AN ARGUMENT OR, DEBATE IN LAW: OF THE GREAT QVESTION CONCERNING THE MILITIA; As it is now settled by ORDINANCE of both the HOUSES of PARLIAMENT. By which, it is endeavoured, to prove the Legalitie of it, and to make it warrantable by the fundamentall Laws of the Land. In which, Answer is also given to all Objections that do arise, either directly, or collaterally concerning the same. All which is referred to the judicious Reader.

By J. Marsh C. L.

LONDON: Printed by Tho. Paine, and M. Simmons, for Tho. Ʋnderhill, at the Bible in Wood-street, 1642.


Courteous READER,

THat which I framed for my own pri­vate satisfaction onely, in these distract­ed times, in which every man (that re­solves not to stand Neuter) ought to have his conscience poysed by good grounds and principles, l [...]st that it suffer shipwrack in the conclusion; I do here (though unwillingly) pre­sent to the publique view; in which weak and poore indeavour, I have borrowed some of the Parliaments grounds to exspatiate my self upon, that I might the better convince thy iudgement, and mine own: but the greater part are mine; which I hope will not blast the rest, nor make it unfruitfull to thee; but rather more fully inform, satisfie and convince thee of the truth of the Parliaments assertions: and to this end I have not used any affected style, but have (to the ut­most of my endeavour) invested the Law with its own plainnesse and integrity: for I have alwayes raised this conclusion to my self, that where I look for [Page] words, there I expect least Law, which is confirmed unto thee, as a truth, in these dayes. Now Reader, shortly to conclude this, (for the Work doth not de­serve a Preface or Epistle) if happily there may be any thing in it, that may merit thy more serious conside­ration, and make thee a true Subiect to the King, by being faithfull to the Parliament; I shall expect no greater areward of my labour, then that, confidently beleeving that the issue of it will be, thine, and my happinesse, Farewell.

Thine to love and serve thee, J. Marsh.


THe generall Question is but shortly this; Whether the Militia, as it is now setled by both the Houses of Par­liament, be warrantable by Law, or not?

The Case, with the Circumstances, upon which this generall Question is stated, depends upon these two Quaeres:

  • 1. Whether the King by his Prerogative hath the sole and onely power of ordering and disposing of the Militia of his Kingdome or not? Admitting that he hath: then the next and maine scruple is:
  • 2. Whether both the Houses of Parliament, in time of imminent danger, (the King refusing to settle the Militia for the defence and securitie of his people) may by an Ordinance of Parliament, without his Majesties consent, settle the Militia, and put the Kingdome into a posture of defence or not?

1. For the first point, I conceive very clearly, that the King by his Prerogative, warrantable by the Lawes of the Land, performing the trust reposed in him, hath the onely power of disposing of the Militia of this Kingdome; and therefore I shall not debate this, so much out of scruple or doubt, as to give satisfaction to the unlearned; and I shall prove it in reason thus: The King is Caput Reipublicae, & pater patriae, that is, the head of the Common-wealth, and Father of his Countrey; [Page 2] and hath this great trust committed to him by God, and his people, of governing of them in peace and happinesse, by maintaining and defend­ing of their Religion, Lawes, and Liberties; which, that he may be the more obliged to doe, he taketh a solemne Oath at his Coronation, that he will doe and performe this, according to the trust reposed in him; the due execution whereof, being of so high consequence to this King­dome, and of so great difficultie to himselfe, and therefore not to be executed without great care, circumspection, and trouble; the Lawes and Constitutions of this Realme, hath in favour and ayde of his Maje­stie (who is intended alwayes to be imployed and negotiated Cirea ar­dua regni, about the high things of the Kingdome) allowed unto him, many prerogatives, priviledges, and exemptions, above all his Subjects. Among which, I take this in our Case to be one; for as our Religion, Lawes, and Liberties, are committed in trust to the King, so are our lives also: which he is bound to defend aswell by the materall sword, if oc­casion be, as by the sword of Justice, and therefore as it is well knowne, all prosecutions by way of Indictment against any man, for the taking away of the life of another, are at the suite of the King, and the King onely can pardon the offence, and no other. For he alone hath the charge of the lives of his Subjects committed to him, and this is such an inseperable trust, that the King cannot grant this over to another, as it is resolved in 20. H. 7. where it is said, [...]. H. 7. fo. 8. a. That a grant of power to pardon Fe­lons, by the King to another, is not good, for that it is a prerogative annexed to the Crowne, and cannot be severed: But here it is not to be understood that no prerogative of the King can be severed from the Crowne, for some may, as I shall afterwards shew, and that by grant of the King too: but that this among others, is such a prerogative as cannot be severed, and the reason of this, is, as I conceive, for that the life of a man is of so high and puissant nature, that none lesse then God, or the King, ought to have interest and power in; and though the Common-wealth loose a member, it is the King onely who looseth a Subject, and therefore the killing of a man, is said in the Indictment to be against his Crowne and dignitie, and not against the Common-wealth; for though mediately it be an offence against the Common-wealth too: yet it is a more neare and immediate offence against the King: for that he is intrusted with the lives of his Subjects.

Now as the King is bound to defend his Subjects by the Law, so in like manner he is bound to defend and protect them by the Sword, if occasion be, as I have said before, from all danger, both of forraigne and domesticke enemies. And therefore, as there is a Leigeance, that is, a faithfull and true obedience of the Subject due to his Soveraigne, as it is interpreted in the 7. Rep. Calvines case: [...] Rep. Calvins [...]se. So there is a protection due from [Page 3] the Soveraigne to the Subject; for he ought not onely regere, to rule, but also Protegere subditos suos, to protect his Subjects. So as betweene the Soveraigne and Subject, there is Duplex & reciprocum ligamen, that is, a double and reciprocall bond; Quia sicut subditus regi tenetur, ad obedien­tiam, ita Rex subdito tenetur ad protectionem, for as the Subject is bound to obey the King, so the King is bound to protect his Subject; and there­fore in 20. H. 7. it is holden, that there is a Liege or Leigeance betweene the King and the Subject:20. H. 7. 8. and Fortescue cap. 13. saith, Rex ad tute­lam legis, corporum & bonorum erectus est, that is, he is erected King, to defend the Law, the bodies, and goods of his Subjects: and in the Acts of Parliament of 10. R. 2. 11. R. 2. and 14. H. 8. &c. Subjects are called Leige people. 10. R. 2. ca. [...] 11. R. 2. ca. [...] 14. H. 8. ca. [...] And in the Acts of Parliament of 34. H. 8. and 35. H. 8. &c. the King is called the Liege Lord of his Subjects;34. H. 8. ca. [...] 35. H. 8. ca. [...] and with this agreeth Master Skene in his Booke de expositione verborum, that Leigeance is the mutuall bond & obligation betwixt the King and his Subjects, by which Subjects are called his leige Subjects, for that they are bound to obey and serve him: and he is called their Leige Lord, for that he ought to main­taine and defend them: Wherefore it is truely said, that Protectio trahit subjectionem, & subjectio protectionem, Protection draweth subjection, and subjection protection.

By all which it is manifest, as also by the Oath of the King, taken at his Coronation, lately published by the Parliament, that the King is bound to protect the lives & liberties of his Subjects, so long as the Sub­ject is obedient to the King; for protection and leigeance are relatives, and have a necessary and reciprocall dependance the one upon the other: and this is the reason that we say that a man outlawed, is out of the pro­tection of the King; so that heretofore a man outlawed was said to have Caput Lupinum, that is, a Wolfes head: so that any man might then have killed him, as Fleta saith,Fleta. lib. [...] cap. 27. and other old Books: because that by his dis­obedience to the King, he had deprived himselfe of the benefit of the re­gall and legall protection. I doe not say, that if the King withdraw his regall protection from his Subjects, that his Subjects may withhold their obedience from their Soveraigne: yet I am certaine, that the Books before cited imply as much. Besides, reason will arme every man thus farre, as to conclude, that the cause and ground of his obedience, is his Soveraignes protection, and therefore if his Soveraigne withdraw the one, he may deny the other. Againe, denying to protect his Subjects, is a plaine refusall to be ruled by Law, and this, as Bracton saith, makes him a Tyrant no King, and my obedience is due to him, as a King, not as a Tyrant. But I passe this over, as a matter of so great consequence at this time, considering the bad principles of many men, that I had ra­ther offend in withholding of my judgement, then in publishing of it.

[Page 4] But yet more fully, that the King is bound to protect his Subjects, F. N. B. is expresse.F. N. B. fo. 232. Nota, saith the Booke, that the King is bound of right by the Lawes, to defend his Subjects, and their goods and chattels, lands and tenements, and therefore by the Law; every lawfull Subject is taken to be within the protection of the King, and if he be put out of protection for his offence, then every man may doe with him as with an enemy of the King: Here note, that the Subject cannot loose his prote­ction due to him by his Soveraigne, but by his owne default.

And in F. N. B. fol. 113. a. it is there said, [...]. N. B. fo. [...]13. a. that the King ought of right to save and defend his Realme, as well against the Sea, as against enemies, that it be not surrounded or wasted: and to provide remedy for it; and also to provide that his Subjects have their passage through­out the Realme by all high wayes in safeguard. And this is warranted by the Commission of Sewers, which is directed by the King to Com­missioners, to inquire of, &c. and to heare and determine all faults and breaches of Walls, Ditches, &c. Sea-bankes, &c. in the beginning of which Commission, the fractions of the Walls, or Sea-bankes, is cited, and in the body of it, the King saith, Nos pro eo quod ratione dignitatis nostrae regiae ad providendum salvationi regni nostri circumquaque sumus a­strcti, volentes in ha [...] parte congruum & festinum remedium adhiberi, assig­navimus vos, [...]. Here the King himselfe saith expressely, in this Com­mission, that he is every way bound, by reason of his royall function, and Kingly [...]ffice, Providere salvationi regni sui, that is, to provide safety for his Kingdome. And is the Law thus, that the King is bound to pro­tect and defend his Subjects, Permare, per terras? By the Sea, from all Pyrates and Robbers, as also from the invasions of forraigne enemies: and by the Land, from any domesticke dangers, either by inbred rebel­lions, or civill Commotions? Why then the Conclusion that I raise up­on these premisses, is but this; That it is consonant and agreeable to all reason, that the King executing of the trust reposed in him, should not be denied the means, by which he may respond that great confidence placed in him, by his owne care and fidelitie: and God forbid, that we should requir [...] the due execution of this great function, of his Majesties part, and yet that we should withdraw from him the meanes, by which he should perfor [...]e it; for if so, to be a King, would be sarre worse, then an Aegyptian servitude.

Wherefore I conceive that it stands with all the justice and equity in the world, that the King (who hath so great a charge upon him, that greater cannot be, by which, he, as Vicarius Dei, that is, Gods Vicar, as Bracton speaketh, is obliged to defend the persons and property of his Subjects) should have all the Castles, Forts and strong holds, and all the Ports and Havens at his rule and disposition, and that generally [Page 5] he should have the ordering of the Militia throughout the Realm: so that by this means he may be inabled to discharge that great trust that is committed to him (without which he cannot be) and at the last to render a just account to God, of his Stewardship.

And this certainly Bracton li. 2. de acquirendo rerum dominio, intends, when he saith,Bract. l. 2. c. 2 that the King, Habet ea quae sunt pacis, ut populus sibi tra­ditus, in pace sileat & quiescat, &c. that is, he hath those things, which belong to peace, that he may govern his people committed to his charge in peace and quietnesse. For as the King hath ordinariam jurisdictionem, that is, ordinary jurisdiction, as Bracton saith before, and this to govern his Subjects according to Law and right: so, Habet ea quae pacis sunt; that is, not onely the Law to maintain peace among his Subjects: but also, Ea quae belli sunt, all those things, which conduce to the protecting and defending of his Subjects from any forrein invasion, or domesticke danger, or otherwise he could not possibly maintain peace according to the saying of Bracton, and as by his Oath he is bound.

The King by the Law hath this Prerogative allowed unto him, that he onely may proclaime warre, and he onely can establish peace among his people, as the 7. Rep. is:7. Rep. fo. 25. why then I argue thus, It is a greater pre­rogative to have power to proclaim warre: then it is, to have the onely means to maintain it: and therefore it is not to be conceived, that the Law, that would allow the King the greater power, would deny him the lesse. For, Qui majora concedit, minora non denegabit: He that grant­eth the greater, will not deny the lesse. Again, to allow the King power to proclaime warre, and to deny him the means to maintain warre, were absurd, and the Law will not admit of any absurditie. Wherefore I conceive, for these reasons also, that the King by the Law, hath likewise this prerogative of the sole ordering and disposing of the Militia of the Kingdom.

