A SOVERAIGN ANTIDOTE TO PREVENT, APPEASE, AND Determine our unnaturall and destructive Civill Warres and dissentions. WHEREIN Divers serious considerations tending to this purpose are propounded both to the King and Subjects, the Parliaments and Sir Iohn Hothams proceedings at Hull and in the Militia justified, Sr Iohn Hothams actions proved to be neither Treason, Felony, nor Trespas, by the Laws of the Land, nor any just ground or c [...]use at all for his Majestie to rayse an Army, or a most unnaturall Civill warre in his Kingdome.
With a most serious Exhortation both to the King and subjects to embrace and preserve peace and abandon Civill Warres, with other matters worthy of consideration.
LONDON, Printed in the Yeare 1642.
A SOVERAIGN ANTIDOTE TO PREVENT APPEASE, AND Determine Our unnaturall and destructive Civill-Wars and Dissentions.
THE present deplorable condition of our bleeding and almost expiring Kingdom, machinating its owne unevitable ruine by a causelesse, groundles Civill Warre, intended (as the Parliament informes us) by the King,In sundry Declarations, and in certain Propositions concerning the raising of Horse, &c. (seduced through pernicious Councellors) against the Parliament and the Kingdome, which intention is now apparant by his besieging of Hull, and raising an Army in the North, hath in a manner constrained me (though altogether vnable for such a service) to attempt the speedy redresse of this transcendent calamity, by propounding certaine materiall considerations, both to the King and Kingdome, and then by examining; whether there bee any just cause or ground at all on his Maiesties part to levie warre against Hull, the Parliament, his people, especially whilest the Civill-wars in Ireland have continuance.
To avoid prolixity and obscurity, I shall reduce my considerations unto these ensuing foure Propositions, and the deductions from them.
[Page 2] First, That it is the bounden duty of every good Christian King and Subject, to the uttermost of their powers, to preserve and maintaine the peace and prosperity of the Kingdomes wherein they live, and to prevent all Civill wars and Dissentions in them.
This Proposition being of greatest consequence, I shall be more prolix therein, and it is thus proved.
First, by these generall precepts given by God, both to King and people, Seeke peace and pursue it, Psal. 34. 14. 1 Pet. 3. 11. Follow peace with all men, Heb. 12. 14. As much as in you lyeth live peaceably with all men, Rom. 12. 18. Live in peace, be at peace among yourselves, &c. 2 Cor. 13. 11. 1 Thes. 5. 3. Ephes. 4. 3. Col. 3. 15. Rom. 14. 19. Have peace one with another, Mar. 9. 50.
Secondly, more particularly by the 1. Tim. 1. 2. I exhort therefore, that first of all, Prayers, Intercessions, and giving of thanks be made for all men, for Kings, and for all that are in authority, that we may lead a quiet and peaceable life in all godlines and honesty: compared with Ier. 29. 7. And seeke the peace of the City, whether I have caused you to be carried away Captives, and pray unto the Lord for it, for in the peace thereof shall yee have peace.
Thirdly, by that injunction of King David himselfe, given to all his people by Divine command, Psal. 122. 6. 7, 8.Numb. 6. 26. Pray for the peace of Jerusalem, they shall prosper that love thee, peace be within thy Wals, and prosperity within thy Pallaces, for my Brethrens and Companions sake, I will now say, peace bee within thee.
Fourthly, by that speech of good Hezechia, Isa. 29. 8. 2. King. 20. 19. Good is the word of the Lord which thou hast spoken, for there shall be peace and truth in my dayes.
Fithly, by the titles given to God and Christ in Scripture, where God is oft stiled, The God of peace, Rom. 15. 33. c. 16. 10. 2 Cor. 13. 11. Phil. 4. 9. 1 Thes. 5. 23. 2 Thes. 3. 16. Hebr. 13. 10. And Christ the Prince and King of peace, Isa. 9. 6. Heb. 7. 2. By the severall promises of God in Scripture, to give his people peace in their Land, to blesse his people with peace, to ordaine peace for them; to keep them in perfect peace, &c. Levit. 26. 6. Psal. 29. 11. Isa. 26. 3. 12. c. 32. 17. c. 59. 13. c. 55. 12. c. 66. 12. Ezech. 34. 25. Hag. 2. 9. Zech. 8. 16. 19. By [Page 3] Christs own Legacy, Who bequeathed his peace unto his people, Iohn 14. 27. Now if God be a God of peace, and Christ a Prince and King of peace, and both of them give and promise nothing but peace unto their people; Then Kings, who are Gods 2 Chron. 9. 8. R [...]m. 1 [...]. 1, 2. 4. 6. Vicegerents, & ought to imitate his example, must endeavour to be Kings of peace, and study to the uttermost to preserve the Kingdomes and subjects in perfect peace and prosperity, and not to make warre against them.
Sixthly, this is evident by two excellent speeches of David. Psal. 78. 70, 71, 72. He chose David his servant, and tooke him from the Sheep-fold; from following the Ewes great with young, he brought him to feed Jacob his people, and Israel his inheritance: So he fed them according to the integrity of his heart, and guided them by the skilfullnesse of his hands. By which text it is most most evident, that Kings are not absoluteSee 1 Pet. 5. 2, 3, 4. Lords, but onely Sheepheards or Pastors of their people, set over them by God, not to worry or slay, but to feed, guide and seeke theirNeh. 2. 10. 2 Chron. 1. 10. 2 Chron. 9. 8. 2 Sam. 23. 3, 4. Wellfare, in the integrity of their hearts, to rule them with all gentlenesse, care and vigilancy, provide for their security, Isa. 40. 11. Ezech. 34. 10. to 30. and if occasion be, to lay down their very lives for the safety of their flocks, as good Sheepheards are willing to do. Iohn. 10. 11. 15. and as King David desired to do, in this 2d. speech of his, worthy all Princes consideration; Hee seeing the Angell that smote the people, spake thus unto the Lord, Lo, I have sinned and dealt wickedly, but these Sheep what have they done? Let thy hand I pray thee, be against mee and my fathers house, but not on the people that they should be plagued. 2 Sam. 29. 17. 1 Chron. 21. 17. Answerable whereunto is that speech of the matchlesse Governour Moses (most zealous for his peoples safety) who desired God to blot him out of his Booke, rather then to destroy the Israelites under his charge for their sin of Idolatry, Exod. 32. 32. And when God said unto him, Let me alone that I may consume them; for they are a stiffenecked people, and I will make of thee a great Nation: He utterly refused this offer, and continued expostulating the case with God in Prayer in the Israelites behalfe, Beseeching him to turne from his fierce wrath, and to repent of the evill against his people, till hee caused God to repent of the evill which he thought to doe unto his people, Exod. 32. 9. to 15. Numb. 14. 11. to 21. O that all [Page 4] Christian Kings and Princes were now so zealous of their peoples safety (as in truth they ought to be) they durst not then leavy warre against them, much lesse excite them to shed one anothers bloud.
If these divine precepts and examples bee not sufficient to cleare this shining truth, I shall adde some humane authorities to ratifie it, and that both of Pagans and Christians: To begin with Pagans Resolutions, it was a worthy saying of Plutarchi Apothegmata. Pelopidas, when, going forth to Battle, his wife wished him to save himselfe, others (quoth he) are to looke to this, but a Prince and Emperour ought to take care how he may save his Subjects,Hist. l. 10. p. 486. a good Prince (writes Q [...]. Curtius) esteemes the safety of his subjects more deare unto him then his owne life. It is an excellent Observation of De Clementia l. 1. c. 19. Seneca, that though all other Bees have stings, which they leave in the wound yet the King among the bees hath no sting at all, for nature would not have him to be cruell, nor revengefull to his cost and therefore hath taken away his sting, and left his anger unarmed▪ This should be a great example to mighty Kings, let them be not ashamed to learne manners from small creatures, seeing the minds of men ought to be more moderate, by how much the more vehemently it may do harme: Security is to be gained by mutuall security, &c. Kings have one impregnable fortification, the love of their subjects; which they shall then be sure of, when they deeme the Common-wealth not to be theirs, but they to be the Common-wealths. And he concludes thus, Ibidem. cap. 26. There is no Ornament more worthy and more becomming a Princes Highnesse, then that Crown ob c [...]ves servatos, for preserving and saving his subjects: Not hostile Armes taken from the conquered, not the Chariots of the Barbarians died with blood not the spoiels gained in warre. Many more instances of this nature, I pretermit for brevity, to passe from Pagans to Christians,Zonarus Annal. Tom. 3. p. 117. Constantine the great was wont to say, that an Emperour ought to spare, no not his owne members, for the preservation of the peoples tranquility. Pope Elutherius in his Spelma [...]ni Concil. p. 34. and in sundry other of our Wri [...]ers. Epistle to our King Lucius, the first Christian King, about the yeare of our Lord 169. writes thus to him. The Nations and people of the Kingdome of Britaine are yours, which being divided, you ought to congregate and reduce into one, to concord and peace: and to faith, and the law of Christ, and to the holy Church, to cherish, protect, maintain, governe and defend them from injurious [Page 5] and malicious persons and enemies. A King is named from governing not from a Kingdome; Thou shalt be a King whilest thou rulest well, which unlesse thou shalt do, the name of a King shall not remaine in thee, and thou shalt loose the name of a King which God forbid.
