THE ROYALISTS DEFENCE: VINDICATING THE KING'S PROCEEDINGS IN THE LATE WAR MADE AGAINST HIM. Clearly discovering, How and by what Impostures the Incendiaries of these Distractions have subverted the known Law of the Land, the Protestant Religion, and reduced the people to an unparallelled Slavery. Veritas emerget Victrix. Printed in the Year, 1648. To all the People of ENGLAND. IN every Commonwealth where the tyranny of an Arbitrary power prevails not, some known persons are assigned; unto whom, for matter of law, both the Governors, and the Persons governed, do submit: For example, where a King hath the Sovereignty, if it be likewise in his power to judge the Law, his authority is Arbitrary: He may then take the life, or confiscate the estate of whom he pleaseth, and for what cause he thinks fit. And the same it is, when the sovereign power is in several persons, whatever their number be, and however composed, if they have also authority to judge the Law by which they govern, the rest of the People are enslaved to their will. But herein the Subjects of England are a most happy people; By the constitutions of this Realm, our King hath inherently in His Person the sovereign power of government, but He hath not authority to judge the Law. The Judges of the Realm declare by what law the King governs, and so both King and people regulated by a known law. giddy multitude, out goes Presidents found in the Old Testament, showing that Subjects so anciently, sometimes resisted lawful Authority, and have rebelled against their King. Nor be the Lawyers herein excusable, too many of them (declining the authority of the judges of the Realm) make their own expositions of the Books, and Records, their rule to know the Law. Now amongst those, he who hath once got the reputation of an Antiquary, and hath accustomed himself to discourse of things out of the common road, ipso facto, is Master of this Art. It is then but making use of some dull expressions found in an old wormeaten Record, selecting the mistaken opinions of some particular judges obiter, delivered in Arguments, or some dark Sentences taken out of a rotten Manuscript. And if any printed Book be daigned the mentioning, it must not be the known authentic Authors, reporting the resolutions of the Court of Justice, nor such as show the common and constant practice of the Kingdom, which is the Law itself, but some antiquated thing whose Author is unknown, and his meaning as obscure. These rules being observed, his work is done; the people observing this Cynics discourse to be different from other men, presently conclude him to be far more learned in his profession, than his fellow Lawyers, and gaze upon him as an infallible guide. Those sorts of people, both Divines and Lawyers, thus prepared, are equally armed to assault either King, or Subject; and (ever looking upon their particular interest) as they find Instruments to work upon, make their applications, sometimes by the assistance of a greedy Sycophant-Courtier, the KING is abused, being by those persons drawn to act things not warranted by the constitutions of the Realm. Other times by the aid of discontented Spirits, whoever (affect popularity) the people are incited to disobey the King's just commands. And so, misunderstanding, oftentimes is occasioned, between the King and His Subjects, whereupon ariseth fears and jealousies on both sides. This (in some sort) was our condition before this Parliament, which was the groundwork whereupon these men at Westminster (even by a total destruction of the whole Nation) have completed the business. At the first meeting of this Parliament, the confusion began visibly to appear: The Incendiaries of that Faction not only cherished the old, but (by casting false calumnies upon the King) fomented new jealousies, whereby the people were put into such a panic fear, as that they believed a present destruction inevitably must befall them, if not preserved by the Members of the two Houses of Parliament. And the King on the other side, with wonderful expressions of loyalty (even by the same Serpent) was told He should be made more Glorious, than any of His Ancestors or Predecessors: But the Members having thus increased the flame, between the King and the Subject, and having by these false surmises and cunning dissemble, gulled the people into a belief, That whatever the Members declared, be it in things either Spiritual, or Temporal, the one was good Law, and the other true Gospel; which the Members perceiving, they instantly made use thereof, and upon that score Voted it a high Breach of the Privilege of Parlialiament for any (the judges, the Courts of justice, nor the King himself excepted) either to oppose their Commands, or to deny that to be Law, which they declared so to be: By which sleight, their whole work was finished, for by this the known Law was absolutely subverted, and both King and people (for their Consciences, their Lives, Estates, and Fortunes) enslaved, to their will and doom. But this Arbitrary power, thus by the Members usurped, rested not long there: Shortly after that, a Faction in the City of London, who were the moneyed men, and so interessed in buying the Church Lands, and those who were possessed of beneficial places in gathering that cursed tax of Excise, and the like, gave the law unto these Members; And now we see it is a Council of War (although acted in the name of the Westminster men, called the Parliament) and none else, who dare declare the Law. And so for the present six or eight empty souls, and (until enriched by theft and plunder) indigent persons, are our Legislators. And in this condition the people must be, It cannot be otherwise until the King be restored to His just Rights; for till then, although we have as many new Governors as new Moons, it is but so often changing the Thief. It is not at all considerable to the people, whether this or that Faction, or which opinion in Religion prevails in the Houses, be it the true Protestant Religion established, Popery, Presbytery, Independency, or what else soever it is, whilst the King is kept from his just Rights of His Negative Voice in Parliament, and his Sovereign power of Government, every predominant Party makes his Will the Law: and consequently, the people for their Consciences, their Lives, Estates, and Fortunes enslaved to that Faction. Therefore whether thou be'st a Royalist, or against thy King, what Religion soever, Sect or opinion thou dost profess: If thou hast not lost thy wits, thou must be sensible of thy present sad condition; Dost thou enjoy a competent estate? dost thou find comfort in having freedom of thy conscience in matters of Religion? In the society of thy wife, family, kindred, or friends? if thou dost consider what hopes thou hast to enjoy them, to think thereof, will rather add grief unto thy soul, then increase thy consolation; for being defeated of thy Protector (the known Law) which is banished, thou canst not for the least instant of time, promise to thyself continuance of any one of these blessings. If the major part of the Members require from thee, thy life, thy estate, thy fortune, thy friend, or what ever else is most dear unto thee: It is, say they, a breach of Privilege of Parliament, not to submit thyself to the block, and render all to their lusts. And if thou hast in this War, acted against thy King, thy case is still worse, for by that War, the Law is destroyed, and so thou hast been an Instrument of thine own and the Kingdom's ruin. Yet of that faction against the King, there be two sorts of people: The one for self-ends, against their own knowledge: the other misled, and so pursuing (although an erroneous one) their own conscience. For those of the first rank, I fear (like unto Judas) their own souls render themselves hopeless of pardon, which I presume (like unto Catiline) makes them judge themselves in no security, but by attempting worse evils, which doubtless begat that barbarous Vote and declaration of the Members, not to make further Application to their King. And for those of the latter rank, how far their following the dictamen of their own conscience, in point of Divinity may excuse them, I will not dispute, but, certain I am by the constitutions of this Realm, in Temporal things, it neither extenuates the crime, nor mitigates the punishment. In our Law, it is a Maxim, and a just one too: Ignorantia Juris non excusat. If not known the Law, be a Plea, or justification in facts of Treason, murder, felony, trespass or the like, both King and people were without protection, either of life, person, or estate: It were easy for every Malefactor to pretend ignorance of the Law. Therefore when the difference between the King and the two Houses first happened, every Subject at his peril ought so far to have rectified his judgement, as to have informed himself which side the Law obliged him to adhere unto: yet not by that obliged to impossibilities; for, although most men (in many particulars) are unknowing of the Law; every one (even of the meanest capacity) may as easily learn from whom he is to be informed thereof, (the Judges of the Realm) as a sick man may find out where his Physician dwells. Now for want of so much consideration as to make enquiry, whether (by the Laws of England) the King, or the Members, was therein to be obeyed, that sort of people were surprised, quitting their Allegiance to their King, adhered to the Members their fellow Subjects, and engaged in this horrid Rebellion: Therefore in strictness of Law, as guilty of Treason, as those of the former rank. And thus by receding from that one principle in submitting to the true judge of the Law, this desolation is come upon the whole Kingdom. Had the King been suffered to enjoy his lawful power of Sovereignty: The judges of the Realm their Offfce of declaring the Law, by which the King governs, and the Parliament (that is, the King and the two Houses jointly its proper authority, viz. When necessity requires to make new Laws, or change the old: Had the Divines, the Lawyers, and especially the Members of the two Houses, kept themselves within their own spheres, and every one submitted unto, and obeyed his lawful Superior, the known Law of the Land had continued in force, and consequently we had still been a most flourishing people. But it is never too late to amend: and if every one would herein begin at home, the work were instantly done: but although it cannot be expected that all men will do their duty, yet for those who were cheated into this Rebellion, their judgements being once rectified, it were not only against the rules of charity, but of reason likewise, to conceive they should not with much more Zeal endeavour to restore the King and the people to their freedom, than (grounding upon an erroneous conscience) they prosecuted theirs, and their own confusion. Now to show, that the honest vulgar people (which are infinite in comparison of the Seducers) were by the Incendiaries of these Westminster men entrapped into this Rebellion. That by the Laws of the Land (every man's only true guide) all the Subjects of the Realm ought in that War to have adhered unto the King; That by the people's disobedience therein, the known Law is subverted, and themselves enslaved: That until the King be restored unto His just rights, the known Law set on foot, and a submission to the true Judges thereof, the people are not to hope for other, then increase of misery: And that by doing this, (which is both in their power, and the people's duty to perform) is the scope of this Treatise. And herein, let none heretofore active against the King (by reflecting upon the Law, which as before appears, doth judge him a Traitor) be deterred from doing his duty; That were (in example of Judas) to revenge themselves upon their own persons: They do thereby become the Authors of their own ruin; for as we have the seat of then by attributing it to the Parliament: Therefore much more is the arrogancy of the Members to claim that unlimited authoty without the King. CHAP. V. That the Judges of the King's Bench, of the Common Pleas, and the Barons of the Exchequer, are the Judges of the Realm, unto whom the people are bound lastly and finally to submit themselves for matter of Law. p. 49. Wherein is showed, that the Members are neither qualified, nor of a composier fit to Judge the Law: And that if the King or the two Houses have that power, the known Law is destroyed, and the people enslaved. CHAP. VI That the Judges of the Realm ought to be elected, and authorized by the King of England, for the time being, and by none else. p. 64. Wherein it is showed, to be most preposterous for the Members to assume it; And that all persons condemned, and executed by their sentence, or the sentence of their nominal Judges (whether guilty or not guilty) are murdered, and all other proceedings void in Law. CHAP. VII. That the King is the only Supreme Governor, unto whom all the people of this Nation in point of Sovereignty, and Government, are bound to subject themselves. p. 69. Wherein is showed, that Sovereign power of Government, power to make Laws, and power to judge the Law, are three feveral things; and by the constitutions of England ought to be in three several hands: The first is in the King, the second in the King and the two Housis, and the third in the Judges. That the Members having usurped all these, have destroyed the Law, and enslaved the people. CHAP. VIII. That the Militia of the Kingdom by the known Law of the Land is inherent in the Crown, and at the absolute command of the King and none else. p. 89. Wherein is showed the true use of the Militia, the gross absurdity of the Members claim thereunto: And that their usurpation herein hath undone the Kingdom. CHAP. IX. That all persons who have promoted this War in the name of King and Parliament, and all such as have acted therein, or adhered thereunto, are guilty of Treason. p. 100 CHAP. X. That the Subjects of this Nation, are not only commanded from doing violence to the King's Person, or prejudice to His authority, but are obliged with their lives and fortunes, to assist and preserve His person, and just rights from the fury of His enemies both foreign and domestic. p. 112. CHAP. XI. That those persons at Westminster, who call themselves, The Parliament of England, are not the two Houses, nor Members of the Parliament. p. 113. CHAP. XII. Results upon the premises. That the people of England under the government of the King, according to the Laws of the Realm are a free Subject. p. 125. CHAP. XIII. That the people of England under the government claimed by the Members of the two Houses, are absolute slaves. p. 128. CHAP. XIV. How the Subjects of England were brought into this slavery. p. 132. CHAP. XV. The way how to restore the people unto their former Liberty. p. 135. The Preamble, or Introduction to the ensuing Discourse, wherein are contained the Motives which induced the Author to take up Arms for the KING against the Forces raised by command of the Members of the two Houses of PARLIAMENT. WHen the unhappy difference between His Majesty and the two Houses began to appear, I endeavoured to satisfy myself of the cause thereof; which I found to be thus: The Members form a 〈◊〉 concerning the 25. Febr. 1641. Militia of the Kingdom to this effect, viz. That certain persons by them therein named, shall have power to Call together, Muster, and Arm all the people of the Kingdom, and Conduct them into any part of the Realm to suppress rebellious Insurrections or Invasions in such sort as the Members (without the King) shall signify: this power to continue so Long and no longer than those Members please, and disobedience therein to be punished by the Members and none else. This being presented to the King, He refused to confirm it with His Royal Assent: The Members thereupon, styling it, An Ordinance of Parliament without the King, declared it a Law: By which in words, not only the Militia of the Kingdom, and the Government of the Realm, was taken from the Crown, and removed to the Members, but an Arbitrary power usurped by them to signify and declare what Facts were Rebellion, and what not; and accordingly by pretext and colour thereof caused the people to be Arrayed, Armed, and Mustered: And so in effect the King's Sword and Sceptre wrested out of His hands by His own Subjects. And further, the Members pretending the King (not consenting to that Law) was Evil-counselled by like Ordinances, raised Armies, appointed the Earl of Essex their General, authorised them by War to Kill and slay their fellow Subjects, and to remove from the King those pretended bad Counselors. The King by His Proclamation inhibited all Persons from adhering unto them, and required His Subject's obedience unto Him 27. Maii 1642. their King. Hereupon I seriously bethought myself, whether I was obliged herein to obey the King, or the Members; and resolved the Laws of England ought to be my guide, which I found to be thus: That this Nation is governed by a known Law, that Law expounded by the Judges of the Realm, Those Judges appointed and authorized by the King our only Supreme Governor, unto whom alone all the people of England are obliged (in point of Sovereignty and Government) to submit themselves. Then I considered in whom the power of the Militia was before the making of the aforesaid Ordinances. Secondly, 〈◊〉 ●●…teration those Ordinances made: For the first, I found that the Militia of the Kingdom by the known Law was inherently in the King. For the latter, that no New Law can be made, or the Old changed but by the King, with the assent of the two Houses of Parliament: And finding the King therein to disassent, I did without scruple resolve the law was not altered, therefore the Militia still in the Crown, and consequently, that it was my duty herein to obey the King's Command, not the Members. Then I considered what was the offence of a Subject to join with those Forces raised by the Members, which I found, to be the crime of High, Treason. And lastly, it being the duty of every Subject not only to decline opposing his Sovereign, but to assist Him against all disloyal actions, I took up Arms for Him, (and in His defence) in this War: Since which, I have met with some Objections against these my proceedings, which with my Answers to them, I have set down in this ensuing Discourse. And first, concerning the grounds of the Law. CHAP. I. That the Laws of England consist in general customs, particular Customs, and Acts of Parliament. MOst evident it is, that from the subduing of this Nation, by the Romans, (which is about 1700 years ago) the people of this Realm have been governed by a Monarchical power, first under the Roman Emperors, then under the Saxons, awhile under the Danes, again under the Saxons, and lastly, under the Norman Conqueror and his Progeny until this day; yet by what particular Laws those former Kings governed, no authentic Author beyond the time of William the Conqueror doth make it appear. But certain it is, after that Conqueror had in a Battle slain Harold, and vanquished his Army (which is near 600 years since) the people of this Nation submitted unto him as King of England, who being in possession of the Crown agreed to Govern by known Laws: Now Vide Pref. Cok. 8. Report. whether those were new Laws introduced, or the old continued (as to this purpose) is not material: But by that very same Law (as by several Acts of Parliament it appeareth) divers of his Successors Kings, (calling unto them for their advice such of their Subjects as they thought fit) by Acts of Parliament made new Laws, and changed the old; but succeeding Kings since that have herein limited themselves, insomuch as by the Constitutions of the Realm (as now it is settled) the Law of England consists in these three particulars: 1. General Customs, as thus, the eldest Son to Inherit his Father's Preface to Cok. 4. Report. Land; the Wife to enjoy a Third part of her Husband's Inheritance for her Dower; these, and such like, are generally Law Coke 9 fol. 75. Plo. 195. 319. throughout the Kingdom, therefore called the Common Law. 2. Particular Customs, as thus, in some places the youngest Son, in other places all Equally Inherit their Father's Land; these, and such like, are particular Customs, being fixed to particular places, and by ancient, constant, and frequent use, is become Law there, although not generally throughout the Kingdom. 3. Acts of Parliament made by the King with the assent of the two Houses: All which together, that is to say, The Common Law, particular Customs and Acts of Parliament make the Law of England. By this Law all men are protected in their Persons and Estates, wherein there is no difference between King and People, for neither King nor Subject hath, or can justly claim any right interest Coke Preface 4. Report. or authority, but such as He is entitled unto by the Common Law, by Particular Custom, or by Act of Parliament. In the next place it is showed when the two Houses were Instituted, and what is a Parliament. CHAP. II. What is a Parliament, and how, and when the two Houses were Instituted. AS it is necessary for a Commonwealth to have a Law, so every known law must be grounded upon certain rules: Therefore be it composed with never so much care, the people cannot be well governed, unless some persons have power in some things to alter the old and make new Laws. Emergent occasions are oft such as require raising money, and other things to be done which the prescribed rules of a known Law cannot warrant; which persons so authorized to make Laws in this Nation, are called the Parliament. And that those Persons at this time consist of the King and both Houses jointly, is a thing most obvious to all men, but how long it hath been so is uncertain: For although all the Sages of the Law, and judicious Historians agree, (and therewith reason itself concurreth) that ever since we have had Laws, some persons have had power in some things to alter and make new Laws, which might properly be called a Parliament, yet until long after the Norman Conquest. I do not find it cleared what was a Parliament, or what Persons had that power: But upon perusal of the Statutes themselves, (which I conceive in this case to be the best proof) I confess I am much inclined to believe, that until the Reign of King Edward 1. there was not any form body or known persons whom the King was obliged to summon unto a Parliament for the making of Laws; wherein I shall begin with the first Law of that nature, which at this day binds the people: And therein we cannot go beyond the ninth year of the Reign of King Henry 3. that of Magna Charta being the first, Magna Chart. 9 H. 3. upon serious perusal of which Act, the Charter of the Forest, and the Statute of Ireland enacted the same year by the words thereof The Charter of the Forest, 9 H. 3. I am induced to believe (although (doubtless) with the consent of divers of His Subjects) that they were made by the sole power of the King. Stat. of Ireland, 9 H. 3. In the Preamble of the Statute of Merton made 20. Hen. 3. are these words, viz. It is provided in the Court of our Sovereign Lord Stat. of Merton made 20 H. 3. the King, holden at Merton before William Archbishop of Canterbury and others His Bishops and Suffragans, and before the greater part of the Earls and Barons of England there being Assembled, for the Coronation of the King and His Queen, about which they were all called, where it was Treated for the Commonwealth of the Realm; And then were made divers Acts of Parliament; By which it clearly seems to me, That the Persons consenting to the Laws then made, were not summoned to a Parliament, but to the King's Court, and not called to make Laws, but to solemnize the Coronation of the King and His Queen, Those Treated with Bishops, Earls and Barons, not the Commons, nor all the Bishops, Earls and Barons, only such as the King thought fit to be present at His and His Queen's Coronation, And none of them called by Writ. Likewise in the Preamble of the Statute of Marlbridge made 52 Hen. 3. are these words, viz. For the better Estate of this Stat. of Marlebridge, made 52 H. 3. Realm as it behoveth the Office of a King (the more discreet men of the Realm being called together) as well on the higher as on the lower estate, etc. So that to this Parliament it seems only such Lords and other discreet men of the Commonwealth (such as the King thought fit) were summoned. But in the Preamble of the Statute of Westminster first made Westminst. the 1. made 3 E. 1. 3 Edw. 1. are these words, viz. These are the Acts of King Edw. 1. by His Council, and by assent of Archbishops, Bishops, abbots, Priors, Earls, Barons, and all the Commonalty of the Realm being thither summoned, because our Sovereign Lord the King had great desire and zeal to redress the State of the Realm: By which it appears that to the making of Laws at this time there was a great and general concurrence, for besides, Archbishops, Bishops, abbots, Priors, Earls, Barons, and all the Commonalty, the King's Council gave their advice therein, and consented thereunto. But by subsequent Acts of Parliament, it seems to me such a general Assembly was not necessary, For in the Statute of Bigamy made the next year, being 4 Edw. 1. are these words, viz. In the Stat. of Bygamy made 4 E. 1. presence of certain Reverend Fathers, Bishops of England, and others of the King's Council as well the Justices as others did agree they should be put in writing for a perpetual memory. And 6 Edw. 1. The King and His Justices made an exposition of certain of the Articles upon the Stat. of Gloucester. In the Preamble 6 E. 1. of the Statute of Mortmain are these words, viz. We therefore Stat. of Mortmaime made 7 E. 1. intending to provide convenient remedy by the advice of our Prelates, Earls, Barons, and other our Sujbects being of our Council have provided, etc. In the Preamble of the Statute called Articuli super Chartas, it Articuli super Cart. 28 E. 1. it thus expressed. viz. Forasmuch as the Articles of the Great Charter hath not been observed, because there was no punishment upon the Offenders, etc. our Lord the King at the request of His Prelates, Earls and Barons Assembled in Parliament hath enacted certain Articles, etc. In the Statute of Eschetors made at Lincoln, 29 Edw. 1. are Stat. of Escheators made 29 E. 1. these words, viz. At the Parliament of our Sovereign Lord the King, by His Council it was agreed, and also commanded by the King Himself, That from thenceforth it should be observed and done according to the advice of the Reverend Father William Langton, Bishop of Coventry and Lichfield, and Treasurer to the King, John Langton then being Chancellor, and other of the Council then being present before the King, etc. By these Acts it still seems to me, That both for the Lords and for the Commons, as the King pleased, sometimes were called more, sometimes fewer, sometimes part of the Commons, sometimes all, and sometimes none of them, yet the power one and the same; for at all the times aforesaid, several Statutes were made, which to this day bind the people equal to any Act of Parliament made since. Whereupon, I conceive that the two Houses of Parliament were not originally composed with the beginning of the Law, for as by the aforesaid Acts of Parliament it doth appear in the Reign of King Edw. 1. being the ninth King after the Conqueror, and in time above two hundred years from the Conquest (all which space we were governed by the same Law we now have) there was not any form Body, known Persons, or Assembly, whose consent was necessary to join with the King to make an Act of Parliament; but it seems that when the King conceived it fit to make a Law, He called to Him such of His Subjects either of His Council, or others, as He thought most proper to be consulted with concerning that present occasion; if it concerned matter of Law (as in these of the exposition of the Statute of Gloucester, and the Statute of Bigamy, and other such Acts) the Judges and other of His Council learned were principally consulted with; if it concerned the people in general, as that of the Statute of Will. 1. and other such like, the people of all sorts were called to advise with the King what Laws were to be made. And so I conceive it was from that time upward to the Conquest. Therefore when any Book or History makes mention of a Parliament in those days, that Assembly (as I conceive) was no other but as aforesaid. And rare it was for any King in those times to consult with any other in making Laws but the Prelates, the Peers, his Privy Council, the Judges, and other persons learned in the profession; yet doubtless never concluded any matter of moment without consent of such his people as were proper to be advised with therein. Nor do I conceive it was in the power of any King after William Coke. Calvin's case. b. the Conqueror had consented to govern by a known law to alter the fundamental grounds thereof. But in those days, although we were governed by the same law as now, yet it appears to me we had not any form bodies of the Houses, nor could any Subject by the law challenge a particular privilege to be summoned to Parliament, nor claim right to a negative voice. But now the law is otherwise, there be two form bodies, which must be summoned, assembled, and their assents had, before any new law can be made, or the old changed, the King at this day hath not a power therein without the joint concurrence of the Stat. 33. H. 8. cap. 21. two Houses; which constitution of the two Houses, and this power which the Members have to consent unto, or refuse laws propounded Coke. 8. fo. 20. b. 12 H. 7. 