Now to conclude this point, I shall paralell this case, to one case onely in the Law, and that is to Mittons case in the 4. Rep. where the case is thus:4. Rep. fo. 3 [...] Mittons cas [...] Queen Elizabeth by her Letters Patents under the great Seal, granted the Office of the Clerk of the County Court, of the Coun­ty of Somerset, to Mitton, with all Fees, &c. for terme of his life: and after the Queen constituted Arthur Hopton Esquire, Sheriffe of the same County, who interrupted Mitton, claiming this Office, as incident to his Office of Sheriffe, and upon this he appointed a Clerk himself of the County Court; and here the sole question was, whether this grant by the Queen, were good, or not? And it was adjudged upon solemne de­bate, that it was not, and the principall reason given wherefore the grant was nought, was, because that great inconveniences might follow to Sheriffes, who are great and ancient Officers and Ministers of Justice, [Page 6] if such grants should be of validity, for that there is great trust reposed in them, for which they are responsible, as it is there said: whereupon it is concluded, that Law, and reason requires, that Sheriffes who are publick Officers and Ministers of justice, and who have an office of so great eminencie, confidence, perill and charge, that they ought to have all rights appertaining to their office. And in this case there is ci­ted another case, to this purpose, Mich. 39. & 40. of the Queen resol­ved by all the Judges of England, as my Lord Coke saith, that the grants of the custodies of Goales, of the Counties, either by King H. 8. or af­terwards, were utterly void: and the like reason is given in this case, as in Mittons case: for that custodies of Goales belong to the office of Sheriffe, who being immediate Officer to the Courts of the King, must answer for escapes, and shall be subject to amerciaments, if he hath not the body in Court upon processe to him directed, &c. and therefore it is reason, that he should put in such keepers of the said Goals; for whom he should answer, according to the purvieu of the Act of 14. E. 3. [...]4. E. 3. c. 10. For otherwise against the rule of reason and equitie, Alius offendet, alius ple­ctitur: that is, one man should offend, another should be punished. Now if the Law be thus, in these cases, that you shall not take away these of­fices from the Sheriffe, who is an Officer of trust, and onely chargeable for any misdemeanor, in the executing of the same; for that by this means, you should disable him to execute his Office, according to the confidence reposed in him, and yet should punish him for the not doing of his duty; which should be against all reason: à fortiori, I say in this case, you shall not deny the King, who hath the greatest Office of trust, and charge, that can be, the means and way to perform this trust, and to undergo this charge, which cannot be otherwise done, then by al­lowing of the King this prerogative (so long as he doth perform the trust that runs along with it) of having the sole disposing and ordering of the Militia of his Kingdom.

And without question Bracton when he saith, that the King hath Gladium materiale, that is, the materiall sword, can intend nothing else by this, but Gladium belli, which is the Militia, and gladium by a Sy­necdoche, may well comprehend and be set pro omnibus rebus militita­ribus, that is, for all things military; And it is usuall in holy Writ, when God threatens the heavy judgement of warre upon any Nation, to do it under the notion and expression of a sword, by this intending, Bellum, that is, warre, with all its sad effects. Wherefore I conclude this point, that the King hath this prerogative allowed unto him by the Law: for these preceding reasons. 1. For that it were inconvenient for the King, who by the Law is bound to protect and defend his subjects, if he should not have this power. 2. For that the Law hath given unto [Page 7] him a greater prerogatiue, and therefore will not deny him the lesse: and thirdly and lastly, for that it would be absurd, that the King should have power to proclaime warre, but not to maintain it.

Second part.For the second question, which is, as I conceive, much more difficult, then the former, and which is the great doubt and dilemma of the time, which is but thus: whether the two Houses of Parliament, the King­dom being in imminent danger, and the King refusing to put it into a posture of defence, may by their Ordinance, without the consent of the King, settle the Militia, and put the Kingdom into a posture of defence, or not?

And I do conceive, under favour, in some clearnesse, that they may, and that in so doing, they have done no more then what is warrantable by the Law. And this I ground in the first place upon the imminent dan­ger, and extreame necessity, that the kingdom is in: and therefore though it should be admitted, that they could not do it, at another time, yet I conceive that by reason of the necessity, it is warranted by the Law for them to do it at this time.

It is a rule in our Law, first cited in Bracton, Bract. fo. 247 a. and remembred in the 10. Rep. 10. Rep. fo. 61. a. that illud quod alias licitum non est, necessitas facit licitum, & ne­cessitas inducit privilegium, quod jure privatur. In time of necessitie, ille­gall acts, are made legall: and things utterly against Law, justifiable; Upon this rule I might multiply cases, but because I do not affect, via trita obambulare, to go in the common road, therefore I shall onely put some of the most materiall cases, which I find to this purpose, and the others I shall omit.

In Pl. Com. it is said,Pl. Com. fo. 13. b. that when Laws or Statutes are made, yet there are some things, which are excepted, and forseprised out of the provi­sion of them, by the Law of reason, though that they are not expressed by words. As breaking of a prison is Felony in a prisoner himself by the Statute De frangentibus prisonam: yet if the prison be burnt, and they which are in, break the prison for salvation of their lives, this shall be excused by the Law of reason, and yet the words of the Statute are against it.

And 14. H. 7. Jurors who were sworn upon the issue,14. H. 7. fo. 29 and by the Law ought not to depart, untill they are agreed of their Verdict, for fear of a great tempest departed, and severed themselves: and it was there held that they should not be amerced, and that their verdict after­wards was good. And this was thus holden (saith the book) for the necessity of the chance; but otherwise they should have been grievously punished. So by the Law, for the salvation of my own life, I may kill another. And as the Law makes that lawfull, in case of necessity, which otherwise would not be lawfull, when it concerns any mans private: [Page 8] so à fortiori, when it concerneth the Common-weal, and therefore as the book is in 29. H. 8. Dyer, 29. H. 8 Dyer. fo. 36. b. 8. E [...]4. 23. Br Cu­stome 45. a man may justifie the making of Bul­warks, in another mans soyl, without licence; and the razing of a house which burns, for safeguard of the houses of the neighbours. So it is if the Sheriffe pursue a Felon to a house, and for to have the Felon, he breaketh the doore of the house, this is justifiable. So in 13. H. 8.13. H. 8. 16. [...]. E. 4. 35 b. the inhabitants of a Citie in time of warre, if they conceive that the Sub­urbs may endanger the taking thereof, may lawfully burn or destroy the suburbs, for the Towns or Cities preservation, and the common safetie. And in these cases, necessity, and the good of the republick, ma­keth that lawfull, which otherwise would not be lawfull.

It is a certain rule, that all Laws ought to receive an equitable and favourable construction, according as opportunitie and the necessity of the case, administers occasion: for, Summum jus, est summa injuria: that is, over-strict observance of the Law, may sometimes be unlawfull. And à fortiori, they shall receive such a construction, where it concerns the Common-wealth: and accordingly the Judges in all ages, as they ought, so they have alwayes made such interpretation and declaration of the Laws, that the Common-wealth should not be prejudiced. And this is the reason of these cases, which have been often adjudged, that if a man bind himself, that he will not exercise his trade, or that he will not manure his land, or that he will not marry, that the Obligation in these cases is void, for that it is against the weal publike.

And this is the reason also, that hath made the Judges alwayes to ad­judge all the Grants of the King, of Monopolies, or Impositions upon the Subject, without Act of Parliament, to be against the Law, for that they were against the good of the Common-wealth, and libertie of the Subject. [...]. H. 3. ca. 29. And this is grounded upon Magna Charta, which saith, Quod nullus libor, homo, &c. that no free-man shall be taken and imprisoned, or be disseised of his Free-hold or liberties, but by lawfull judgement of his Peers, or by the Law of the land.

And if the Law be such, that the King by such grants, which are against Law, and the weal publick, cannot take away my free-hold or livelihood from me, but that such grants shall rather be adjudged to be void, (against the opinion of Bracton who saith,Bract. fo. 34. [...]. b. 2. De chartis Regiis & factis regum, non debent, nec possunt justiciarii, nec privatae personae distur­bare: that is, of the Kings Charters, and his deeds, neither Justices, nor private persons, may, or ought to dispute: which clearly is against the known and established Law at this day) why then certainly, it will fol­low, that if the King, either by action, or omission, go about to endan­ger the weal publick, and endeavour the destruction of it, which ex con­sequenti, must of necessity bring ruine to every individuall person of it: [Page 9] that in such case, those who are intrusted with the common good, (as the Parliament at this time is) may by all meanes possible, indeavour the preservation of it: but I doe not here intend by violent opposing or deposing of his sacred Majestie, of which I shall speake a word after­wards, but by setling of the Kingdome, into such a state and condition, as our sage Parliament hath now done, that it may be able to defend his sacred Person, and it selfe, against any forraigne or domesticke surprise or invasion.

It is a true Rule, that Interest Reipublicae, ne sua re, quis malè utabur, a man (contrary to the opinion of the vulgar) may not doe with his propertie as he pleaseth; for that the Common-wealth hath an interest peramount the propertie of any private man, and there is no Subject, but that, either more or lesse, according to his Talent, or place, that God hath put him in, either in Church, or State, is intrusted with the common good: and therefore if he doth contrary to his trust, use his Talent or place, against that end for which it was given unto him, he is punishable by the Law for it.

And therefore if a man will destroy his woods, cast his money into the Sea, burne his Corn upon the Land, or in his Barnes, or the like, cleere­ly by the Law he is punishable for it: and agreeing with this Trin. 4o Jac. many were indicted of a Riot in the Starre-chamber, for putting in of their Beasts into Corne, claiming their Common there, and in this case, the Lord Chancellor said, that though they had good title to the Common, yet that they should be here punished, for that they had de­stroyed the Corne, which is against the weale publique.

And without question, the rigour of all Lawes, ought to receive such qualification, and equitable construction, that the Common-wealth doe not suffer or be indamaged. The Law was made to support the com­mon good, and therefore that Law is against Law, that is against the common good. Nemo sibi nascitur, no man was borne for himselfe; all men both Rulers and people, were borne to this end, to contribute, and conferre some good to the Republique: and therefore Qui sibi solum vivit, he that lives to himselfe onely, doth not live to that end, for which he was created, much lesse he, which makes construction of the Law against that end, for that were to destroy both Law, and govern­ment, which every man was borne to defend.

It is a Rule in the Law, that Judges ought alwayes to make such con­struction of the Deeds of men, and of their Grants, Ʋt res magis valeat, quàm pereat, that is, that they should rather take effect, then perish: so I say, it may well be taken for a Rule, that the Judges should not so con­strue the Law, that the Law should destroy it selfe, which will necessari­ly follow in the destruction of the Common-wealth; but that they [Page 10] should so interpret it, Ʋ [...] respublica magis valeat & floreat, quàm p [...]reat & destruatur, that the Common-wealth should rather flourish, then pe­rish, and be destroyed.

I agree, that in the case in question, by the strict Rule and Law of Pre­rogative, the governing and disposing of the Militia of the Kingdome is onely in the King, and that he onely may proclaime warre, and he alone establish peace amongst his people: yet we ought not so t [...] con­strue this Law, that it is so in the King, that it cannot be severed from him, and that no other can intermeddle with it, without the consent of the King though that it be for the Weale publique, and for the secu­ring of the Kingdome, being in imminent danger, the King refusing to settle it, as in right he ought, upon the prayer of his people, represen­ted in the defires of the Parliament. For to make such a construction were utterly to confound, and destroy, both Law, & Common wealth, as I have said before, and therefore ought not to be admitted.

The King hath this Prerogative allowed him by the Law, that he shall not be bound by any Statute, except that he be expressely named in the Statute, yet it is resolved in the 5. Rep. [...] Rep. fo. 14. b. that all Statutes, which are made to suppresse wrong, to take away fraud, or to prevent the decay of Religion, shall binde the King, though he be not named in them; for, saith the Booke, Religion, Justice, and Truth, are the sure Supporters of the Crownes and Diadems of Kings. So I say in this case, the King by his Prerogative (as I have said before) ought to have the sole disposing of the Militia: But if in imminent danger, he refuse to settle this for the safetie of himselfe, and his Kingdome, according to the trust repo­sed in him, his Prerogative ought then to give way for the securing of his Crowne, that those who are intrusted with the Weale publique, as the Parliament is, may settle this for the defence of the King, and King­dome, according, as in truth, they are bound, as I shall afterwards shew.

It is a Rule in our Law, That the King can doe no wrong; and with this accords Bracton, [...]acton fo. 107. Nihil aliud potest Rex in terris, cum sit Dei minister & vicarius, nisi id solum, quod de jure potest, nec quod principi placet, legis habet vigorem, the King can doe nothing upon earth, seeing that he is Gods minister and Vicar, but that onely which of right he ought to doe, nei­ther ought the Kings will, to have the force and vigour of a Law. Here note, that the will of the King, ought to subscribe to the Law; and not the Law to the will of the King.

And in Pl. Com. 1. Rep. & 5. Rep. it is said, [...]. Com. fo. 246. [...] Rep. fo. 44. b. [...] Rep. fo. 55. b. That the King cannot doe a wrong, neither will his Prerogative be any warrant to him to doe injurie to another: and if the King cannot injure one single person, without que­stion, he cannot injure all the Common-wealth, which he should doe in [Page 11] this case, if both the Houses of Parliament, in this time of imminent danger, the King refusing to joyn with them, should not have this power of setling the Militia, in defence of the Kingdome, without his con­sent.

I agree with Bracton, Bracton fo. 5 [...] that the King, Parem non habet in regno, nec superiorem, He hath no equall, nor superiour in his Kingdome; but that is to be understood, that there is no man above or equall with his Ma­jestie; for he saith afterwards;Bracton fo. 3 [...] Rex non debet esse sub homine, sed sub Deo, & sub lege, that the King ought not to be under man, but under God, and under the Law: and after fo. 34. a, he saith, Rex habet superiorem, Deum, scilicet, item legem, per quam factus est Rex, item Curiam suam, viz. Comites Barones, &c. the King hath a superiour, to wit, God, in like manner, the Law, which made him King, and also his Court, to wit, the Earles, Barons, &c. which cannot be understood of any other, then the high Court of Parliament. And in the places before cited, he saith, Quod non est Rex, ubi dominatur voluntas, non Lex, He is not King, when his will rules, not the Law. Then if it be thus, as Bracton saith, that the Law, and the two Houses of Parliament, are above the King: and that the King is as no King, when he doth not submit to the Law, (which will of necessitie follow, for that the same Law, which made him King, injoynes and obliges him also to defend his people committed to his charge; and without doubt, the one as just as the other, and if he refuse to protect his people, which is a dispising, and a depressing of that Law which gave him this Soveraigntie: certainly, the Law will not de­fend him in this his tyranny) I conceive, that in this case, the Law will in its own defence, and in default of the King, who ought to have main­tained the Law, inable the two Houses of Parliament, to put the King­dome into a posture of warre, in defence of the King, his Lawes and Subjects.