Finally to close up this Proposition; the Kings of England (and so the Emperours with most other Christian Princes) doth take this solemn oath, and make this serious Protestation to their subjects at the Coronation,See Totles Magna Charta, 1571. The Parliaments Remonstrance 26. of May, 1642. p. 9 And his Majesties Answer thereto. p. 16. [...]7. I will keepe peace and godly agreement intirely (according to my power) both to God, the holy Church, the Clergy and the People. By which oath they are obliged, under pain of highest perjury, to preserve the generall peace of the Kingdome and people; to avoid all civill Warres, unlesse in case of their subjects open Rebellion, not any otherwise to be suppressed but by a warre against them: and not to arme one subject, to assault or destroy another. Neither is this a late devised oath, in Henry the fourth his time, but King Henry the first, King Stephen, Richard the first, King John, and Henry the third, (as Mathew Paris records in their lives) tooke the same oath at their Coronations, and promised faithfully to fullfill it, and all our other Kings since have done the like.
From this first Proposition, Conclusions deducted from the former Proposition. thus aboundantly ratified, these conclusions necessarily ensue.
First, that his Majestie cannot without great sin and willfull perjury rayse a Civill Warre against the Parliament and Kingdome, and excite his loving subjects (who have lived in peace for so many yeares, and are all of one Nation, one Religion, one flesh and blood) without any just cause, most unnaturally to destroy and murther one another, and so to ruine their owne native Countrey and undoe themselves and their Posterity.
Secondly, that no faithfull subjects ought to foment or promote such an unreasonable, unnaturall Civill Warre, or give any assistance to it in the least degree upon any considerations whatsoever, but to the uttermost of his power by his prayers and all other lawfull meanes to prevent oppose and withstand it, for the preservation both of the King, Kingdome, Parliament, their own Liberties, Inheritances, Lives, Persons, Families [Page 6] E [...]tates and Religion, and to unite all their Forces to [...]inguish the [...]ames of civill dissentions already kindled among us.
Thirdly, that those malignant spirits who counsell and instigate his Majestie to a Civill-warre against his Parliament and people, are most unnaturall Vipers, and Traytours to their Coun [...]rey, desperate Rebells against God, and most execrable wicked persons, and so God himselfe hath proclaimed them to all the world, Isa. 59. 5. to 10. They hatch Cokatrice egges, and weave the Spiders Webb; he that eateth of their egges dyeth, and that which is crushed breaketh out into a Viper, their workes are workes of iniquity, and the Act of violence is in their hands, their feet run to evill, and they hast to shed Innocent blood, their thoughts are thoughts of iniquity, wasting and destruction is in their paths, the way of peace they know not, & there is no judgment in their goings, they have made them crooked paths, whosoever goeth therein shall not know peace. And Rom. 3. 13. to 19. Their throat is an open Sepulere, with their tongues they have used deceit, the poyson of Aspes is under their lips, their mouth is full of cursing and bitternesse, their feet are swift to shed blood, destruction and misery are in their wayes, and the [...]ay of peace they have not known, there is no feare of God before their eyes. O, miserable unhappy Princes who are advised, seduced by such pernicious Counsellors! O rash i considerate wretched people, who are besotted by them, so farre as to take up Armes against their native Countrey, to b [...]come their own, their Brethrens, the Parliaments, and Kingdomes Executioners, and thereby mostNullihostes digniores supplicio sunt quam ij qui contra patriam arma sum unt. [...] ad Qu. Iretrem. detestable Traytours! as all such who take up Armes against the Parliament are adjudged, to be in the Parliament of 11. R. 2. the record whereof was published in print by Order of both Houses, May 27. 1642. to which I shall referre you.
Fourthly, that if the King against his Oath and Office, will without just cause make warre upon his Parliament and Kingdome, they may lawfully take up Armes for the preservation of the Kingdomes peace, and their owne just defence, for when the King who should protect them, will against the trust and duty of his Royall Dignity, set himselfe to destroy them; they having no other protection, may justly protect and defend themselves, even as Souldiers, Children, Wives, Servants, [Page 7] may by the equity of all Laws, lawfully by open force defend themselves against the bloody assaults and violence of their Generalls, Parents, Husbands, Masters, who seeke to take away their lives, though in all lawfull things they ought to be subject and obedient to them: If a King should causelesly run at a subject with a naked sword to kill him, the subject may lawfully put by his thrust and defend his life, which a King ha [...]h no power to take away,See 1 Kings 21. throughout 2 Kings 9. 25. Exod. 1. 16. to 22. but upon just grounds after a legall triall, and that in a legall, not an extraordinary way, Much more then may the whole Parliament and Kingdome withstand a Kings open causelesse hostility against them, to preserve themselves and the Kingdome from destruction. This is evident even by divine Authority, as namely by the example of David, who though a subject1 Sam. 22. to 27. tooke up Armes and raysed an Army to defend himselfe against King Saul his Soveraign, who causelesly made Warre against him and sought his life, and though he still avoyded Saul, and twice refused to hurt or murther his Person, when he was in his power, because he was Gods anointed: Yet no doubt had Saul assaulted him with his Armie, he would have defended himselfe against him in Battel: Nay, this is manifest in an Higher Degree by that most Observable Passage in the 1 of Samuel 14. 39. to 46. Where when King Saul had made a Rash vow, that whosoever had tasted any thing that day, (contrary to his command, whiles he pursued the Philistines) he should dye the death, though it were Jonathan his Sonne, who procured that Victory and the Lot fell upon Jonathan, who did but tast a little Honey on the top of his Rod, who said, and lo I must dye for this; Saul answered, God do so, and more also, for thou shalt surely dye Jonathan; the people thereupon said to Saul (notwithstanding, he were their King, and had made two such solemne Oaths) shall Jonathan die, who hath wrought this great deliverance in Israell God forbid; as the Lord liveth, that shall not one haire of his head fal to the ground, for he hath wrought with God this day, so the people rescued Ionathan, that he died not. Here the people not only justly defend, but rescue Jonathan, being an Innocent from death, not onlie contrarie to the resolution, but vowes and Oaths of their owne King, to put him to death, and so doubtlesse they would have defended themselves by force in the like case. There is a notable place to [Page 8] this purpose in the 1 of Kings 12, 13. to 25. 2 Chron. 11. 1. to 5. Where when the ten Tribes (through Rehoboams following of the rash Counsell of the young men) revolted and rebelled against him, being their lawfull King, and made Ieroboam King over them, Rehoboam, as soon as he fled from them and came to Ierusalem assembled all the Tribe of Iudah, and the House of Benjamin, an hundred and fourscore thousand men, which were Warriers, to fight against the House of Israel: (who rebelled and revolted) to bring the Kingdome againe to Rehoboam the Sonne of Solomon. But the word of God came to Shemajah the man of God, saying speake unto Rehoboam the King of Iudah, and unto all the house of Judah and Benjamin, and to the remnant of the people, saying. Thus saith the Lord, You shall not go up to fight against your Brethren the Children of Israel, (though Rebells) returne every man to his house, for this thing is from me. They hearkned therefore to the word of the Lord, and returned to depart, according to the word of the Lord, from going against Ieroboam and their Brethren. Here God himselfe prohibits both King and people to raise a Civill-warre against their Brethren, though Rebells and Revol [...]ers in the highest degree, and they both lay downe Armes hereupon for the present. And when Rehoboam and Abijah his sonne afterwards made warre upon them; they did lawfully resist and oppose them, 1 Kings 14. 30. c. 15, 6. 2 Chron, 12, 15. and chap. 13. throughout. So the men on Tirzah, being beseiged by King Omri to take Zimri, lawfully defended themselves for a time, 1 Kings 16, 17, 18. and thus did those of Bethmaachan against Ioab, 1 Sam. 20, 14. to 23. To passe from Scripture presidents. Infinite are the examples in histories of subjects (who by the very dictate law of natur, wch instructeth every creature to defend it selfe against unjust violence) defended themselves in all ages against the assaults oppressions and groundlesse Warres of their unnaturall Princes. But the many late examples of this kinde of the Protestants in France, Germany, and Bohemia, who have by open force defended their persons, estates, Religion, against those Popish Kings and Governours, who have causelesly levyed Warre against them, (which act of theirs all Protestants affirme to be lawfull both by the lawes of nature, God and man) and our owne domesticke examples of the long continued Barons [Page 9] Warres both in King Iohns, See M [...] thew Pa [...]s, Ho [...], Wa [...]singham, Speed, Stow, G [...]ston, Mathew Westminster, [...], and others. King Henry the thirds, Edward the seconds, and Richard the seconds Reignes who took up Armes against these Princes, for the just defence, preservation, and establishment of the Laws and Liberties of the Kingdome (which these Princes contended to subvert) even in times of Popery; which act of theirs, by the Prelates, Clergy and people of those times, and by all succeeding Ages since; was and hath been resolved, not onely lawfull, butOptin [...] qui et omnibus Laudibus [...], qui sua corpora pro [...] def [...]sione peri [...]uris ab jecerunt, Isocra [...]es p. 108. honest, just and honourable, and worthy eternal Encomiums, by meanes whereof our Kingdome hath quietly enjoyed those Lawes and Liberties, which they contended for, ever since, which otherwise had been long agone utterly lost, and the Kingdome with them; will aboundantly suffice to cleare and ratifie this conclusion, beyond all contradiction or excep [...]ion of any malignant Spirits.