20 H. 8. Dyer. 59 60. by the King, seems to me to have been attained thus; Clear it is, nothing is more plausible to the people, then to be preserved from extraordinary Taxes, and payments of money: And that might induce King Edw. 1. to make a Law, which I find he did 34. of his Reign in these words, viz. No Tallage or Aid shall be taken or levied by Us, Our Heirs in Our Realm, without the good 34 E. 1. c. 1. will and assent of Archbishops, Bishops, Earls, Barons, Knights, Burgesses, and other Freemen of the land: By this the King excluded himself and his Successors (by themselves alone) to tax, or impose upon the people any payments of money, and from thenceforth no subsidy, or other aid could be given him by the Subject without consent of Prelates, Peers, and Commons: This I conceive was the first foundation of the House of Commons, and the groundwork for the form bodies of both Houses; For it is obvious that (if not the principal) one chief end of calling Parliaments was, and is, to raise money for the public affairs: so that after the aforesaid Statute of 34 Edw. 1. it had been to little purpose to call a Parliament of Prelates and Peers, and not to summon the Commons. And upon view of the Statute made after that time, it appears that those persons were more frequently called. And doubtless King Edw. 1. and other succeeding Kings finding that the greater number of the Prelates, Peers, and Commons consenting thereunto, more cheerfully the Laws were obeyed, it begat in them a desire to increase their number, and to have their assent not only to Subsidies, but to every New law. And accordingly several Kings summoned more Towns to return Burgesses, created new Corporations, and granted to them power to send their Deputies: yet was it not reduced to any certainty what number were to be summoned to Parliament, the aforesaid Statute of 34 Edw. 1. only declaring, That no tax, etc. shall be levied without assent of Archbishops, Bishops, Earls, Barons, Knights, Burgesses, and other Freemen of the Land, not mentioning how many, or what particular persons, so that it was still left to the King's choice how many to call, And so continued for a long time after, For to the making of the Statute of Staple 27. E. 3. but one Statute of Staple made 27 E. 3. single person was summoned for any one County as by the preamble thereof in these words appears, viz. Edw. by the grace of God, etc. Whereas good deliberation had with the Prelates, Dukes, Earls, Barons, and great men of the Counties, that is to say, for every County one for all the County, And of the Commons of Cities, and Boroughes of our Realm, summoned to our great Council holden at Westminster, etc. But afterwards all the Bishops, and Peers, two Knights for a Shire, two Citizens for a City, and two Burgesses for a Borough town were usually called; And by a Statute made 7. H. 4. the 7 H. 4. cap. 15. Writ of summons now used was form, and by one other Act made 1. H. 5. direction is given who shall be chosen, that is to say, 1 H. 5. cap. 1. for Knights of the Shire, persons resiant in the County, and for Cities and Boroughes, Citizens and Burgesses dwelling there, and freemen of the same Cities and Boroughes and no other. And so by frequent calling Parliaments, constant summoning the Prelates, Peers, and Commons as aforesaid, the Kings not pressing Laws to pass, nor any Law being admitted to bind without such consent, the Parliament became a body composed thus, viz. of the Lords Spiritual, the Lords Temporal, and the Commons being three Estates, and the King head of all, and as the soul adding life, And by continuance of time it likewise became in the nature of a fundamental ground, That no new Law can be Stat. 33 H. 8. cap. 21. Coke. 8. fo. 20. 11 H. 7. 27. 7 H. 7. 14. Dyer 59 60. Co. 4. Inst. p. 25. made, or the old altered, but by the King with the assent of the two Houses of Parliament. And yet the King at this day (which is evident by common experience) hath power to increase the numbers of either House, and that without stint: Thus the power of the Kings of England was restrained from making Laws without consent of their Subjects as aforesaid; wherein the difference is but thus; Former Kings in some things without consent of any known Body or Assembly had power to alter the old, and make new Laws, our Stat. 24 H. 8. ca 12. Coke. 5. f. 28. King cannot in any one particular alter the old, or make a new Law without the assent of the two Houses. Yet Monarchy remains, the people are governed by the same Law, & under the same power as before, which is by the King's sole Authority. And Laws now made by Act of Parliament, although they bind not without assent of the two Houses, yet they are the King's Laws, and are properly said to be made by Him, And the Statutes for the most part are, and the best form of penning an Act is thus▪ viz. Be it enacted by the King's Majesty, with the assent of the Lords Spiritual and Temporal, and the Commons, etc. Coke. 8. fo. 20. Besides, at this day after a Law is made by Act of Parliament, the execution of that Law is by the King's sole Authority, the power to pardon the transgressors thereof, and Authority to dispense Coke. 7. fo. 36, 37. 2 H. 7. 6. Co. 7. 14. Plo. 502. with the Law itself is totally in Him, for example, if by Act of Parliament it be made felony, or other crime to transport any commodity beyond the Seas, the King after the fact committed, may pardon the offence, and before it be committed, by His Letters patents (without assent of the Members) may by a non abstante dispense with the Law itself, and legally Authorise any person notwithstanding that Statute, to Transport that prohibited commodity, and so in all public, and penal Acts not prohibiting malum in se. Thus it appears, that originally the Parliament consisted of the King, calling to Him for their advice such as He thought fit. But now by consent of former Kings, as aforesaid, no new Law can be made, or the old altered, or abrogated, but by the King with the assent of the two Houses: And so the King and the Members 〈◊〉. f. 59 p. 19 Coke 8. fo. 20. 12 H. 7. 20 H. 8. Plo. 79 4 H. 7. 18. 7 H. 7. 15. 33 H. 6. 17, 18. 12 H. 7. 20. Just. Hutton against Ship-money. 32. 33. of these two Assemblies jointly concurring at this day are the Parliament. Upon which it consequently followeth, that the King hath an absolute negative Voice in every Law to be propounded; But in regard this is now not only denied, but a power usurped by those Members without the King to make Laws, in the next place that point is more fully debated. CHAP. III. That the Members of the two Houses have not power in any one particular to make a new Law, or to change the old, The Legislative power not in both Houses together. The King's negative Voice. The King of England for the time being, having an absolute negative Voice therein. AGainst this I have seen a Treatise published by Order of the House of Commons in the name of William Pryn an utter Barrister of Lincoln's Inn entitled thus, viz. That the King hath no absolute negative Voice in passing Bills of common right, and justice for the public good. And to make good his position proceeds to his proof in this manner. The King (saith he) in most proceedings in Parliament, as in reversing judgements, damning Patents, and the like, hath no casting Voice. 2. That Kings in ancient time have usually consented to Bills for the public good, else gave such reasons of their denial as satisfied both Houses. 3. That Kingdoms were before Kings, and then the people might have made Laws. 4. That the King may die without heir, and thereby the people may have such power again. 5. That the Lord Protector in the infancy of a King may confirm Bills, and so make Laws. 6. That in Countries where Kings are elective, and so an interregnum, the people in the vacancy of their King may make Laws. 7. That the two Houses have frequently denied to grant the King Aide by Subsidies. 8. That the Kings of this Realm have been forced to give their Royal assent to Bills, as in that of Magna Charta: This is the substance of his objections and arguments against the King's negative Voice in Parliament. Answer. M. Pryn hath spared no labour to make good his assertion, fetching his arguments from a time supposed by him before Monarchy here began, secondly upon accidents happening since this Monarchy, And then imagineth a time to come, that is, when the King and all the blood Royal of England shall be extinct for want of an heir at Law to inherit the Crown. First, for his far fetched argument; Kingdoms (saith he) were before Kings; These words taken in their literal sense, imply a gross and absurd contradiction, and he might as well say that servants were before Masters, or the Son before the Father: But doubtless Mr. pryn's meaning is, that Countries and people were before they had Kings over them, yet his words being so expounded, make nothing to his purpose: suppose that before Monarchy began in this Nation, the people had been governed by a known Law, to conclude thereupon, That the Members of the two Houses at this day have power to make Laws without the King, or that the King hath not a negative Voice in Parliament is to no more purpose, then if he should say, The Earth was made before it was peopled, Ergo, there is neither man woman nor child in the world: or thus, This Nation was peopled before they were governed by a Law, Ergo, the people neither had either Law or government. The Jews upon the like ground may argue thus, viz. our Religion was before Christ, Ergo, the people at this day ought not to profess Christian Religion. But Mr. pryn's argument is more absurd, he cannot show that the people of this Nation before they were governed under Kings had either Literature, known Law, or Government: However clear it is, This Nation hath been monarchial above 1200. years before the institution of the two Houses of Parliament, And so Mr. pryn's argument that Kingdoms were before Kings, is no weight at all to prove, That the two Houses have power to make Laws without the King. And much like unto it is his argument, That the King may die without heir, for if that should happen (saith Mr. Pryn) the people might make what Laws they should think fit: Now thereupon he concludes thus, Ergo, the Members at this day have power without the King, to make Laws. With more reason the King might argue thus. All the lands in England mediately or immediately are held of the King, and if the owners die without heir, by the Laws Co. 1. Instit. fo. 1. 12 H. 7. 20. of the Realm, Escheats to the Crown, and so becomes at the King's disposal, but every man may die without heir, Ergo, all the lands in England at this present are the proper inheritance of the King: No Lawyer can deny major or minor, yet the conclution thereupon is absurd. But in Mr. pryn's case, admit the King should die without heir, although it be granted that the people had thereby power to make Laws, yet gross it were to conclude upon it, That the Members of the two Houses might so do: For if the King and that Stem Royal were extinct without issue, the two Houses would be extinct too. By the Law of England, if the King die during a Parliament Coke. 4. P●●… Institutes 46. Rot. Parl. 1 H. 5. nu. 26. ipso facto, the Parliament is dissolved, because the King (who was head, to advise with whom, and by whose Writ, and command the Members were summoned) is dead. Yet in that case, the successor King if he please might call a new Parl. But when the King dies without heir, there is no succeeding King to summon it, And so the constitution of Parliament, and the whole Law and Government (the fountain of all which being stopped) would be suspended, if not ended, and the people left without Law; Then it might be granted Mr. Pryn, That the strongest party concurring in that case would govern: yet that is no proof that the Members had thereby power to make Laws: And therefore more absurd it is to conclude upon Mr. pryn's reason, That the two Houses at this day (whilst the King and the blood Royal are in being) have that power. Then for his objections upon Authority, or precedents happening since the beginning of the English Monarchy. Kings (saith he) have no voice in reversing judgements, or damning Patents in Parliament, therefore they have not a voice in passing Bills for public Laws. Answer. Mr. pryn's words must be understood one of these ways, viz. That these judgements are reversed, and Patents damned by Act of Parliament, or else in the ordinary way of proceedings of Law, as in a Court of Justice; if he mean by Act of Parliament, he only begs the question. And false it is to say the King hath not a negative Voice in every Act propounded for a Law. If he mean by judicial proceedings, as in a Court of Justice (which I conceive he doth) than the case truly stated is but thus; The Lord's House in Parliament time is a Court of Judicature, and (amongst other things) the Members of that Assembly have power (the cause being regularly brought before them by writ of error, and by the advice of the Judges and not else) to reverse erroneous judgements given in the King's Bench, wherein it is true the King hath no Voice; but that nothing disproves His negative Voice in making Laws: if so, that reason serves as well to exclude the Commons as the King, for in reversing judgements in the Lord's House, the Members of the lower House have no Voice, & so if this argument of Mr. pryn's be of force, the Lords without King or Commons have power to make Laws by Act of Parliament. Then for damning Patents, neither the Lords, nor the Commons, nor both Houses jointly have power judicially, or finally to determine the validity of any Patent or grant of the King: That properly appertains to the Judges of the King's Bench, of the Common Pleas, and other Courts of Justice, before whom (as afterwards it is more clearly showed) such cases may be judicially brought to trial, wherein neither King, Lords, or Members of the Commons House hath Voice. And for the rest of his arguments, they rather prove the contrary, then that which Mr. Pryn infers upon them: Kings (saith he) have in former times showed their reasons why they denied to pass Bills presented unto them by both Houses, which proves that those Kings had power to deny them, else they could not show cause of their refusal, no more than Mr. Pryn can render reasons of his being at Westmiuster, unless he have been there. But Mr. Pryn knows all Kings have most frequently rejected Bills passed by both Houses (and Bills declared by the Members to concern the public good) without rendering their reasons for the same. And for the power of the Protector to confirm Bills passed by both Houses, if that be granted, that in some cases of imminent necessity the Protectors consent might make good, and perfect such Bills, it nothing proves the absolute power of both Houses without the King, but rather the contrary, and plainly demonstrates the imperfect power of the two Houses, who cannot without the consent of a Protector in such cases make any complete and binding Laws, Therefore (if not stronger) the same it must be, when we have a King no infant, and Reigning without a Protector. But saith Mr. Pryn in Countries where Kings are elective, by the death of the Present King, until a new one be chosen: the people having no King over them may make binding Laws. Here although I believe Mr. Pryn cannot for other Countries make his position good, yet this admitted to him, rather disproves his argument against the King's negative Voice; for of his own showing it appears, that in those Countries where Kings are elective, after such time as the people have chosen a King, they cannot make Laws without Him, And if so where Kings are elective, much more they cannot where Kings are hereditary. Therefore by Mr. pryn's own argument it followeth, that in this Nation, neither the people, nor the two Houses without the King, have power to make Laws. For we have no interregnum, there is not with us any time of vacancy Coke. 7. 30. of a King, eo instant upon the death of the precedent King, the Crown is vested in the successor. And for the two Houses refusal to grant the King Aide by Subsidies and the like, That disproves the King's power of His negative Voice in Parliament, as the King's refusal to confirm Bills passed by both Houses prove that the King at this day may make Laws without them. But saith, he if Kings will not pass Laws presented unto them by both Houses, they may be compelled thereunto, for Kings (saith he) have been so forced, as King H. 3. in that of Magna Charra and other Statutes. Answer. To admit that a Judge of a Court of Judicature may be forced to declare his opinion, or to give judgement against his own conscience, seems to me to be so absurd, as I cannot but suppose that Mr. Pryn himself would grant it to be most unreasonable, and even to be destructive of the Law itself. If the King should assemble powers, and by force compel the Lords, or Commons to pass Laws by Him propounded, it would be judged an act of high Tyranny, and I believe Mr. Pryn would conceive Laws so obtained bound not, And if so in that case, (if he be not extreme partial) he must upon the same ground agree, that the King in the like case ought not to be forced. He doubtless hath the same authority, the same rules, and motions to be guided by His Conscience as a Subject hath. And methinks the Law should protect the King from the violence of the people, as much as it preserves them from the force of their King, certainly it is (at least) reci money or Oath taken is actually vested in the King succeeding, upon which the Law saith, that although in hoc individuo Hen. Rex Coke 7. fo. 30. moritur, yet the King in His politic capacity never dieth. Besides, if the King at His Coronation should refuse to take an Oath, we have no more Law to compel Him thereunto, than we have to force Him to be Crowned. And as it is not material to the right & power of the King whether he be Crowned, or not, so it is inconsiderable to the people to have Him sworn, for if we had no municipal Law, the King unsworne were bound in Conscience to govern the people by natural equity. But we have a known Coke 7. Calvin's case fo. 17. Law by which both King, and Subjects, (the one by a directive power, the others by both directive and coercive) are regulated, and every one protected in his just rights, and this, whether the King be Crowned, or not Crowned, whether he take an Oath or no Oath. Secondly, admit Kings obliged to take an Oath at their Coronation, yet even by the Members own showing, they are not bound to take it in the words by themselves mentioned, And of all the Kings past, they instance but seven who have taken any Oath, and but three of those seven (admitting that Oath in French and the other in Latin to be one, and the same) they name to have taken it: And of these three, offer proof but for one, And themselves show that the Oaths taken by the other four, viz. King H. 8. King E. 6. King James, and King Charles differ in the very words in question, and render a quite other sense, viz. of that of King H. 8. they set down the words thus, viz. (And affirm them which the Nobles and people have made and chosen with my consent. And that of King Ed. 6. thus, viz. Do you grant to make no new Laws, but such as shall be to the honour of God, and the good of the Commonwealth, and the same shall be made by consent of your people, as hath been acoustomed. And for the Oaths of King James▪ and King Charles they say the word (choose) was left out. So that upon the whole matter that which hath been, or can be said herein is but thus: Some Kings at their Coronation have taken an Oath, but that any King is obliged so to do, or being obliged that he ought to pursue the foresaid words, it neither doth, nor can be made good. Thirdly, admit that Kings have taken the Oath in the foresaid words, and obliged thereunto, yet that nothing proves the Members power without him to make Laws. William the Conqueror Coke, calvin's case fo. 17. (all men must grant) might have imposed upon this Nation what Laws he pleased. But being resolved to have a settled Government, granted to the people such Laws and customs as were just Vid. preface Co. 8. Rep. and equal between Him and them; And so bound Himself and His successors to Govern by a known Law. The people being thus freed from the servitude incident to a Conquest, nothing could be more acceptable to them, than the continuance of that Law: And nothing being more safe for a King, then to have the love of His Subjects, succeeding Kings might be induced at their public Coronations, voluntarily to take an Oath for the preservation of the Laws: And in that sense these words, (quas vulgus elegerit) might be aptly used, for it is not improperly said, the people had chosen those Laws which the Conqueror (with their good liking) had consented to govern by. So that the Coronation Oath (admitting it in the words as the Members have expressed) cannot in any reasonable sense, be rendered otherwise then thus, viz. Do you grant to keep, and for yourself promise to defend, and to the honour of God corroborate the just Laws and customs which the people have chosen. This imports a settlement of a known Law, which the King swears to preserve, but to render the words in the future tense, and to make the King to swear, to confirm such Laws as the people shall choose (what ever they be) tends to confusion. But, say the Members, if (elegerit) in this place be Englished have chosen, the King is not sworn to keep Laws afterwards made, which is utterly mistaken, for when a new Law is made, it is then part of the Law of England; And being sworn in general words, to defend the Law, He is sworn to defend all the Law. For example; the Judges in general words are sworn to determine controversies according to the Law, and frequent it is after the Judges have taken that Oath, for the Law to be altered by Act of Parliament, yet the former Oath binds those Judges, and they are obliged, even by that Oath, to give sentence as the Law is, according to that alteration, not as it was when they took the Oath. And so it is with the King, he having taken the Coronation Oath, is thereby bound in Conscience to defend and observe every Law afterwards made. Fourthly, admit the word (elegerit) in that place to be Englished in the future tense, and the King to swear to confirm the just Laws which the people shall propound unto Him, That cannot admit of any other interpretation then thus: viz. If the people propound Laws to the King, which in themselves are just and equal, He is by His Oath obliged in conscience to confirm them, but He is not thereby bound in conscience to consent to all such Laws as the people shall say are just: That were to make one part of the Oath to contradict another part thereof, for by the former part of the Oath, the King swears to defend the Laws of the Realm, And by the same Oath (thus expounded) He is not only bereft of power to perform it, but swears at the pleasure of the vulgar multitude, to destroy it. Suppose the King thus sworn, be desired by the people to make a Law thereby to exempt persons from punishment for Treason, Felony, or other crimes, or to settle the power of Srveraignty, and government upon Subjects, in this case the King, even by that Oath, were obliged to reject such Laws, for it is neither a just Law, nor doth it stand with reason, to exempt any from punishment for such crimes, or to exact of the King to quit His Authority, nor (were it in His power) ought He to put His people under the yoke of their fellow Subjects. Fiftly, but however if the King should in terminis swear to confirm all Laws (whether just or unjust) to be propounded to Him by the people, That doth not enable any to make Laws without Him. A King (although not sworn) is obliged in conscience to consent to such Laws which are in themselves good for the Commonwealth just, & equal between Him and His Subjects, but is not compellable to change either Law or settled Government; And if so unsworne, it followeth that his being sworn to do it, is but a further tie upon His conscience: By swearing to confirm such Laws as His people shall propound unto Him, that gives not power to them to make Laws without Him; such an exposition of an Oath (until this Parliament) was never heard of. Sixthly, if such an absurd exposition of an Oath could be admitted, the Members of the two Houses cannot be the people intended by the words of this Oath, for Kings have taken Oaths at their Coronations, before the institution of the two Houses; Secondly, the Members of the two Houses do not derive their power from the people, but from the King, by whose Writs they are summoned. And first for the Lords House, none can sit there but a Peer of the Realm, none can create a Peer but the King, not one Member Coke, calvin's Coke. fo. 15. Coke 7. fo. 33. of that House (the Prelates excepted) but He, or His Ancestors, from whom he claims his Peerage, derives that honour from this King, or from His progenitors Kings of England since the Norman Conquest: And for the Prelates, And their power as Peers to sit in that Assembly, it was founded by the Kings too. It is now, and ever was in the sole power of the King of England for the time being, by Patent, or by Writ of summons, to create and call to that House, without stint or limitation, as many, and what persons He thinks fit; which creation, and the Kings Writ of summons is their Commission, The words whereof follow, viz. Carolus, etc. charissimo, etc. Comiti. Arundel. Quia de advisamento & assensu Consilii nostri pro quibusdam arduis & urgentibus negotiis, etc. quoddam Parliamentum nostrum apud civitatem nostram West. 1. Die Maii prox. futur' teneri ordinavimus, & ibidem vobiscum, cum Prelatis, magnatibus & proceribus dicti regni nostri colloquium habere & tractatum, vobis sub fide & ligeantiis quibus nobis tenemini, firmiter injungentes mandamus quòd personaliter, etc. So that, to the institution of the Lords House, and the power which the Members of that Assembly have to sit, and Vote in Parliament, the people are not at all consulted with in any particular. And for the Commons House, the institution thereof, and the Commission which the Members of that Assembly have, is derived from the King too; That which the people act and do therein, is only to elect the Knights of the Shires, Citizens, and Burgesses; and therein too their authority is by the King's Writ, the direction whereof they are bound to pursue: It is not in the power of the Inhabitants of any County, or town, to add unto, or lessen the number of persons to be elected, or to enlarge or limit the authority of those chosen: But former Kings (as before is showed) sometimes called more, sometimes fewer, and at their pleasure created new Corporations, and gave them power to send Burgesses. And every King had, and at this day hath authority, to enable and command every town in England to send Burgesses to Parliament. And when the Knights and Burgesses are elected, the people's power is ended, than the persons chosen are to perform their duties, wherein they must be guided by their Commission, it is that which doth distinguish them from other men, else every one in the Kingdom had equal power to sit and Vote in Parliament: And they have no other Commission than the Kings Writ of summons, which followeth in these words, viz. Rex Vicecomiti salut'. Quia de avisamento & assensu consilii nostri pro quibusdam arduis & urgentibus negotiis, nos statum & defensionem regni nostri Angliae & Ecclesiae Anglicanae concern: quoddam Parliamentum nostrum apud Civitatem nostram Westm' tertio die Novembris prox' futur' teneri ordinavimus, & ibidem cum Praelatis, Magnatibus & proceribus dicti regni nostri colloquium habere & tract': tibi praecipimus firmiter injungentes quod facta proclam' in prox. Comitatu tuo post receptionem hujus brevis nostri tenend. die & loco predict' duos milit' gladiis cinctos magis idoneos & discretos Comit' praedicti, & de qualib' civitate Com' illius duos cives, & de quolibet Burgo duos Burgenses de discretior' & magis sufficientibus libere & indifferenter per illos qui proclam' hujusmodi interfuer' juxta formam statutorum inde edit' & provis. eligi, & nomina eorundum milit' Civium & Burgensium sic electorum in quibusdam Indentur' inter te & illos qui hujusmodi election' interfuerint, inde conficiend' sive hujusmodi elect' presents fuerint vel absentes, inter: eosque ad dict' diem & locum venire facias. Ita quod iidem milites plenam & sufficientem potestatem pro se & communitate Comit' Civitatum & Burgorun praedictorum divisim ab ipsis habeant, ad faciendum & consentiendum his quae tunc ibid' de communi consilio dicti regis nostri (favente Deo) contigerint ordinari super negotiis ante dictis: Ita quod pro defectu potestatis hujusmodi, seu propter improvidam electionem militum, Civium aut Burgensium predictorum dicta negotia infecta non remaneant quovis modo. Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regis nostri aliqualiter sit electus & electionem illam in pleno Comitatu factam distinct & aperte sub Sigillo tuo & singulis corum qui electioni illi interfuerint nobis in Cancellar' nostram ad dictum diem & locum Certifices indilate remittens nobis alteram partem Indenturarum predictarum praesentibus consuet' una cum hoc breve. Teste meipso apud Westminster. And the return of the aforesaid Writs in these words. (viz.) Virtute istius Brevis eligi feci duos milites gladiis cinctos magis idoneos & discretos de Comitatu meo, (viz.) A. & B. qui plenam & sufficientem potestatem pro se & Communitate Comit' predict' habent ad faciendum & consentiendum iis quae ad diem & locum infra contentos de Communi Consilio regni Angliae ordinari contigerint. Et predicti A. & B. manucapti sunt per quatuor manucapt' add assulendun ad Parliamentum dom' Regis apud Westminster ad diem infra contentum ad faciendum quod hoc breve in se exigit & requirit. I have here exactly set down all those Commissions, by authority whereof the Lords House, and the Commons House, sit, and Vote in those Assemblies, which is far short of giving them power to make Laws. That of the Lords, commands them to advise, and consult with the King, concerning the great affairs of the Realm, both in Church and Commonwealth. That of the Commons, to do and consent unto such things as the King and the Peers shall agree upon. And as the Members have their authority, to sit and Vote in the House from the King, so it is at His will to summon a Parliament, when, and as often as He thinks fit: And the Members being met together, are kept there as long as he pleaseth, and at every instant time (when he seeth cause) dissolved again. And whilst they are continued together, their office is, to inquire, and inform themselves of the grievances of the Kingdom, to consult how to reform them, and for that purpose (if need be) to compose Laws, and present them to the King. But all this is only by way of advice, it binds not until the King hath taken their Council, and put life into those Laws by His Assent. All which is not only pursuing Plo. fo. 79. 4 H. 7. fo. 18. 7 H. 7. fo. 15. 33 H. 6. 17, 18. 12 H. 7. fo. 20. Dier fo. the Duke of Norfolk's case. their Commission, but is made good by the constant practice of the Kingdom: For, there was never any Law, Statute, Act of Parliament, or Ordinance made in this Nation, which bound the people, whereunto the King did not give His Royal Assent. And scarce one Parliament since the Institution of the two Houses, but the Members of both those Assemblies, have passed Bills for new Laws, presented them to the King, which He hath rejected: The Parl. rolls. whereupon every such Bill was instantly set aside, acknowledged by the Members, and judged by all men to be invalid, neither binding King or people. And for these words (le Roy s'avisera) the opinion of Justice Hutton, and the words of King Richard the second, nothing can be inferred thereupon against the King's negative Voice, but rather the contrary. The King's answer (say they) to Bills presented to Him by the two Houses, which He rejects, is thus (le Roy s'avisera) that is, He will advise whether to confirm them or not: It seems to me strange to conclude thereupon, Ergo, the two Houses may make Laws without Him, that is plainly a non sequitur, but it doth directly imply, that the King hath election to make it a Law, or no Law, else it were in vain for Him to advise upon it. And the words of King Rich: 2. (admitting that story to be true) saying He conceived Himself bound by His Oath to consent unto that Law, shows first, that it was in His power to consent, or not to consent; secondly, that the Members could not do it without Him; thirdly, that it was only an obligation upon His Conscience. And that He, because He conceived it to be a just Law, thought Himself tied in conscience to confirm it. Upon the whole matter clear it is, (admitting the King to have taken an Oath in the words mentioned by the Members) it rather proves the King's power of a negative Voice, then disproves it. But the Members (I am confident) know that the King neither did, nor was obliged to take the aforesaid Oath; The King pursuing former precedents recorded in the Exchequer, took the Oath in words, and according to the Ceremony as followeth, viz. After the Sermon is done the King ariseth and goeth to the Altar, and there the Archbishop administereth these questions. And the King Answereth. Bishop. Sir will you grant and keep and by your Oath confirm to the people of England the Laws and Customs to them granted by the Kings of England your Lawful & Religious Predecessors; And namely, the Laws, Customs, and Franchises granted to the Clergy, by the glorious King S. Edward your Predecessor, according to the Laws of God, the true profession of the Gospel established in this Kingdom, and agreeable to the Prerogative of the Kings thereof, and the ancient Customs of the Realm? King. I grant and promise to keep them. Bishop. Sir will you keep peace and godly agreement entirely (according to your power) both to God, the holy Church, the Clergy and the people? King. I will keep it. Bishop. Sir will you (to your power) cause Law, Justice, and discretion in mercy and truth to be executed in all your Judgements? King. I will. Bishop. Sir will you grant to hold and keep the Laws and rightful customs which the Commonalty of this your Kingdom have, And will you defend and uphold them to the honour of God so much as in you lieth? King. I grant and promise so to do. Then one of the Bishops reads this admonition to the King before the people with a loud voice, Our Lord and King, we beseech you to pardon, and to grant, and to preserve unto us, and to the Churches committed to our Charge all Canonical privileges, and due Law and Justice, And that you would protect and defend us as every good King in His Kingdoms ought to be protector and defender of the Bishops and the Churches under their government. King. With a willing and devoute heart I promise and grant my pardon, and that I will preserve and maintain to you and the Churches committed to your Charge all Canonical privileges, and due Law and Justice, And that I will be your protector and defender to my power by the assistance of God, as every good King in His Kingdom in right aught to protect and defend the Bishops and Churches under their government. Then the King ariseth and is led to the Communion table where he makes a solemn Oath in sight of all the people to observe the premises, And laying His hand upon the Book saith, The things which I have before promised I shall perform and keep, so help me God and by the Contents of this Book. Now for the King to oblish Episcopacy, to destroy the whole Government of the Church established by Law, for the King (so far as in Him lies) to transfer unto His Subjects that regal power which is inherently in His Person, to change the Monarchical Government into a confusion, to reduce his Subjects (being a freeborn people) unto a perpetual slavery under their equals and fellow Subjects, certainly cannot stand with this Oath. All which in the proposals made to Him by the Members (nay more, and worse than words can express) is required, and by most Barbarous and inhuman cruelties attempted to be forced from Him. Now having done with this Oath, I shall proceed further to examine the legality of the Members doctrine, to exclude the King from His negative Voice. It is an undoubted maxim in every Law, that no Person, Court, or Assembly can Act or do any thing concerning the public affairs of the Kingdom or Commonwealth without Commission, which stands with all the reason in the world, else it followeth, that every one hath equal power to make Laws, Act, and do what he thinks fit. And by the constitutions of this Realm, every Person, Court, or Assembly, must derive its authority by one of these ways, viz. by the Kings grant, by Act of Parliament, or by custom and use: if by the Kings grant, the Patent itself declares the persons authorised; if by Act of Parliament, the Statute names the men; if by custom and use, that use and custom is their Commission. For example, if the King by His Commission authorise twenty persons, or any ten of them, whereof A. B. or C. to be one to determine a felony, if seventeen of the twenty, in the absence of A. B. and C. execute that Commission, all their proceedings are void, as done without Commission, seventeen strangers not named in the Commission, might as well act therein as they. And if the Commission be by Act of Parliament, none can execute that Commission but those authorized by the Statute. And the like holds when custom and use is the Commission, unless that custom and use warrant the persons to act, it is done without authority, and so void. Then for the point in question, The Members of the two Houses have no grant from the King, nor is there any Act of Parliament to enable them to make Laws, nor doth custom warrant it: For until this Parliament, they never made Law without, and against the King's consent, nor claimed power so to do. But say the Members in the foresaid Declaration, If there be not an agreement between His Majesty and His Parliament, either Nou. 2. 1642. His Majesty must be Judge against His Parliament, or the Parliament without His Majesty, for (say they) that question whereupon the safety of the Kingdom depends, must not be undetermined: And (say they) if His Majesty against His Parliament; why not as well of the necessity in the question of making a Law, without and against their consent, as of denying a Law against their desire and advise? The Judge of the necessity (say they) in either case, by like reason is Judge in both. Besides, (say they) if His Majesty in this difference of opinions should be Judge, He should be Judge in His own case: But the Parliament should be Judge between His Majesty and the Kingdom, as they are in many, if not in all cases. And (say they) if His Majesty should be Judge, He should be Judge out of His Courts, and against His highest Court, which He never is. But the Parliament should only Judge without His Personal Assent, which as a Court of Judicature it always doth, and all other Courts as well as it. And (say they) if the King be for the Kingdom, and not the Kingdom for the King, and if the Kingdom best knoweth what is for its own good and preservation, and the Parliament be the representative Body of the Kingdom, it is (say they) easy to judge who in this case should be Judge. But (say they) it it not so easy to understand what is the danger of unsettling by this means the security of all men's estates. Is this danger (say they) kept of us by His Majesty's single Vote? And all men's estates without security, and exposed to an arbitrary power, because in all Courts of Justice, and in the Court of Parlialiament (and that without any appeal from it) men's estates and interests are Judged without His Majesty's Personal Assent. But (say they) we do not say this as if the Royal Assent were not requisite in the passing of Laws, nor do, nor ever did we say, that because His Majesty is bound to give His consent to good Laws, presented to Him by His people in Parliament, that therefore they shall be Laws without His consent, or at all obligatory, saving only for the necessary preservation of the Kingdom, whilst that necessity lasts, and such consent cannot be obtained. Answer. Here with much art and cunning it is endeavoured to mislead the people: And for that purpose the true question is declined, and other questions raised, which at the first sight may to the vulgar seem plausible. When a difference happens (say the Members) between the King and the Houses, and thus in a thing which concerns the safety of the Kingdom, it must not rest undetermined, therefore (say they) either the King must be Judge against the Houses, or the Houses must be Judge against the King, and conclude for themselves. But the case being rightly stated, and the constitutions of the Realm, duly considered, every rational man will conclude, that this power being granted the Members, all the rest of the people of England are of a free Subject become absolute slaves; which is thus: This Nation is governed by a known Law, which hath its prescribed rules, therefore (as before I said) it may be necessary in some things, to alter the old, and make new Laws. And that being so, some known persons must Judge when necessity requires such a change, and consequently until those persons have so judged it, all the people ought to conclude there is no need to alter the Law. And by the Laws of England (as before is said) the King, and the two Houses are that Judge, no major part, it is all jointly who have that power. As if A. seized of Lands, upon his marriage, is tied not to sell without the consent of B. and C. in this case A. B. or C. may negatively hinder the sale, but it were absurd to conclude thereupon, that A. B. or C. or any two of them, have power to sell, but most injurious it were, upon that ground to give power to B. and C. to sell the Lands of A. without his personal consent. So in this case, the Kings of England have debarred themselves from making, or changing the Laws, without assent of the two Houses, whereby the King, the Lords House, or the Commons House, hath power negatively to hinder the making of any new Law, or changing the old, but it followeth not, therefore the King, the Lords, or Commons, or any two of those bodies, have power to make a Law: The difference is no less, then between the having, and not having a known Law: The one imports the settlement of a known Law, and preserves it, and the other introduceth an arbitrary government. For example, if the King hath power to make what Laws He thinks fit, He may at pleasure, bereave the Subject of life, and confiscate their estates. But now having a known Law, and thereby protected in our persons and estates, the King having a negative Voice to hinder the changing of that Law, there ensueth no such evil consequence. And the same holds with the members, the Lords House, and the Commons House, having each of them a negative Voice to hinder the changing of the Law, or making a new Law, doth not lessen the people's protection of their persons, nor altars the property of their estates; The known and settled Law still preserves both. But admit one, or both Houses without the King, to make what Laws they please, it followeth, they have power to put to death whom, and for what cause they think fit, and for their own use, to seize, and dispose of their estates, their will is then the Law: So that to give this power to the King alone, or to one, or both Houses without the King, the consequence is equally evil. If the King have it, both Law and Parliaments are destroyed; If the Members, Monarchy, the Parliament, and the Law itself are totally abolished. And if the King by having this power of a negative Voice, be Judge in His own cause, the Members having that authority, are so too. But that is a mere fiction, neither King, nor Members, by having a negatie Voice in Parliament are Judges in their own cause, but all, that is to say, the King, and the Houses are jointly Judges, when it is fit to make a new Law, or change the old. And so long as they extend not beyond the power of a negative Voice, the Members of the two Houses are persons indifferent between the King and the people; and so is the King, indifferent, between the Members and the people. For example, if the King propound a Law to take away the life of His subjects, to tax them with payments of money not warranted by the known Law, or otherwise to enlarge His Prerogative, the Members may assent thereunto, and so make it a Law, or refuse it, and herein they are indifferent between King and people, for the benefit of those Laws thus propounded, accrues not to them. And so it is, if either, or both Houses propound a Law to the King, whereby they would assume to themselves the absolute power of Government, to put to death whom they please, to tax, or impose upon the people, to confiscate their estates to their own use, the King is a person indifferent between the Members and the people, to Judge whether to pass it or not. But when the Members without the King assume power to make Laws, the dispute between the King and the people is ended, the business is then immediately and totally between the Members and the people: Therefore by excluding the King from His negative Voice, the Members have made themselves Judges in their own case: By our woeful experience we now find there is none, either to umpire, or mediate, between the Members and the people; And so the Members by this have assumed an arbitrary power. Nor doth this power of a negative Voice in the King, take away, or lessen the authority of any Court of Justice; Every Court of Judicature, pursuing its Commission, hath power to determine the interest, both of King and people, and that without assent either of King or Member: The known Law is their ground to judge by, not the opinion of the King, or of either, or both Houses. Nor can the King in this be said to Judge out of his Courts, or against the two Houses of Parliament, for the King and the two Houses have herein equal power, that is, every one of them a negative Voice, they are all together jointly Judge of that high Court of Parliament, but no one, or two of these bodies is Judge thereof: So that by the Kings, and either Houses having a negative Voice, it cannot be said they Judge each other, out of that, or any other Court of Justice. But some object, that if the refusal of the King shall hinder the making of Laws, the Commonwealth is in danger to suffer, for (say they) the King may be refractory, and deny to pass good Laws. Answer. No humane Law can preserve a Commonwealth from every mischief. That Law which avoideth the most inconveniencies, is the best Law. It is granted that the will of the King, or of either House, by refusing to pass a Law propounded, may prove mischievous: But upon pretence of necessity, to give power to the King, and either House, or both Houses (without the King) to alter the Law, or to make new Laws, were more dangerous, If that rule serve them to make good Laws, it enables them to make bad ones too. If they be Judge when to make one Law, they are Judge to make as many, and what Laws they please; they who have this power, may declare what they list to concern the safety of the Kingdom. Once break this rule; That no new Law can be made with consent of the King and the two Houses, and there is no end of the distraction. Upon the same ground that the Lords, and Commons in the case of the Militia (pretending a necessity, and that the King was refractory) assumed power to make Laws without Him, the Lords House may exclude both King and Commons, the Commons House, Lords and King, or the King both Houses. When there ariseth a difference between the King, and the two Houses, if it be of necessity that the King, or the two Houses must so far Judge the business, as to make a Law without the other, by the same reason, when a difference happens between the two Houses, one of them must be Judge against the other, and make a Law without the others consent, for such a difference between the two Houses, may as well happen to concern the safety of the Kingdom, as when the difference falls out between the King and both Houses: And if either House obtain the sole power to make Laws, still there is no period, for if reason, or real necessity require it, and should be Judge when, and what Laws are to be made, the lesser number of one of those Assemblies peradventure may be in the right; But whether right, or wrong, the zealots may chance to side with the little flock, rise up, and in tumults call it Justice. And so consequently the good Law of the Land destroyed, and club-law introduced, and the very being of Parliaments taken away; whereas by observing the constitutions of the Realm, in submitting this power of making Laws to the Judge thereof, that is, the King without the assent of the two Houses, all these absurdities and inconveniences are avoided. Which constitution being rightly understood, is grounded upon great reason, and is most equal between King and people; for the Commons House upon just grounds (for any thing to them appears) may pass a Bill, which the Lords upon as just reasons may reject, the Members of that Assembly being persons, who for the most part have a greater & deeper reach & insight in State affairs; And both Houses may pass a Bill, conceiving it necessary for the preservation of the Kingdom to have it made a Law, and thereupon desire the King's consent, which the King may as justly reject, And for such reasons (they may be matters of that nature) as not convenient, and most unfit to be imparted and revealed to such a multitude as the seven hundred Members or more of both Houses. But when all, that is, when the King and the two Houses concur, the Commonwealth may as safely depend upon it, as upon any humane institution. Upon these grounds it is, that when a dispute happeneth concerning the making of a Law, the King being of one opinion, the Lords of another, and the Commons of a third, or when any one of the three bodies descent from the other two, there is no umpire but themselves to end that controversy, nor can they decide the question by any other way, but by a joint agreement, or quitting the dispute, for until a joint concurrence of all three, their proceedings are but conferences, and their results, what they would have to be Laws, but no Laws indeed, until by consent of all three, they be reduced to Acts of Parliament. No Order, Ordinance, or what ever it is, or shall be called, made by consent * Plo. fo. 79. 4 H. 7. fo. ●18. 7 H. 7. fo. 15. Dier. fo. The Duke of Norfolk's case justice Hutton against Ship-money, fo. 32. 