But now the great Question is, What, and where is the ground of our feares, and jealousies, and where is the imminent danger; for, many say, that they cannot see it, and then it not being visible, and obvious to e­very eye: a Question as great in shew as the former, arises upon this, Who is, or may be the proper Judge of this imminent danger. To the first, I answer, that our feare, and the imminent danger pretended, is no Phantasme or Chimerâ, as some would have it, but it is a reall and visi­ble cause of feare, Et talis metus qui cadere potest in virum constantem, such a feare, as may befall a constant man, as my Lord Cooke describeth a feare,Instit. fo. 253. that may possesse a generous and settled spirit. And that it is thus, I appeale to the conscience of any wise & indifferent man, whether that the Commune incendium, the common fire, or calamitie in our neighbour Nation of Ireland, clothed with these three circumstances, as I shall set it [Page 12] forth, will not cause, and justly too, a wise man to feare, and doubt, what the event will be.

As first, that they are our Neighbours, and when my Neighbours house is on fire: will any man adjudge this to be a phantasme or an effe­minate feare in me, to provide for the securing of my person and estate, from perishing in the common ruine?

Secondly, It is Religion, that these cruell, barbarous, and unheard of Tyrants, make for a ground of their horrid Rebellion: and what stron­ger ingagement can there be, then this, for to incourage and spurre men forward, in any desperate designe? Especially, those of the Popish fa­ction, who may have a pardon before-hand, for the act they shall com­mit, be it never so desperate: And doe we not thinke, that this will be a strong incitement to men, who conceive themselves tyed in conscience to undertake that which they doe, to wade through any misery, for the accomplishment of their desired end, knowing before-hand, that they have a pardon for the most horrid act or attempt that they can doe, con­ducing to the perfecting of the same? And then as this obligeth all Na­tions besides, of the Popish partie, ought not we to thinke, and beleeve, that such an opportunitie, must of necessitie, stimulate them forward, to be ayding and assisting to such a designe, which will infallibly at the last, merit either Heaven or Hell? I am confident (and it stands with all rea­son that it should be so, for that they have not for a long time, pray­sed be God, had the like opportunitie) that the Pope, with all his adherents, are now plotting, and contriving, with their holy Father the Devill, to operate the ruine of the Protestant Religion: and shall this ingage them to fight against God, under a pretence of being on his side? And shall it not invite us, who fight for God, and his truth, which we have so long time, happily & peaceably through Gods good­nesse enjoyed, to prepare our selves, and all that we have, for the desence of the same? To conclude this, we who have the greatest part of the world our enemies, may justly feare, that they are now plotting and contriving that for England, that is already acted in Ireland. And let us not say, that they are at enmitie one with another, and therefore, are not at leisure, to harme us: for we may be sure, that they will shake hands, to doe us a mischiefe: according to that in holy Writ, of Pilate and He­rod, who though they were utter enemies one to another, yet they were made friends, to combine against Christ. [...]uke 23. 12.

Thirdly, and lastly, who is able to say, that either he, or his children, shall live to see an end of that bloudy persecution and rebellion, and what the successe of it will be? True it is, that God hath hitherto gone forth with our Armies, and hath in an exceeding measure, and above all expectation, blessed their endeavours, and crowned their actions with [Page 13] a happie successe, God be praised for it, but yet who knoweth, whether they shall ever be able to root out this rebellious Tribe? I speak not this out of any diffidence of Gods continued favour and goodnesse towards us, or to make others mistrust; but onely to demonstrate, that there is a just cause of feare; for who can divine what the event of warre will be: Exitus belli incertus, that is, the issue of warre is uncertain. Besides (and which brings me to my second ground of our just and dreadfull feares) if the distractions of this Kingdome continue, which God defend, what ayde can they expect from us, who are like to be surrounded with the like misery: so that their necessitie, may cutt them short of their hopes, and by this much adde to our feares.

Secōndly, having shewed our just cause of fear, which riseth ab extra, from our deplorable brethren, and neighbours; now I shall shew, our cause of fear, that ariseth ab intra: from the unhappy distractions, which are risen amongst our selves. Who is it, that doth not see, the sad divi­sions and generall sidings throughout the Realm? which hath grown upon this unhappy division of the King and Parliament; which when it will be reconciled, God knoweth. And if this (which adds much to our miserie) had not happened, we could not before have been secure, without a just cause of fear: for what divellish plots, and fearfull de­signes, have been discovered through Gods mercy, and the vigilant eye of the Parliament; tending to the destruction of our best birth-right and inheritance, the priviledges and freedome of Parliaments? Without the continuance of which, that which is nearest and dearest unto thee, whether it be thy Religion, life, or liberty: what ever it be, that thou most blessest thy self withall, will then depend upon the Arbitrary will of thy Soveraign; so that thou mayest not then, stile ought that God hath given thee, thy own: which heavy judgement I beseech God to divert from this sinfull Land and Nation; for we may truly acknow­ledge, that it were just upon us, that we who have so much abused Gods blessings, should now be deprived of them: and that we, who have so much abused the freedome of conscience, of our laws, lives, liberties, and estates, should now be subjected to a perpetuall slavery. Now to con­clude this likewise, divide the Kingdom into foure parts, and I am con­fident, that the Papist. Newter, and Cavalier (I might adde likewise the domineering proud Clergy, who would fain reduce all things to their late condition) who lie perdue, and wait for an opportunitie, for to bring a speedie destruction upon this Common-wealth, will make two parts, I think I might, without any imputation, or prejudice to judge­ment, say three parts of the foure, and now put all these things toge­ther, and I beleeve, that no indifferent understanding man, but will be forced to confesse, that there was, and still is, a just cause of fear, and of [Page 14] putting of the Kingdom, into a posture of warre. And then the immi­nent danger being pregnant, and demonstrable to all the world: the last question is taken away.

But admitting that it were not prospicuous, and visible to all, then the question is, who is the proper Judge of this imminent danger, and I conceive plainly, under favour, that the Parliament ought to be, and no other: and my first reason is grounded upon the rule of Law, viz. that the Parliament can do no wrong, which is warranted by the 9. Rep. the 6. Rep. [...]. Rep. 106. b. [...]07. a. [...]. Rep. 27. b. [...]. a. and many other books. And in Pl. Com. it is said,Pl. Com. fo. 398 that the Parliament is a Court of thrice great honour and justice, of which none ought to imagine a dishonourable thing. And this I con­ceive to be grounded upon the Writ of Summons to Parliament, which wils, that the elections should be De gravioribus & discretioribus viris, &c. of the most grave and discreet men. And Fortescue speaking of the Parliament, saith,Fortes. ca. 18. We ought necessarily to think, that the Statutes of this Realm are made with great wisdom and prudence, Dum non unius aut centum solum consultorum virorum, sed plus quam trecentorum electo­rum hominum, quali numero olim Senatus Romanorum regebatur, ipsa sunt edita. For that they are not made by one, or an hundred onely of sage judicious men, but by more then three hundred of chosen men: by such a number, as in times past, the Senate of Rome was used to be ruled.

Object. But here it will be objected, that this Ordinance is not setled by Par­liament, for that the King and many of his Nobles, were not there, nor never consented to it; and therefore that we ought not to esteeme, or account, some few Scismaticall and factious persons (who seek their own ends, and not the common good) to be the Parliament: and therefore you mistake in giving of them the Style of the Parliament.

Answ. A strange, unheard of, and illegall objection, a pretty trick and wilde to mask illegall slanders, under illegall objections. It is a wonder to hear such strange, and as unparalelld, as unwarrantable, invectives, against the Parliament, which are published in the Kings name, and under his protection, and patronage: while in the mean time, the King (whose distance of place, or affection, cannot divide from his Parlia­ment, as I shall afterwards shew) suffers in those very obloquies, and dishonourable detractions, which are coyned for his honorable Assem­bly of Parliament.

For, as all our books agree, the Parliament is as one body: and the chief or head of this body, is the King: and with this agreeth, Dyer, fo. 60. a. who saith, [...]yer fo. 60. 2. that the Estate of Parliament consists of three parts: viz. of the King, as the chief Head; and of the Lords, the chief and prin­cipall Members of the Body; and of the Commons, Knights, Citizens, and Burgesses, the inferiour Members: and these make the body of the [Page 15] Parliament. Now if it be thus, that the King, Lords and Commons make but one body, and that the King is the Head of this body, as in truth the Law is: then it will thus in reason follow, that no more then you can divide the head from the naturall body, and yet preserve the body alive, can you divide the King from the Parliament, and yet have the Parliament continue, as in truth it doth: and I hope that there is none so void of reason, as to think, that the Kings dividing of himself from his Parliament, (for the case is utterly mistaken, to say that the Parliament, severs the King from them) shall destroy his Parliament, though I suppose, that many, who dare not bring their actions to the teste, would have it so.

Now if it be so, that, notwithstanding this unhappy division, the Parliament doth vertually, and actually continue, (which, God defend it should be otherwise, for then Parliament, and no Parliament would be all one) then, of necessity, it must follow, that the King, who is the head of this great body, is not divided in Law, though he be in distance, for if so it must needs be, that the body would be destroyed, for that a Body (as I have said before) cannot subsist without a Head. And it must likewise follow, that they usurp no honour or power to themselves, more then by the Law is due, to stile themselves the Parliament. And therefore whatsoever imputations, or dishonourable invectives (things too common in the mouthes of many, who have not common reason, much lesse Law, to discover a truth) are imposed and cast upon the two Houses of Parliament, reflect upon the honour of the King, and are a great stain and blemish to it.

Then if it be thus, that the Parliament, in judgement of Law, can do no wrong, and that no dishonorable thing ought to be imagined of them; certainly, they are the most proper Judges of this imminent dan­ger. But to this it will be objected that the King likewise, in judgement of Law, can do no wrong, and therefore he notwithstanding this rea­son, may be as proper a Judge of the imminent danger, as any one, and upon this ground his judgement ought rather to be received then the judgement of any, yea of the Parliament it self; & he tels us, that there is no imminent danger, what then meanes this great contention about the Militia? To this I answer, that it is true, the rule of Law likewise is, That the King can doe no wrong; but the reason of this is, for that it is presumed, that what the King doth, he doth upon the advice, & seduce­ment of evill Counsellors, who with a spetious shew, pretend nothing more then the good of the Common-wealth; whereas, in truth, they in­tend nothing lesse. And hath it not been frequent, for Kings, seduced by wicked and malignant Counsellors, to do those things which have been a dishonour to themselves, and a great gravamen and prejudice to [Page 16] the publique: and if so, my conclusion is, that I would as willing a man should doe me injury, upon his owne principles, as by the advice of o­thers; for though happily the wrong may not be so great, as to him­selfe, yet the damage is all one to me. But now on the other side, who can tell, or what Story is able to relate, that ever a Parliament did doe that thing, that was prejudiciall to the Common-wealth? Why then if this position hold true, That Kings seduced, may injure the Common-wealth, but that Parliaments cannot: I conclude, notwithstanding this objection, that the Parliament, for this reason, are the most proper Judges of this imminent danger.

Againe, they are the most proper Judges of an imminent danger, who in probabilitie may have the best cognisance, and information of it: but the Parliament (which is the representative body of the whole Realme, and the eyes of all the Kingdome) must of necessitie have the best cognisance and information of any imminent and approaching danger: Ergo, they are the best and most competent Judges of it.

Last of all, the Parliament are the most proper Judges of an immi­nent danger; for that they are those, whom the Common-wealth hath intrusted with its future happinesse, they are our Judges, those whose judgement we have bound our selves by our owne free Election, to stand to, and therefore we cannot now recede from it, or see with other eyes then they see; if they say, that they see an imminent and approaching danger, we ought not to say, that there is no such matter; and if they say, that the Militia is well and legally settled, we cannot, nor ought not to say, that it is against the Law; for that our judgement is bound up in, and superseded by theirs. But to this it will be said, that this were a kinde of implicite faith, or if I may so speake, a kinde of Heresie in Law; for a man to be tide to subscribe to other mens judgements, and to beleeve that whatsoever they doe, is lawfull: To this I answer shortly, that there is a great difference, between a subscription of com­pulsion, and a subscription of consent; for volenti non fit injuria, that is, he that cōsents to the doing of a thing, is not injured by the thing done. Againe, the Parliament would not have us to pinne our faith upon their judgements, to beleeve without reason; for, as it is well knowne, they have published the justice and integritie of their cause, to the whole world, and have left their proceedings to the judgement and determina­tion of every private conscience; so that cleerely this objection holds not.

Then if the judgement of Parliament, be our judgement; what else doe they then oppose their own judgement, who dare oppose the judgement of Parliament, which is folly? and what else doe they but preferre their proper and private judgement, before the judgement of the whole Par­liament? [Page 17] which is an extreame insolency; for that they represent the whole Kingdome: and are the most worthy part of it, and for that, we have, as I have said before, bound our selves by our owne consent and election, to stand to their judgement and determination. Wherefore, for all these preceding reasons, I conclude this point, that admitting the imminent danger were not perspicuous and manifest to every eye, that the Parliament as they are the most proper Judges, so they ought to be the onely Judges of it, and no other person whatsoever.