Fifthly, that it is lawfull and necessary for the Parliament for the preservation of the Kingdomes peace,Nihil est praestabilius viro [...]orti, quam per [...]u [...]s patriam libera [...]e, Cicero, pro An. Milone, Orat, Mortes pro pa [...] appo [...]ae, non so [...]u [...] glo [...] Rheto [...]ibus, sed et [...]a [...] beatae v [...]der. solent. Cre [...]o. [...]ust. Quaest. lib. 2. and safety, its necessary defence, and the better prevention of Civill-warres, to settle the Militia, and secure the Magazines of the Realme by such meanes as may most effectually advance and accomplish this great much opposed worke, since His Majestie hath refused to passe a Bill to accomplish it. Neither is this way of setling the Militia a Novelty, but the most ancient practice and custome of this Kingdome, for it appeares by King See Cookes [...] on Magna Char [...]a, f [...]l. 17 [...], 175. And Leges Edwardi Regis cap. de Her [...]tochijs in Lamberds Archion. Edwards Lawes, that in his and former ages the Lievtenants and supream Commanders of the Mlitia in every County, were elected; per commune Concilium, pro communi v [...]ilitate regni, per provincias et patrias vniversas, et per singulas Comitatus, in [...]leno Fulkemots▪ by the Common-counsell, for the common utility of the Realm; through every Province, Countrey and County, in a full Falkmoth or County Court by the Freeholders of the County. And if the Freeholders in ancient times did thus in every County elect their Lievtenants and Captaines of their Militia, to Train and Order them; yea, and the high Sheriffs too, who had the command of the whole power of the County, whom they then likewise elected as appeares by the same Law of [Page 4] King Edward) by the same reason, and greater may the whole Parliament in this case of necessity lawfully elect them now, without any impeachment to his Majesties Prerogative.
Sixthly that His Majesties late Commissions of Array, to enforce one subject to take up Armes against another, in effect to maintain a Civill-warre, & to imprison those who refuse, contrary to the expresse Letter of Magna Charta, c. 29. the late Petition of Right 3. Caroli, (in the Answer whereunto His Majestie professeth that it is his Maxime, That the peoples Liberty strengthens the Kings Prerogative, and that the Kings P [...]erogative is to defend the peoples Liberties:) Is directlySee the Commons Declaration concerning the Commission of Array Iuly 1. 1641. Wh [...]re it is fully proved. against the Law, and His Majesties Coronation Oath, as the Parliament hath now lately proved it.
Seventhly, That to disswade and divert His Majestie from this Civill-warre, and shedding the blood of his innocent subjects, will be a most acceptable and meritorious service both to God, the King himselfe, and the whole Realme. To God it must be so because he is a God of peace, abhorring all unnaturall Civill-warres, as is formerly demonstrated. To the King himselfe it must be so, because it will exempt him from the guilt of perjury in violating his Oath, from the guilt of innocent blood and murther, in causing his people causelesly to sheath their Swords in one anothers Bowells; and from many other sinnes and mischiefs. To the whole Kingdome it must be so, which desires peace and unity, & abhors the very thought, much more the sight of an unnaturall Civill-warre, which will now in all probability, as things stand abroad and at home procure aboundance of misery, if not utter ruine both to King and people. When1 Sam, 25. David by reason of Nabals churlish Answer, had taken up a peremptorie Resolution, By the morning light to slay every one of Nabals houshold that passed against the Wall Abigail Nabals wife hearing of it, went & met David and his Army in his March to do this execution and by her presents and prudent speech, diverted him from this his Resolution. Whereupon David said to Abigail, 1 Sam. 25. 32, 33. Blessed be the Lord God of Israel which [Page 1] sent thee this day to meet mee, and blessed be thy advice, and blessed be thou, which hast kept me this day from comming to shed blood and from ave [...]ging my selfe with mine own hand. O, that some discreet man or woman, could now divert His Majestie from his intended Civill-warre against Hull, the Parliament and Kingdome, as Abigail here did David, cert [...]nely it would cause his Majestie upon due consideration, to breake out into Davids words, and to blesse both God, their advice, and them, for keeping him from shedding his owne subjects innocent blood, & from avenging hims [...]lfe with his own hand; neither of which becomes a gracious Prince and may prove destructive both to himselfe, his people, and Kingdomes.
The second PROPOSITION.
THE second Proposition is this: That the King ought not to deny or deferr justice or right to any of his subjects, much lesse to the whole Kingdom. This is manifested both by the expresse words of Magna Cha [...]ta c. 29. Nul [...] vendemus, nulli negabimus vel differemus justisiam v [...]l rec [...] and by many excellent Statutes since, as 2 E. 3. c. 8. 14 E. 3. c. 14. 20 E. 3. c. 1, 2. 1 Rev. 2. cap. 11.
It will then be worthy His Majsties serious second thoughts to consider.
First whether his voluntary withdrawing himselfe from his Parliament to York, (which hath much retarded, if not wholly frustrated all Parliamentary Proceedings, since for the safety and wel-fare both of this Kingdome and [...]) be not an apparant violation of this part of his Royall Duty.
Secondly, whither his peremptory refusall to passe some necessary usefull Acts for the good of the whole Realme [...]pon a pretended discontent against the Parliament and Sir Iohn Hot [...]am, and a private vow (as some report) not to passe any Act whatsoever, till he received [Page 12] justice in Parliament against Sir Iohn Hotham, for the businesse of Hull, and his refusall to settle the Militia, for the safety of the Kingdome by Act of Parliament, or otherwise, be not an apparant breach of this trust and parcell of his Kingly office.
Thirdly, whether his detaining of the Lord Keeper and great Seale at Yorke, whereby many subjects processes, and causes have been delayed, their suites retarded, and some of them quite lost, be not an apparant deviation from this Proposition.