33. Coke 8. fo. 20. of any one or two of these bodies alone, hath the strength or force of a Law, our Law takes no notice thereof, like a verdict for life, lands, or goods, in which case the major part of the Jury, determineth not the question, all twelve must agree, else it is no verdict, for the question being fact, some one of the Jury may have better knowledge thereof, than all the rest. So in this case, by the constitutions of the Realm, no new Law can be made, or the old altered, without a joint concurrence of the King and the two Houses. It is that united body, which at this day (as to the Legislative power) represent the whole Kingdom. The Members of the Commons House alone, do not in that manner represent the Commons of England, the Lords & the Peers, and the King for Himself, but all together do represent the whole Kingdom, no one, or two of these bodies, can herein be said to represent only any part; every common person doth herein, by the Laws of England, as much depend upon the judgement of the King and the Lords, as upon the Members of the Commons House. And so do the King and the Lords upon those Members; for the King, the Lords, and Commons (as now by consent of former Kings it is settled) are herewith jointly trusted. As if three Lords authorise three several persons to sell their Lands, if two of them sell, it binds not, therefore in judging that sale void, no man is injured, the Lords are seized of their Lands as before, and the persons trusted have the same power, that is, jointly concurring to sell, and by that sale the Lords are concluded, it is done by the Commission of those Lords, and therefore in Judgement of Law their own Act. So for the Parliament, the King, the Lords, and Commons by the constitutions of this Realm, are jointly trusted to consent unto the making new, or changing the old Law, therefore no less than all have Commission for it. And so if the King, and either House, or both Houses without the King, pass a Bill, or make a Law, this aught to be judged invalid, none are thereby wronged, still the known Laws are in force, the people as before, by the known Law are protected in their persons and estates, and those trusted, that is, the King, the Lords, and Commons jointly concurring, have power to make new Laws, which consent concludes the whole Nation, it is done by its representative body, and so by their Commission. Thus it appears, that when there is a question and dispute in Parliament, between the King and the two Houses, it is not necessary to have it affirmatively determined, nor needful that His Majesty in such cases be Judge against the two Houses, or the two Houses to Judge it without Him; That is but a fiction of the Members, devised by them to reduce the Nation unto their Tyranny; which as the Members knew they could not effect, but by excluding the King from His negative Voice in Parliament; so that being done, their work was finished. Then they without the King arrogate power to make new Laws, and change the old for their own advantage as they pleased: And so both King and people enslaved. Therefore herein to beguile the people, a case was feigned, and stated thus, That such a difference between the King and the two Houses as concerned the safety of the Kingdom, was happened in Parliament: That unless this question were instantly determined, the Kingdom was in danger to perish. Then to draw the people to side with the Members, they were told, that the Lords and Commons were the representative body of the Kingdom. That whatever the Members in those Assemblies do, it is so much the Act of every particular person in the Kingdom, as if he were within the walls of the House personally consenting: And persuaded the vulgar, that this dispute between the King and the Members (in effect) is between Him and all the people of England. And then offer it to the consideration of the multitude, whether it be not more likely, that all the people of the Realm concurring in one opinion, should better know what is for their own good, than the King being but one single person, and dissenting in judgement from the whole Nation. The poor people not being of capacity suddenly to discern the fallacy hereof: And being ravished with a conceit to be Judge in their own case, in smarmes flocked to this Idol, (the Members) thinking they had thereby adored themselves, as well as that beast, and never ceased, until by violence they expelled the King from His negative Voice in Parliament. But now, by woeful experience, they both understand by whom, and how, they are represented, which is thus. The Knights of Shires, Citizens, and Burgesses, being elected by the Inhabitants of the several Counties and Towns, do in some sort represent the people who chose them, but that is no further than their Commission extends; And they have no other Commission than the Kings Writ of Summons; & the return thereof, word by word, set down before, which gives them no other authority, then to consent unto Laws agreed on by the King & His great Council, the Peers, & consequently they do represent the people no further then to consent unto such Laws. And for the Peers, they have no Commission at all from the people, nor can be said to represent them, their authority is solely from the Kings said Writ of Summons, directed to every particular Lord, by which likewise his power is declared and stinted That is, to advise with the King concerning the affairs of the Realm. So that the Lords and Commons put together, they have no Commission to make Laws, we are still to seek that Legislative power, nor is it to be found, but in the King, He alone is properly the Lawmaker. But the Kings of England (as before appears) having excluded themselves to make Laws without consent of the two Houses; Therefore that united body, the King and the Members of those Assemblies is called the Legislative power, and the representative body of the Kingdom. But that either, or both Houses, or any Assembly, or people in this or any other Nation governed by Monarchy, hath, or ever claimed to have a Legislative power, or sofar to represent the Kingdom, as to make new Laws, or change the old, without the Personal consent of the King is such a ridiculaus Bull, as never was heard, or thought of until this frantic Parliament: Therefore, when either, or both Houses without the King, take upon them to make Laws, they extend beyond the bounds of their Commission, they thereby act of their own head, not as representatives. For example, a Lord by Commission gives power to A. and B. to let, and set his Land for term of years, so long as A. and B. pursue this authority, they do represent that Lord: but if by colour of that Commission, A. and B. demise for life, or sell the Inheritance, it is done without authority, their Commission reacheth not so far, and so not representatives. Therefore such lease or sale is void, it doth not bind the Lord. Or thus. A. (having contracted with B. to make A. feoffement unto him and his heirs of the Manor of D. upon a condition) by letter of Attorney gives power to C. to make livery and seisin upon that Condition: C. performs it. In this case, the Land is as firmly settled in B. as if A. had executed it in his own person, because it is done by his representative: But if C. (omitting to express the Condition) make livery and seisin, absolutely nothing passeth to B. for saith our Law, C. extending the bounds of his Commission, he doth not represent A. Therefore his whole act void. So here, the Lords, as before appears, have Commission to advise with the King; the Commons to do and consent unto things agreed on by the King and them. Now those Lords and Commons taking upon them, without the Personal assent of the King, to make new, or change the old Law, it is a power usurped without Commission or authority, therefore no representatives, and consequently all their proceedings void. Then for the distinctions in the aforesaid Declarations mentioned. 1. That no Law made without the King's consent binds, unless His consent be first required and refused. 2. That those Laws be necessary for the preservation of the Kingdom. 3. That such Laws shall continue no longer in force then that necessity lasteth: these are snares and subtleties only to catch the simple, no wise man will be taken with them. Suppose the King, upon refusal of the Members, to have power to make a Law, it is all one as to have that authority without ask them the question: The Members upon broaching such a doctrine for the King, would call it tyranny, they might, & justly too, in that case, account themselves but cyphers. And the like reason holds via versa, if the King's denial to make a Law, hinder not the force of it, the absolute power is in the Members. And whether a Law be of necessity to be made for the preservation of the Kingdom, or not, he who will be sole Judge of that necessity, excludes the other, if the King be Judge thereof, the Houses are excluded, if the Houses assume that power, the King is excluded. And then for the continuance of those Laws, it is as easy for the Members to say they have cause to continue them, as to pretend necessity to make them. The Members judged it necessary for the preservation of the Kingdom, to take from the Crown the Militia of the Realm, and to settle it upon themselves: they desired the King to consent, He refused; thereupon the Members without the King usurped that power into their own hands. The Members now declare it necessary for the preservation of the Kingdom, for them, without the King, to impose upon the people impositions, taxes, and payments without stint, to make what Laws they think fit, to exclude the King from His Regal Authority; to assume the whole power of Government, and that to be Arbitrary, the King having been desired to consent hereunto, He refuseth. Upon this we see, the Members without the King assume it, witness the imposition of that horrid Tax by Excise, Assessments, condemning of their fellow Subjucts to death, confiscating their Estates, and the like, so that no man can apprehend, that the ask of the King's consent (which in show they seemed to desire) is in their esteem, indeed of any moment. And the Members by excluding the King from His negative Voice, having got possession of the wealth of the whole Nation, and dominion over the people, having thereby wrested from the King the Sword, His Sceptre, and Sovereignty itself; no doubt but the same necessity pretended by them at first to encroach this power, will be still alleged by them to make their usurped authority lasting; which accordingly we find, the Members have (as much as in them lie) made their reign perpetual: They tell us first in general, that in all matters either concerning Church or State, Declaration against the Scots papers. p. 63. we have no Judge upon earth but themselves. And so by their doom, we are, both for soul and body in an everlasting and absolute slavery unto our fellow Subjects. Then they proceed to particulars, and begin with the Militia of the Realm, which they judge usetesse, and as a thing lying dead, whilst it is in the power of the King of England. For say the Idem. pap. 71. Members, by the constitutions of the Realm, the King cannot by himself alone, without consent of the two Houses, raise money by taxing the people. Therefore the power of the Militia, say they, enables Him not to do the Kingdom any effectual service. But those Members having arrogated a power without the King, to impose upon the people without stint, they do therefore judge the Militia to be their own. And I confess they are in some sort necessitated thereunto, for both we and they see, that otherwise then by troops of Horse, and bands of Soldiers, it is impossible to levy upon the Subject, those illegal burdens by the Members laid upon them. So that it is now come to pass, that our greatest happiness is made the foundation of our greatest misery, because the King governs us by a known Law, these Members tell us, we must not be governed by a King, the King's justness to His people, hath furnished these Tyrants with arguments to dis-throne Him. By the government under the King, and that authority claimed by Him, the people have such protection of their persons, and property in their Lands and goods, as that (otherwise then the known Law declared by the sworn Judges of the Realm doth warrant) the King cannot molest them in either, therefore say the Members, He ought not to have the power of the sword. But on the other side, the Members having usurped an arbitrary and tyrannical power over the persons, lives, estates and fortunes both of King and people, therefore the Militia of the Kingdom, say they, belongs to them, so that upon the matter, better it had been, both for King and people, if the King had assumed the Turkish tyranny, for then the King (even by the Members own argument) had kept His Crown, nor had the Subject been in so great a slavery as now, we had then been subject only to one tyrant, but by this doctrine we are vassals to seven hundred. The Members have already (besides the whole Revenue of the Crown, which they have barbarously wrested from the King, the Queen, and the Royal Progeny) taxed upon the people by way of Excise, Assessments, and such like, new impositions, before this Parliament never known nor heard of in England, above 3000000. l. per annum for their own settled Revenue, yet all this serves not the turn of these blessed selfdenying reformers. Besides all this, they force the people to lend, to give, they confiscate where they please, and convert to their own use what sums of money they think fit. Yet setting aside their own pomp and glory, no visible cause of expense appears saving the Soldiery, who are kept for no other end but to awe the people and force those exorbitant and illegal contributions. Secondly, they have Judged the King (whom themselves even this Declaration against the Scots papers. p. 67. Parliament have sworn to be their only Supreme Governor) to be unfit to Govern. And this for refusing to acknowledge it His duty to be governed by them His Subjects, and so much as in Him lay, perpetually to vassalage unto those Rebels Himself, His Royal Posterity, and all the rest of the people. And to complete the work, they have Judged it Treason, for any Subject of England, either to Th●ir Votes dated. make application to His Sovereign, or to receive any Message from Him. By which Tyranny, the people of this Nation are brought into that sad condition, as doubtless was never yet paralleled (even from the Creation) upon the face of the whole earth. For, Traitors we are denounced, both for doing, and not doing, one and the same thing; By Act of Parliament it is high Treason to refuse to Stat. 1. & 5. E. swear the King to be the only Supreme Governor over all the people of the Realm: And these Members, against this known and declared Law, (although themselves have taken that Oath) murder such Subjects, as according to their duty, make address unto Him; And call that their due allegiance, Treason. And to colour these proceedings, the Members have the boldness to vouch God himself to justify the legality thereof. The power of the Militia, say they, was the principal cause both of this late Declaration against the Scots papers. p. 70. War and the quarrel with the King: then they tell us that the question concerning their right thereof, having been long and sadly debated both in black and red battles, God himself hath given the verdict upon their sides, meaning (if their words have any sense) that by their prevailing against the King in that war, God hath judged the cause for them, and against the King. But who sees not this to be a presamptuous blasphemy, added to the sin of Rebellion? did not this bold hypocrisy, as aptly suit with the actions of Ket, Cade, Wat Tyler, and all foregoing Rebels? Certainly as long as any Traitor, murderer, or fellow, can defend himself from the just trial and sentence of the Law, it is as easy, and upon as just grounds, for him to appeal to God for justification of his fact, as these Members do now call Him to witness for them. So that the consequence to the people of England which followeth the excluding the King from His negative Voice in Parliament, is no less than the loss of that happy condition of a free Subject, governed by a known Law under a King and in being reduced to the slavery of an arbitrary power under their equals and fellow subjects. Therefore all the people of England, do generally, disclaim the foresaid Members to be their representatives, and refuse to submit unto their Orders or Ordinances. Upon the whole matter, these things appear, that the Parliament of England consisteth of the King, the Lords House, and the Blow. fo. 79. 4 H. 7. foe 18. 7 H. 7. fo. 15. 33 H. 6. fo. 17, 18. 12 H. 7. fo. 20. Dier. fo. Commons House jointly concurring; that every one of them hath a negative Voice in making Laws, and consequently all Orders, and Ordinances, or whatever they may be styled, whereunto the King hath not, or shall not voluntarily without compulsion give His Royal Assent, are done without Commission, warrant, or Authority, and so not binding King or people. The Duke of Norfolk's case justice Hutton against Ship-money, 32. 33. Coke. 8. fo. 20. In the next Chapter is showed the power of the Parliament of England. CHAP. IV., That the King, the Lords House and the Commons House, concurring, have not an unlimited power to make Laws, it being in the breast of the Judges of the Realm, to determine which Acts of Parliament are binding, and, which void, and to expound the meaning of every Act. IT may seem strange to some, that the high Court of Parliament should be limited in their power, and deny to expound their own Laws. But upon consideration had of the use of a Parliament, and of the grounds of the Laws of England, it appears to be both just and consonant to the Constitutions of this Realm. The People of this Nation are not governed by a Parliament, Sovereignty is the Kings, yet the King Himself hath not an absolute or an unlimited power over the people; For as the people are governed by and under Him, so the Law directs how He is to govern them: But in this Nation (as in every Commonwealth governed by a settled Law) occasions oft happen, to do such things as the rules of that Law cannot warrant: Therefore necessary it is, to have a power to supply those defects, and that is the office, and true use of a Parliament; Which authority rightly considered, is of such concernment to the Commonwealth, as that the greatest care in the world ought to be had, who are trusted therewith. It is no less than a power to change that Law, whereby the people have protection of life, and fortune, and therefore may require the consent of such persons, as are not rightly qualified to judge which Laws are binding, and which void, or to expound the meaning thereof. Upon that ground it is, that by the constitution of this Realm, no new Law can be made, or the old changed, but by the King, with the assent of the two Houses of Parliament. Those persons (as before appears) are proper to judge when such things have happened, as may require the making of a new Law, or to alter the old: But without derogation from the honour of those persons, That body is not of a mould fit to judge, which Statutes are binding, which void, or to expound the meaning of an Act. First, clear it is, Acts of Parliament may be so penned, and contain such matter, as ought not to bind either King or people. Suppose it enacted, that from henceforth, the Members of the two Houses shall be exempt from punishment for Treason, Murder, Felony, and other Crimes: Or that the King and the two Houses, from time to time shall consent to make such Laws, as a close Committee, or certain persons by name shall conclude upon, or that every Act of Parliament afterwards made shall be void, and the like, no man can conceive such Acts would be binding, for thereby the true use of Parliaments, the Law and government were destroyed. Besides, all men grant, that an arbitrary power is absolutely destructive to the people. And it appears in the next precedent Chapter, that to give this unlimited authority of making Laws to the King alone, or to either, or both Houses without the King, were no other than to bring upon the people that thraldom: Now for this boundless power to be in the King and the two Houses jointly, although that were nothing so bad as to have it in the King alone, or in either, or both Houses without the King, yet the people were not thereby so well secured from the tyranny of an arbitrary power, as when the Judges determine which Acts of Parlliament are binding, and which void. Upon perusal of former Statutes, it appears the Members of both Houses have been frequently drawn to consent, not only to things prejudicial to the Commonwealth, but (even in matters of greatest weight) to alter and contradict what formerly themselves had agreed unto, and that even as it happened to please the fancy of the present Prince, witness that Statute by which it was enacted that the Proclamations of King H. 8. a 31 H. 8. c. 8. should be equivalent to an Act of Parliament, one other Act which declared both Queen Mary b 28 H. 8. c. 7. and Queen Eliz. to be bastards, one other which in words c 35 H. 8. ca 1. 31 H. 8. c. 14. 1 Ed. 6. c. 1. 2 E. 6. c. 1. 1 Ma. c. 1. 1, & 2. P. & M. c. 8. 1 El. c. 1, 2, 3. 5 El. c. 1. gave power to the same King to dispose of the Crown of England by his last will and testament. And the several Statutes in the times of King H. 8. Edw. 6. Queen Marry, and Queen Eliz. setting up, and pulling down, each others Religion, every one of them, condemning even to death, the professor of the contrary Religion. And now, reflecting upon the proceedings of the present Members, we find they have de facto arrogated unto themselves (in the highest strain) a power arbitrary; It is likewise too evident with what terrors, menaces, and inhuman cruelties, they press their Sovereign Propositions sent to Newcastle. The 4. Bills sent to the Isle of Wight. The Houses Votes dated to have no further Addresses to their King. to pass Acts of Parliament for confirmation thereof. Doubtless had they not met with a King (even beyond humane expectation) most magnanimous, it had been effected: And suppose this King's consent had been obtained, or that He, or any other succeeding King shall be drawn by force, or fraud, to consent thereunto, and admit such Acts of Parliament to bind, it will follow that no Government can be more arbitrary, nor any people from free Subjects become more absolute slaves, than the Englishmen are and will be. And being thus brought into misery, that which is still worse, ourselves and posterity to the end of the world, are likely to live under this vassalage without hope of redemption, if not by God's mercy timely remedied. For it cannot be imagined that the Members, so long as they have power over their Prince and other His good Subjects, and whilst their persons, estates and Fortunes are thus at their will and pleasure, it cannot be imagined (I say) that by their own judgement (against themselves) or sentence, we shall be enfranchised. Now if I appeal to any rational man (not prejudicated as a person herein particularly concerned) whether that Law which declares such Acts of Parliament to bind, or that which judgeth them void be the more prudent, wholesome, and reasonable Law: I dare be bold to conclude, that sentence herein will be given for the latter. And since it followeth that some Acts of Parliament may, and aught to be adjudged void, that being granted, reason dictates to every man of sense, that not the Members, but some other known persons must determine which Statutes bind the people and which are invalid. Now that the Judges of the Realm have power not only to determine which Acts of Parliament are binding and which void, but to expound the meaning of every Act, is no new doctrine, it is the known Law, and the common practice of the Kingdom, which is the Law itself. In the books of our Law it is declared for a fundamental ground, a Coke 8. f. 118. D. & St. l. 1 c. 6. fo. 10. That such Statutes as are against Common-right, repugnant, or impossible, are void, and that they ought to be so declared by the Judges of the Realm; For example, by the Statute of Carlisle made 35. E. 1. it is ordained that the 35 Ed. 1. c. 4. Seal of the order of the Cistercians and Augustine's shall be kept in the custody of the Prior and four others, and that any deed, sealed with any other seal, shall be void: and this Statute is judged to be void in Law, and that the Prior notwithstanding this Law, and against the express words thereof, sealing deeds with any other seal, those deeds are judged good, for the Prior could 27. H. 6. title Annuity 41. Coke 8. fo. 118. not seal with that seal in the custody of the other four, and therefore that Statute repugnant in itself, and so void. It is likewise declared by the Judges, b Coke 8. f. 111. that where a Statute gives power to A. to determine all pleas happening within his manor, in that case A. shall not have power to determine such pleas as concern himself, and the same it were if the Statute should in express words grant to A. that authority, for it is repugnant to reason and common justice, that any man shall be judge in his own case. It is resolved by the Judges of the Realm, that divers prerogatives are so inseparably annexed to the Crown, as that they cannot be severed by Act of Parliament; for example, by a Statute made 23 H. 6. c. 10. it is enacted that no man shall continue Sheriff of a Shire above one year, and by that Act declared in 23 H. 6. c. 10. these words, that all Patents from the King of that office of Sheriff for years, for life, in tail, or in fee shall be void, any clause or words of non obstante put into such Patents notwithstanding. Now thisStatute, as to the King's power is by the Judges of the Realm declared void, and although that Statute was never repealed, all Kings since might have granted that office for life, in tail, or in fee, and grants thereof have been made accordingly, contrary to the express words of that Statute, yet resolved to be good: a 2 H. 7. 6. b. Co. 7. 14. P. Com. 502. b. And ever since that Act all Kings have most frequently continued Sheriffs in their office for longer time than a year. Even common experience showeth, that the power of the old Sheriff, doth not cease or determine until the King hath made a new Sheriff, and notice thereof given to the old, which oftentimes happeneth to be after the year: And in Michaelmas Term 5. and 6. of Queen Dy. 355. 36. Eliz. the Sheriffs (by reason of the great plague then, and of the adjournment of that Term wholly) were made and named by the Queen without the Assembly of the Justices in the Exchequer, according to the common usage, and though for the most part none were named but one of the two which remained in the bill of the year than last passed, yet by all the Justices and Sergeants at Law, it was holden, that the Queen by Her prerogative might have made a Sheriff without any such election, notwithstanding any Statute to the contrary, which appears in Dyers Reports. Dy. 225. 35. The King is fountain of Justice & mercy, therefore if it were enacted that he shall not grant Commissions to determine felonies, or that from henceforth it shall not be in his power to pardon any Crime, or that all such pardons shall be void, such Laws would be void, and would not bind, as being repugnant to Law, government, Coke 7. 37. and reason, to stop that fountain. The King by His Prerogative hath authority to dispense with penal Laws, which cannot be taken from Him by Act of Parliament, although in express terms it be enacted that all such dispensations with a non obstante shall be void; which clearly appears by the foresaid case of the Sheriff, for though by that Statute of 23 H. 6. it is enacted that all Patents of the King shall be void as before, although with a non obstante, yet the Judges at all times have resolved it, as a thing without dispute: That those Patents (although expressly against the words and intent of that Act) with a non obstante are good in Law. And so the books take it for a fundamental ground, that the King may by His Patent with a non obstante dispense with Laws made by Act of Parliament, and put the difference a Coke 7. 37. between Acts prohibiting what the Common-Law prohibits b Coke 4. fo. 35. in which case the King cannot by His letters Patents with a non obstante (how strong soever it be penned) dispense with such Acts or any one point of the Common Law of England, which forbids only that which is malum in se, otherwise it is of Acts prohibiting things not before prohibited by the Law, which are only mala quia prohibita, the King may dispense with such Acts by His Letters Patents, with a non obstante, though those very Acts expressly say, that such Letters Patents with a non obstante shall be void. That Prerogative being inseparable as is showed before, and not to be abolished by Act of Parliament, no more than His other prerogatives of as high a nature, viz. those of denouncing War and concluding Peace, enhancing or debasing of Coin or the like, which are flowersinseperably annexed to the Crown, and most proper for a King, but not suitable with the condition of a Subject, therefore the Judges have resolved they cannot be severed by Act of Parliament. And the same it is when the Law is only declared by Act of Parliament. If the King and the two Houses declare, that it is not by the Common Law of England, Treason to kill, or to attempt to kill the King, the Queen, or Prince, or that it is not felony to steal, or the like, such declarations are of no effect, they ought not, they do not, they cannot conclude the Judges. And as every Statute may be judged by them whether it be binding or void, so the meaning of the words thereof must be by the Judges expounded too. It is the true sense which is the Law, not the bare letter, (and this exposition is likewise the office of the Judges as is said before.) For example, by a Statute made 1 Eliz. it is enacted that all leases made afterwards by any Bishop of his Church-lands, exceeding El. not printed. 21. years or three lives shall to all intents and purposes be judged void, and yet it hath been adjudged, both in the King's Bench, and in the Common Pleas, that a lease for an hundred years, is not void against that Bishop himself who was lessor, wherein the Judges expound the meaning of the Lawmakers to be thus, that their intent was only for the benefit of the Successors, not to relieve any man against his own Act, therefore such leases made after the Statute, exceeding twenty one years, or three lives, are voidable only by the successors if they please, and adjudged not void against the lessour himself, contrary to the express words of the Statute: And in like manner, are other infinite Acts of Parliament expounded by the Judges, wherein it is a maxim in Law that their exposition of Statutes ought to be according to the rules of the Coke 3. fo. 13. & 77. Blow. fo. 352. Common Law, by which it appears the Members are not the interpreters, for they know not the rules of the Law. Besides, the Parliament cannot be the final expounders of Statutes for these reasons. 