Now for the Objection, that many of the Lords and Commons, did never consent to the Ordinance of Parliament, for that they were with his Majestie, and that therefore this should make their determination in­valid, and ineffectuall: This is a more strange objection then the other, for that it is against the rule of Law, that any man should take advan­tage of his owne wrong; and it is cleare, that after the Parliament is once begunne, their personall attendance is so necessary, and of such im­portance to the Parliament, that they ought not by the Law, for any businesse whatsoever, to be absent, and so is Dyer. Dyer. fo. 6 [...] And by the Stat. of 6. H. 8. it is enacted,6. H. 8. ca. [...] that no Knight, Citizen, or Burges, absent him­selfe, without licence of the Speaker and Commons, under the paine of the losse of their wages. And in 3. E. 2. Fitz: Corone 61. cited in Cromp­ton Jur. 3. E. 2. Fit [...] Corone 6 [...] Crompt. Iu [...] Courts. fo. [...] the Bishop of Winton was arraigned in the Kings Bench, for that he came to the Parliament, and departed without licence. Why then is it so, that their withdrawing of themselves, is a crime in them? Shall they then take advantage of this offence and neglect of theirs, of the Weale publique; for the good of which, they were called and assem­bled together, to avise? certainly not. Besides, if this objection might hold, who is it that doth not see, what the inconvenience might be, Et argumentum ab inconvenienti est bonum in lege, an argument drawne from inconvenience, is good in Law. For by this invention, the conclusions and determinations of those who are present, intending the Weale pub­lique, (as in dutie they are bound) should be all frustrated, and annihi­lated, by the absence of those, who voluntarily and against Law, with­draw themselves; which would be destructive to all Parliaments.

For posito that all the Lords or all the Commons, should voluntarily and out of an indisposednesse to the common good, withdraw them­selves, and utterly refuse to performe that trust, which is reposed in them, of counselling and consenting to such Lawes, which might esta­blish peace, and a settled condition in Church and State: will any man thinke, that if in this time of dissertion of the Lords or Commons, there be an apparent & imminent danger, threatning ruine to the Common-wealth, if it be not in an opportune and seasonable time prevented, that in this case, it lies not in the power of the King and Lords, or of the [Page 18] King & Commons onely, as the case is, by way of Ordinance, to settle the Kingdom in such a state and temper, as may prevent any approach­ing misery? Without question it doth, or otherwise this conclusion (as I have said before) would be destructive to all Parliaments.

I agree, that an Act of Parliament cannot be made, by which a new Law should be enacted, that should be obligatory to the Subject for ever, (I meane untill it were repealed by another Act) but by the consent of the King, Lords, and Commons; and with this accords the Books, 4. H. 7 [...] H. 7. 18. there an Act was made by the King and Lords, but nothing was spoken of the Commons; and by all the Judges, this is no act of Parlia­ment. 7 H. 7. [...] H. 7 14. No Statute except that the Lords and Commons assent to it. And 11. H. 7. [...] H. 7. 27. it is no act of Parliament, except it be made by the King Lords, and Commons. By this it is manifest, that all the three Estates ought to joyne in the making of an act of Parliament: and this is so cleare, that I need not cite any other authoritie in proofe of it, for ou [...] Books are plentifull in this point. Onely I shall remember one re­markable case, which I finde in our Law, to prove that the Books which say, That an Act of Parliament cannot be made, without the consent of the Lords, that this ought to be intended of the Lords Temporall onely, and not of the Lords Spirituall: and therefore it is resolved by the Judges in 7. H. 8. Keilway. [...] H. 8. Keil­ [...]y. fo. 184. b. that the King may well hold his Parliament, by him, his Temporall Lords & Commons, without the Spirituall Lords: so that by this it was manifest, that they were not essentially necessary to a Parliament; for that the King might have holden a Parliament without them: and therefore it is not now so much to be wondred at, that they are totally excluded by Act of Parliament.

But now on the other side, I conceive as clearely, under favour, that if the King do utterly forsake them, and decline their advice and coun­sell, to which he ought to adhere during Parliament, that in such case they may (as I have said before) make such Ordinances, without him, for the securing of the Kingdome, in case of exigency and extremitie, as shall be obligatory to all the Realme, pending Parliament: for other­wise, they should have the name of a Parliament onely, & not the power and vertue of it.

But now it may be objected, that the King by his Prerogative, may call a Parliament when he pleaseth, and also adjourne and dissolve it when he pleaseth: and that the power given by the Writ of Summons, of the Lords to Parliament, is onely ad tractandum & consulendum, &c. and therefore it will be concluded, that by the same power the King may command his Counsellors whither he pleaseth. To this I answer, and agree, that the King may call or dissolve a Parliament when he plea­seth, and so totally toll their power; but yet under favour, pending [Page 19] Parliament, unadjourned, the King can neither retarde their proceed­ings, nor take away their persons: and that I shall prove thus: the King, as fons Justitiae, the fountaine of Justice, from whom all Judiciary power is derived, may likewise make, whom he pleaseth, to be a Judge, to dis­pence the Lawes in justice and equitie unto his people; but will it there­fore follow, that when he hath made such and such to be his Judges, that he may either retarde their proceedings, or countermand their judgements, under favour, nothing lesse. Againe, as I have shewed be­fore, they are punishable by the Law, for withdrawing of themselves: and it were hard, that the King should have power to command me that act, which being done, subjects me to a severe punishment. Now for that part of the objection, that they are but his Counsellors, and not his Judges: to that I shall give, as I hope, a full and satisfactory answer afterwards.

And now I shall conclude this first ground or reason, with another answer to the objection, against the imminent danger, and this I ground upon the words in the Kings Writ, by which he summons the Lords to Parliament; in the body of which Writ he saith, Mandamus quod con­sideratis dictorum negotiorum arduitate & periculis imminentibus, cessante excusatione quacunque, dictis die & loco personalitèr intersitis nobiscum, &c. that is, we command you, that considering the greatnesse of the bu­sinesse, and the imminent dangers, laying afide all excuse, you be per­sonally with us, the said day and place, &c. Here the King by his Writ saith expressely, that at the time of the calling of this Parliament, there was an imminent danger; and as now it should be dishonourable for the King to contradict himselfe, so I doe not conceive, that he shall be re­ceived to deny that extrajudicially, which he hath confessed by his Writ judicially.

But to this it will be said, that the Writ, Est breve formatum, that is, it is a formed Writ, or a Writ of course, and that there is no other, and that from this there is no varying; so that be the occasion of calling of the Parliament, what it will, the same form ought to be pu [...]sued, and no other; and therefore it is no concluding reason, that there is an imminent danger, because the Writ saith so. To this I answer, that we ought not to presume, that the King will speak any thing in a judiciall way, as here he doth, which should be vain and superfluous; besides, if you consider the time in which this Parliament was called, when that the Scottish Army was in England, and at which time such distractions, and rumours of warres, did I say rumours of warres? I might have said Warre it self; was amongst us: when that the extreme insolencie and pride of the Clergie; together with the darknesse of superstition and Popery, had almost overwhelmed this Nation with imminent destru­ction [Page 20] and misery: the fear of which doth yet cloud the face of the poore Commonalty, I say, these things considered, we may justly conclude, that the King, at that time, spake as he intended, and therefore certainly now, he shall not be received to contradict it. Wherefore I conclude this first reason, that by reason of the imminent danger which threatens the Common-wealth, the King refusing to settle the Militia, the Parlia­ment may well do it.

2 Secondly, I hold that the Parliament may do it; for that the King by his refusall hath made a breach of that trust that is committed to him, by God, and his people, that there is a trust committed to him, and that the greatest also, that any one under God can have, I have in part de­monstrated it before; for I have shewn how that he is bound by the Law to defend and protect his people, their lives, liberties, and estates, from any forrein or domestick danger; and saith Fortescue, ca. 13. cited be­fore, [...]tesc. ca. 13. Rex ad tutelem legis, corporum, & bonorum, erectus est: he is erected King, for this purpose, and intent, to defend the Law, the bodies and goods of his Subjects. And he saith himself (as I have likewise shewed before) in the Commission directed to Commissioners of Sewers, that by reason of his royall dignity, Astrictus est ad providendum salvationi regni sui; He is bound to secure his kingdom. And this he is bound to do by the Law, and Justice: for he ought to rule according to Law, and for this purpose he is intrusted with the Law also: and therefore in 8. H. 7. it is said, [...] 7. fo. 1. 2. that the King is conservator of the Law, the which is the Common-weal. As if it had been said, the Common-weal, depends up­on the Kings well keeping, and observing, of the Law. And in many places of Bracton, amongst which, this is one: fo. 55. b. he saith, [...]ct. fo. 55. b. Scien­dum quod ipse Dominus Rex, ordinariam habet jurisdictionem, & dignita­tem, & potestatem, super omnes, qui in regno suo sunt, habet enim omnia ju­ra in manu sua quae ad Coronam, & laicam pertinent potestatem, & mate­rialem gladium, qui pertinet ad regni gubernaculum, habet etiam iustitiam & iudicium, quae sunt iurisdictiones, ut ex iurisdictione sua, sicut Dei Mi­nister, tribuat unicuique quod suum fuerit: that is, we must know, that the King hath ordinary jurisdiction, and dignitie, and power, above all which are in his kingdom; for he hath all the Laws in his hand, which do pertain to the Crown, and lay power; and the materiall sword, which belongeth to the government of his kingdom; he hath also ju­stice, and judgement, which are jurisdictions, that by his jurisdiction, as Gods Minister, he may give to every one, that which is his own. Here you may see, that the King is intrusted, with the Laws, and Justice, as also with the materiall Sword, to this end, that he may defend his peo­ple committed to his charge, as well by force, if occasion be, as by righ­teous judgement. And to this also he is bound by his Oath, as I have [Page 21] said before, which I find in Bracton, fo. 107.Bract. fo. 107 a. ca. 9. by which he sweareth that In omnibus iudiciis aequitatem praecipiet, &c. ut per Justitiam suam firma gaudent pace universi: that is, that he will use equitie in all his judge­ments, that all, men may injoy a firm peace, by his justice. And there he further saith, that ad hoc creatus est & electus, ut iustitiam faciat universis, &c. & quod iustè iudicaverit, sustineat, & defendet, &c. He is created, and elected King, for this purpose, and intent, to do justice to all men, and that he should judge justly, sustain and defend them. And with this accords 6. H. 7. where it is said,6. H. 7. 16. that the King is bound for to do right to parties. And as he ought to rule according to Law, so he himself, ought to be governed by the Law, as I have shewed before. And as Bra­cton saith,Bract. fo. 5. b. fol. 5. b. Ipse autem Rex, non debet esse sub homine, sed sub Deo, & sub Lege, quia L [...]x facit Legem: The King ought not to be under man, but under God, and the Law. Now I conceive that it is manifest, that the King is intrusted with the Laws, lives, liberties, and estates of his Subjects, all which he of right ought to defend in peace and tranquil­lity, as he also by his Oath is bound; and therefore Bracton saith,Bract. fo. 55. [...] Est Corona Regis facere iustitiam, & iudicium, & tenere pacem, sine quibus co­rona consistere non potest nec tenere: It is the Crown of the King to do justice, and judgement, and to maintain peace; without which, his Crown cannot stand and continue: as if he had said, it is so essentiall to the King to do justice and judgement; and to maintain peace, that you de­stroy the Crown, if you take away these.

Now I shall prove, that the King hath made a breach of this great trust committed to him, foure wayes. First, by denying of his Protection to his people. Secondly, by not supporting of the Laws, and the Priviledges of Parliament. Thirdly, by not endeavouring to maintain peace amongst his people. And fourthly and lastly, by deny­ing of Justice; and in all these particulars I shall prove, that the King hath broken the trust committed to him.

1 And first, he hath broken the trust committed to him by denying of his protection, and this he hath done three wayes. 1. By denying of his legall protection, that is, in not protecting of his people accord­ing to Law: and this he hath done, by denying to settle the Militia, by the advise of his great Counsell, according to Law: by whom onely, during Parliament, he ought to be advised, for during the continuance of this great Counsell, all inferiour Counsels ought to cease: and ther­fore the Counsell of others neither can, nor ought to countermand theirs: but of this I shall speak more fully afterwards. 2. The King hath denied his Royall protection to his people, in taking up of Arms against his Parliament, who is the representative Body of the whole Kingdom: and this is the most strong refusall of his protection, of all [Page 22] others, for by this he doth not refuse onely to protect them, but he goes about to destroy them, whom, by the Law, and his Oath, he is bound to preserve and defend. And thirdly and lastly, he hath denied his royall protection to his people in this, that in time of imminent dan­ger to the Kingdom, he hath denied to settle the Militia; and he that denies the means, denies the end. For it is a rule with us in our Law, that Qui tollit medium, tollit quoque finem: He that takes away the means, takes away the end. And it is all one in effect, to deny a thing, as to deny the means per quod pervenitur ad illud: by which you may come to the thing. Now it is clear, that the sole means, under God, to defend this kingdom, in time of imminent danger, from its enemies, either forrain or domestick, is, by settling of the Militia, and by put­ting of the Forts, and Magazine of the kingdom, into faithfull and true hands, such as may be confided in, being a matter of so great conse­quence, and of so high importance to the whole Common-weal. Now the King refusing to do this, doth he not in effect, deny his protection to his people? for denying of the means, it is all one as if he had denied the end: so that I conceive, for these reasons, the King hath denied to protect his people, as by the Law he is bound, and therefore hath made a breach of the trust that is reposed in him.