Fourthly, whether his absolute denyall to disclose the Accusers & Informers against the Lord of Kimbolton, and other 5 Parliament men, that so they might acquit themselves, and have right and justice against them for their malicious false suggestions, runs not point blank against this irrefragable Proposition, and be not a flat denyall of common Right and Justice to those eminent Persons.
Fifthly, whether it be not an apparant Uiolation and denying of Justice, for his Majestie to proclaime Sir Iohn Hotham a Traytor, and demand Judgement against him as such a one before his cause was rightly stated, or resolved to be Treason by any Court of Justice, or the Parliament.
Sixthly, whether his Majesties raysing of a Civil-warre at this very season in England, his beseiging of Hull, with his slighting and opposing the Parliament in open Declarations, even now during the heat of the bloody warrs in Ireland (by meanes whereof those Irish Rebells are exceedingly encouraged, the Protestant Party and our Soldiers there much discouraged, and the Parliament now quite disabled to supply them with Provisions of Ammunition and money which they want, by means whereof the Rebells (now halfe subdued are like to regaine the Forts they formerly lost, and in time wholly to conquer that Kingdome: and so utterly to extirpate the English Nation and Protestant Religion thence) be not a reall tacit denying and delaying of ayd right and justice to that distressed bleeding Kingdome, which now lyes and calls to [Page 13] his Majestie and the Parliament for present succours and supplies, which this now Civill-warre will in all probability totally frustrate to the great advancement of Papists and Roman Religion.
If all these particulars upon serious deliberation prove crosse to this Proposition & his Majesties Regall Office, I presume his graciousnesse, his Royall Love to right and Justice, and his compassion to almost expiring Ireland and England, is such that he will speedily redresse all former errors of this kind, put a speedy period to our domesticke Civill-warres, and move him never to run into the like exorbitances againe.
The third PROPOSITION.
THe third Proposition, That his Majestie hath no such private or particular interest in the Forts and Townes or Magazines of the Realme, as the subjects have in their Lands and goods, to give sell, or dispose of them at his pleasure, but onely a publique interest by way of trust, for the defence and preservation of the Kingdome, and the security and tranquility of his people. A truth worthy consideration, when ignorance and incredulity hath lately occasioned many grand inconveniences and mistakes.
This is most apparant by this familiar demonstration, for as much as the King hath no right or interest in these Forts, Towns, or Magazines, as he is a private person, but only in right of his Crowne, as he is King of England, and the publique Minister or Servant of the Kingdom to provide for its security and tranquility in times of warre or danger, and its prosperity in times of peace. Wee all know, that by the Law of the Land: the King cannot sell or alien the Lands or Revenues of the Crowne, yea our Law-books and Judges have resolved, [...]5. H. 6. 19. Fitz. Devise 5. that the King by his will cannot demise any of his Lands: M. [...]. H. 5. Fitz Executors. 108. That though the King make a will and give Legacies of his own private goods which hee hath, yet he cannot demise the Iewells, Plate, Coronets and goods of the [Page 8] Crowne. And if the [...] Fitz Qu. Imp. 35 55, 5 [...]. 11 [...]. 118. 189. Live y. 23. Prese [...] 1. King hath the body of a Ward, the temporalities of a Bishop by way of sequestration in his possession, or right to present to a Church that is void, and make his executors and dye, his Executors shall not have the Ward, temp [...]lties, or presentation though chattles, as a common persons executors shall have but the succeeding King. So if Subsidies be granted, and the King dye before they are l [...]vyed, his Executors shall not enjoy them, though a chattle; but his Successor. So the successor King, not the Kings Executors shall have all his Ships. Ordinance, Powder Armes and Ammuni [...]ion, though chattles, because they are not the Kings, but Kingdomes and purchased with the Kingdomes money 1 Eliz. [...], E. 4, 45, b, cap. 19. 1 [...]ac. c 25. because the King hath not only his Lands but even these very Chattles in right of his Crown as King not as a private person, for the benefit of the Kingdome. When King Iohn most unworthily (with the consent of some of his Barons) resigned his Crowne and Kingdome of England to the Pope. P [...]lip the French King though his enemy, declared this Act void.Mathew Paris Hast Min [...]r; in Ioan. Dr, Crakenthorpe of the Popes temporall Monarchy, c. 2. p [...]ge 13 [...]. to 25 [...]. Because no Ki [...]g nor Prince can give away the Kingdome, which is the Common-wealths, and all the Noblemen of France there present, begun to cry with one voyce, that they would sta [...]d to this truth even to death. This matter of this Kings grant made to the Pope, being proposed and discussed in full Parliament in the 40 yeare of Edward the third,Ro, P [...]rl. An. 40, L, 3. nu, [...]. Vpon full deliberation the Prelates, Dukes, Earles, Barons, and Commons answered, and resolved with one accord; That neither the said King John, nor any other, can put him, nor his Re [...]lme nor his people under such subjection without their assent, and as by many evidences it appeareth▪ if it were done, it was done without the ra [...]nt and contrary to his owne Oath at his Coronation And besides this, the Dukes, Earles Barons, Gentlemen and [...] accord and agree, that in case t [...]e Pope shall enforce or attempt by Proc [...]s or by any other manner of d [...]ing t [...] constraine the King or his subiects to performe this (as it is said hee will) these parties wi [...] resist wi [...] all their puissance So that by the Resolution of this whole Parliament, the King cannot grant away his whole Kingdome, without his p [...]oples consent, in Parli [...]ment, and by the selfe same reason not any part, parceil, Towne, or Fort thereto belongi [...]g th [...]y [Page 5] being the Kingdomes, not the Kings owne right. The Civilians of forraign parts disputing of the pretended Donation of Constantine the great of Rome, Italy, and Supreame jurisdiction there, to the Pope, resolve thisSee Doctor Crakenthorps Defence of Constantine c. a [...]d p [...] 13 to 175. Donation void, because the Emperou [...] by Law cannot give away any of his Empire it being contrary to his Coronation Oath: wherein hee sweares, Mat. Paris Anno 1 [...]10. p. 306. Baldus in Pro [...] de Feud, nu. 32 Lu [...]a [...] de Penu [...], Cod. de omni agro de [...]e [...] Quicunque desertum: f. 185. col, [...]. to maintain the Dignities and Rights belonging to the Empire that he [...] impa [...]re the goods and state of the Empire, but keepe inviolable the Rights of his Kingdome, and the honour of his imperiall Crowne. By vertue of which Oath, they hold the Emperour strictly obliged in duty both to God and the Empire, to take to themselves, not onely all those large and faire Territories, which the Pope hath taken, either by force or fraud inv [...]ded; decking himselfe with the Eagles plumes; but specially they ought to resume that Dominion in those very Lands which the Pope now challengeth as his owne, by force of this forged grant. In Pro [...] mi [...] Feud. nu. 32, 33. Baldus a learned Civilian writes: That the Doctors of the Law determine, That Constantines pretended Donation neither is nor possibly can be of force, to passe away, either the propriety or supreame Dominion in these Territories, or the Imperiall jurisdiction over them. For to say that the Emperour would by his Donation mutilate, or cut away the Members of the Empire is a kinde of folly. In Rubric. [...] verbo oblig [...]t. Arctine not onely assents to Baldus, but much commends his judgment therein, Baldus (saith he) doth elegently teach, that the Emperour cannot give away any quotient, neither a third, nor 4th. part, nor halfe of his Empire. Whereby Baldus meanes, that the Empire being an intire and universall power, the Emperour by giving ought, ceaseth not to be universall Lord of all belonging to the Empire. Col. de Omni [...] ser [...]. l. Qu. [...] Lucas de Penna, is very pregnant in this point. The Royalties of the Empire (writes he) cannot be alienated from the Emperour. Yea, though the Emperour should sweare, that hee would not revoke such Royalties as were alienated to the preiudice of his Crowne and Dignity, yet notwithstanding this his Oath hee might recall such alienations, because the Emperour sweares at his Coronation, to keepe safe the honours and rights of his Kingdome: [...]ut by alienating his demaines and Territories, he doth not preserve but impaire the Imperiall Rights. De [...] cunq. prae, [...]. l, Bene a Zenone. nu. 4. f. [...]. c. 4. Albericus de Rosate is copious in this case. Let us see (saith he) whether Constantines Donation could be of force to pre [...]udice his Successors, Accu [...]stus [Page 8] [...] [Page 5] [...] [Page 8] [...] [Page 5] [...] [Page 16] holds it could not, so doth John de Parisiis, And he gives this reason thereof: Because none deputed to an office, may do ought against his own office. But it is against the office deputed to the Emperour, to impaire his Empire, or cut or take away any part from it. For by the same reason that he cuts away one part, he may cut away also another, and so may his successors, and so the Empire at last should be b [...]ought to nothing, and utterly destroyed which is against the publique good, and the end why the Empire is ordained; Whereupon I doe believe, that the foresaid Donation by law cannot be of [...]orce to prejudice the Empire or the Successors. The same Doctrine is delivered for Law by Boetius Epon Herric. qu. qu. 3. nu. 43. quest. 5. nu. 19. 27. 34. by Didacas Coverrumius Practic. qu. c. 4. nu. 1. by Franc. Vargas. De Author. Pontifi Axiom. 1 Num. 2. Gulielmus, Benedictus, Caralus, Degrossatus▪ Felinus, with others. All which I have cited, to shew the concurrence of the Civill with our common law in this particular, and to resolve all opposites in this point, who scruple at it.