1. It appears before that it is not the bare letter, but the true sense and meaning of the words, which is the Law. And the King and the two Houses cannot declare the meaning of those words, but by Act of Parliament, they cannot (saith our Law) otherwise speak, what ever they Act, or do, in any other way, is extrajudicial: if the King and both Houses unanimously deliver an opinion, (without reducing it to an Act of Parliament) concerning the meaning of a former Statute, it is of no more nor greater force, or effect, then for the Judges of a Court of judicature, to give their opinions in a point of Law, in a case not judicially depending before them, such an opinion binds not, nor is pleadable in a Court of Justice. And besides the absurd inconvenience, and the impossibility to have an Act of Parliament to determine every question arising upon Statutes, it may so happen, as that the King and the two Houses can never give an end to one controversy: For example, suppose an Act be made to explain the meaning of former Statute ambiguously penned, the words of this Act must have a meaning too, and may admit of several interpretations as well as the former Act did, and several persons as they are therein concerned, may differ in the exposition thereof, and so irreconcilable as not to be ended without the authority of a Judge, and this may fall out upon every Act of explanation upon explanation in infinitum, and consequently by that way there cannot to the end of the world be a final determination of the difference. 2. The validity of every Statute, and the exposition thereof, at the will of every person concerned, may regularly be brought before the Judges of the Law, but cannot judicially depend before the Parliament. For example, every Statute is binding, or void; if binding, it concerns the Subject in his person or estate, and when it is put in execution, the ministers, or actors therein, may (at the will of him interrupted thereby) be sued in the Court of Common Pleas, or in some other Court of Justice, by an action of trespass, by which suit what ever the Act of Parliament is, both the validity of the Statute, and the meaning of the words thereof, is submitted to the Judges of that Court, and to their judgement; As suppose this case to arise upon the foresaid Statute of 23 H. 6. that one who hath continued Sheriff above one year by virtue of a Writ directed to the Sheriff of the same County, doth arrest the body of A. who for this brings his action of trespass in the Common Pleas, in which the Sheriff justifies by virtue of the Writ, A. replies, pleads the Statute, and shows, that the year was ended before the arrest, upon which the Sheriff demurs in Law; by these plead the whole fact is confessed on both sides, the Sheriff doth acknowledge his year was out before the arrest, and A. confesseth the arrest was by virtue of the Kings Writ directed to the Sheriff, and so the question being matter of Law, it is to be determined by the Judges of that Court, wherein the sole doubt is, whether that Statute be binding, or void: for if binding, judgement ought to be given for the plaintiff A. because the Statute being good, the defendant was not Sheriff after his year ended when he made the arrest, and so had no authority; if void, it ought to be given for the Sheriff, for then the Law is not by it altered, and so he was Sheriff at the time of the arrest, although his year was out. Now in this case no man can deny, but that the Judges must give judgement, else the Court of Common Pleas (which were absurd to imagine) hath not power to determine an action of trespass, and judgement being given (as in this case it ought to be) for the Sheriff (because it is already resolved and received for a known truth that the foresaid Statute binds not the King, this duty of the Subject to serve the King in person (saith the book) a Coke, calvin's case. fo. 14. being due by the Law of nature, cannot be severed by Act of Parliament) it is final. And so if it were enacted that a Member of the Commons House, or any other subject by name, should not be condemned, or punished for murder, who afterwards commits the fact, for which being arraigned at the King's Bench bar, he pleads the Statute, the Judges even against the express words, and intent of that Act, aught to give sentence of death. And chose if by Act of Parliament it were enacted that all Pardons for felony to be granted by the King, should be judged void, after which a subject commits felony, obtains the King's pardon for it, is arraigned at the bar, and pleads this pardon, it ought to be allowed being duly pleaded, and the Justices in such case ought not to condemn but to acquit the prisoner: And these judgements (as to any appeal to the Parliament) are final; they cannot be brought before the King and the two Houses by any suit, or action at Law: They cannot judicially determine any thing but by Act of Parliament; And if they shall in this case make a new Statute, that Law must (even by the same Judges) be expounded too. 3. The Parliament is a body so composed, as that it is not only improper, but almost impossible for these persons finally to determine any one point of Law: A Court of Judicature ought to consist of one entire body, and of such a body, as at all times hath power, not only to deliver its own opinion, but by that sentence to decide the question depending before them, but the Parliament is not so composed: The Members of that Assembly are divided into three several bodies, and their proceedings several and distinct: and obvious it is, that in one and the same thing they frequently conclude opposite each to other, yet until all three concur, it binds not. And so though every Member of those bodies hath given his sentence according to his own conscience, yet the question is not decided, and that which is worse, peradventure never can be brought to a period, for it may fall out these three bodies of the King, the Lords House, and the Commons, may in that perpetually differ in opinion. These things considered, every rational man must conclude, that the Parliament is not of a Composure fit for this work, nor instituted for that purpose: Those things (as afterwards in its proper place is more fully showed▪) are the office of the Judges of the Realm. By this it appears, that when the two Houses have passed a Bill for an Act of Parliament, and to it the King's Royal Assent is had, the Parliaments power ends, and then begins the authority of the Judges of the Realm, whose office is (the case being regularly brought before them) first to judge, whether the Act itself be good, and if binding, then to declare the meaning of the words thereof. And so the necessity of having a power upon emergent occasions to make new Laws is supplied, and yet the fundamental grounds of the Law, by this limitation of the power of the Lawmaker, with reference to the Judges to determine which Acts of Parliament are binding, and which void, is preserved. Upon the whole matter clear it is, The Parliament itself, (that is, the King, the Lords, and Commons) although unanimously consenting, are not boundless, the Judges of the Realm by the D. & St. fo. 18. Plo. 399. 563. Dyer 313. 231. Coke 147. Co. 8. 118. 33 H. 6. fo. 18. Co. 8. fo. 18. fundamental Law of England have power to determine which Acts of Parliament are binding and which void, and to expound the meaning of every Statute. Thus whilst every person, Court, and Assembly keep within its own bounds, the known Law protecteth every man in his just rights; the Subject, whilst that is observed, need not doubt protection of his person, and may securely challenge a property in his estate. But the Members do now teach, or (to speak more properly) force upon the people another doctrine: They without the King not only assume the power of a Court of Judicature, and that without any appeal from it, but an authority and power to Declaration 2 Nou. 1642. make and declare the Law, and that boundless too, whereby Law itself is totally destroyed. It is a Maxim in Law, that every disseisor of Land is seized in fee simple, and that no man can give a particular estate by wrong; for example: A. Tenant for years, remainder to B. for life, remainder to C. in tail, remainder to D. in fee, E. outs A. from his possession, E. doth not hereby get the estate for years, but by that entry hath displaced all the remainders, and (until reentry by A.) is wrongfully seized to him and his heirs: Like unto this was that of the Members: They injuriously excluded the King from his negative Voice in Parliament: They have not by it gained power to make Laws without Him, but whilst they continue this usurpation, they wrongfully disinherit both King and people of all their birthrights; The known Laws of the Land is by this totally subverted: until the King be reinvested herein, we have neither common Law, particular custom, or Statute Law, nor can any man challenge protection of his person, or property in his Lands or goods, for, what Law they make, how repugnant to sense, and reason, how barbarous soever it be, neither the Judges of the Realm, nor any other, if we may believe the Members, have The Houses Votes dated. power to examine, control, or oppose it: Thus our excellent Laws, the Members have so much, & so often boasted to defend, are by the same persons, at the same instant, and even by the same medicine (excluding the King from His negative Voice) they pretended to preserve them, destroyed. So that I confess, the Members were necessitated, not only to deny the King this power, but to assume authority without Him to make Laws, and that without stint or limitations: for by the known Law, the facts, and proceedings of these Members are Treason. Therefore they must make new ones, else be judged by the old. And to make new Laws, yet to admit the Judge's power to determine whether they bind or not, were to fall into the same Predicament of Treason: In the next place it is showed who are the Judges of the Law, which power (although with as little reason or sense as the former) the Members have usurped too. CHAP. V. That the Judges of the King's Bench, of the Common Pleas, and the Barons of the Exchequer, are the Judges of the Realm, unto whom the people are bound lastly and finally, to submit themselves for matter of Law. BUt some give this power to the Parliament, others to the two Houses jointly, others to the Lords House singly, and some make the House of Commons Judge of the Law. All which are mere surmises by faction raised and spread abroad since this Parliament, for besides what before is said herein, in the next precedent Chapter, upon consideration had of the quality of the persons of those Members, the Commission required to authorise a Judge of the Law, and the composier of that Body; It will appear, they are so far from having any such power, as that (the Lord's House in some particular things excepted) neither the Parliament, nor the two Houses jointly, nor either of them singly, can judicially, or finally determine any one point of Law. First for the quality of the persons: And to begin with the House of Commons. They consist of Knights of Shires, Citizens, and Burgesses: The Knights of the Shire, we see by experience, although sometimes men of estates are chosen, yet not always of the best understanding: For the Citizens, and Burgesses, the Cities and Corporations for which they serve, are Instituted only for advancement of trade, and accordingly the body of such towns and places, consist of Tradesmen, whose educations are only to learn Crafts and occupations, and the far greater number of them mecanick handicrafts: Besides, the true cause of authorising Corporations to send Burgesses to Parliament, is, that they may give information concerning the Trading in those places, to the end, if need be, to make Laws for the increase thereof; And therefore such Citizens and Burgesses should be tradesmen; which appears, both by the foresaid Statute made 1 H. 5. and the words ● H. 5. c. 1. of the Writs of Election: By that Statute it is enacted, that none shall be elected Citizens or Burgesses, but freemen, dwellers and Inhabitants in such Cities and Borough Townes. And by a Statute made 23 H. 6. It is enacted that none shall be chosen a Knight of Stat. 23, H. 6. c. 15. the Shire, but Knights▪ or notable Esquires, or Gentlemen borne and shall be able to be Knights. And no man to be such Knight, which standeth in the degree of a Yeoman, and under. And the words of the Writs of Election are these. For the Shire, Duos Milites gladiis cinctos, etc. For a City, Duos cives, etc. For a Borough, Duos Burgenses, etc. And so both by Act of Parliament, and by the Writ, the Intent of the Law is declared to be, that for the Shire, Gentlemen, for Cities and Boroughs Tradesmen are to be elected: And the Members who serve for those Corporations, are above four times the number of all the rest. So that the Laws of England for electing Citizens and Burgesses, being observed as they ought to be, the far greater part of that Assembly, must consist of Tradesmen and persons very unapt to judge the Law; Yet more proper for that service for which they were intended, than such as are at this present usually chosen; Whilst the Statutes and the Laws of the Realm were therein observed, we heard not of any tumultuous or disorderly proceedings in that House: But of later times, and especially since the beginning of King James His Reign, the Borough Towns, by procurement of factious persons, have more frequently chosen such, who were so far from having knowledge in the Trades and Traffic of those Boroughes; or being resident, or dwelling there, as that they never saw the Town, nor was the Burgess ever seen of any one of his Electors: yet contrary to the express negative words of the aforesaid Statute, and direction of the Writ, the Commons House declare those Elections Legal, which shows that these Members are very uncapable to understand the Law, else a company of persons who have illegally without any due election by faction as aforesaid, packed themselves into that body, and accordingly resolved to observe no other Law, but their own will, and so however, whether learned, or unlearned, not fit to be Judges of the Realm, or finally to declare the Law. 2. All the Members of that House, as well Knights as Burgesses are elected by the vulgar multitude, and therefore were elections made according to the Laws of the Realm, Popular elections sometime produce like unto themselves: In somuch, that it may happen that not one knowing man in the profession of the Law, or one person literate, shall be returned Member of that Assembly. 3. Experience shows it is most frequent as well for Knights of the Shire, as for Burgesses to elect Infants and Children, which are by that Assembly approved on, and have equal Voice with the rest, although by the Constitution of the Realm (as experience showeth) they are so far from being admitted Judges of the Law, as that none until he be of the age of twenty one years is capable to be sworn of a Jury, to try the least matter of fact. 4. All differences in that House are decided thus: First by debate the business is reduced to a head: Then the Speaker puts the question, than the Members Vote, and the greater number carrieth it, so that if the question be upon a point of Law, the quality of the persons of that Assembly considered, (admitting them as learned as ordinarily they are returned) the best which can be expected in such a case, is, That the major part (who is the Judge in every question there) may happen to concur in Vote, with some few of their fellow Members who they hope understand the business: And so at the best, this Judge decides the controversy by implicit faith: For, it cannot be imagined that the greater number of that Assembly, by any debate there had, shall understand many questions of a Law, which daily, and frequently happen. And for the Lords House, the Members of that Assembly have no other authority to sit, or Vote there b Coke, calvin's▪ case. fo. 15. Coke 7. fo. 33. but as Peers of the Realm, and admit the King never to create a Peer of the Realm, but a man of the greatest judgement, it cannot be expected understanding should always descend: Upon which ground it is, that a grant of a place of Judicature to one and his heirs, as to his heirs is void in Law, and although the education of the Lords, for the most part are fit for persons of Honour, yet they are not qualified to Judge the Law. Thus for the quality of the Persons: Now for the Commission. Admit every Member of each House, in knowledge, more profound than the most learned Judge, that makes them not Judge of the Law; If the most learned, because so learned, be a Judge, it is far more difficult to find out the Judge, then to know the Law, it is like as well the ignorant, as the learned, would pretend to the greatest knowledge: But that is not the rule to know a Judge, he is distinguished from other men by his Commission. It appears before, that no Court, Assembly, or Person, hath authority to determine any matter of Law, but by Grant from the King, by Act of Parliament, or by prescription: Even so it is for the power, extent, and jurisdiction of any such Court, person, or Assembly; For, as no man can have any authority but by Commission, so none can claim greater, or other power than is thereby granted: For example, If the Court be erected by the Kings grant, the Patent declares what authority the judges have, beyond which they have none: If by Act of Parliament the Statute doth express what they have Jurisdiction of, if by prescription, Custom, and use inform the judges what they have to do, and for a prescription to make it good these three things must concur. 1. It Dau. reports fo. 29. ought to be time out of mind, which is not allowed by our Law; (If it can appear to have had its commencement since the Reign of King R. 1.) Secondly, a Litleton fo. Coke 9 fo. 27. Davies reports fo. 29. although it hath been ancient, yet unless it have constantly and frequently practised without interruption, it is not good. Thirdly, The thing itself claimed must in the judgement of the Law be reasonable, otherwise, be the usage time out of mind, and how frequent soever, it ought to be disallowed, for b Litleton fo. malus usus abolendus. The Chancery, the King's Bench, the Common pleas, and the Court of Exchequer are Courts of Justice: The judges thereof have power of Judicature, and although in some things their authority may be enlarged, and in other things abridged by some particular Acts of Parliament, they have their jurisdiction c Coke 8. f. 145. principally by prescription. Custom and use is their Commission: The said Courts were not erected by Patent, nor by Parliament, yet every one of them hath its proper and peculiar jurisdiction: The Chancery for Equity, the King's Bench for Pleas of the Crown, the Common pleas for real actions, and other matters of the Law; The Exchequer for the King's Revenues: And every one of these Courts is circumscribed within its own bounds. The Chancery (unless it be in some particular cases warranted by custom) hath not power to determine questions of Law; nor the other three Courts matter of Equity: The Common pleas not to intermeddle with the Pleas of the Crown, nor the King's Bench (unless occasioned by breach of the King's peace) with questions concerning title of Lands; And none of them hath authority to extend beyond its bounds in any one particular: All which is made good, by authority and reason; For authority it is resolved in the books of the Law, that if the Judges of the Common pleas d Coke 10. fo. 76, 77. in an Appeal or Indictment for murder, felony, or other capital crime, condemn any person, their proceedings are void, as done coram non Judice. That person so condemned, although guilty of the fact, in the judgement of Law, is not attainted, nor his blood corrupted, he forfeits not his estate, and if executed, e Co. 10. fo. 76. although by the command of the Judges of that Court both Judge and executioner are guilty of felony, and punishable as if done without that command. If the Lord of a Leete hold his Court, or the Sheriff his Turn, at other times than custom doth warrant. Or the Court of marshalsea assume jurisdiction, not made good by use, their proceedings are void. In all which cases the Officers, or Ministers of those Courts, are punishable for executing the commands of the judges thereof; wherein the Law takes this difference, viz. When a Court assumes power to determine that which it hath not Commission to determine, f Co. 10. fo. 76. and when it hath jurisdiction of the cause, yet proceeds inverso ordine, in the first, as in the cases aforesaid; The Minister is not excused, or justified by the warrant of the Court; In the latter, the warrant or process of the Court, is a legal justification, as thus: If the Court of Common Pleas hold Plea without original, or award process of Capias against a Peer, and the like, in these cases, although the proceedings be illegal, yet in regard the Court hath jurisdiction to determine the cause, if it were a Co. 10. fo. 76. regularly brought before them, the process or warrant of the Court, is a good justification for the Minister thereof. And this rule holds with all other Courts, Assemblies, and persons, when they act, or do such things as they have b Co. 10. fo. 74. not Commission for, their proceedings are void: So that the Laws of England admits not of judges, but persons qualified to perform that office, yet ability by itself, is no Commission to make a judge. The Judges of the Common Pleas, are as learned in the Law, and as able for their knowledge to determine Pleas of the Crown as the Judges of the King's bench, but they have not the same authority. The Court of Common Pleas hath not used it, and consequently it is out of their Commission. And that no Court ought to extend its own bounds, is made good by reason; For if any Person, Court, or Assembly takes upon them, in any one thing, to execute that which their Commission extends not to, by the same reason, they may assume it in another, and so in infinitum, upon which it followeth, that the power of that Court, Person, or Assembly is become boundless: And if one Court, Person, or Assembly may enlarge its bounds, the like reason holds with every Court, Person, and Assembly in the Kingdom; and so a Parity introduced, and consequently the whole Government subverted and destroyed. In the next place it is considerable to know, what Commission the Parliament, the two Houses, or either of them, hath therein. And first for the Commons house: That Assembly hath no Commission from the King, nor by Act of Parliament to Judge the Law; and for Prescription, they fail in all the foresaid three particulars: for, they cannot challenge any thing time out of mind: The Assembly itself had its beginning after the Reign of K. Ric. 1. Secondly, admit them to have been time out of mind, they fail in the use, for until this Parliament they never executed or claimed any such thing. Thirdly, admit them to have been time out of mind, and constantly to have used the power of Judicature, yet it ought to be disallowed, because not reasonable: it is repugnant to the Rules of Law and justice, that persons not fitly qualified should have power of Judicature. By the constitutions of England, controversies are decided thus, The plaintiff exhibits his complaint in a Court of Justice, and that e Stat. 37 E. 3. cap. 15. in the Latin tongue. The Defendant answereth in the same Court and Language, out of which pleading the case ariseth; which sometimes is questio facti, and sometimes questio Juris: If it be facti, it is tried by a Jury sworn by authority of that Court where the suit depends, and that cannot be the Members of the Commons house, for (besides the difficulty of the Language) those Members cannot give an Oath; and if it be matter of law, the sworn Judge is to determine it; but they are not sworn to do justice. And for the Lords house it is granted, that in some things, which custom and use hath made good, the Members of that Assembly have power of Judicature; for, although that House, (as now it is form and settled) hath not been so ancient as to make a Prescription, yet the Prelates, the Peers, and the Judge's time out of mind, have been frequently called together by the Kings of England, and consulted with concerning making of Laws, and other the affairs of the Commonwealth. And amongst other things, the Lords (depending therein on the advice of the Judges) have so auntiently, as the beginning thereof cannot be made appear, by licerse of the King, upon Writs of Error, reversed erroneous Judgements given in the King's bench: But as the Lords have this authority by Prescription, so they are excluded from all other power of judicature, but that which custom and use doth warrant; for, Prescription, is all the Commission they have. Neither Grant from the King, nor Act of Parliament they have for a Court of justice. Now to give power to the Lords house, or to the Commons house, to enlarge their Commission, or Jurisdiction, the same inconveniences would thereupon ensue, as by suffering other Courts to do the like; if the Members of the Commons house, should at this day, take upon them to give an Oath, and this legally entitle them to it, by the same reason they might, (as now the present Members of that Assembly in effect doth) without King, or Lords, assume the whole Government. And for the two Houses jointly, they are not a Court of judicature; they have therein no Commission at all, neither from the King, nor by Act of Parliament, nor by Prescription. And for the Parliament, that is, the King and the two Houses, that body cannot properly be said a Court of Justice. The Office of a Judge is, upon a Question depending before him, to declare what the Law is; but the office of the Parliament, is only to make new laws. By this it appears, that neither the Members of the Lords house, nor of the Commons house are qualified to be Judges of the Law, nor have they either jointly, or severally Commission for that purpose. And lastly, admit every Member of either house in Learning sufficiently qualified to make a Judge, their composure considered, they are not capable jointly to perform that Office; they being two distinct bodies, their proceedings several and distinct, it cannot be expected, but they shall frequently differ in Opinion and judgement: therefore were they never so learned, should the King grant unto them power of judicature, or should they have that authority given them by an Act of Parliament, the Laws of England would judge both that Grant and Statute absolutely void e Coke 8. 