2 Secondly, I conceive, that the King hath broken this great trust, in not supporting of the Laws, and the priviledges of Parliament; that he hath not maintained the Law appeareth plainly, by that, that I have said before, for that he hath refused to be ruled by it, as he ought: for though that he is not sub homine, under man; yet he is sub Lege, under the Law, as I have shewed before, and therefore ought to be governed by it. And what is this but a refusing to be ruled by Law, when he re­fuseth upon the prayer of his Parliament to settle the Militia for the defence of his Kingdom, and people, according to Law? And that the King hath broken the Priviledges of Parliament, what more plain? I might instance in many things, but I shall instance in onely one or two: And here I appeal to all the world, whether his withdrawing of him­self from his Parliament; and not onely so, but his endeavouring, by his many detractions and imputations laid upon his Parliament, to with­draw all the hearts of his people from them likewise: and, which is yet worse, his supporting and maintaining of such men, and keeping of them from justice and their condigne punishment, who are Delinquents in a high nature, against his Parliament: I say, that I appeal to all the world, whether these be not great breaches of the Priviledges of Parlia­ment? and what greater breach of the priviledges of Parliament can there be? then to protect and defend them, without any colour of Law, or justice, who indeavour nothing, but the ruine of Parliament, and in [Page 23] this, of our Laws, lives, and liberties: so I conceive, that this also is a breach of that great trust which is reposed in his Majestie, by God, his people, and the Laws of the Land.

3 Thirdly, I conceive that the King hath infringed this great trust, by not indeavouring to maintaine peace: and this two wayes, by his com­mission, and omission; by his commission, in taking up of Armes against his people, as I have said before, and then by his omission, and not one­ly so, but by an absolute refusall, in this time of imminent danger, to settle the Kingdome in a posture of defence, the sole meanes, under God, as I have said, to maintaine peace and tranquillitie amongst us: and this i [...] against his Oath also, which the King himselfe was pleased of late to publish to his people: which I finde likewise expressely in Bracton, Bract. fo. 107. that the King first sweareth, Se esse praecepturum, & pro viribus opem im­pensurum ut Ecclesiae Dei & omni populo Christiano, vera pax, omni suo tempore, observetur, that is, that he will indeavour to the utmost of his power, that true peace may be kept & observed, to the Church of God, and to all Christian people, all his dayes.

4 Fourthly, and lastly, I conceive that the King hath broken his trust, by denying of justice: and this he hath done two wayes; sirst, by deny­ing to surrender up Delinquents to the Justice of the Law: and second­ly, by denying to settle the Militia, by and according to the advise of his great Counsell the Parliament. Now that the King is obliged to doe Justice, it is without question, for his very Oath (as I have shewed be­fore) ties him expressely to it, and so is 6. H. 7. cited before, and Bra­cton, fo. 107. a. where he saith,Bracton fo. 10 [...] that Ad hoe creatus est & electus ut justi­tiam faciat universis, &c. He is created and elected King, for this purpose and intent, that he may doe justice to all men. And what greater act of Justice can there be, then for the King to defend his people in peace? or what greater act of Justice can there be, then for the King, at the re­quest of his people, represented by the body of Parliament, to enact such Lawes, which conduce to the maintaining of peace? Certainly none. And this Bracton seemeth to intimate,Bracton. fo. 10 [...] Sinon esset qui justitiam fa­ceret, pax de facili potest exterminari, &c. If there were not one who would doe Justice, peace might easily be extirminated. Here note, that he doth not say, that our lives, Lawes, Liberties, or Estates, for want of Justice might easily be extirminated; but our peace, by this, as it were, concentering all Justice in this act of maintaining peace: and without question, all our happinesse, under God, consists in the supporting and maintaining of peace: for, take that away, and all things fall to utter ruine and destruction. And certainly, if it be thus, that the greatest act of Justice in the King that can be, consists in maintaining of peace, and in granting of such Lawes, which conduce unto this end, without que­stion [Page 24] the denying of this by the King, must needs be the greatest act of injustice in the King that can be, and by consequence, a breach of that trust, that is reposed in his Majestie. And therefore I doe conceive, that at the least in this, the King can have no negative voyce: and I doe not conceive, that the King can have any negative voyce in Parliament, in other things; for if the King, by his Oath, and the Law of the Land, be obliged to doe Justice, (as in truth he is) and if it be as great an act of Justice in the King, as can be, not onely justly to dispence the Lawes in esse, in being, to his people; but also to grant such new Lawes unto them as conduce to the well governing of them, in peace and happinesse. Why then certainly it must of necessitie follow, that the King can have no negative voyce; but is bound under this heavie sinne, of the breach of his Oath, and the Lawes of the Land, to grant such Lawes as are re­quested of him by his people.

But here it may be objected, that the King had this Prerogative by the Law, that he might have called a Parliament when he pleased, and there was no positive Law to the contrary, before this Parliament, in which the King hath devested himselfe of this power; and if before at the re­quest of his people, he had not been pleased to grant them a Parliament, why, this in effect, was a denier of Justice, for that the King denied the meanes by which it might be obteined, and yet this was lawfull for him to doe; therefore it will be concluded, that by the same reason he may have a negative voyce in Parliament. And Cromp. Jur. of Courts saith expressely,Cro. Iur. fo. 7. b. that when the King doth assent to a Bill, then he writes up­on the Bill, L' Roy veult, that is, the King will have it so; and if he doth not assent, then it is indorsed L'Roy advisera, that the King will advise; here it doth appeare how the King hath a negative voyce allowed him by the Law. To this I answer, and agree, these Prerogatives de facto to be in the King, but whether in truth, they be such as are compatible, and may stand with the Oath and Justice of the King: this may be questio­nable, and under favour, I conceive that they cannot; for that, as I have shewed, his Oath and the Lawes of the Land, ties his Majestie to doe Ju­stice to his people, and the granting of new Laws unto them, upon their request, is an Act of Justice, and therefore he cannot denie them without breach of his Oath, and the Lawes of the Land; and by consequence, these prerogatives are not compatible, with the Oath and Justice of the King; and though peradventure the Law may dispence with it selfe, yet it cannot with the Oath of the King. Wherefore I conceive, not­withstanding this objection, that the King can have no negative voyce: but of this onely by the way.

And is it thus, that the King hath made a breach of that trust reposed in him, by God and his people? as in truth, I have cleered it unto you: [Page 25] then none so proper to supply this defect, in his Majestie, by the dispo­sing of the Militia, for the defence and protection of the King & King­dome, as the Parliament, who are at this time entrusted, under God, not onely with our esse, with our being, but with our bene esse, with our well-being also.

But here it may be objected, that the King derives his Crowne and re­gall power from God, and that therefore he is responsible to God alone for his actions, and not to man: To this I answer, that it is a most strange Episcopall and illegall objection; for what is this but the attributing of a power to the King above Law? and the giving of him such a prero­gative that should not be subject to those Constitutions, which his pre­decessors before him had been, and though it should be admitted, that as all power is derived originally from God, so especially this; yet it doth not follow, that it was therefore conferred by an extraordinary and immediate hand of God, as it was upon Saul and David, 1 Sam. 9. & 24. yet they likewise were confirmed and approved by the people, as you may reade in holy Writ. Besides, Saul and David, lived not under any Municipall or positive Constitutions of men, which they were bound to maintaine and observe, as the King of England doth, and therefore it must needs be, that their power must be more absolute, which was not circumscri­bed within the bounds and limits of any humane Lawes. But now the Kings of England having subjected themselves to the Law of the Land, and received their Crownes with that trust and tacite condition, of de­fending of the Lawes, lives, and liberties of their Subjects: the Law were idle and vaine, if there should be none that should have this power, for the breach of this trust by his Majestie, to interpose for the securing of him, his Lawes, and people. And if this divine prerogative, which the Bishops doe so buzze into the Kings eares, should be admitted, I would faine know what difference would be made, betwixt an absolute Mo­narke, and the King of England: and cleerely this was never reputed for other, nor can be (the Crowne being subject to the Law as well as the people) then a mixt Monarchy: but I shall conclude this, that they who so much defend and exalt this divine prerogative, would in the conclusion (if they might have their way) upon the same ground, ad­vance the Miter above the Crowne. God open the Kings eyes, that he may see and acknowledge himselfe subject to the Lawes, and may rule his people accordingly: and grant that he may detest such advice, as dangerous to the State, and the suggesters of it, as Pests and Traytors to the same.

But it may be againe objected, that this was a conquered Nation, & therefore by the Law of Conquest, the Conquerour might have made what alterations in the Law, or State, he pleased; but he retaining the [Page 26] Law, and subjecting himselfe to it (who might have advanced himselfe above it) will it therefore follow, that in so doing, he hath subjected himselfe to his people likewise? if he transgresse it, Deum habet ulto­rem, God will revenge it, but it was never his intent to give his people that power.

To this I answer, that retaining of the Law, and subjecting of him­selfe unto it, he is bound by it, and all his Successours after him; and it were in vaine (as I have touched it before) to establish a Law, and to give none power to put it in execution: Wherefore I conceive, that that Law that bindes the King, will for the breach of the same, authorise his Parliament, though not to inflict any penalty upon his sacred per­son, God forbid, yet to provide for the securing of him and his King­dome; for otherwise (as the sad consequence of it would make it good) it would be, in effect, but as a dead Letter.

But now further it may be objected; Shall they have such an arbitra­ry way of power, as this is, to doe any thing by way of Ordinance, without the King? If this may be suffered, they may Metamorphise and change the Law, into what shape they please, or which best agrees with their humours: so that if they order, that land shall from hence­forth discend to the youngest sonne, contrary to the course of common Law, (as I thinke the case was put) if this ordinance should binde the Subject, he should here at once be deprived of a double birth-right and inheritance, viz. of his land as heire, and of the Law as a Subject; which would be very hard and unreasonable.

For that part of the objection, of their arbitrary way of proceeding, I shall in part here answer it; but more fully afterwards: for the obje­ction, that they cannot doe it by way of Ordinance, without the King: To this I answer, that in case of imminent danger (as now) the King­dome must needs perish, if they should not have this power, for they have no other way to ayde the Kingdome in time of imminent danger, by setling the Militia of it, but by way of Act, or Ordinance, and if the King refuse, by their advice, to settle it, by way of act (as in truth he doth now) then we must of necessitie, allow a power in the Parliament, Ne pereat regnum, least that the Kingdome perish, by way of Ordinance to settle the Militia, for the defence of the same; for otherwise, the King should have power, when he pleaseth, to destroy his Kingdome, and the people should be left naked of any abilitie, to preserve and de­fend themselves; which were very unreasonable, and unnaturall; for nature it selfe, hath not onely established it as a Law, that all creatures may defend themselves from unnaturall violence, but hath armed them accordingly.

And now I shall prove, that as the Parliament are the most proper [Page 27] and onely power, to provide for the securing of the Kingdom: and a [...] they have no other way to do it: so they are obliged to take this way: and this they are tied to by their Oaths of Allegiance, Supremacy, and their late Protestation; for by these they have all sworn, vowed, and protested, to defend the King, his royall person, and estate, and to be true and faithfull to him; now it is impossible for them to defend the King, and to be true and faithfull to him, if they, in time of imminent danger, do not indeavour, as much as in them lieth, to defend his king­dom; for there is such a reciprocall and dependent relation, betwixt the King and his Kingdom, that the one cannot subsist without the other: for if they permit the kingdom to be destroyed, the King must of ne­cessitie be ruined also. If the Master die, the relation of a servant must needs cease: for that relatives cannot subsist, the one, without the other. And if the kingdom fail, the King and Scepter must needs fall to the ground. And this is, in part, the reason of that pollity of Law, in the 7. Rep. Calvins case,7. Rep. 12. Calvins C. that the King is a body politick, lest there should be an interregnum; for that a body politique never dieth.

Why then is it so, that they are bound by their Oaths to defend the kingdom, as well as the King? as in truth they are, for that the King cannot subsist without the kingdom; then the consequence must of necessity be, that the Parliament, in this time of imminent danger, hath well done in settling of the Militia, for the defence and welfare of the King and kingdom: and that in so doing, they have not onely not done more then what they might do, but they have done no more then what they were bound to do, and this under the heavie sinne of per­jurie.

But here it may be objected, that this is a corrupting and dividing of the Text; for that the Oath of Supremacy doth not onely bind us to be true, and faithfull to the King, but also to defend, all Jurisdictions, Pri­viledges, preheminences, and authorities, granted, or belonging to his High­nesse, &c. And the having of the sole disposing of the Militia is one of the priviledges of the Crown, and appertaining to his Highnesse: and therefore we are bound likewise, by this Oath, to defend this pri­viledge of the Kings, against any who shall endeavour the taking it away from his Majestie.