First, From all these Premises it is apparant;Deduction [...] from hence. 1. that the case of Sir Iohn Hotham, and the Towne of Hull, was not rightly stated by His Majestie in his Declaration sent in a Message to both Houses, the 21. of May. 1642. To wit, that his Majesty hath the same Title to his Towne of Hull, which any of his Subjects hath to their houses, or Lands, and the same to his Magazine and Munition there, bought (as he saith) with his own Moneyes. When as many, or most of the Armes there, were against law, violently taken away from the subjects in Essex, and other Counties (who bought them with their own Moneyes) without paying any consideration for them, and the other was purchased with the See 1 Eliz. c. 19. 1 Iacobi. c. 33, Kingdomes Money, with which his Majestie was but intrusted which any of his subjects have to their Money, Plate, or Jewells, and therefore that they ought not to be disposed without his consent, no more then the house, Land, Money, Plate or Jewells of any subject ought to be without or against their Remonstrance in answer to that Declaration, May 26. page 4, 5, 6. To which I shall referre you
Secondly, That the King having no interest in Hull, [Page 17] or the Magazine there, but only as King and the publique Minister o [...] the Kingdome, for the Kingdomes use and benefit, and the preservation of its security and peace, it is and was lawfull, for the whole Kingdome assembled in Parliament, (upon probable grounds and Informations and proofes that his Majestie seduced by some pernitious Enemies to the Kingdomes tranquility, intended to seize upon this I owne and Magazine by surprise, thereby to let in forraigne forces, and raise a Civill-warre against the Parliament and Kingdom to the disturbance of the publique peace and hazard of the Realmes of England and Ireland, and contrary to the publique trust reposed in him, (the breach whereof doth in some sort determine it for the present) to turne those Arms and Ammunitions provided for his subjects safety, upon them to their destruction) to seize upon and secure them for the present, for the prevention of this danger and abuse of them, the Kingdomes better security (the true ends for which this Town and Magazine was first fortified and provided:) And that without any danger of Treason and disloyalty in them or their Agents, imployed in this service. Neither is this any new case, for both in the well knowneSee Mathew Paris, Holinsheed, Speed, Graston and others, in the lives of King Iohn, Henry 3. Ed. 2. Rich. second. Barons Warrs in this Realme, and late stirs in Scotland, the Barons and Scots seised upon the Kings Townes, Castles and Ammunition, for the security and peace of these severall Kingdomes, without any danger or charge of Treason. And if it were no Treason in the Scots within these two yeares to seize upon all or most of His Majesties Townes, Forts, Magazines and Ammunition in Scotland, and on New-castle in England, for the common peace and safety of their Kingdome and prevention of Civill-warrs,See the Acts of Pacification 12. H. 8. 2. 22. E. 4. 35. l. 1 H. 7. 7. 5. H. 7. 6. Ba [...]e. as his Majestie and the Parliaments both of Scotland and England have resolved, why should it be Treason or Felony in the Parliament or Sir Iohn Hotham their Agent, peaceably to possesse themselves of the Towne and Magazine of Hull, for the safety of the Realme the prevention of Civill-warres and preservation of the publique peace, when as they keep [...], them onely for his Majesties and the [...]ingdomes use and are ready to redeliver them into his Majesties actuall possession, [Page 18] if they may be secured: that they may not be misimployed against them. If a Constable or any other person breake into another mans house and take away his sword and [...], and arrest him to preserve the peace and prevent murther, he may by the common Law [...]ustifie this Act, and detaine the others weapons till the fray be over, and the peace secured; Yea, if a man should detaine his Majesties sword or Pistoll from him, in case he intended causelesly or unjustly to murther any of his subjects with it, till his wrath were past, I presume it would be neither Treason, Felony, nor any illegall misdemeanor, much lesse can it be any Treason, or offence in the Parliament, or Sir Iohn Hotham their Instrument, upon just suspitions to possesse themselves of the Towne and Magazine of Hull, in a peaceable manner, and to sequester and detaine them from his Majestie for a season, till they may have good assurance, that neither of them shall bee misimployed, by the instigation of mischievous Counsellors, to the hurt or destruction of the Kingdome, and them, as they are informed Wars are intended to be. But more of this hereafter in Deduction 4.
Thirdly, admit the case of Hull and the Magazine there, such as his Majestie puts it, yet then by his Majesties Argument, every subject hath as good and firme an interrest, and property in his owne goods, Lands, Houses, as his Majestie hath in his Towne of Hull, or his Magazine. By what Law or Justice then hath his Majestie seised lately upon his subjects Armes and Magazines in divers Counties, bought with their own Moneys, for their own private, and the publique defence of the Realme against Theeves and Forraigne Enemies, and forceably taking them away without paying for them, and now imployed them in a Civill-warre, against Hull and his subjects? Doubtlesse the Parliament may with farre more justice and equity, seize upon the publique Magazine of the Kingdome, and Hull (a frontire Towne well fortified) for the security of the Realme, and prevention of Civill-warres, then his Majestie seize upon his subjects Armes and Magazines of powder to make a Civill warre. And seeing the Armes at Hull were many of them violently and illegally [Page 19] taken from the subjects without consideration, why the Parliament may not lawfully seize them to restore them to their owners, who have petitioned for them, I cannot yet discerne.
Fourthly, In cases tending to the common good and safety, even by the common Law of the Land, a man may lawfully commit a trespasse, and do an injury to another mans Lands, Houses, and Inheritance without crime and offence: if an enemy invade the Realme, a [...]y 8 P. [...]. 23. Br. Custone, 145. Generall Captain or subject to resist them may lawfully enter into any other mans Land, and there dig Trenches build Forts and Sconces (if they be necessary) to resist the Enemie: 29 H. 8. Dyer. 36. 6. Br. Trespas, 406. Yea, he may enter into any of the Kings Forts and Townes which are onely for the publique good (as the experience of all ages testifie) without any previous speciall Licence▪ yea fortifie and defend them: because it tends to the safety of the Realme and common good to which all privat interests, and much more the Kings publique in such cases must give place. Upon this reason it is agreed in our [...]3, H. 8. 16. 9 E. [...]. 35b. Br. Trespas 406. Law-bookes, That fa [...]lowne or City be besieged, or indanger to be beleagured by an enemy, and the Suburbs may endanger the taking thereof by yeelding harbor, or a convenient battry to them, The inhabitants or Souldiers within the Walls, may lawfully burne or destroy the Suburbs for the Townes or Cities preservation, and the common safety. Nay, if an house be on fire in a Towne, men may iustifie the pulling downe thereof, and of the next adjoyning houses if there be cause, to prevent the burning of the whole Towne, it being for the Common good: Yea,8 E. 4. 1 [...]. Fi [...]z. Barr. 93. Fishers at Sea may iustifie their going on other mens ground adjoyning to the Sea, because their fishing is for the common profit of the whole Realme. If then private persons, may thus legally prejudice other particular men in these cases in their Lands and Houses, for the common good, then much more may the whole representative body of the Kingdome in Parliament seize upon Hull and the Magazine there for a season (being the Common-wealths, and the Kings onely in right of, and for the service of the Kingdome) for the publique peace and safety, and the prevention of Civill-warres, without any danger of trespasse, much lesse of Treason, in making [Page 20] Sir Iohn Hotham their Agent in this Service: They having a common interest therein, since Souldiers, Citizens; and other private persons may lawfully raise Forts and Trenches on others grounds, or pull down any houses and suburbs for the publique good, though they have no particular interest in their lands or houses, but onely a temporary common interest upon these publique occasions.