118. as a thing most incongruous against sense, and reason. Upon which it followeth, that if the Lords House, or the Commons house, or both Houses jointly, have, or shall condemn any person, for Treason, Felony, or other capital offence, try any title of Land, tax the people with payments of money, seize or confiscate the Subject's estates, or the like, be it by Order, Ordinance, or any other way, all such proceedings are void, done coram non Judice: Coke 8. fo. 76. and consequently, both the Members, and all persons executing their commands therein, are by the Laws of England punishable, as Murderers, Felons, or other transgressors, because done without warrant or authority: And how long soever they shall continue this power, and how frequently soever it is used, that altars not the case, the Law is still the same it was. Yet herein, I do not abridge the power and authority of the Peers of the Realm. It is true, when the King hath constituted a Lord high Steward, and consented to the trial of a Peer for his life, for a fact committed against the known Law, such a Peer not only may, but aught (the Lords observing the rules of law) to be tried by the Lords his Peers. But there is no colour for the Lords, or for the Commons, or for both Houses jointly, although the King should give way thereunto, to try, or judge any Commoner: Every common person ought to be tried by his Peers too, that is, by a Jury of the Commons, and that jury by the Laws of England, aught to be of that County, and near that place, where the fact is committed. It is a Rule in our Law, that in capital offences, Vbi quis delinquit, ibi punietur: persons dwelling near the place, are most likely to have cognizance of the fact. Besides, by our law, every freeborn Subject of this Nation, hath at his arraignment, power and liberty to challenge jurors impanelled for his trial: But all such liberties are taken away by this usurpation of the Members. Thus it appears, that the Judges of every Court of Justice, so far as their Commission extends, and no other persons, are Judges of Law. But the Judges of no one Court, are those unto whom the people are bound lastly to submit themselves, for every Court of Justice in some respect is inferior to another Court or power unto which appeals lie, as in the case of a Writ of error and the like, unless it be in the Exchequer Chamber when the cause regularly depends before the Judges of the King's Bench, the Common Pleas, and the Barons of the Exchequer, into which Chamber, things of great weight and difficulty concerning matter of Law are usually transmitted; And being there judicially determined from that sentence, t● conceive no appeal lies to any other Court by Writ of error. That is the a Co. 5. f. 8. vid. the Kings Answer to the Petition of right. sentence and judgement of the Judges of the Realm: yet from that judgement some persons are of opinion, a Writ of error lieth before the Lords in the upper House of Parliament. But upon consideration had of the reason of the Law concerning the proceedings in Writs of error brought there: I conceive it were to little purpose to permit any such appeal unto the Lords upon judgements given in the Exchequer Chamber before all the Judges of the Realm. The power of the Lords House to reverse erroneous judgements, I conceive began thus; The Court of the King's Bench, is the highest Court of Judicature, wherein any suit of Law can legally and regularly be brought; and therefore their proceedings not to be examined by any other ordinary Court of Justice, every one of them being inferior to it: But the Judges of the King's Bench, are as subject to err as the Judges of other Courts; Therefore as requisite to have their proceedings examined. Now in regard the Judges of the Realm were at all times, at least assistant to the Lords House, it was proper enough to have the errors of the King's Bench reversed in that place: And having had its beginning thus, constant use and custom hath Legally entitled them unto it: Therefore, although peradventure it may have happened, that some few particular Writs of error, have been brought in the Lord's House, upon judgements given in some other Courts, I conceive the prescription (which is all the Commission they have) lieth only for the King's Bench. And I am the more confirmed therein, because the Law books mentioning the authority of the Lords House, in reversing judgements, do generally instance in the King's Bench, not naming other Courts. Besides, as the Lords House hath this jurisdiction by prescription, the same use and custom requires these circumstances. 1. That the King's consent to prosecute a Writ of error be obtained; because every judgement in the King's Bench, doth immediately concern the King, the jurisdiction of that Court being properly Pleas of the Crown. 2. That the Lords after the cause is brought before them, proceed by the advice of the Judges, which is indeed the essential part of the prescription: To have a profession of Law, Courts of judicature erected, persons learned in that profession appointed Judges thereof, it were most preposterous to have the proceedings of these Judges (even in the most difficult points of the Law) examined, reversed, and controlled, by persons ignorant in that profession. By the constitutions of England, no man is capable to be a Judge, unless he have understanding in the Law to perform that office. Therefore shall the King grant to one who is most learned, a Judge's place to him, and his heirs, as to his heirs it were void, and the same it were, if such a grant were made by Act of Parliament: And so consequently if the Lords should prescribe that time out of mind, they, and their predecessors, Lords of the Parliament, in Parliament time, have (without mentioning it to be with the advice and assistance of the Judges) reversed erroneous judgements given in the King's Bench, or in any other Court of justice, it 〈◊〉 〈◊〉 be disallowed, judged as an evil use, not consonant to the rules of Law or reason, it were (without any disparagement to their Lordships) all one (if not better) when the question is whether the judges of the Court of King's Bench, erred in judgement, to have it determined by casting of lots, for whether right or wrong judgement were given, if the Lords determine it, it is but chance whether they pursue the Law or not: And if by lot expense of money is saved. Therefore clear it is, to examine a judgement given in the Exchequer Chamber, by a writ of error brought in the Lord's House, is (in effect) for the same persons to judge whether themselves erred or not, and so whether the Lords have, or have not this power, the judges of the Realm a Co. 11. Lord La Wards case. Coke prefac. third report. are still depended upon; And in case the King, and the two Houses make an Act of Parliament, concerning the same thing, when that Act is passed, from them (as before appears) an appeal lieth (by an action or suit at Law) unto the Judges, who have power to determine whether that Statute be binding or void, and therefore clear and manifest it is, that in matters of Law the last and final sentence, is the judges of the Realm. But me thinks for a Nation which hath been governed so many hundreds of years by a known Law, and under it, so flourishing a people as the Subjects of England have been, and yet not to be agreed, who are the final Judges of the Law, is so gross a thing, as that all foreign Nations hearing of it, cannot but account us men to have lost our wits. In every constitution it is oftentimes difficult (even amongst the learned in the profession) in some particular questions arising, to determine what the Law is: But not to know what persons have Authority to decide those questions, is most ridiculous. The Judges of the Law ought to be so conspicuous, as that all persons, even from the most learned unto the most ignorant, may equally alike discern the men: Which considered, I conceive it necessary not only for the information of the vulgar people of England, which have herein been grossly deceived, but for the Vindication and Honour of our own Nation, and the Law established so far to digress, as in a word, to show how this fond question was raised and controverted in this Kingdom, which was thus. This Nation is governed by a known Law, that Law ●●dgeth the King to be our only Supreme Governor, gives power to the King, with the assent of the two Houses, and no other, to alter that Law, and to make new Laws, And to the Judges of the Realm it ascribes the power finally to declare the Law: Now such, whose aim is to usurp Sovereignty, or to swallow the wealth of the Nation, cannot hope to effect their ends by submitting to the known Law, That were to commit a crime, & immediately submit themselves to the block. Therefore they must either deceive the people by mis-informing them what the Law is, else by strong hand to enforce upon them a new Law for their own purpose. Now that the Members aim was at no less than all, is too too apparent: But at the beginning of these distractions, they were not in a condition to force the people, Therefore their judgements must be deceived. Hereupon the Plot was, that the Members (in the opinion of the people) should gain the reputation of being the final Judge of the Law, which was effected thus: The people by reason of some good Laws obtained of the King by the Members procurement, were inclinable to believe whatever they propounded; Then the Members Voted Thus, viz. That when the Lords and Commons declare what the Law of Their Vote. the Land is, it is a high breach of Privilege of Parliament to question it. This being published, and the people (by Incendiaries spread throughout the Kingdom for that purpose) by false Calumnies cast upon the King, being grossly abused, the Members work was (in a manner) finished: Then they took upon them the power of the Militia, declared that the Sovereign power was not in the King's Person, but virtually in them: And from thence, what made for their advantage (how gross soever) did but the Members declare it for Law, and good enough: Thus the justice seat, even by a sleight became both disputed and usurped: But now the Scales are turned, The people's understandings are enlightened, they see how grossly they were misled, They find that whilst the Judges of the Realm declared the Law, both King and Subject were preserved in their Persons, lives, and fortunes: That by this usurpation, the known Law is subverted, and consequently, that protection vanished. But as the people have changed their opinions, so have the Members framed a new Argument: They have left the Word, and betaken themselves to the Sword: They having Armies to back them; their will is now the Law, and resolve whilst they can, by force to hold it. Thus we are fallen into a gulf of misery, whereas had the people been but half so careful to have found out the Truth, as they were industrious to effect their own destruction, these calamities had been prevented: When the difference first happened between the King and the Members, had not the people leapt into their own ruin, but taken the least consideration thereof; had they bethought themselves how they were to be rightly informed what the Law was, they must have resolved, that as we had a Law, consequently there must so long have been a Judge of that Law; But the Members neither exercised, or pretended any such power, one minute beyond the foresaid Vote. And for Authority, to make their pretence good, none can be produced, but that their own testimony in this their own case; and in a thing of no less concernment, than the gaining of the wealth of the whole Kingdom to their own use, and enslaving the people to their own pleasure. Hereupon, doubtless the people would have concluded, that (not the Members) the Judges of the Realm were the men, unto whom all persons were Obliged to submit for matter of Law. But it is objected, That this is too great a power for the Judges, for (say they) those persons may, and do err in Judgement, and are subject to corruption, as in that case of Ship-money. Answer. It is true, the judges have erred, and it being granted, that in the case of Shipmoney, they did err, and were corrupt too, and that it cannot be expected but they shall again, and again err, & be corrupt; yet until we have other Creatures than Men to make choice of for judges, this Objection ought to be disallowed: We find the Members to be no Gods. And for the weight of the business, concluded to be too great for the judges; I Answer, that, that power must be in some; To have a Law without a Judge, finally to end controversies, were worse than to have no Law at all: And to have a Law, and a Judge of that Law, who understands not the profession, were a degree worse than that. Suppose it granted, that the judges in that case of Shipmoney, gave Sentence by corruption; whereby about 200000. l. per annum was drawn from the people: To conclude hereupon, that we must from henceforth have no more learned men chosen judges, is extreme harsh. It might as well be argued thus, The Members of the two Houses have erred in judgement, and have been corrupt, ergo, we ought to have no more Parliaments. For as before appears, the Members of former Parliaments have most grossly erred; And for these present Members they have not only erred, but have been (in the highest nature) corrupt too. First, They erred in judgement, by assuming the justice seat, the Sovereign power of Government; and so in infinite other particulars. Then for corruption, since these Authorities were by them arrogated, twice twenty times 200000. l. per annum, illegally and barbarously drawn from the people, doth not stint them. They have corruptly by one Vote, not only given themselves the wealth of the whole Nation, but have likewise enslaved both King and People for their lives and fortunes to their own will. But clear it is, no constitution can avoid every mischief: it is the best Law which prevents the most inconveniencies: therefore in this case, that which can be done, is to have persons who are learned in the profession, made judges of the Law: and all possible care taken that they do justice, and for that, by our Law, no man is capable of a judge's place, unless he have ability to execute the same: And although he be sufficient for learning, yet being advanced for bribes or rewards, he is by Law likewise disabled to perform the office. They are sworn to do right to all persons; and although error in judgement Vid. the Oath▪ is no crime, yet corruption in the judge, be it for bribes, affection, malice, desire of preferment, fear, or any other cause, is by our Law an offence of an high nature, and and most severely punished. Now (if in stead of exalting themselves) the Members had (as they made some show for a while) made inquiry, how, and by whom the Judges were drawn (as the Members allege) to give that corrupt sentence, and had presented the same to the King, to the end, not only exemplary punishment might have been inflicted upon them; but they put out of their places, and new judges elected, the Members had done like Parliament men, that had pursued their Commission. And so, whilst the King, the Parliament, the Judges, every Court, and Assembly retain their own proper authority without clashing with, or encroaching each upon other, a Co. 10. fo. 74. As by the Laws of England they ought to do, both King and Subject are preserved in their just rights: And this aught to be exactly observed, notwithstanding the superiority, or inferiority of any Court, power, person, or Assembly; because one Court in some respect is superior to another, that takes not away, nor lesseneth the proper jurisdiction of the inferior Court: Scarce any inferior Court, but it hath some powers, which the superior Court hath not: For example. The Court of CommonPleas hath power between party and party, to determine real actions, which the King's Bench hath not: The Assembly of the Commons House cannot give an oath, yet the meanest Court of Justice (even a Court of Pipowders) hath that power; So that, if it were admitted, that the two Houses of Parliament were a Court of Justice, (as it is not) And that it were the highest Court of that nature in this Kingdom, that would not at all make good their pretence▪ to be the final Judge of the Law, from whom no appeal should lie. But by this Vote, and practise of the Members, all Courts of justice, and rightful powers in the Kingdom are put down, the Law totally subverted, and all things reduced to their arbitrary power. Upon the whole matter clear it is, that the Judges of the aforesaid three Courts, are the Judges of the Realm, and the persons unto whom all the people of this Nation are bound lastly and finally to submit themselves for matter of Law. But notwithstanding all this, the same necessity which made the Members exclude the King from His negative Voice, and so to usurp a boundless power to make Laws, enforceth them, to arrogate the Justice seat too. For, it were to little purpose for them to declare it Treason for a Subject to speak to His King, and infinite such like gross contradictions both to reason, and the known Law, and yet permit the rightful Judges to determine the same questions, that were both to exalt themselves up, and at the same instant to cast themselves down again. But they tell us they are no such babies: So long as the people will be fooled, nothing is more certain, but Tyrants they will be to us their slaves: In the next place it is showed who ought to nominate and authorise the Judges of the Realm. CHAP. VI That the Judges of the Realm ought to be elected, and authorized by the King of England, for the time being, and by none else. THe legal authorising of the Judges of the Law, is of that importance, as upon it depends the preservation of the people, for no Law, no government, no Judge, no Law, and if authorised by an illegal Commission, no Judge. It appears before, that when the judge extends beyond the bounds of his Commission, his proceedings are void, as done coram non Judice. Upon the same grounds, be the words of the Commission never so large, if the authority be derived from such as have not power to grant it, the whole Commission is void. Yet Mr. Pryn, by the authority of the Commons House, hath published a Treatise entitled thus. The Parliaments right to elect Privy Councillors, great Officers, and Judges. Wherein he endeavours to prove the two Houses, by the Laws of England, aught to elect the judges: And proceeds thus. Kings (saith he) were first elected by the people, and as he believes, the people at the first elected the Judges and great Officers, and bound them by public Laws, which appears (saith he) by infinite Acts of Parliament, regulating both the power of the King, and His Officers. That in ancient time Lieutenant Generals and Sheriffs, were elected by the Parliament, and people: That the Coroners, Majors, Aldermen of Corporations, Constables, and other such like officers, at this day are elected by the people, Knights of Shires, and Burgesses are elected by the Commons of the Realm. That the King can neither elect a Commoner, nor exclude a Member of either House to sit or Vote. That the Parliament consists of Honourable, wise, grave, and discreet persons. That although the Kings have usually had the election of great officers, and Judges, it hath rather been by the Parliaments permission, than Concession. That the Judges and Officers of State are as well the Kingdoms as the Kings. And saith, that Mr. Bodin a grave Politician declares: That it is not the right of electing great officers which prove the right of Sovereignty, because it oft is, and may be in the Subject. Answer. Although his whole discourse, is either false or impertinent, yet his saying that Kings were first elected by the people: That the people as he believes elected the Judges, and bounded them by public Laws. And for proof positively affirming (although not naming one Act) That all this appears by infinite Acts of Parliament, regulating the King and His officers. The vulgar may thereby conceive that the Members of the two Houses without the King have made Acts of Parliament. That by those Acts it appears, That the people elected the first King of England, and the Judges, and bounded them by public Laws. Although Mr. Pryn himself well knows, that never any Act of Parliament, was, or could be made, without the King's express consent: And that the people of this Nation have been governed under Kings 1200. years before the first Act of Parliament at this day extant. So that if Mr. Pryn had made his Argument according to the truth of the fact, it had been but thus. After King H. 3. begun his reign (and not before) the Kings of England have made some Laws by Act of Parliament, whereby in some things they have regulated their own authority, and the power of their officers and Judges, Ergo, the people (although we had Kings 1200. years before that) elected the first King, the Judges, and bounded them by public Laws. Besides, admit the people had elected the first King, and the Judges; That nothing proves, that the Members of the two Houses at this day by our Law outgh to nominate the Judges. And for the rest of his Arguments they are to this effect. A question being asked, who ought to elect the Judges? Mr. Pryn saith, Lieutenant Generals and Sheriffs were anciently elected by the Parliament and people, Colonels, Majors, Aldermen, Constables, Knights of the Shire, and Burgesses, are elected by the people. King's cannot elect a Member, or exclude him from sitting. That the Members are honourable, grave, and wise. That the Judges are the Kingdoms as well as the Kings. That although the Kings have usually had the election of them; perchance it was by usurpation, and Mr. Bodin a great Politician saith, that the election of these officers may be and often are in the Subject. Now hereupon to conclude, Ergo, By the Laws of England, the Members of the two Houses ought to elect the Judges. I cannot more aptly parallel the Argument then thus, How many miles to London? Answer, a poke full of plums, Ergo, it is 20. miles to London, upon this it might as well have been concluded, 40. 100 or 1000 miles to London as 20. and so for electing the Judges, upon any of Mr. pryn's reasons, or upon all together (admitting them all true) It might with as much sense and reason have been concluded thus, Ergo, the Major of Quinborough, the great Turk, or the man in the Moon ought to elect them. Besides, the Members of the two Houses cannot have the election of the Judges for these reasons. First, the Chancery, a Coke 5. fo. 62. 9 E. 4. fo. the King's Bench, the Common Pleas, and the Court of the Exchequer, are Courts of Justice by prescription, they were instituted before the time of memory, none knows the beginning thereof, b Coke 8. f. 145. but certain it is, they were Courts of justice before the House of Commons had being. Secondly, as it is necessary that the judges of the Law be known persons: It is as requisite that such as elect them, should be constantly visible. But the Members out of Parliament are invisible. Thirdly, suppose it enacted; That none that shall be a judge unless elected by A. and B. It were no wonder for them, irreconcilably to differ in their choice: And the two Houses are as distinctly two, as A. and B. That difference which is, renders the Members more improper for the work, and consequently not of a Composier fit to elect the judges. And that this is the King's right, is made good thus. First, It appears before, that those Courts, have had Judges time out of mind. And so long as any may can show, or prove, there hath been Judges of those Courts, so anciently the Kings of England and none else have elected and authorized them, which is the strongest proof in the Law: It is the Law itself. It were absurd for any man to deny that it is felony to steal, or that the eldest son is heir to his Father's land, yet there is no other proof to make it good, but use and practise. And the Kings have as anciently, and constantly, elected the judges, as theft hath been punished, or that the eldest son hath by descent enjoyed his father's land. Secondly, if this King hath not right to elect the judges, no former King had it, and consequently we never had one Judge rightly authorized: So that Mr. Pryn hath found out a point in Law, which at once makes a nullity of all former proceedings in those Courts, as things done coram non Judice. But this not all: If Mr. pryn's doctrine be true, we have had no Parliament, for the Kings not having power legally to authorise the Lord-keeper, all creations of Peers are void, and so the Writs for electing the Knights and Burgesses were illegal and void too; And consequently Mr. pryn's Law admitted, there is no Member of either House Lawfully authorized to sit or Vote. And for authority of books, either Law or History, I dare be bold to say there is not one man in the World, until the sitting of these Members, who hath upon any occasion mentioned these things, but hath delivered it as a fundamental ground, and a positive truth: That the authority to elect the judges, is in the King alone. So thatsuch as are unsatisfied of the King's right herein, may with as much reason doubt whether we have had a King, Law, or government. Nothing can herein be alleged against the King, or on the Members behalf, unless a new maxim of Law be started up: That no proof (be it never so clear) is sufficient to entitle the King to any Interest, or authority; But for the Members, although they have neither authority, use, practice, precedent, or reason to make it good, have title and interest, to what they list. But if the two Houses have the final power to judge the Law, and that every one who shall dispute their Votes, break the privilege of Parliament. It matters not who hath the election of them, nor who are chosen: If the man be flexible enough, the meanest capacity, in one day's study, and with the expense of one single penny, may be sufficiently complete for a State's Judge, his Library needs not consist of more books than a copy of the Houses Vid. the Votes. Votes, whereby we are declared breakers of the privileges of Parliament, to deny that to be Law which they declare so to be: For by these Votes, we have no Law but the Members will. And consequently those persons they call judges, are no other but their Echoes. But the true Judges authorized by the King, have not only the name, but the power of Judges, the known Law of the Land is their rule to determine every question depending before Vid. the Oath. them, which they are sworn to observe, notwithstanding any command of the King, the Members, or any persons whatsoever. And consequently every one is thereby preserved in his just Interest; but by the Members taking upon them both to nominate the judges, and to declare the Law, the Law itself is destroyed, and both King and people enslaved. Upon the whole matter clear it is, That the King and none else hath power to nominate and authorise the aforesaid judges and officers: And therefore if the Members of the two Houses have, or shall, either in the King's name, or in their own, de facto, appoint any persons for Judges in those Courts, or in words, by Commission of Oyer and Terminer, or general Gaol delivery, give power to any to execute the office of Judicature, in Circuits or otherwise, such persons have not the Jure, the power of judges. For the Members have no more authority to make a Judge, or to give any such power, than any other subject in the Kingdom hath therein. And consequently all the judgements, acts, and proceedings of those nominal judges, or such Commissioners are void as things done coram non Judice. Every person, by such authority, who, either in the King's Bench, or at the Assizes, or elsewhere, hath been, or shall be condemned and executed for any crime (whether guilty or not guilty) is murdered. And every other judgement or sentence by them given, either in Capital, Criminal, or Civil affairs, is invalid. In the next place it is proved that the King is the only Supreme Governor. CHAP. VII. That the King is the only Supreme Governor, unto whom, all the people of this Nation in point of Sovereignty, and Government are bound to submit themselves. AGainst this undoubted right of the Kings, these distractions have produced another Treatise of Mr. pryn's likewise published by authority of the Commons House, entitled thus. The Parliament and Kingdom are the Sovereign power. Wherein his aim is to persuade the people that the Members of the two Houses, are the supreme Governors of this Kingdom, and begins thus. The High Court of Parliament, and whole Kingdom, which it represents (saith he) may properly be said to be the highest Sovereign power, and above the King, for (saith he) every Court of Justice; whose Just resolutions, and every petty Jury, whose upright verdicts oblige the King, may truly be said to be above the King's person, which it binds. But the Court of Parliament hath lawful power to question the King's Commissions, Patents and Grants, and if illegal against the Kings will, to cancel or repeal them. Therefore the Parliament hath Sovereign power above the King. Answer. Here I deny both his Major and Minor. First, for his Major. Although it is true, that every Just resolution of any Court of Justice, That is, when the Judges legally determine such things as regularly depend before them, in point of Interest binds the King as well as a Subject, that proves not a Sovereign power in the Judges. If so, it followeth, that the Judges of the Kings-Bench, the Common Pleas, and of all other Courts of Justice, And (by M. pryn's Argument) every petty Jury too, have (in point of Sovereignty) a power above the King, which is most grossly