Parliament had not power to do an Act, to the do­ing of which there was no law at the time of their summons to ena­ble them; then what need a Parliament be cald at any time, for then any inferiour Court had had as much authority (upon the matter) as that: but I conceave necessity is the law they are to look at, fot they need not deferre the doing of that which is for the King­domes good, for want of a law or a president to steere by; for if in times past the grave law-makers had not done things according to their profound judgement, and as they saw fit without Presidents, how should any presidents have been left to future ages, and to this present Parliament? but surely they did, and surely this Parlia­ment may, unlesse any one can prove the power of Parliament to be abated, and lesse now then in former times.

I agree if a Parliament should assume to themselves that power, to sway every thing and never aske the Kings consent, it were an abridgement of that prerogative the King hath in him by law; but there are many humble Petitions full of submission and alleagiance to his Majesty that can prove this Parliament not guilty; were they not adjudged Traytors without tryall: But again, if the King for­sake them, and deny to passe those Bills they bring him for the good [Page 16] of the Kingdome, I think necessity enables, nay commands them to doe it without him.

I shall prove it all by one example, the like I hope shall not bee heard of in our dayes; hath no man heard of a king deposed by a Parliament? Surely yes, and what law had they for it that did it be­sides convenience and the common good? and surely they did it without the Kings consent too, or at least he consented whether he would or no, for if he had had an absolute power of denying, and by that could have frustrated their endeavours, he would never have consented to his own deposing; which proves strongly that they may do that which is for the good of the kingdom without the King if he refuse to joyne with them.

But this I desire not, and the Parliament intend it not as they have declared themselves in severall Declarations and Petitions; and I hope the most ignorantly violent of the vulgars, and the greatest zealots of any Sect what ever, will wish so much good to our king­dome, as that it may long be governd by this our gracious King Charles and his posterity, and that he may soon be free from those cruell engagements and inconveniences which the malignant party hath drawne him into. This is my heart prayer, onely I used that great argument to prove a lesser, to argue a mejori ad minus, for omn [...] majus continet in se minus.