The fourth PROPOSITION.
THe fourth Proposition is this. That in all doubtfull cases of Treason, not within the expresse Letter and words of 25 E. 3. Parl. 5. c. 3. neither the King himselfe, nor his Iudges, but the Parliament, and King in Parliament, (if hee will be there) ought to declare and determine what act is Treason, and what not.
This is cleare by these expresse words of 25. E. 3. c. 3. of Treason. And it is accorded, that if any other case, supposed Treason, which is not above specified (in this Act) doth [...]appen before any Iustices, the Iustices shall [...]arry without any going to judgement of the Treason, [...] the cause be shewed and declared before the King and his Parliament, whether it ought to be judged Treason or Felony. Which clause was afterwards ratified by 11 R. 2. c. 3. 1 H. 4. c. 10. and by 21 R. 2. c. 11. where Judge Thorning affirmes, That the Declaration of Treason not declared belongeth to the Parliament, which part of declaring Treason some hold is utterly taken away by 1 Ma [...]a. Session. 1 R [...]s [...]al Treason, Sect. 20. (which others deny) and that no other Treason is, or can be at this day (unlesse by speciall Act of Parliament,) but what is within the very Letter of 25. [...]. 3. c. 3.
This being indubitable, these Conclusions will necessarily follow.
First, that neither his Majestie alone, nor yet accompanied with his privy Counsell or Iudges, hath any legall power or right at all to declare or determine what is Treason and what not, or to declare or adjudge any particular [Page 21] Act to be Treason, unlesse it be clearely within the expresse Letter of 25 E. 3, c. 3. Therefore his Majesties own privateSee his Majesties Answer to the Declaration May 4. 1642 P 3. 10. 11. Declaration of Sir Iohn Hothams Act (in seising the Towne and Magazine of Hull, and his refusall to admit his Majestie into the Town when he came to dispossesse him of it) to be Treason, being out of the Letter of the 25. Ed. 3. and his proclaiming of him to be a Traytour, must necessarily be both void and illegall.
Secondly, The Kings Judges and Justices, even in Courts of Judicature, where they may finally determine and resolve what is law in all other cases neither can may, nor ought to declare and determine what is Treason, and what is not, in any cases out of the very Letter of 25. E. 3. but ought to resert to the Parliament and receive a resolution from them whether it be Treason or not. So are the expresse words of this Act of 25. E. 3. and others since. If then the Judges are thus to be resolved by the Parliament onely, what is Treason and what not, then there is no reason or sence, why the Parliament should be sent to the Judges to be advised and resolved by them, what is Treason: or why the Parliament should be taxed for Voting Sir Iohn [...]othams Act not to be Treason, without consulting first with the Iudges to know of them whether it were Treason or not. Since the Parliament in this case of Treason, are to direct and resolve the Judges, not the Judges them.
Thirdly, both Houses of Parliament upon the Kings Appeale to them for justice against Sir Iohn Hotham as a Traytour, for not admitting him into Hull, and upon Sir Iohn Hot [...]ams Letter to them, relating the truth of his whole carriage to the King in this cause, have acquitted Sir John Hotham, andSee the printed Votes. Voted this Act of his, (warranted by the command of both Houses) not only to be no Treason nor Felony, but not so much as a Misdemeanour, seeing all he did was only in discharge of the trust which the Parliament had reposed in him, for the safety and peace of the whole Kingdome and prevention of a Civill-warre. Since then the whole Parliament, the onely proper Judges of Treason, upon the Kings and Sir Iohn Hothams severall [Page 22] appeales to them, have both voted and resolved Sir Iohn Hothams Act to be no Treason, nor Crime, nor he to be any Delinquent, neither the King himselfe (who oft professeth in his late Declarations to rule and governe all his people onely according to the Laws of the Realme according to his Oath) nor his Counsell, nor Judges can by any proclamation or Declaration, or by any Judgement in any Court of Justice, which hath Conusance of Treason, declare this Act of his to be Treason, or him a Traytour or Offender. Let all of them, and the whole Kingdome both for the present and future, rest fully satisfied, and concluded by the [...]arliaments Votes and Resolutions: whom our Lawes declare, to be the onely proper Judges of this cause pretended to be Treason, and so Sir Iohn Hotham must go scot-free.
Having thus passed through these foure Propositions, and the Deductions from them, I shall now draw towards a conclusion of this Discourse.
Sir Iohn Hothams case and Pulls truly stated and debated.
The onely, if not principall pretence of his Majesties late raysing an Army in the North, and of a most sad and unseasonable Civill-warre (which if proceeded in, may soone prove destructive to all his Majesties three Kingdomes) is Sir Iohn Hothams seising on the Towne of Hull, and the Magazine there by Order from the Parliament, for the peace and security of the Realme, and his denying his Majestie entrance into the Towne, when he came to take possession of it: Which Acts his Majestie hath in his Proclamations and Declarations, declared and proclaimed to all his subjects to be no lesse then high Treason, and Sir Iohn [...]otham to be a notorious Traytour.
The sole question then will be, Whether these Actions of Sir John Hotham be Treason or not by the Laws of the Realm? And under correction, I conceive it is as cleere as the Noone-day Sunne, that they are no Treason.
That his taking possession of this Towne and Magazine is no Treason, no nor yet so much as a Trespasse or offence in point of Law, I have sufficiently demonstrated in theProposition third [...]e [...]uction 2. 4. and elsewhere. premises. Whether his denying his Majestie [Page 23] to enter Hull, and his keeping possession of it, be high Treason, will there be the sole question, which before I shall determine, I shall truly state the case.
See the Declaration and Votes of the House in Sir Iohn Hothams case, which they there truly state, Aprill 28. 1642. Sir Iohn Hotham by Order of both Houses of Parliament was enjoyned to keep possession of the Towne and Magazine at Hull, for the prevention of Civill-warres, and preservation of the peace and safety of the Realme (which some malignant Spirits advised his Majestie to seize on, and turne against the Kingdome) and not to deliver them up to any whatsoever, without their speciall Order.
The King on the 23 of Aprill rode to Hull, attended with about 400. Horse, (the Duke of Yorke and Prince Elector, being at that instant royally entertained by Sir Iohn Hotham in the Towne, who came thither the day before) and required Sir John Hotham to deliver up the Town into his hands. Who perceiving his Majestie to be accompanied with such force as might have mastered the Garison of the Towne, and having received Intelligence of an intention to deprive him of his life, if the King were admitted, informed his Majestie, of that trust reposed in him by both Houses, that he could not admit him into the Town without breach of that trust, and therefore humbly beseeched his Majestie to give him leave to send to the Parliament to acquaint them with his Majesties commands, and to receive their directions thereupon; which hee would do with all expedition. His Majestie rejecting this Answer, presently caused him and his Officers to be proclaimed Traytors before the Towne Walls, and dispatched a Message to both Houses, charging Sir Iohn Hotham with high Treason, aggravating his offence, and demanding Justice against him. The Parliament upon true Information and stating of the case, the 28. of Aprill 1642. resolved upon the Question.
That Sir Iohn Hotham according to his Relation, had done nothing but in obedience to both houses of Parliament. That this declaring Sir John Hotham Traytor, being a Member of the house of Commons, is an high Breach of Priviledge, and being done without processe of Law, is against the liberty of the subiect, and the Law of the Land.
[Page 24] This being the true state of the case; I shall clearely manifest by the Law of the Land, this Act of Sir Iohn Hothams to be no Treason, and he no Traytor.