To this I answer, and agree, that the King (as I have shewed before) hath this priviledge and prerogative given unto him, and with him in­trusted by the Law for the good of the Common-wealth: but I never heard that he had it allowed him, for the destruction of the same. Again, I agree that the Oath of Supremacy obligeth every man to defend the priviledges and preheminences of the King: but I do not conceive, or beleeve, that this ought to be so construed, that any man [Page 28] by the Oath of Supremacy, is bound to defend the priviledges of the King, against the weal publick: for if the weal publick, and priviledges of the King, stand in competition, without question the publick interest and welfare ought to be preferred. And therefore if the King do not imploy and use his priviledges according to the trust reposed in him, but rather contrary to it: certainly this doth disoblige every man from that tie and ingagement in this particular, with which he was bound by the Oath of Supremacy. For so to construe the Oath, that I should de­fend the pr [...]viledges of the King, though it be in destruction of the com­mon-wealth: were to make the Oath the most hard and unreasonable tye in the world: whereas, every Oath, amongst other qualifications, ought especially to have these two: viz. that it be explicite, I mean, without implications, or etcetera's: and reasonable; and it would be very unreasonable for a man to swear to such a thing as would be his own destruction: but à fortiori, where it would be the destruction of the Common-wealth. And as it is said, Pereat unus, ne pereant omnes; let one perish, that all may not perish: So I say, Pereant privilegia Regis ne pereat Regnum: it were much better, that the priviledges of the King should totally cease, or at the least, be suspended for a time, then that the kingdom should be indangered.

But now I shall demand of any man an answer to this question: whe­ther doth most stand for and defend the priviledges of the King: either he that endeavoureth to the utmost of his power to defend and support the Common-weal, in imminent danger: or he that indeavoureth the destruction and ruine of the same: this is the very difference, between the Parliament and the Malignant party: the Parliament use all means possible to defend the King and kingdom from ruine; and the malignant party use all their skill to make both for ever miserable; This question is in it self pregnant of an answer: and the very putting of the case, is a solution of the question: For, no doubt, every wise and ingenious man must needs conclude within himself, that they most defend the privi­ledges of the King, who most indeavour the safetie of the King and kingdom, and that is the Parliament: so that this Objection fails in th [...] very foundation of it.

And now having answered that part of the Objection, that we ought not to defend the priviledges of the King against the Common-weal: and having likewise shewed, that he most indeavours the defence of the priviledges of the King, who seeks most the good and prosperitie of the Common-weal. I shall now answer the latter part of the Objection, that there is none that goeth about the taking away of the priviledges of the King: but onely to imploy them in defect of the King, accord­ing to the trust reposed in his Majestie. For as I have shewed before [Page 29] the King is tied to protect his Subjects from any forrain invasion, or domestick danger: and now the King refusing to do this, by putting of the kingdom into a posture of defence; the Parliament, according to the trust reposed in them, have, in defect of the King, and in his right, assumed to themselves this great charge, of settling of the Militia, for the securitie of the King, and people. And here I shall bid malice it self speak, whether it hath been imployed to any other end or purpose, then that for which it hath been alwayes pretended: viz. for the defence of the King and kingdom? or whether the Magazine (which is pretended to be taken from the King) wheras in truth it is imployed by the King, and for the safetie of him, and his kingdom (as I shall afterwards shew) hath been converted to any private property: or otherwise disposed of, then for the common good? and if so, certainly here is no devesting of the pretended property of the King: but that it still remaineth in statu qu [...] prius: in the same state that it was at the first. But if it should be ad­mitted, that this priviledge of the King is at this time taken from him: I conceive that it may be so, as this case is: For, as I have said before, it were better that the King should loose his priviledge, then that the king­dom should perish. I agree the rule of Law, that the King, regularly, cannot grant over his Prerogative; and with this accords 4. Rep. 7. Rep. 14. H. 4. 2. H. 7. 20. H. 7.4. Rep. 73. 2. 7. Rep. 25. b. 14. H. 4. 9. 2. H. 7. fo. 13. 20. H. 7. fo. 8. and many other books: except in some speciall cases, as in the 2. Rep. and the 5. Rep. 2. Rep. fo. 44. a. 5. Rep. fo. 56. b and the difference upon the books may be this, where the Prerogative is meerly personall, and where not: where it is meerly personall, there it is not grantable; but where it is not meerly personall, there it is: Now in our case I do con­ceive, and shall agree, that the ordering of the Militia of the kingdom, is a prerogative, so meerly personall in the King, that it cannot be grant­ed over to another. But it doth not therefore follow, that it can by no means be severed; especially, as in this case, when it so much concern­eth the good of the Common-weal. Wherefore, I conceive clearly, that the King cannot grant this prerogative over to another, for that he onely is intrusted with it for the weal publick: and as we well know, parties intrusted, cannot grant their trust over: for that a trust is meerly personall, and therefore not severable. And the King can no more grant over his prerogative of protection, or power of ordering of the Militia, to another, then he can dispose of his Crown, or royall dignitie, to an­other: and that he cannot do, for King John surrendred his Crown to the Pope, and this was adjudged to be void, for that it was given to him by God, and the Law, in trust, for the well governing of his people. Rot. Parl. An. 40. E. 3. Nu. 8. And therefore by his own act, or grant, cannot be severed from him: For an office of trust, by the Law, is not grantable over. But on the other side, we see, how that Crowns of Kings have been taken from them, by [Page 30] the people, as in case of R. 2. and others: I do not speak this in justifi­cation of the deposing of Princes, God forbid that I should, their per­sons are sacred: for that they are Gods anointed, and his Vicegerents, or Vicarii Dei, that is, Gods Vicars, as Bracton stiles them: against whom, God hath laid an inhibition, that we use not any violence, Touch not mine anointed: and therefore for my part, I conceive, that that damned opinion of the Spencers, in the reign of E. 2. that if the King did not demean himself, by reason in the right of his Crown, that his Lieges were bound by oath to remove the King: and that if the King could not be reformed by suit of Law, that it ought to be done per aspertee, I say that, I conceive that this was justly damned, as in truth it was afterwards by two Acts of Parliament; the one in the Reign of E. 2. called Exilium Hugonis de Spencer: and the other in 1. E. 3. ca. 1.Stat. E. 2. cal­ [...]ed exilium Hugonis de Spencer. 1. E. [...]. ca. 1.

But now, though that the King cannot grant this Prerogative over, as I have said before yet, under favour, I conceive cleerly, that it li [...]th in the power of the Parliament, for the prefervation of the Kingdom, in case of imminent danger, as now, to settle the Militia in hands to be confided in; for, as I have said before, the prerogative of the King must give way to the weal publique, and not the weal publique to the Pre­rogative of the King. For if the Prerogative of the King ought not to be advanced to the prejudice and wrong of the interest of any private man, as I have shewed before, much lesse, to the wrong and injurie of the re-publique. And with this difference ought Bracton to be under­stood, who saith,Bract. fo. 55. b. that, Ea quae jurisdictionis sunt, & pacis, & ea quae sunt justitiae & paci annexa, ad nullum pertinent, nisi ad Coronam & dignitatem Regiam, nec à Corona seperari poterunt, cum faciunt ipsam Coronam. Those things that belong to jurisdiction and peace, or are annexed to them, appertain to none, but the Crown, and Royall Dignity, neither can they be severed from it, for that they make the Crown it self. Now as I have shewed before, these words of Bracton, Ea quae pacis sunt, &c. those things that belong to peace, must necessarily intend Ea quae bel [...] sunt, those things that belong to warre also, for that it is impossible for the King, Absquerebus Militaribus, that is, without the Militia, to defend his people in peace and safety; And for that, that he saith, that this cannot be severed from the Crown: this ought to be understood, by his own act onely: and not that it cannot be severed from him, though in his own default, by his Parliament. For, to make such a con­struction, were to make a Law, destructive to that, for which it was principally, and in the first place, made to preserve; and that is the Common-wealth. And the like construction and explanation of his words, Bracton maketh afterwards, for he saith, Ad personas, vel ten [...]mē ­ta transferri non poterunt, nec à privata persona possid [...]ri: they cannot be [Page 31] transferred to persons, or Tenements, nor be possessed of a private per­son; which cannot be otherwise intended, then of the grant of the King, for transferre, that is, to transferre, is no other then concedere, that is, to grant. And I agree with Bracton in this, that the King cannot grant over this prerogative: but this position, doth no way conclude against the power of the Parliament, as our case is.

But here Mittons case in the fourth Rep. 4. Rep. Mit­tons case. cited before to another pur­pose, may be objected against me, where it is resolved, that the Queene could not take away the grant of the Office of the Clerke of the Coun­tie Court from the Sheriffe: in which case, there is another case also cited to be adjudged by all the Judges of England, viz. that the grants of the custodies of Goals of the Counties, by the King are voyde; and the reason that is given for both these Cases, is, that the Sheriffe having these Offices appendent to his Office (as in truth they are) is by the Law responsible for all misdemeanours done in those Offices, and there­fore it is against all reason, that the grant of them should be taken from him; but that he should have power, to put in such into those Offices, for whom he should answer. Now the force of the objection stands thus; if these Offices cannot be severed from the Sheriffe, because that by this he should be disabled to performe the trust reposed in him, and yet should be responsible for all misdemeanours done in those offices, which would be very unreasonable: à fortiori, you shall not take away this pri­viledge from the King, for by this he should be disabled, either to pro­tect and defend his people, as by Law he is bound, or faithfully to dis­charge this great trust reposed in him, as God requireth. To which I answer, that there is a great and wide difference betwixt the cases; for first, in the case of the Sheriffe, the depriving him of the grant of these Offices, concernes onely his private interest, & not the Common-weale; I meane, the Common-weale stands not in competition with the She­riffes right, as in our case; and therefore in this, the difference is great. But, which makes the cases much more to differ: in the case of the She­riffe, there was no act or default in him, for which to deprive him of this benefit; and it is a rule in our Law, that Quod nostrum est, sine facto, sive defectu nostro, amitti, seu ad alium transferri, non potest; a man shall never be devested of his propertie, without his owne act, or default. But o­therwise it is here in the case of the King, for, if there be no act, yet I am certaine, that there is a defect or default in the King, in refusing, in this time of imminent danger, to put the Kingdome, according to the ad­vice of his great Counsell, in a posture of defence.

And it is no new thing, for a man to loose his interest in his own de­fault: Upon this I might multiplie cases; but I will put onely one or two familiar and ordinary cases in our Books. If I make an estate for [Page 32] life, or yeares, to another, without condition expressed, yet the Lessee hath not the estate so absolute in him, but that by a tacite condition in Law, running with every such particular estate, he may, by his own de­fault, loose his estate; and therefore if he commit wast, he subjects his estate to be evicted by the Lessor; or if he assumeth to himselfe, to grant a greater estate to another, then he himself hath, by this he forfeiteth his estate. But you will peradventure say, that this case doth not agree with the case in question, for that the King hath an estate of inheritance in his Crowne, which goeth in succession to his posteritie, as well as the private interest of any Subject: This I agree, but under favour, he hath this committed to him in trust; this tacite condition runneth along with it, that he use his regall power and authoritie, for the good of the pub­lique; or if he doth not, that then his great Counsell for breach of this trust, and non-performance of this tacite condition (though that they cannot meddle with his sacred person, by dethroning of him, or deve­sting of him of the regall Scepter) may provide for the securing of him and his Kingdome.

Againe, it is cleare by the Law, that misuser or non-user of any Fran­chises, Priviledges, or Offices, is a forfeiture of them; but especially of any publique Offices, which concerne the administration of Justice, or the Common-wealth: and with this agreeth 5. E. 4. 8. H. 4. 20. E. 4. and my Lord Cooke in his Comment upon Littleton: 5. E. 4. 5. 8. H. 4. 18. 20. E. 4. 6. Instit. 233. a. and many other Books. Now it is as cleare, that to be a King, is an Office, though it be the greatest Office that any one, under God, can have: and what Office so much concerneth the administration of Justice, and the good of the Common-wealth, as this doth? and therefore, though this great office, be no more forfeitable, then it is grantable by the King: for I conceive that to be regularly true in the Law, that that which is not grantable, is not forfeitable: yet, God forbid, that his great Counsell, for his mis­user, or non-user of his Kingly function, should not have power, for the breach of this tacite condition, to apply themselves, by all lawfull meanes, for the securing of him and his Kingdome.

I shall compare this case, to one case onely, lately adjudged, viz. Hill. 17. Car. in the Kings Bench, Langhams case, Hill. 17. Car. in Banco Regis Langhams case where the case was thus; Langham a Citizen and free-man of London, was elected Alder­man of the Citie, and being called to take his Oath, refused, for which he was committed to prison by the Court of Aldermen: upon which he prayed his Habeas corpus in the Kings Bench, and it was granted unto him: and upon the returne of the Writ, they did alledge, that they had this custome, that if any man were elected Alderman of the Citie, and refused to take the Oath, that the Court of Aldermen had used, time out of minde, to imprison the party so refusing: and then they set forth, de [Page 33] facto, how that Langham being a Citizen and free-man of London, was duely elected Alderman, of such a Ward; and that he being called to take the Oath, refused, and that therefore he was committed by the Court of Aldermen: and the question here was, whether the custome to imprison the body of a free-man, were a good custome, or not? and it was resolved upon solemne debate, by all the Judges of the Kings Bench, that the custome, as this case is, is a good custome: and this is the difference that was taken by them, that a custome generally for a Court of Record to imprison the body of a freeman, is no good custom, for that it is against the libertie of the Subject, and Magna Charta, by which it is enacted, Quod nullus liber homo capiatur, aut imprisonetur, &c. that is, that no free-man be taken or imprisoned;9. H. 3. ca [...] but Per [...]legem terrae, &c. by the Law of the Land. But a custome, as in this case, for to imprison the body of a freeman, for refusing to take an office upon him, which is for the support of government, and without which govern­ment cannot subsist, which by consequence, strikes at the very esse, and foundation of the Common-wealth; for that it cannot stand without government: such a custome was resolved to be a good custome. Now I shall compare this case, with the case in question: it is here resolved, that a custome for to imprison the body of a freeman, for refusing to do such a thing, which by consequence reflects upon the Common wealth, and may indanger it, that this is a good custome: now thus stands the para­lell: and as the rule of Law is, Ʋbi eadem ratio, ibi idem jus, where there is the same reason, there ought to be the same Law. Now the same Law, that defends the Kings prerogative from violation, or seperation from the Crown, doth as strongly, Et eodem jure, by the same right, defend the liberty and freedome of every private mans person from imprisonment; for, though the interest and priviledge of the King, doe farre transcend any singular and private persons, being compared with them, yet they stand in equipage, In equali jure, that is, in equall right, being compared with the Common-weale; and therefore aswell the interest of the King, as of his Subject, Debent cedere Republicae, ought to give way to the Common-wealth: And yet we see, that as a mans person, for the good of the Common-wealth, shall be set at large, and free from imprison­ment, as it is resolved in 36. & 37. H. 8. Dyer. 36. & 37. [...] Dyer. fo [...] Trewynni [...] Case. Where a man was ele­cted a Burges of Parliament, and being in execution was let at large, by a Writ of priviledge, and adjudged that his inlargement was lawfull, and that the Sheriffe was by this excused: So on the other side, a free­mans person, by a private custome, contrary to Magna Charta, may for the good of the Common wealth be imprisoned: and without question, the Subject may as justly demand of the Law, the freedome of his per­son from imprisonment, as the King, of his prerogative, from violati­on, [Page 34] or separation; and yet no priviledge, no, not of the person it selfe, of a common person, ought to be preferred before the common good: and by the same reason, not any priviledge of the King; for, though the King be much greater, and much to be preferred, before many thou­sands, of individuall or particular persons; yet, without question, the universe or Common-wealth, is to be preferred before the King, or any interest or priviledge whatsoever of his: so that, for all these reasons, I conceive, that the prerogative of the King, may, as this case is, be se­vered from him: and therefore, that the Parliament (admitting that they have taken it from his Majesty) have done no more then what is warran­table by the Law.