absurd. So that, admit the two Houses a Court of Justice, which they are not, and to have power legally to determine Causes, which they have not; That is nothing to Sovereignty. It is one thing to have power to make Laws, another to expound the Law, and to Govern the people is different from both. The first appertains to the King and the two Houses, the second to the Judges, and the third is the King's sole right. Neither the making, declaring, or expounding the Law, is any part of Sovereignty. But regulating the people, by commanding the Laws to be observed and executed, pardoning the transgressors thereof, and the like, are true badges of a Supreme Governor: All which are the Kings. ☞ sAnd for his Minor, take his meaning to be the true Parliament. That is, the King and the two Houses. And it is false that the two Houses without the King, have power legally to cancel, or make void any Commission, Patent, or Grant of the Kings: For (as before appeareth) That united body cannot speak or do any thing but by Act of Parliament. To say the Parliament without the King may make a Law, is as gross a Contradiction, as to affirm that the King may make an Act without the King. And his meaning being taken to be the two Houses without the King; In that sense the Members have herein no power at all, for (as before appears) they are neither a Parliament, nor a Court of justice; and consequently, have not jurisdiction legally to cancel or repeal any Commission, Patent, or Grant of the Kings. But (saith Master Prin) the King, although he be chief, yet he is but one Member of the Parliament, and (saith he) the greatest part of any politic body is of greater power than any one particular Member. As the Common-council is a greater power than the Major, the Chapter than the Dean, the Dean and Chapter than the Bishop, and so the whole Parliament, than the King, for (saith he) in an Oligarchy, Aristocracy, and democracy, That which seems good to the major part is ratified, although but by one casting voice, As in election of the Knights of the shire, Burgesses, and the Votes in the two Houses. And saith he, by the Laws of England, The Kings, the Lords and Commons make but one entire Corporation, and so concludes, that the Major part of the Parliament, which in Law (saith he) is the Corporation, is above the King. Answer. There is scarce one word in this discourse but it is false or misapplied. It appears before, That the Parliament consists of 3 distinct bodies, viz. the King, the Lords House, and the Commons House, and in making Laws, (which is all they have to do) they have but three Voices; yet that which seems good to the major part of these three, is not ratified: For (as before it appears) they must all concur, else no Parliament. It is true, where the Government is Aligarchicall, Aristocratical, or democratical, the major part determines the Question. But this is misapplyed to the business in dispute, concerning the Sovereign power; Our Government is Monarchical. The people of England are not Governed by a Parliament; The use of a Parliament (as before appears) is only in some things, when necessity requires, To alter the old, or make new Laws, wherein the foresaid three bodies, viz. the King, the Lords House, and the Commons House are jointly trusted. If Mr. Pryn be asked, what he means by the Major part of that Corporation, which he in this place calls the Parliament? His Answer must be one of these, viz. Any two of the aforesaid three bodies, or else, That the King, the Lords, and the Commons promiscuously put together, are to Vote as one Assembly, and the greater number of single voices (not distinguishing the several bodies) to carry it. Grant the first, And then the King, and either House or both Houses without the King have power to make Laws. Therefore against that, I suppose both Mr. Pryn, and the Members themselves, will conclude. But the latter it is he intends, for by that, the House of Commons shall obtain the sole power of making Laws: That Assembly being in number, almost treble to the King and the Lords, And so both King and Peer-age excluded; And that not all, but in effect the Gentry too, for the Burgesses are in number, far more than all the rest. And (as before appears) these Burgesses not only may, but by the true intent and meaning of the Law ought to be tradesmen. Then for his particular cases cited for his proof, viz. the Major and Commonalty, the Dean and Chapter, the Bishop, Deane and Chapter, they are all guided by their Charters and foundations, which they ought to pursue; And none of them have power without their head to make any binding Act. viz. The Commonalty without the Major, the Chapter without the Dean, or the Dean and Chapter without the Bishop. And so it is with the Parliament, although both Houses concur in one opinion, It binds not without the King's consent. And for the election of the Knights and Burgesses, that is very impertinent to the point in question. Then M. Pryn saith, That if the King propound a Law, it binds not, unless it be consented unto by the Parliament. Ergo, the chief legislative power is in the Parliament, not in the King. Answer. Here M. Pryn according to his wont sleight, divides the King and Parliament, making them two things, and ascribing unto the two Houses without the King the name and power of a Parliament: Whereas he knows neither name, nor power is due to them. And for his Argument it makes more for the King, then for the Members. For (as before it appears) Laws made by Act of Parliament, although they bind not without the consent of the two Houses, yet they are the King's Laws, a Coke 7. fo. 36. 37. and by himself alone he may dispense with them. Therefore it might properly be concluded, Ergo, the Legislative power is more in the King, then in the Members. But for Master pryn's conclusion it is a mere non sequitur. Then saith M. Pryn, Bills for Acts of Parliament are usually agreed on before they come to have the King's assent. And such Bills saith he, the King cannot alter. But if the King send a Bill which he desires to have passed; It must be thrice read, and assented unto by both Houses, who (saith he) have power to reject, alter, or enlarge it as they think fit. Answer. This is a gross juggle, all his words in some sense are true, yet as he intends the vulgar shall apprehend his meaning, nothing is more false: It is true, if the King send unto the Houses a Bill for an Act of Parliament, they may alter the Bill. But that done, until the King assent unto it so altered, it is no Law. And so when both Houses present a Bill to the King, he may alter it, but his Royal assent makes it not a Law, until the Houses have consented to it so altered; yet unless M. Pryn be understood thus, that when the King sends a Bill to the Members, That they may alter it, and make it what they please; And that new Bill to bind the King without his further consent, he hath said nothing, and that being his meaning, he hath abused his Reader with a gross falsity. Then M. Pryn observes the penning of the Statutes for Subsidies which he sets down thus. Your Commons Assembled, humbly present your Majesty with the free gift of two entire Subsidies, which we humbly beseech your Majesty to accept. Therefore (saith he) the Commons have the sole power to grant or deny Subsidies. And (saith he) they being the chief Lawmakers in these Acts, by like reason they are so in all other public penal Acts. Answer. Here M. Pryn affirms, that the Commons House, without King or Lords, may charge the people with Subsidies, And infers thereupon, that they have the like power in any public penal Act. But observing his proof, And by the same sleight he may as well maintain (even by the Scripture itself) That the Devil, not God, is to be worshipped. It is thus. Perusing the Acts themselves, by which Subsidies are granted, and the words are these, viz. We the Commons humbly present your Majesty with two Subsidies. Thus far he recites the Act; Then the words follow in this manner, viz. Vide the Acts. And therefore we humbly beseech your Majesty that it may be enacted. And be it enacted by the King's Majesty, the Lords, Spiritual and Temporal, and the Commons in this present Parliament Assembled, and by authority of the same, that the King shall have two Subsidies. These being the words which makes the Law are left out. Then saith M. Pryn, Acts of Parliament made in the time of usurpers, oblige the right Heirs of the Crown, and the people too. Therefore (saith he) the Legislative power is more in the people, then in the King. Answer. It is most false, that all Acts of Parliament made by consent of usurping Kings bind the right Heirs to the Crown. But true it is, that some Acts of Parliament made by consent of Usurpers, have been admitted to bind in time of Kings reigning by Just title, which is upon this ground: The Competition for the Crown, may happen to be upon a question doubtful, And the difference (as in that between York and Lancaster) may continue long, and experience shows, That the King in possession (whether by right, or wrong) wants not means to declare his Competiter an Usurper. And therefore dangerous it were for the Law to declare all such Acts of Parliament void. But admit that every Statute made by the consent of an Usurper to be as binding a Law, as any other, How that proves that the Legislative power is more in the Members then in the King, is not intelligible: It rather proves the contrary, it shows there must be a King's consent, although an usurper, else no Law: And if so, stronger it is, when the King reigns by a just Title. Then saith Mr. Pryn, The King hath little or no hand in making Laws, His is but assenting thereunto. As (saith he) the form of passing Bills import. For (saith he) Bills being passed both Houses, and presented to the King, his answer is (le Roy le veilt) the Kings wils it. Answer. It is the consent which makes the Law, when the Bill is engrossed, and read in the House: The question by the Speaker is put to the Members, whether it shall be a Law or not, and such as are of opinion to pass it, are directed to say I, and those against it no, and being passed both Houses, it is presented to the King, whose answer if He confirm it, is, le Roy le veilt. So that if any difference be, the King's words are more prevalent, for before that, it is but a written piece of parchment, not valid, but by that King's words, instantly it hath life, and is become a Law binding the whole Kingdom and people; And this (as before is said) is the Kings Law. Then Mr. Pryn falls to precedents, which he calls proofs. King Ed. 2. and King R. 2. (saith he) were deposed by the Parliament. Answer. The case concerning these two Kings, was thus: Against King Ed. 2. after many distractions in the Kingdom, the Queen His Wife, and other of Her adherents, increased the faction, raised a Rebellion, barbarously took the King prisoner, and during His imprisonment, without any lawful authority, or consent of the King, in His name summoned a Parliament; and by force drew him in words to resign His Crown unto His Son, afterwards King Ed. 3. and that of King R. 2. was much to the like purpose: He was drawn to resign His Crown to H. of Bullingbrooke. Afterwards King Hen. 4. and these two lawful Kings, being thus injuriously bereft of their Sceptres, were shortly after most barbarously murdered too. The whole proceedings of which Acts, all such (Pryn excepted) as have mentioned them, have condemned the same, not only to be illegal, but as Acts most wicked and notoriously impious. But saith Mr. Pryn, Pierce Gaveston and the two Hugh Spencer's, were by Parliament banished, the Spencers violently put to death, Humphrey Duke of Gloucester arrested of high Treason at a Parliament at Berry, and there murdered. That the Earl of Strafford this Parliament lost his head against the Kings will. Answer. For the banishment of Gaveston, and the two Spencers, his Argument is but thus: The King with the assent of the two Houses, made an Act of Parliament to banish them, Ergo, the two Houses without the King have the Sovereign power of Government. And admit Mr. Pryn hath proved (which he endeavours) that the Members of the two Houses murdered the Duke of Gloucester, and the Spencers, still that proves not the Sovereign power of government to be in the Members. That example of the late Bishop of Canterbury, I conceive to be a Precedent, far more proper to be cited for this purpose, than the case of the Duke of Gloucester, or the Spencers: For all men know, that Bishop was put to death, by no other authority, then by order of the two Houses; yet this no more proves the Sovereign power to be in the Members, than that murder acted by Felton upon the person of the Duke of Buckingham, proves Felton to be the King of England; For, the Members of the two Houses, had no more authority to condemn to death the Bishop, than Felton had to kill the Duke. And consequently the murder of the Bishop (whatever his offence was, or however guilty) it ●●…ing done by pretext, and colour of Law, was more horrid. And for the Earl of Strafford, it was thus. By the Laws of England no man can, or aught to be convict of a crime, but by Act of Parliament, by utlagare, or by trial of his Peers: That is, if a Lord of the Parliament, by a Jury of Lords, if under that degree, by a Jury of like quality, and being convict, the Judge ought to give no other sentence, but what the known Law doth pronounce for that fact; Now that Earl, by the Members of the Commons House was accused of high Treason. The King thereupon declared His resolution, not to protect him from the trial, or just sentence of the Law. After this the Members (waving the ordinary proceedings of the Law) passed a Bill to attaint him of Treason, by Act of Parliament; This Bill was presented to the King, He for some time refused to make it a Law, which peradventure He might be induced unto, by the Bill itself: There being a special Vid. the Act. proviso therein, that the Judges shall not condemn any other for the like offences; which might cause the King to be very tender of passing the Act, thereby to condemn a man as a Traitor, for facts passed, which at the time committed was not Treason. This if duly considered is so far from being evil in the King, as that the whole Kingdom hath thereby great cause to acknowledge his goodness: It hereby appears he desired to govern as King, not as a Tyrant, to proceed against offenders according to the known Law, not by an arbitrary power. And if some particular persons too much thirsting after strafford's blood, occasioned such things, as might draw the King against His conscience to consent unto that Act, woe be unto them. But however, whether the King passed this Act willingly, or against His will, or whether the Earl of Strafford were guilty or not guilty of Treason. That nothing proves that the Members have Sovereign power of government above the King. Thus for Mr. pryn's objections against the King's right to Sovereignty. And that the Members have no authority therein, is further proved thus. 1. So long as the people have been governed by a known Law, there must have been a Supreme Governor, but we have had the same Law, by which we are now governed, long before the Institution of the two Houses. 2. It is absolutely necessary that the supreme Governor, be a person constantly permanent and visible, but the Members out of Parliament, are not in being, they are invisible. 3. It is a contradiction to Sovereignty, to be subject to the commands of an other. But the Members are called together, and dissolved again at the King's pleasure. 4. The Composier of the Members is such: As that, to make them supreme Governors, tends to the destruction (not to the preservation) of the Kingdom and people. If a woman bring forth a Monster not having the shape of mankind, our Law a Coke fo. 8. 35. judgeth it no issue, it is lawful to kill it, it ought not to be baptised. To have two heads of one body is monstrous, so to have two Kings of one Kingdom, must be destructive to that Nation. But here (which is a far more prodigious monster) we by the Members usurpation are governed by two several distinct bodies, consisting of multitudes without any head. This government is new, there yet never was the like upon the face of the earth. It is not Monarchical, Alligarchicall, Aristocratical, democratical, nor (although the nearest to it) anarchical, it is worse than confusion. It can have no proper name, unless it be called contradiction: Thus for the negative part, that the two Houses have not the Sovereign power, it now rests to show in whom it is. And for that these two things are considerable, first, what is the office of the Supreme Governor, secondly, who hath performed that duty. For the first, all men grant it is to preserve the people in peace, by causing the Laws to be justly distributed, and the like; which have ever been performed by the King of England for the time being, and by none else. He hath denounced War, proclaimed peace, enhanced and debaced Coin, commanded foreign Coin to be current here, ordered all foreign negotiations; All matters of War, either foreign or domestic. And so in all civil affairs. The Judges of the Law authorized by Him; All legal proceedings in his name, and by His authority. The Law itself called His Law; He hath usually dispensed with Acts of Parliament, at pleasure pardoned transgressors of the Law. To Him appertains the forfeitures for Treason, and other offences. In a word, He is the sole fountain of Justice, Mercy, and Honour. And b Coke pref. 4 part fo. 1. Co. Caudries case fo. 8. Stat. 16. R. 2. cap. 5. 24 H. 8. c. 12. D. & Stu. f. 43. Dyer 29. Co. 11. 90, 93. Bract. lib. 1. ca 8. fo. 5, 6. And infinite other books. with this constant practice agrees all authorities, histories, and stories: among which, that of the Oath of Supremacy, if there were no more, is sufficient to satisfy all the World, the words are these. I A. B. do utterly testify in my conscience that the King's Highness is the only Supreme Governor of this Realm, and of all other His Highness' Realms, Dominions, and Countries, as well in all Spiritual things, or causes, as Temporal. Now if the contents of this Oath be true, that is, If the King be the only Supreme Governor, all the rest of the people, from the highest to the lowest, whether Members, or not Members, are subject unto Him, and persons governed: And as all persons are hereby included, so it extends to all things, both Spiritual and Temporal. And me thinks it strange, an Englishman should make doubt of the truth of this Oath. It was composed by the Lords and Commons in Parliament, in the time of Queen Elizabeth. And at their suit, by Act a 1 Eliz. c. 1. 5. El. c. 1. of Parliament made high Treason for a Subject to deny to take it; And further enacted, that every Judge of the Law, and other Officer, either Spiritual or Temporal; every person of any profession or calling, before he be enabled to exercise the same, every ward, before he be permitted to sue out his Livery, every one elected Member of the Commons House, before he be permitted to sit or Vote there, shall take this Oath. Yet the Members of this Parliament would make an evasion out of it, Thus. The King's Supreamacy (say they) is meant in Curia, non in Camera, in His Courts, not in His private Capacity. And to speak properly, only His high Court of Parliament, wherein He is absolutely Supreme Head and Governor, from whence there is no appeal. And (say they) if the Parliament may take an Account what is done by His Majesty in His inferior Courts, much more what is done by Him without Authority in any Court. And (say they) It is preached to the people by the King's Declarations, that by the Supreamacy is meant a power inherent in the King's Person, without, above, against all His Courts, the Parliament not excepted, whereby (say they) the excellent Laws are turned into an Arbytrary Government. Answer. That which the Members in this discourse say, in effect is but thus. The King is Supreme Governor; Yet under the Members Government, He hath Authority without appeal to determine all things, yet hath not power to determine any one thing. To blear the eyes of the Vulgar, they are contented the King shall be called the only Supreme Governor. But the Authority, Power, and Execution thereof (if we may believe the Members) is their own. The King and People are herein used, as a Father sometimes deals with his child, telling his little son, the flock of sheep is his; yet the Father shears them, & takes the profits to his own use. Even so are King & People dealt with. They are told bythe Members, that the King by the Supreamacy claims such a power, As that the Subjects thereby have lost both their Law and Liberty, and would make them believe, that they are by those Members thereunto restored again. Whereas all but naturals may now discern, That whilst the King, together with the name, enjoyed both the Power and Execution of the Supreamacy, The people were a free Subject; And that by this usurpation upon the King, They are enslaved. For, the Supreamacy is in the King's Person; But by it He neither hath, nor claims an unlimited power. The People are Governed under Him, but that Government is directed by a known Law, of which Law b Cok. Pref. 4. report. the King is not Judge, nor can He, by Himself alone alter that Law. Now whilst the Supreamacy, the Power to Judge the Law, and Authority to make new Laws, are kept in several hands, the known Law is preserved, but united, it is vanished, instantly thereupon, and Arbytrary and Tyrannical power is introduced. For example, the Members condemn a Subject to die, they confiscate his estate to their own use, and (without appeal) have power to Judge the Law thereupon. This granted, clear it is, the Will of the Members is the Law; they are hereby Judge, Party, and Witness. It were fruitless for that condemned person (although guiltless) to urge his innocency of the Fact, or to dispute the Law upon that Fact, with them who have condemned him. And (as the Members tell us) there is none else to appeal unto; It is therefore to be feared, the greater Estate the Delinquent hath, or the more spleen some Members bear to his person, the more Capital is his offence. So that it is the Members, not the King, who claim a power in their own persons, without, above, against all Courts of Justice, The Parliament itself not excepted; Our excellent Laws are by them destroyed, and turned into their own Arbitrary power. And thus the people are enslaved by a distinction, never heard of, or thought on before this Parliament, the aforesaid two Spencers only excepted: It is true, they having committed acts of Treason to colour their proceedings, divulged an opinion suitable to this; they pretended that the Oath of Allegiance was more in respect of the Crown, than the King's Person; That the King might be removed, and the people ought to govern: But those opinions are condemned as damnable & execrable, by two Acts a Cok. calvin's case. fol. 11. of Parliament. One called exilium Henrici de Spencer. And the other made 1 Ed. 3. But that this of the Members, and that of the Spencers, are mere fictions and delusions to gull the people, is evident both by Authorities of Law, and the common practice of the Kingdom. It is resolved in calvin's case (which therein agrees with the whole current of our Law-bookes) that Allegiance is due only to the King. b Cal. case. fo. 10 That theKing hath two Capacities, one of a natural body descended of the Royal Blood, & this is subject to death and infirmities: The other a politic body, and in that, immortal, invisible, not subject to nonage, etc. That the King having but one person, and several capacities; It was resolved, Allegiance is due to his natural Capacity. And consequently, the Sovereign power of Government inherently in his person. By the d Statute 25. E. 3. common Law of the Land, Treason is to kill, or endeavour to kill the King, His consort the Queen, or the Prince. Therefore it is the natural body the Law looks upon, for e Cal. case. fo. 10 the politic body cannot die. Besides, neither the Queen, nor the Prince hath a politic Capacity. g Cok. 4. part instit fol. 46. If the King die during a Parliament, ipso facto the Parliament is dissolved. Therefore Sovereignty is not virtually in the two Houses. By the King's f Cok. 7. fol. 30. death, (until a late Statute made therein) all suits in Law, even between party and party, were discontinued. And at this day, the Chancellor, g Cok. 7. fol. 30. the Keeper of the Great Seal, the Judges, the Sheriffs of Counties, Justices of Peace, and other Officers, by his death are void, which could not be, if Sovereign power were not in the natural person of the King, or if that Authority were virtually in the Members. The Law of the Land saith, that Allegiance is due from the Subject to the King, so soon as he is born, h Cal. case. fol. 5. fol. 7. 