It is irrefragably evident by the Statutes of 1 E. 6. c. 12. and 1 Mariae 1. Session Rastall Treason 20. that there is no Treason at this day but what is within the very Letter of 25 E. 3. c. 3. all other Treasons being repealed by these Acts or expired. The Question then will be, Whether this case be within the very Letter of 25. E. 3? Certainely there is not one syllable in this Act which concernes this case. The King pretends it is within these words, If any man do levy Warre against our Soveraign Lord the King in his Realme, that it is Treason by the Letter of this Act. But here there is no levying of war, no act of hostility or war was exercised by Sir Io. Hotham, against the K Sir to. Hotham was onely passive & defensive not active, he only denyed his Majestie the possession of the Town by order from Parliament, to prevent warre and preserve peace and if he be a Traytor, the whole Parliament must be much more Traytors who put him upon this service, Qui [...] plus peccat Author quam Actor, as our Law determines. Therefore this neither is, nor can be any leavying of Warre against the King, or Treason within this clause: This is most apparant by the Statute of 5. and 6. Ed. 6. c. 11. Which because the detaining of the Kings Forts from him, was not within the words or intention of 25. Ed. 3. did specially enact, That of any person or persons after the first of Iune Rebelliously (marke the word) do detaine keepe or with-hold from our Soveraign Lord his heires and successors, any of his or their Castles, Fortresses, or holds within this Realme or any other the Kings Dominions or Marches: Or Rebelliously keepe detaine or with-hold from his said highnesse his he [...]res or successors any of his or their Ships, Ordinances, Artillery or other Ammunitions or Fortifications of Warre, and do not obediently render and give up unto our said Soveraign Lord, his heires or successors or such persons as shall bee deputed by them, such Castles, Fortresses, Fortilesses. Holds, Ships, Ordinances, Artillery, or other Munitions, or Fortifications of Warre, rebelliously kept or detained within six dayes nex [Page 25] after they shall be commanded by our said Soveraigne Lord his [...]eires or Successors, by open Proclamation under the great Seale, the same Proclamation to be made in such place and order, so as the party and parties to be charged by this Act may conventently have notice or knowledge thereof, that then every such person or persons so offending in any the Premises, their Abbettors, &c. Being lawfully convicted of the Rebelliously keeping or detaining thereof according to the Lawes and Statutes of this Realme, shall be adjudged Traytors, and shall suffer paines of death, and lose and forfeit all their goods and chattles, Lands and Tenements unto the King, as in cases of high Treason. This Act makes the detaining of any of the Kings Castles, Forts, &c. Treason, But yet with these three Limitations.
First, that they must be Rebelliously kept and with-held; which Hull was not, but onely by Order of Parliament for the Kingdomes peace and safety.
Secondly, that they must be [...]etained six dayes at least, after command to surrender them: But the King proclamed Sir Iohn Hotham a Traytour for not delivering up Hull the same day and houre he demanded it, without giving him any respite, which is contrary to this Act.
Thirdly, There must be a Proclamation under the great Seale to demand the Forts and Castles and the same Proclamatio must be so made that those who detain them may have notice of it. But in this case there was no such Proclamation made against Sir Iohn Hotham but by an herald by word of mouth, and so no Treason within the Law, admit it were in force: But this Law and clause (which if in force might have given some colour to his Majestie) as all Judges and Lawyers resolve, was totally repealed by the statute of 1 Mariae. R [...]stall Treason 20. (which expresly repeales all other Treasons but those within the very Letter of 25. E. 3.) and so the detaining of any Forts or Castles at this day from the King is no Treason because not within the words of 25. E. 3. chap 3. the onely Standard and surviving Law to judge Treasons by.
This Statute of 5. Ed. 6. c. 11. being repealed, and this case being not within the Act of 25. [...]. 3. the Parliament [Page 26] in 14. Eliz. was enforced to make a speciall Law (which was to endure only among the Queenes l [...]fe, as appeares by the [...] in it) whereby they enact, that if any person or persons [...] discover, do unlawfully [...] or t [...]eir owne Authority, (which is none of Sir Iohn Hothams case, who did nothing but by order of Parliament) compasse, imagine, conspire, or advise, [...] wayes or meanes wit: fo [...]ce or craft &c. Maliciously or Rebel [...]iously (which he did not but by authority of Parliament) to take, detaine, or keepe from the Queene, any of her Castles, Towers, Fortresses, or holds, &c. And do advisedly by any expresse word, speech, act, deed or writing, utter or declare his said malicious and rebellious intents, that then every pe [...]son or persons so offending in the Premises, being thereof lawfully convicted according to the Lawes of the Realme, shall be adjudged a Felon [...] Felons, and suffer paines of death as in cases of Felony, &c. And if any person or persons, do at any time hereafter with force Maliciously and Rebelliously (which is none of Sir Iohn Hothams case, who did all by the Parliaments command) detaine, keepe or with hold from the Queenes Majestie any of her Castles, Towers, Fortresses, or holds within the Realme, or any of her Dominions or Countries, or Marches of the same, or do Maliciously and Rebelliously or with force detaine, keepe or with-hold from her Maiestie any of her Ships, Ordnance, Artillery, or other Munitions or Fortifications of Warrs, and do not render and give up the same to our Soveraigne Lady, or such persons as her Majestie shall appoint to receive the same to her use within six dayes next after he or they so offending, shall be commanded by our Soveraigne Lady the Queene, by open Proclamation under the great Seal of England, to be made in any place or Market Towne within the County where any such offence shall be committed, &c that then every person or persons so offending, their Ayders Counsellors and Abbetters, being thereof Lawfully convict according to the Lawes of the Realme shall have and suffer such paines of death, and also shall forfeit and lose, as in cases of high Treason limitted and acustomed,
By this expired Act, which was to continue onely during the Queenes life it is evident.
First, that this detaining of the Kings Castles, Forts, Ships and Ammunition, is no Treason within 25. 6. 3. [Page 27] (for then this Law had beene idle and superfluous, especially being to continue, but during the Queenes life) and so there can be no Treason at this day in Sir Iohn [...]othams Act.
Secondly, That no detaining or with-holding of such Castles, Forts, Ships and Ammunition is Treason within these particular acts, but that which is done maliciously and Rebelliously and continued six dayes after a Proclamation under the great Seale, and proclamed in the Cou [...]ty, to deliver them up unto the Queene, or her substitutes for her use. Now Sir Iohn Hotham detained Hull, and denyed his Majestie to seize and enter it, not Maliciously and Rebelliously, but in obedience to the Parliaments command, which intrusted him to keepe it for the present both for the King and Kingdomes use, for the prevention of Civill-warres and danger to the Realme, and the excluding of forraigne forces which might be landed there, neither did his Majestie make any Proclamation under his great Seale, or give him six dayes space to deliver it up. Therefore this Act of his is and can be no Treason, neither within the particular expired forecited Acts were they in force, much lesse within 25. E. 3. which extends not to this case. And so his Majestie was utterly mistaken in the Law, in proclaming Sir Iohn Hotham Traytour, and declaring this act of his to be Treason, of his owne head, without consulting with his Judges or Councell learned in the Lawes, who would questionlesse have informed him; That this Act of his is now neither Treason nor Felony by the Law, had he done it of his owne voluntary accord much lesse seeing he did it onely by the Parliaments direction and command, as their Servant for the common safety of the Realme, exclusions of forraigne forces and Artillery and prevention of an intended Civill-warre, without any thought of the least disobedience or disloyalty to his Majestie into whose possession he declared he was and is ever ready to surrender up the Towne, as soone as the Parliament shall command him. In a word the Scot [...] late seizing upon all his Majesties Townes Castles in Scotland, and on New castle here, and detaining them against him [Page 28] after demands, hath by his Majestie and both Kingdomes in Parliament beene tacitly if not expresly resolved and declared to be no Treason, being done for the publique peace and safety of the whole Realme of Scotland and England. Therefore much more must Sir Iohn Hothams seising but of Hull one single Towne, and his detaining it for a season onely for his Majesties and the Kingdomes use, and the peace and safety of the whole Kingdome, and that by the Parliaments expresse command as their Instrument, be adjudged no Treason, Felony, no nor Misdemeanor. And since both Houses of Parliament the only proper Judges of Treason, to whom both the King & Sir Iohn appealed for justice, have upon full hearing and debating of the cause, voted and adjudged it, to be no Treason or offence, and published these their Votes in print to all the world, I cannot discerne, how by any Law, his Majestie, or his Malignant Counsellors, can possibly fasten any charge of Treason, Felony, or Misdemeanour, on Sir Iohn; but must all conclude him to be an innocent Noble and weldeserving Gentleman, for so faithfully and couragiously discharging the trust reposed in him by the Parliament for the whole Kingdomes peace and security, and his Majesties safety too. As for his late drowning of the Country about Hull, to the spoile of much Grasle, Corne, and great prejudice of particular men, with which his Majestie chargeth him in his last Letter to the Houses, it is onely for the better preservation and defence of Hull for the common safety, and therefore he may by Law justifie this Act, even as men in times of Warre may justifie the burning or demolishing of a Suburb for the whole Cities safety, and the making of Eorts and Trenches in another mans ground, for to resist an invading Enemy. Which I have formerly proved Lawfull by our Lawbookes. Moreover, this drowning was through his Majesties owne occasion (on whom the blame must originally rest) who came to beseige Sir Iohn Hotham as a Traytour, and take Hull out of his custody, (contrary to the trust reposed in him by the Parliament) by force of Armes with an Army of Horse and Foote, to the open [Page 29] violation of the Kingdomes peace, the endangering of the whole Realme and Parliament, against whom this warre is principally raised and intended, under pretext of being avenged of Sir Iohn Hotham, who hath done nought but by the Parliaments direction, as their servant, and trustee for the safe keeping of Hull, not against the King, but onely for the King and Kingdomes use, till it may without danger to the Realme, by Order of Parliament be rendred up into his Majesties actuall possession, who hath no particular Right or Title to it, but onely a generall as the Kingdomes Servant and trustee for the peoples safety, which is now endangered through his Majesties listening to evill Counsellours; Who whisper to him in private, and have engaged him in a Civill-warre against his Parliament and people, and not hearkening to his Parliament, the Graund Counsell both of King and Kingdome, whose publique impartiall advice, his Royall Progenitors have alwayes most highly esteemed, and followed; and thereby made themselves great and honourable, and the Kingdome happy.