3 But now, if all that I have as yet said, will not sufficiently justifie the Parliament in their proceedings, concerning the Militia: I shall adde a third reason to prove, that what they have done, is lawfull: and that is this; what they declare to be Law, bindes the King, by an inclusive judgement, & then their judgemennt, being the judgement of the King, and their Votes and Declarations of the Law, including the royall as­sent and declaration: the King cannot afterwards by a subsequent De­claration countermand his own judgement, tacitly included in theirs: and by consequence, the prerogative of the King suffers no violence; for Volenti non fit injuria, that is, a man that consents to the doing of a thing, is not injured by the thing being done. Now that their De­clarations of the Law, includes the King, and shall binde him, I shall presently prove it: First, it is cleare, that the Parliament consisting of the three estates: viz. of the King, Lords, and Commons, are a Court; and it is as cleare, that they are the greatest and highest Court in Eng­land; in which, Justice is administred by the King, in those Worthies, unto his people, in the most high and transcendent way that can be: for the King doth not appeare with that splendour and brightnesse of Ju­stice and integritie; neither is he so true and clearely represented to his people, in those glorious rayes of his, in any Court of Justice whatsoe­ver, as he is, in his thrice great and honourable Court of Parliament. Now that it is a Court, and that the greatest Court in England, in the 9. Rep. Epist. ibidem, [...]p. Epist [...] my Lord Cooke saith, that among other appellations, it is called by the name Magnae Curiae, &c. of the great Court. and in Pl. Com. fo. 388. [...] fo. 388. the Parliament is a Court of thrice great honour and justice, &c. and Bracton 34. a. [...] fo. 34. a. Rex habet &c. Curiam suam, viz. Comi­tes Barones, &c. the King hath his Court, to wit, Earles, Barons, &c. and Fleta lib. 2. ca. 2. [...] li. 2. ca. 2. Habet etiam Rex Curiam suam, in Consilio suo, in Parliamentis suis, &c. the King hath his Court, in his Counsell, in his Parliaments, &c. and Crompton in his Jurisdiction of Courts, [...]p. [...]ur. d' [...]s. fo. 1. 2. begins with the description of the high Court of Parliament, giving it the preceden­cy [Page 35] in act, as well as in words: where he saith, that the said Court, is, L'treshaulte Court d' Engliterre, that is, the thrice high Court of Eng­land: in which, saith he, the Prince himselfe sits in person, &c. And I shall conclude this with Dyer, who saith,Dyer fo. [...] that this Court of Parlia­ment, is the highest C [...]u [...]t, and hath more priviledges then any other Court of the Realme, &c. And all this is made cleare, without further saying, by this, that no [...]ppeale lyeth from this Court; no reversall of their judgement, but by the judgement of a subsequent Parliament.

Then this being admitted, that the Parliament is the greatest Court in England, I shall argue thus: is the King by intendment of Law, pre­sent in all his other inferiour Courts? as in truth he is, as 21. H. 7. and 2 & 3. Eliz. Dyer. 21. H. 7. f [...] 2. & 3. Dyer fo. 1 [...] and many other books are: which certainly is the reason of the heavy judgement of these cases, of killing of a Judge upon the Bench; that that is Treason: Or of drawing of a sword to strike a Justice sitting in judgement: or of striking of a Juror in the presence of Justice, that these incurre the heavy judgement, of cutting off the right hand, perpetuall imprisonment, and the losse of lands, and goods, as the books are, of 22. E. 3. and F. Judgement, 174.22. E. 3. [...] Fitz. Ju [...] 174. or of killing of a Messenger of the King, that goeth to execute his commandment, that this likewise is Treason, as the book is, in 22. Ass. 22. Ass. P [...] I say, I conceive, that the reason of these cases is, for that he that offers violence to his Minister, when he is doing the service of his great Master the King: offers violence to the King himself, whose person he represents, and who by in­tendment of Law, is there present giving judgement: and he that strikes another in the presence of Justice, doth it as in the presence of the King himself: for that what the Judge, or Minister of the King doth, in pur­suance of the lawfull commands of the King, or in executing Justice, is the act or judgement of the King himself, according to that rule of Law, Qui per alium facit, per seipsum facere videtur: the act of a mans mi­nister or servant, is the act of the Master himself. And this Bracton him­self saith,Bract. fo. [...] treating of jurisdiction, delegated by the King, to inferiour Judges, and withall shewing and directing of those Judges Delegates, to execute righteous judgement, saith he, Tale judicium diligit honor Re­gis, cujus p [...]rsonam in judicio & judicando representant. Such a judgement the honour of the King delights in, whose person, in judgement, they represent. Why then, I say, is it thus, that the King by intendment of Law, is present in all his other Courts; and that what they do, or judge, is the act or judgement of the King himself? then certainly it must of necessity follow, (as indeed the Law is) that their judgement cannot be counte manded by the King: for this were to put Caesar against Caesar, the King against himself, which cannot be; for that when a Judge hath once given his judgement, he cannot afterwards countermand this judge­ment.

[Page 36] Again, is the King (as I have said) by intendment of Law present in his inferiour Courts; and is their judgement his judgement, so that by this his Majestie is estopped and concluded by his own inclusive judge­ment, to countermand theirs. Then, I say, a fortiori, the King, though he disunite himself from his Parliament, yet by intendment of Law, and virtually he is present in his high Court of Parliament: and therefore their judgement is his judgement: and what they declare to be Law, the King by an inclusive judgement declareth to be Law also. And if so, the conclusion must of necessity be, that the King can no more counter­mand their judgement, then he can the judgement of his Judges: for when Transit in rem judicatam, that is, when a thing is once adjudg­ed, it can never after be repealed by the same judgement (as I have said) for that were a way to make judgement upon judgement, and so ad insinitum, & insinitum in iure reprobatur: the Law detests infinites. And as the King himself, cannot repeal this judgement pronounced by his Parliament: so neither can he do it, by any other advise or judge­ment, power, or jurisdiction whatsoever, no not by the advise, though of all the Judges of England, for that there is no power or judgement whatsoever, but is inferiour to the judgement of the high Court of Par­liament; which is plain, by that, that no appeal lieth from them: and then the rule of Law binds up and supersedeth all inferiour judgements: In presentia maioris, cessat potestas minoris. In the presence of the great, the power of the lesse ceaseth. And therefore according to this rule, it is resolved in 21. Ass. Ass. Pl. 1. that because that the Kings Bench is Eier, and more then Eier: if a Commission of Eier sit in a County, and the Kings Bench cometh thither; the Eier ceaseth. And this is the reason, that when it was enacted by the Statute of 28 E. 1. [...] 1. ca. 5. that the Kings Bench should follow the King, that the power of the Steward of the Kings Houshold, to determine Pleas of the Crown, did cease: and that in Terme time, when the Kings Bench sits, in the same County, all Com­missions cease, as it is resolved in the 10. Rep. and in the 9. Rep. [...] Rep. fo. 73. [...] Rep. fo. b. And this is the reason likewise, that when the Pope exercised jurisdiction here in England, whatsoever the Ordinary of any Diocesse might do, that the Pope, who challenged to himself supreme jurisdiction, over all Ordinaries, used to do within this Realm, as supreme Ordinary: and so he used to make Visitations, corrections, dispensations, and tolera­tions, within every Diocesse of this Realm, as the Ordinaries used: so he used to make Appropriations, without the Bishop: and this was held good, and was never contradicted by the Bishop, who was accounted but the inferiour Ordinary. Upon this ground, as it is said by Man­wood Justice in Pl. Com. [...] Com. fo. [...] a. In presentia maioris, cessat potestas mi­noris.

[Page 37] So I say, in the case in question, for that the high Court of Parlia­ment, are the most supreme jurisdiction in England; what they declare to be Law, cannot be countermanded, by the judgement of any power or Counsell whatsoever: because that in the presence of the most su­preme jurisdiction, the inferiour ceaseth. I do not hereby intend, that the power of the Judges, in their severall Courts, for the dispensation and execution of justice, should cease in the Terme, for that the Parlia­ment is sitting at the same time, And the reason is obvious, for that these Courts have their proper and distinct jurisdictions, from the Parlia­ment; and therefore cannot be superseded by it. I intend by this onely that what the Parliament hath declared to be Law, cannot, as I have said before, be countermanded by any other inferiour judgement what­soever: for that where the powers exercise the same jurisdiction, they cannot both stand together, but the greater will cashere and suspend the lesse: so I say in our case.

But here it may be objected, that the King is fons Justitiae, that is, the fountain of Justice; and that he onely, as Bracton saith,Bract. fo. 55. b. Ordinariam ha­bet iurisdictionem, & dignitatem & potestatem super omnes qui in regno suo sunt, habet enim omnia iura in manu sua, &c. And a little after he saith, Ea quae iurisdictionis sunt, &c. & ea quae sunt Justitie, &c. annexa, ad nul­lum pertinent, nisi ad Coronam & dignitatem Regiam: that is, those things which appertain to jurisdiction, and justice, belong to no body, but the Crown, and royall dignity. And as all justice and jurisdiction is pri­marily and originally in the King, so they cannot be exercised by any other, except that they be first delegated to them by the King; And so saith Bracton a little after, Jurisdictiones, &c. non possunt à privata perso­na possideri, nec usus, nec executio iuris, nisi hoc datum fuorit ei desuper: that is, no jurisdiction, nor execution of the Law, can be exercised by any private person, except that this power be first given unto him from the King. So Bracton treating of jurisdiction, saith;Bract. fo. 107. [...] Videndum, &c. quis primo & principaliter possit & debet iudicare: that is, let us see, who first, and principally, may, and ought to judge. And then he answer­eth, Sciendum, quod ipse Rex, & non alius, si solus ad hoc sufficere possit; eum ad hoc virtute sacramenti teneatur astrictus: that is, we must know, that the King onely, and no other, if he alone may suffice: For that he is bound to do it, by vertue of his Oath. And after in the next Chapter speaking of jurisdiction delegated, he saith,Bract fo. 108. a Si ipse Dominus Rex ad sin­gulas causas terminandas, non sufficiat, ut levior sit illi labor, &c. he may, saith he, Constituere Justiciarios, &c. quibus referantur tam quaestiones super dubiis, quam quaerimoniae super iniuriis, &c. that is, if the King a­lone cannot suffise to determine all causes, that his labour may be the more easie, he may constitute Justices, to whom, as well doubts in Law [Page 38] may be referred, as complaints, upon injuries. And in pursuance of this, the King, not possibly suffi [...]ing to exercise all jurisdiction himself, hath in all ages, delegated power and jurisdiction to a certain number of men; and hath constituted them Judges, and dispensers of the Law under his Majestie, and in his right an [...] to his people.

Now all this being admitted, as in truth it cannot be denied, the force of the objection stands thus: is it so that no jurisdiction can be exerci­sed by any, except that it be first delegated to them by the King, and that the King hath constituted certain persons, to be his Judges of the Law? why then it lieth not in the power of the two Houses of Parlia­ment, to declare what is Law, and what not. First, because that they are not the proper Judges of it. And secondly, because that they have no such power given unto them by the King: for what power they have it is derived by their Writ, by which the King calleth them to Parlia­ment: and this onely requireth their presence, Super dictis negotiis tra­ctaturis: and tractare is onely to treat of or debate the Law, not to de­clare, or give judgement what the Law is; Besides, this word tractare is contained onely in the Writ by which the Lords are summoned to Parliament, and not in the Writ of the Commons, for by that they are called onely (as I remember the Writ is) ad faciendum & consentiendum, to do, and agree; why then they have no such power to intermeddle with the debating of the Law, much lesse to declare what the Law is.

To which I answer: That the two Houses of Parliament conjoyned (for I speak not of the power of the House of Commons distinct, and by it self) may not onely declare what the Law is, but are the best and most proper Judges of it. Are not they the ne plus ultra; that the Subject hath for redresse in matter of Law? are not they (as common experi­ence teacheth us) the supreme Seat of Judicature? and do not they ex­ercise a superintendent jurisdiction over all other Courts? and have not they power by a Writ of Error, brought before them, to reverse Judgements erroniously given in other Courts? Without doubt they have; witnesse that case of the Ship-money: which Judgement could not possibly have been reversed, but by the Parliament; who upon debate, declared that Judgement to be against the Law; and how miserable this Common-wealth had been: if they had not had this power, the lamen­table successe, of devesting of the Subjects property, without his con­sent, by that damnable judgement, contrary to all Law, would have in short time, been manifested to the whole world. But to this it may be said, that in these cases, the Judges advise, who sit as assistants in Parlia­ment, is demanded: and that in such case, the King, by his Judges, doth declare what the Law is. To this I answer, that because the Parliament may demand the advise of the Judges, who sit there to that intent, will [Page 39] it therefore follow that they are tied to it? or having demanded their advise: must the consequence be, that they are bound to follow it? with­out question nothing lesse: for this were to tie my judgement to ano­ther mans principles, which ought not to be. And it were absurd for to think, that the Parliament, who are the supreme seat of Judicature, should be tied to subscribe to the judgement of any inferiour power whatsoever. And now I shall put you one case: posito, that all the Judges of England, assembled together in the Chequer Chamber to give judge­ment in a point of Law, should all concurre in their judgements, and should give judgement accordingly; and after in a Writ of Error brought in Parliament, this judgement should be reversed: doe not the Parliament onely, in this case, declare what the Law is? Without que­stion they doe; for, I suppose, that there is none so stupid, as to thinke, that the Judges advice or judgement ought or can be received in this case; for this were, upon the matter, to appeale à Caesare, ad Caesarem, and to reverse that Judgement (though not by the same power) yet by the same advise that gave it: which, as I conceive, by the Law ought not to be.

But here peradventure it will be againe objected, that no Writ of er­ror can be brought in Parliament, but that the King first signes to it: 1. H. 7. 19: [...] and this is a consent by the King, & a giving of them power to proceed and declare what the Law is: but in our case there is no such thing, for here is nothing judicially before them, by which to authorise them to give any such judgement, and therefore they have no such power to declare what the Law is, in this case; and if they doe, their proceeding is extrajudiciall and arbitrary.

To this I answer, that true it is, that they cannot, nor ought not to take notice of any thing which concerneth any private persons, or their interest; neither can they, in any such case, give Judgement, or declare what the Law is, except they have something judicially pending before them, upon which to ground their judgement; but otherwise it is where it concerneth the Common-wealth, for there, I conceive, under favour, (especially, as in this case, in time of imminent danger) they are not tied to any legall way of proceeding, but they may, and are bound, as well by their Oaths of Alleageance, Supremacy, and their late Prote­station, as by their Writ, by which they are called to Parliament, to take notice of all things, which may be obnoxious and prejudicall to the Common-wealth: and to debate, determine, and declare the Law con­cerning them, though that they have nothing judicially before them; for if they should, in this case, expect a complainant, the Common­wealth might perish, before that they could yeeld any ayde or assistance, for the securing of it. Now by their Oaths, they are bound to defend [Page 40] the King and Kingdome (as I have before said) and by their Writ they have power and authoritie given them, De imminentibus periculis tracta­re: and tractare, doth not onely signifie to handle, treate of, or debate; but likewise it signifieth, as the learned observe, to order, to governe, to write of, or to describe; and, without question, these words have weight, sence, and power enough in them, not onely to inable them to debate what the Law is, but also to declare what it is, after that it is debated: so that I conceive, by this it is cleare, that the Parliament doe not exer­cise, practise, or endeavour any arbitrary way of proceeding. And the difference (as I concelve) upon the whole matter, will be this; that the two Houses of Parliament cannot (as I have shewed before) make a new Law, or alter the old Law, without the consent of the King, and this by Act of Parliament; but they may declare what the Common Law is, and this shall be obliging to his Majestie; for otherwise, this great Court, which so farre transcends all others, in other things, should be lesse in power, in this particular, then any other; Which ought not to be conceived, or imagined.

Now this being Law, which I have delivered, as I conceive it is; from hence these Conclusions may necessarily, and by consequence, be dedu­ced; First, that the declaration of the Law, to be otherwise by the Pro­clamation, or other Declaration of the King, doth not change the Law; for that it is a Rule in the Law, that the King can neither create a Law, nor alter the Law, by his Patent or Proclamation: And with this a­greeth 49. Ass. 37. H. 8. Br. Patents 100. 11. H. 4. 10. H. 7. 5. Rep. 49. Ass. Pl. 8. 37. H. 8. Br. Pat. 100. 11. H. 4. 37. 10. H. 7. 23. 5. Rep. fo. 55. and many other Books. Secondly, Hence a good argument may be de­duced, to prove the Commission of Array, at this time illegall; for that the King, with the advice of his great Counsell the Parliament, hath by a tacite and inclusive consent (as I have made it good before) established the Militia; why then clearely it lieth not in his Majesties power, with­out their consent, to countermand this by any other Commission; for the Rule of Law is, that Eodem modo, quo, quid constetuitur, dissolvitur, that is, every thing ought to be dissolved by a matter of as high nature, as it was created: and that is the reason, that an Act of Parliament, can­not be repealed but by an Act of Parliament; for that no power or ju­risdiction whatsoever, is so great as it selfe: and it is without question, that the Kings power or authoritie, by it selfe, is not of so high and ex­cellent a nature, as it is joyned with his Parliament: Wherefore I doe conceive, for this reason, that the Commission of Array is absolutely unlawfull, and therefore ought not to be submitted unto. Thirdly, and lastly, Hence may be concluded, that the Kings declaration of the Law, to be contrary to what the Parliament have declared the Law to be, is Coram non Judice; that is, by one that hath not jurisdiction of the cause. [Page 41] First, Because (as I have said) that the King himselfe cannot declare the Law to be contrary to their judgement, for that his Majesties judgement is superseded, and bound up in theirs: and secondly, For that he can­not contradict their judgement, by any other advice or judgement, for that, that advice or judgement is inferiour to the Court of Parliament; and therefore in their presence, as to this purpose, ought to cease. And I shall compare this case, to one case onely, which is in the 10. Rep. in the case of the Marshallsea, 10. Rep. fo. 7 [...] the case of Marshallsea where the case is thus; The Sheriffe who is prescribed by the Law to hold his Tourne within the Moneth after Mich. &c. held his Tourne after the Moneth, and tooke an indictment of Robbery at the same Tourne, and the Indictment being removed by a Cerciorari into the Kings Bench, by the advice of all the Justices, the partie so indicted, was discharged, for that the Indictment was utterly voyde, and Coram non Judice, because at this time the Sheriffe had no authoritie to hold his Court: so I say, in this case, the Declaration or Proclamation of the King, is Coram non Judice, for that though the King properly, and onely, ought to declare the Law, by the advice of his Judges, at another time, yet at this time he cannot, for that their judgement is estopped and superseded, by the superintendency of the high Court of Parliament: Then the Law being thus, this justifieth the proceedings of Parliament, in punishing of such, who dare adventure, against Law, to execute the Commission of Array, or to proclaime, or declare any thing in his Majesties name, against his owne judgement, and the judgement of his Parliament; for the Rule of Law is; Extra ter­ritorium jus dicenti, non paretur, impunè; he that obeys the command of any power, out of its jurisdiction, shall be punished for it: So I con­clude this point also, and conceive, that for this reason likewise, the Parliament hath done no more then what is warranted by the Lawes of the Land.

4 Fourthly, and lastly, I hold that the Parliament have done no more then what is warrantable by Law, upon this ground (which ought to be the Basis and end of all Law) viz. the common good and safetie: but of this onely a word, for that I have touched it before. That Law which is above all Law, & to which all Law ought to subscribe, is Salus Populi, the safetie of the people. True it is, that the Law was made to defend every mans private interest, as well as the Republique, but pri­marily and principally the Republique: it is the Rule of Law (as I have shewed before) Quod bonum publicum, privato anteferri debet; that the publique good ought to be preferred before the private. And againe, we have another Rule, Quod magis dignum, trahit ad se quod est minus dig­num, that the more worthy doth draw to it the lesse worthy: and with­out controversie, the magis dignum, the more worthy, is the Common­wealth; [Page 42] why then the minus dignum, the lesse worthy, which is every mans private concernment, must subscribe to that.

And the reason, wherefore the good and safotio of the Republi [...]que, ought principally and in the first place to be maintained, and therefore is styled Suprema Lex, that is, the most supream [...] Law, or, if you will, a Law above all Lawes, is, for that as in the naturall body, if the body be in health, the members must needs be well also, and if the body be sicke, the members must needs sympathise with it [...] so it is in the body politique, if the body be well, the members fare all the better for it, if the body be in distemper, the members cannot but be distempered also; so the happinesse, or misery, of every individuall person, h [...]geth upon the good or ill successe of the Common-wealth and therefore the good of the Common-wealth ought to have the first and chie [...]e endeavour, of every true and faithfull member of it.

In 18. E. 2. which you shall sind cited in the 10. Rep. Keighleyes C. [...]8. E. 2. 27. [...]0. Rep. 139. b. Keighleyes C. a man brought an Action upon the case, against another, and the ground of the Action was, for suffering of a Wall of the Sea, that the Defen­dant was bound by prescription to repair, when need should be, [...]re­paired, so that for default of reparation, the water entred, and surroun­ded the lands of the Plaintiffe; The Defendant traversed the prescrip­tion, upon which they were at issue, and it was found for the Plaintiffe; and that there was a default in the wall, for not repairing, for which the Plaintiffe recovered his Damages, and a Writ was awarded to the She­riffe, to distrain the Defendant to repair the wall, where need was, [...]and d [...]sault: Upon which my Lord Cooke maketh a speciall obseruation; Not a Reader, saith he, this judgement, and the reason of it, is, pro bono publico, for the common good. For, saith he, Salus▪ populi, est suprema Lex: the safetie of the people is the most supreme Law: and therefore it is part of the judgement, in this Action, that the Defendant should be restrained to repair the wall. As if he had said, this Action is brought by the Plaintiffe, for his speciall da [...]ification onely, and this he hath restored to him by the judgement: (But yet note, for that it concerneth the weal-publique, the Judges considering themselves to be tied both in Law and conscience, to provide for the securing of the same, made this part of their judgement likewise, that the Desendant be compelled to repair the same; lest in defect of this the Common-wealth should suffer also. Here you may see, the car [...] that the Judges then had of the com­mon good: It were well that this were pondered on in those dayes, in which I doubt, men are too ready and prone to prefer their own private concernment in their indeavours, I mean their honou [...], before the pub­lique safetie.

In Davis Reports Da. Rep. fo. 32. b. it is [...] [Page 43] to the interest of one particular person, & yet reasonable, where it is for the benefit of the Common-wealth in generall; as a custome to make Balwarks upon the land of another for the defence of the Realm, 36. H. 8. Dyer, and to raze houses in publico incendi [...], in a common fire, 29. H. 8. Dyer, (these cases I have remembred before) so to turn the plough up [...]n the head-land of another, in favour of husbandry, 21. E. 4. and to drie Nets upon the land of another, in favour of fishing, and na­vigation, 8. E. 436. H. 8. Dyer fo. 60 [...] 29. H. 8. Dyer fo 36 [...] 21. E. 4. 28 [...] 8. E. 4. 18. But saith the book, a custome which is contrary to the publique good, which is the scope and generall end of all Laws (for salus populi, suprema lex) or injurious and prejudiciall to the mul­titude, and beneficiall onely to some particular person, such a custome is repugnant to the Law of reason, which is above all positive Laws, &c. Here note, that it is said, that the Law of reason is above all positive Laws: and no doubt but it is, for that Law, which is against reason, is rather a mystery of iniquitie, then Law: and in truth, it is no Law, which is not grounded upon the Law of reason. For as some will have it, the word (Lex) is derived, à ligando, quoniam ad observandas leges, homines ligat: and no question a Law, which is unreasonable, doth not oblige men to obedience: so that it is no Law, if it be not warranted by the Law of reason. Now to apply this to the case in question; the King, by his Prerogative, ought to have the sole disposing of the Militia: the kingdom being in imminent danger, the King refuseth to settle it, by the advise of his great Counsell, for the securing of himself and his people; Now the doubt is, whether the Parliament may without the consent of the King, assume this power to themselves, for the securing of his Majestie, and his kingdom? or whether they ought to subscribe to the Prerogative of the King, though it be to the apparent destructi­on of the Common-weal; which of these two is the reasonable Law, is the question? Why no doubt, Salus populi, the safetie of the people: for these reasons. First, for that the Law was made for the people, and not the people for the Law. And secondly, for that the whole ought to be preferred before any part: wherefore I conclude that it is Suprema Lex; the most supreme Law, and therefore the Prerogative of the King ought to give way to this; and not this, to the Prerogative of the King: for if you preserve and maintain the common good, you preserve and maintain the Kings Majestie, his Prerogative, your Laws, and your selves; and if you do otherwise, you destroy all. And therefore I conclude all with this, Non solum conveniens est, sed necesse est, ut salus populi, sit suprema Lex: That it is not onely convenient, but ne­nessary, that the safety of the people, should be the most supreme Law: And therefore the Parliament have done that which is agreeable both to Law and reason, in preferring of the publique safetie.


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