The Conclusion.
I shall now winde up all in a few words, I suppose I have made it most apparently evident to every indifferent mans judgement that Sir Iohn Hothams forecited Actions (with which his Majestie is so much incensed) are neither Treason nor Felony by the Laws of the Land, (by which his Maiestie hath oft lately protested to rule, and be guided, theSee Stephen Gardiners Letter to the Lord Protector. Fox Acts and Monuments first Edition p. 741. b. where he affirmes (that he being Ambassador to Henry the 8. in the Empeperours Court, did there in a case of Iewells defend and maintaine by commandement of the King) that the Kings of this Realme were not above the orders of their Lawes. Kings of England by their Coronation Oaths being subject to their Lawet, not their Lawes to them) and by the Parliaments Resolution, not so much as a Misdemeanour or offence, but a lawfull act done by the expresse commands for the publique peace and safety of the Realme and prevention of a Civill warre. I appeale then to his Majestie, to every English mans or other Subjects Conscience, and advise them all in the presence of God [Page 30] (as they will answer the contrary at the great approaching day of Judgement) seriously to consider, and then resolve within their brests; whether these inoffensive Acts of Sir Iohn Hotham, accompanied with all the praerecited Circumstances, be a just and sufficient ground, to the King or any of his subjects, in point of conscience or policy (especially in this season, when Ireland is in danger of losing and England almost exhausted with necessary publique payments, With voluntary contributions and much d [...]acted and divided in it selfe) to raise an unnaturally bloody civill warre against Hull, and in it against the Parliament and Kingdome, by which the King and his Par [...]isons will be by degrees so farre ingaged against the Parliament and his Kingdome, and they by way of just defence so farre engaged against the King and them (without Gods mercifull prevention) that we shall all now (after so long enjoyed peace) most unnaturally sheath our swords in one anothers bowells, out one anothers throats, shed one anothers blood, burne, spoile, waste, destroy and prey upon one anothers houses Lands, Goods, possessions, make our whole Kingdome a very Field and Sea of English blood, and in conclusion (without Gods interposing mercy) utterly raine both our King Kingdome, Parliament Religion our selves and our posterities and make our Land a Prey to Popish forraigne enemies, who now rejoyce at our Divisions, (which they much foment) and thereby hope to surprize and wholly conquer us ere it be long. And if our consciences answer us, (as they will) after full deliberation that thes [...] Acts of Sir Iohn [...]otham be no just cause or ground to warrant such unnaturall, bloody, fatall destructive civill war, O let us not then once venture or presume to take up Armes against our owne deare native Country which hath bred us, against the Parliament who sit night and day, and spend both their Fortunes time and Spirits to redresse our grievances, prevent our immanent dangers, advance our happinesse and prosperity and preserve our long enjoyed Tranquilitie; against our deare loving brethren, kindred friends, and Countreymen, who never did us the least injury, against [Page 31] our selves, our children, families, which a Civill-warre may quickly ruine, nor yet to countenance, justifie or side with those unnaturall vipers, and unreasonable [...]ottish Brutes who either maliciously or inconsiderately foment, and promote such an unnaturall impious causelesse civill warre. But let us all put forth our utmost best endeavours, and powre out our fervent prayers to God to prevent and cease these civill combustions, to ayd and preserve our deare Native Countrey, Kingdome, Religion, the Parliament our selves and our pos [...]erity against these malignant Incendiaries, who seeke their utter destruction. O let no true bred English man or Christian be so degenerous, so B [...]rbarous and brutish, as to become his owne, his deare brethrens posterities, Countries, Kingdomes bloody Executioner, to do such disservice to his Countrey in a few dayes or houres, which he shall with brinish teares repent for over! I shall likewise humbly presume to beseech his Majestie upon the bended knees of my soule, most seriously to consider all the Premises, and if upon persual of them, there shall appeare no just or lawfull cause in point of conscience and true Christian (not Machivillian) policy, necessarily to enforce him to make a civil warre upon his Kingdome, onely for the act of one particular Subject, (as is yet pretended) which in truth amounts not by the Law either to Felony or Treason, if to a trespasse or Misdameanor, that then he would be most graciously pleased according to his Oath, his Royall Duty, and many reiterated Protestations, to preserve his people and Kingdome in a sweet peace and blessed unity, to disband his present Forces and tumultuous Cavaliers, discard all bloody Counsellors who have advised him to a most unnaturall unseasonable, dangerous civill warre, to returne with speed to London, and close with his great and best Counsell, the Parliament, for the preservation and present ayd of bleeding Ireland, the setling and composing of his peoples present feares and distractions, the effecting of of a perfect thorough Reformation and Union in Church and state the redresse of all remayning grievances, the advancement of Truth of the flourishing estate of his three Kingdomes, and his owne Royall Honour, Revenues and [Page 32] Greatnesse, which will eternally gaine his Majestie the servent Prayers, hearts, affections, purses, and ready service of all his Kingdomes and subiects together with immortall honour, whereas if he shall still proceed in prosecution of this desperate civill warre against his people, Kingdom, Parliament, the guilt of all his subjects innocent blood, which shall be shed in this unnaturall causelesse warr, will light heavy upon his conscience, be required at his hands, and in conclusion both himselfe, his Kingdomes and loyall people will be brought to the very extremity of misery. If not to utter ruine after such a long enjoyed flourishing peace both under his owne and his predecessors peaceably raignes. I shall conclude with that of the Poet.
O Most gracious Lord God, though thou justly plague us with thy other Iudgements for our sinnes, yet give us not over to the sword, the forrest of all thy Iudgements, an unnaturall bloody civill warre, but since thou art aHeb. 19. 20 Rom 15 33. God of peace, and hast promised,Psal. 29. 11. to give thy people the blessing of peace, (which we of this Land have now uninterruptedly enjoyed almost an hundred yeares together through thine extraordinary mercy) do thou out of thy superaboundant goodnesse continue andIs [...]y 26. 3. preserve us still in perfect peace whose hearts are stayed on thee. And let there be no end of our peace with thy heavenly Majestie, with our owne consciences, and one with an [...]ther (King with Parliament, Kingdome, and People and they with King) till Iesus Christ theIsay. 9. 6. Prince of peace, his second coming, who shall give all hisIsay. 51. 11. c. 61. 7. everlasting peace and blisse in his coelestiall Kingdome. Amen, Amen.