10. therefore he is called Subditus natus. And so both Sovereignty and Allegiance inherently, and by birthright, the one in the person of the King, and the other in the person of the Subject: And this duty is reciprocal. The King k Cok. 2. fol. 15. Cal. case. fol. 5. ex Officio, as King is obliged to protect the people: And the Subject in duty is bound to obey their Sovereign, for n Cal. case. fol. 5. protectio trahit subjectionem, & subjectio protectionem. There be two sorts of Homage, viz. m Cal. case. fol. 7. a. b. Homagium Ligeum, & homagium feudale. The first being Allegiance, is due only to the King's Person; And therefore our Law saith, it is inherent inseparable, and cannot be respited. But the latter being due by reason of the tenure of Land, a Writ lies to respite it. Besides, a body politic can neither do, nor receive Homage; It cannot be done, but to the natural person of a man. The Lords and Commons, 10 Jacobi made this recognition, viz. 3 Jaco. c. 1. Albeit within few hours after the death of Queen Elizabeth, we declared your Majesty our only and rightful Liege Lord and Sovereign; Yet as we cannot do it too often, or enough; So it cannot be more fit than in this High Court of Parliament, where the whole Kingdom in person, or by representation is present, upon the knees of our hearts, to agnize our most constant Faith, Obedience and Loyalty to your Majesty, & your Royal Progeny, humbly beseeching it may be (as a Memorial to all Posterity) recorded in Parliament, and enacted by the same, that we recognize and acknowledge, that immediately upon the death of Queen Elizabeth the Imperial Crown of this Realm, did by inherent birthright and lawful and undoubted succession descend and come to your Majesty. And that by Lawful right and descent under one Imperial Crown your Majesty is of England, Scotland, France and Ireland King; And thereunto we most humbly and faithfully submit and oblige ourselves, our heirs and posterities for ever until the last drop of our bloods be spent; And beseech your Majesty to accept the same as the first fruits of our Loyalty to your Majesty and Royal Progeny and Posterity for ever; Which if your Majesty will adorn with your Royal Assent, (without which it neither can be complete, nor remain to all Posterity) we shall add this to the rest of your Majesty's inestimable benefits. By this we see, that this King's Father by inherent birthright, had the Sovereign power of Government; That the Lords and Commons in Parliament, did not only submit thereunto, but at their humble suit, by Act of Parliament, obliged themselves, their heirs, and posterities for ever, even to the spending of their last drop of blood, to preserve Him and His Posterity therein. But to insist upon particulars of this nature, were too tedious: There is no other Language to be found, from the beginning of this Parliament, up to the Roman conquest. Every Statute, book of Law, History, 33 H. 8. c. 21. and the constant practice of the Kingdom herein concurs. Neither tongue, nor pen, until these Antipodes, the Members (who belch nothing but contradictions to truth, justice, and honesty) ever made other expressions. But the juggle is now (even by the vulgar) clearly discovered, and found to be too slight an Hocus Pocus trick to gain three Kingdoms. But it is visible to the world: The Members use the word (King) as they do the name of God himself, either for their own advantage, or to gull the people, which (amongst infinite other particulars) by their various proceedings concerning the King's Sovereign power, it is manifest. First, by their foresaid Declaration in words they ascribe unto the King a greater power than he either hath, or challengeth: He is (say they) absolutely Supreme head and Governor. And this in all things, and that final too, for (say they) from him there is no appeal. But even by the same Instrument they tell us, that this Sovereignty is not in the King's person, but totally in the Members of the two Houses. And after their preaching of this doctrine, and exercising the King's office for some years, than they took the boldness in plain terms to tell us, they would have no King, that they themselves would (without their Sovereign) govern the Kingdom. But herein they catched themselves, for instantly thereupon the people plainly discerned their intention even from the first, they were by this Vote satisfied, that the Members aim was not for the public, but for their own private, to subvert the known Law, and to reduce the people to the slavery of an everlasting arbitrary, and tyrannical power under their equals. The Subjects of England upon this Vote unanimously, even through the whole Kingdom, (as if they were at one instant generally inspired) make their Protestation against these usurpers. They cry out, and call for their liege Lord their King: They resolve to submit unto no other government, then by our ancient and known Laws, which the Members perceiving they returned to their own vomit, and thinking to deceive the people with a new sleight, do now again begin to word it for a King, and Vote thus. That this Nation shall be Governed by King, Lords, and Commons. Which is as perfect a juggle, as that whereby they Declared the King's power to be virtually in themselves. If those Votes bind, it followeth, that we neither have nor can have (otherwise then at the Members will) either King, Law, or Government. Their last Vote (in words) seems (in some sort) to set up a King; But for any thing we know, before the next new Moon, the Members may fancy to themselves the same motives as formerly, and Vote Him quite down again; So that (admitting this power in the Members, to set up and pull down, to Vote, and u●-Vote) it is indifferent both to King and people, whether to have a Statue, and call it King, or a King by the Members Vote. Then for the Vote itself, (admitting the Members to have authority by their Votes to alter the Law, which they have not) it is in itself most gross; We must, say they, be governed by King, Lords, and Commons; But what power is hereby intended for the King, non constat. By the next Vote the Members may declare, they meant hereby, that the King shall not have any authority in his own person, but still judge the Sovereign power (as formerly they did) to be virtually in themselves. And if so, it only differs in words from that Vote, whereby they resolved to have no King: In substance it is one and the same. And if the Members mean (as the words seem to import) that the power of Government shall be in the King, Lords, and Commons, jointly, and that this Vote, be so far binding, as to settle that government for ever, (which is in itself inconsistent with that arbitrary power, they now even by this very Vote assume) it is likewise in itself most absurd: It is true, that we having a known Law, whereby we are protected in our persons, lives, and estates, to have this Law unalterable, otherwise then by the joint concurrence of the King and two Houses, is a constitution beneficial for the Kingdom; but in point of Government, it is a Composier, not only improper, but destructive to the whole Nation. In every Commonwealth accidents frequently happen, which of necessity require things to be done, yet if not acted with secrecy, hazards the ruin of the people. For example. The King hath intelligence that a foreign Nation is prepared, and resolved to invade this Kingdom: Hereupon (with great care and secrecy) a design is laid, to surprise the enemy: In this case, for the King, at the same time, to proclaim his plot, not only frustrates his design, but endangers the destruction of the whole Kingdom. Now admit the King, Lords, and Commons jointly to have the power of Government, and it is impossible whatever the design be (although the publishing thereof unavoidably destroy both Nation and people) to keep it secret. First, for the Lords: The Members sit and Vote in that House (of what capacity, or disposition soever) by descent: and experience shows, that wise men (although Lords too) sometimes beget fools, Honest men, knaves, and Loyal men, Traitors. And for the Commons House, he who examines his own Country (be it in any part of the Realm) I am confident will find, the greater number of those, elected Knights, and Burgesses, unfit for Statesmen or Privy Councillors: Nor is it possible, that the multitude (if they had authority to make such elections which they have not) should make choice of apt persons to govern the Kingdom: Then adding hereunto the number of those Members, amounting unto seven hundred or more, and doubtless (in point of secrecy) to proclaim it at the market Cross, and to advise with them, is one and the same thing. But admit every Member a perfect Statesman, the composier of that Body consisting of the King, Lords, and Commons, is such, as not only renders them incapable to govern the Realm, but is in itself so pernicious to the Commonwealth, as that it is impossible for the Devil himself to invent (unless it be that the two Houses without the King) a platform more apt to introduce confusion, both to Church and State. When a Capital or Criminal offender is convict, the known Law in point of punishment doth not distinguish of persons: The Judge (whether the offender be capable of pardon or not) must give sentence (according to the nature and quality of the offence) upon every one alike: He hath not power either to pardon, or mitigate the punishment; That is the office of the Supreme Magistrate: Then, what a Tyrannical constitution it were, that the King shall not have power to distribute mercy, until the major part of the two Houses have Voted it, common experience makes it easy to judge. And on the other side, if the King without that joint consent, hath not authority to punish offenders: It will be very difficult to bring the most horrid malefactors to trial, be the offence Treason, Murder, Sacrilege, or any other crime, how execrable soever, whilst either House doth omit or refuse to Vote it so, no punishment: An infallible way (I confess) it is to embolden themselves, and all others their adherents to perpetrate all wickedness under the Sun. If a dispute happen, whether to make War, or to proclaim Peace, to fight, or not to fight an enemy, and the like, it cannot be expected, but that those three bodies shall (even to the ruin of the Nation) irreconcilably differ in opinion. But it were endless to insist upon particulars of this nature, the calamities which have befallen us by the Members arrogating the Sovereign power of Government, and which daily must ensue, whilst they either continue that usurpation, or shall be suffered in point of Government, to share with the King, words cannot express. Suppose three single persons, had jointly the Sovereign power of government, no man can imagine, but that they would (even in matters of greatest weight and peril) stern several ways: But in point of Government to add unto the King, the Members of the two Houses make it a composier far more preposterous, and absurd: And consequently to submit to that Vote, to be governed by King, Lords, and Commons, (although it be admitted the Members intent it a joint power) were no other, then to introduce contradictions, distractions, and confusion. Besides, by settling the government in King, Lords, and Commons, ipso facto, the known Law is subverted, and an arbitrary power introduced; for, as before appears, they who have the Government, and also power to make new, and change the old Law, cannot be guided but by their own will: Whereas, by observing the constitutions of the Realm, in submitting to the King alone, for matter of Government, unto the King, and the two Houses jointly, for making new Laws, or altering the old, and unto the lawful Judges of the Realm, to expound and declare the Law, all arbitrary power is avoided. And the King for his assistance in matters of Government, hath (by the Laws of England) three sorts of Councillors, viz. His Great Council, His Privy Council, and His Learned Council. The first is properly the Prelates and Peers of the Realm, which (besides infinite other testimonies) is proved by the Writ of Summons to every Parliament. The words are these, viz. Rex Vicecomiti, etc. Quia de advisamento & assensu Concilii nostri, etc. quoddam Parliamentum nostrum apud, etc. 1. die, etc. teneri ordinavimus, & ibidem cum Prelatis, Magnatibus & Proceribus dicti Regni nostri colloquium habere & tract. Tibi precipimus, etc. duos Milites, etc. venire facias, ita quod iidem Milites plenam & sufficientem potestatem pro●se & Communitate Commitat. predict', etc. habeant, ad faciendum & consentiendum his quae tunc ibidem de commun● concilio dicti Regni nostri (favente Deo) contigerint ordinari suantedictis. And the Sheriff's return is thus, viz. Virtute istius brevis eligi feci duos Milites, viz. A. B. qui plenam & sufficientem potestatem, etc. habent ad faciendum & consentiendum iis quae, etc. de communi concilio Regni Angliae ordinari contigerint. Thus it is manifest, that it is the Prelates and Peers, (who have assistants unto them the Judges, and others of the King's learned Council, and the Masters of the Chancery) whom the King adviseth with as His great Council: It is the office of the Commons (as likewise by this Writ appears) to do and consent unto such things, as the King, the Prelates, and Peers agree upon. The second, are such as the King makes choice of to advise Him in matters of State, and are sworn to secrecy; And the third are the Judges of the Realm, and others of the Long Robe, whom the King elects, and are sworn to advise Him in matters of Law. Now whilst these Councillors keep within their own bounds, and faithfully perform their several duties, the known Law is preserved, and so every one protected: But when they extend beyond their bounds, confusion ensueth. Absurd it were for a sick man (concerning his Cure) to advise with a Lawyer, or for any one in point of Law, to take advise of a Physician. So for the Privy Councillors, to judge the Law, for the Judges to determine matter of State. And the like holds with the Members of the two Houses: They are neither qualified, nor have Commission either to intermeddle with the Law, or the affairs of State, otherwise then the King shall think fit to intrust them, by ask them their advice, wherein they are only to deliver their opinions, not to control. Therefore when the two Houses have passed a Bill for a new Law, and have presented it to the King, they have performed their duty, it than rests in the King, whether to make it a Law, or not, wherein it may be necessary for Him to take the advice of His Privy Council, His learned Council, or of both. And I conceive that may be the reason, why Kings have used to answer Bills (which they pass not) by these words, le Roy, le veili. By these words of the Writ, viz. Quia de advisamento & assensu consilii nostri, etc. quoddam Parliamentum nostrum, etc. teneri ordinavimus, etc. It appears that the King depends upon His Council, in calling Parliaments, which oftentimes is occasioned upon State-affairs, such as requires the assembling of a Parliament, yet not safe to reveal those reasons to the Parliament men: And so the King, by advice of His Privy Council, or His learned Council, may, and oftentimes doth reject Bills presented unto Him by both Houses, and yet not convenient to render His reasons to that multitude. Therefore clear it is, the men at Westminster have extended beyond their Commission, and so all these Votes are absolutely invalid, not binding either King or people. The King notwithstanding these Votes, is, or whatever the Members shall, or can Vote, will and must be our only Supreme Governor. And consequently these men at Westminster, by breaking their bounds, are themselves guilty of those things, which in and by their declarations to the people, they grossly and falsely aspersed their King with: They have and do arrogate (to use their own words,) an arbitrary power without, above, against all the Courts of Justice, the Parliament itself not excepted. And thereby the known Law is subverted, and consequently, they are most palpably guilty of that crime, for which they themselves condemned as a Traitor the late Earl of Strafford, but for attempting to do, and that upon a slender proof too. Upon the whole matter it may with as much justice & sense be said, that there was yet never one King of England, as to question whether the King for time being hath inherently in His person the Sovereign power of Government. But that man who hath taken consideration hereof, and yet so absurdly peevish as to remain unsatisfied of the King's right herein, the whole world must judge Him worse than out of his wits to give it unto the Members. Suppose the Steward of a Lord or Commoner, to claim property in the estate of his Master, I presume the Houses would account him an unjust Judge, who should determine the case on the Steward's behalf, upon his own testimony. So here the Members challenge not only the Sovereignty due unto their Liege Lord, and King, but an authority arbitrary, over King and people, wherein they have not the least colour of proof, more than their own affirmation. Besides, when a witness (although not a party) contradicts himself, his testimony becomes invalid: But the Members solemnly upon their Oaths even this Parliament, have declared the King their only Supreme Governor, wherein they swore not for themselves, but on another's behalf, that is, for the King's Interest: So that every prudent man in common sense and reason, aught to believe, that which these men have thus sworn for the King; And absolutely to reject this their affirmation contrary to that Oath, and for their own advantage. And so I conclude this point concurring with the Lords and Commons 1 Jacobi, that the Imperial Crown of this Realm, is, by inherent birthright, descended and come to this our King Charles. And that (according to the Oaths of these Members and their predecessors in former Parliaments) he is our only Supreme Governor. In the next place it is showed that the Militia of the Kingdom is in the King. CHAP. VIII. That the Militia of the Kingdom by the known Laws of the Realm, is inherent in the Crown. And at the absolute command of the King and none else. IT appears before that the King is the only Supreme Governor, which of itself, is sufficient to satisfy any man of judgement, that the Militia of the Kingdom is likewise in Him, yet Mr. Pryn by licence of the Commons House hath published a Treatise Entitled thus. The Parliaments Interest in the Militia. Whereby he endeavours to prove that the Members of the two Houses (which he miscalls the Parliament) have the power over the Militia, the Forts, the Navy and Revenues of the Crown. And begins thus. It must (saith he) be granted, that the power which His Majesty hath, or His Predecessors enjoyed ever the Militia, the Forts, the Navy, Ammunition, and Revenues of the Crown, was originally granted to His Ancestors, by the Parliament and Kingdoms free consent. Answer. The Militia, the Forts, the Navy, Ammunition, and Revenues of the Crown (saith M. Pryn) were granted to the King's Ancestors, by the Parliament, and Kingdoms free consent. So that, neither the Parliament, nor the Kingdom, by his own confession, made the grant, nor who he means was this, grantor himself cannot imagine. However, it is not worth the labour to make further inquiry thereof, for most certain it is, never any such grant was made. But admit that before the King's Ancestors enjoyed them, some persons had power and Interest therein, and made a grant thereof to the King's Ancestors: It is as hard a task thereby to prove that the Members have title to these things, as to find out this imagined grantor, who never yet was in esse; The Argument is but thus. The Militia, the Forts, the Navy, Ammunition, and Revenues of the Crown, were originally granted to the King's Ancestors, Ergo, at this day, by the Laws of England, the Members of the two Houses have right thereunto; which is most absurd: But Mr. Pryn affirming that these things were granted to the King's Ancestors, and the truth being, that the King and His Ancestors, time out of mind, have enjoyed them; It is a good argument to prove the King hath title to them. And for Parliaments, (as before appears) The first Act we have is Magna Charta, made 9 H. 3. but the King's Ancestors and predecessors enjoyed the Militia, the Forts, the Navy, Ammunition, and Revenues of the Crown, many hundred of years before that time, therefore could not be granted by the Parliament, or by its consent. And for the Kingdom's consent, Master Pryn must explain his meaning what he intends thereby, before it be Intelligible. Then saith M. Pryn, the King hath no power to array, arm, or muster His Subjects but in such manner as the Parliament by special Acts hath prescribed. Answer. This being granted, makes directly against Master Pryn, it disproves the Members pretended power to the Militia, and makes good the King's interest therein: The Argument is thus. The King cannot muster His Subjects, but in such sort as is prescribed by Act of Parliament: To conclude thereupon, that the Members of the two Houses have the power of the Militia, nothing can be more absurd. But, it directly implies, that none but the King can muster the people. And consequently, the Militia is in the King. And for Acts of Parliament prescribing how, or in what manner the people shall be mustered or arrayed, we have none of that nature, until the Reign of King Ed. 1. But the Militia of the Kingdom was executed, and commanded by the Kings of England, 1200. years before that time: And by every Act of Parliament which doth in any sort order, or appoint the mustering or arraying of the Subject; It appears, that the Power and Authority itself, before that Law was in the King; And by none of them is taken out of him: And so this Argument of Master pryn's is to no purpose. But saith M. Pryn, The King hath these things, and the Revenues of His Crown in His politic Capacity, as (saith he) a Major and Commonalty, a Dean and Chapter, and the like, are seized of their Lands. And therefore (saith he) the King, neither by His Will, nor by His Letters Patents, can devise, alien, or sell the same. Answer. If it be admitted, that the King cannot alien such Lands and Revenues as He is seized of in His politic Capacity, (which is in itself most absurd) how this disproves his title to the Militia, the Forts, the Navy, Ammunition, and Revenues of the Crown, is not intelligible. The Argument in effect is but thus: The King hath the Militia, etc. in his politic capacity, Ergo, he hath it not: Or thus, The King cannot sell the Revenues of his Crown, Ergo, the Members have the Interest therein, and may seize them. But (saith Master Pryn) the Ships, Arms and Ammunition seized of by the Members, were bought with the Kingdom's Money, And therefore the Members may seize them. Answer. Suppose it understood, what is the Kingdom's Money, and that with such Money, Ships, Arms, and Ammunition are bought. It seems a good Argument for the King to Seize them. For He, as King, a Coke 2. fo. 15. Calv. case. fol. 5. ex Officio, is obliged to preserve His people in Peace. Besides, b Cok. 7. fo. 16. that money or other things, which no particular Subject can challenge property in, by the Laws of the Kingdom, is the Kings. But by the Laws of England we have no person or politic body by the name of the Kingdom, which is capable to have property, either in Lands or Goods. And for the Members of the two Houses, as Parliament men, they have not any politic Capacity, they are not a body to sue, or to be sued, nor are capable to buy or sell, nor have property in any estate; And consequently Master Pryn, by his own Argument, hath as much title to seize the foresaid Ships, Arms and Aummunition, as they. Then (saith M. Pryn) the Members seized the Ships and Revenues of the Crown, to prevent the arrival of foreign forces, and a Civil War, which they foresaw. As (saith he) Queen Elizabeth, in time of War with Spain, granting letters of Mart, to seize all materials for War, transported through the narrow Seas. Answer. By this discourse we are told what moved the Members to seize the King's Navy, and the Revenues of his Crown, which in effect is thus, viz. The Members having usurped an Arbitrary power over King and people; and thereby having destroyed the Monarchy of England, had just cause, not only to expect opposition from their own Sovereign, but (in his relief) arrival of foreign forces from all the Kings in Christendom. For, upon the same grounds, as the Members made this seizure, the Subjects of any King may do the like. It is as easy for the people of Spain, France, or any other Nation in the world, to say they foresee a War, as these Members pretend it. And I am certain, it is as unlawful and directly against the constitutions of England, for the Subjects here, to assume this power, as for the people of any other Country to do the like to their King. Therefore, I grant, it was an act of Policy for the Members to seize the King's Ships, and the Revenues of His Crown; It was a great and principle means to prevent the suppression of this their Rebellion. But all that proves the legality of their proceedings, no more than a highway man, having taken a purse, murders the party robbed, to prevent his own discovery, makes the robbery lawful. And so M. pryn's Argument, in effect is but thus. The Members de facto, have seized the King's Ships and Revenues of his Crown, ergo, they have done it lawfully. Thus in Answer to Master pryn's Arguments, whereby he endeavours to prove, that the Members have power over the Militia, etc. But that they have no colour to claim any Authority therein, further appears thus. First, all men must grant, That so long as the people have been governed by a Law, so long the power of the Militia must have been in some; But the people of England (as before appears) have been governed by a Monarchical power, above 1200 years before the institution of the two Houses: And all that while the Kings of England for the time being, and none else have executed that Authority, Therefore not in the Members. Secondly, it is absolutely necessary, that the power of the Milit●● be in such hands, as may at all times provide against approaching dangers to the Commonwealth. But that cannot be the Members, they are not in esse out of Parliament. Suppose this Nation (in the vacancy of a Parliament) be suddenly invaded by a Foreign enemy, or infested by a domestic insurrection: If none have power to command the people to assemble, and make resistance, until the summoning of the two Houses of Parliament, nothing but distraction to King and people can be expected. Thirdly, the Composier of these Members (being two distinct bodies) considered, it is as preposterous for them to command the Militia, as to have the Sovereign power of Government, or to judge the Law. It may fall out (even in the time of greatest danger) that one House shall Vote to fight, the other not to fight, the enemy: And this difference may happen to be unreconciled, until the Nation be conquered or destroyed. Thus it appears that the Members have no power over the Militia: It now rests to prove, that it is the King's right, which is made good by authority and reason. First, for authority, it is proved by constant practice, which is not only the strongest proof in our Law, but it is the Law itself. We have no formal Institution of the Common Law, it is no other but common, Ancient, and frequent use. For example, it is Coke 9 fo. 75. Dyer. fo. felony to steal, it is not felony of death, unless the thing stolen, exceed the value of twelve pence; These are things so certainly known, and so generally received for Law, as that any man to dispute them, renders himself ridiculous: yet being denied, none can show when the Law began, how, or by what authority it was made, there is no other proof to make it good, but custom and use. So for the Militia of the Kingdom, it was never estated upon the King by Act of Parliament; or by any other constitution. It is His right by the Common Law of England which is made good by custom and use, and authorities of books. And first for custom and use; Any man of what quality or rank soever he be, reflecting upon his own memory, and observation, must acknowledge, that in all his time, no Soldiers were impressed, armed, arrayed, or mustered, no Forts, strong-holds, or garrisons, held, or commanded, no Commanders, Officers or Soldiers Employed by Land or Sea, no Commissions concerning War, either Foreign, or Domestic, or concerning the administration of Justice, but by authority derived from the King alone. And such as search the Records in former times, will find the like practice in all ages. And with this agrees all Histories, and stories, from this day upward unto the Roman Conquest. Then for authorities, and to begin with Acts of Parliament, Mag. Char. c. 20. Magna Charta, granted about 440. years since, not only being the first Statute, but beyond it there is scarce an authentic record of Law at this day to be found: In which Act, it is thus declared by King Hen. 3. viz. And if We do lead, or send him (who is by tenure to defend a Castle) in an Army, he shall be free from Castleguard, from the time that he shall be with us in fee in our Host, for the which he hath done service in our Wars. Thus even in that Instrument whereby the King confirmed unto the people their Liberties; It appears, that by the Laws of the Land, the power of War, was the King's sole right. By an other Statute made 7. of King Ed. 1. being the son, and 7 E. 1. c. 1. next succeeding King to H. 3. The Prelates, the Earls, the Barons, and the Comonalty of the Realm Assembled in Parliament declared, that to the King it belongeth, and His part is through His Royal Signiory, straightly to defend force of armour, & other force against the King's peace, at all times when it shall please Him. And to punish them which shall do contrary, according to the Laws, and usages of the Realm. And that they (the Subjects) are hereunto bound to aid their Sovereign Lord the King, at all seasons when need shall be. After this by several Acts of Parliament, viz. a 13 E. 1. c. 6. 1 E. 3. c. 5. 4 H. 4. c. 13. 5 H. 4. 13. of the same King, 1 Ed. 3. 25 Ed. 3. 4 H. 4. 5 H. 4. and other Statutes it is declared how, and in what manner, the Subject shall be charged with arms, mustered, arrayed, and forced to serve in War. In all which Acts, without dispute, the whole power and command therein, is admitted to be in the King. By a Statute made 11 H. 7. The Lords and Commons Assembled in Parliament, declare it to be the duty and Allegiance of the Subjects 11 H. 7. c. 1. of England, not only to serve their Prince and Sovereign Lord for the time being in Wars, but to enter, and abide in service, in battle▪ and that, both in defence of the King and the Land, against every Rebellion, power, and might reared against him. By a Statute made 2 Edw. 6. in the Reign of a child King. The Lords and Commons Assembled in Parliament, declare that it 2 E. 6. c. 11. is the bounden duty of the Subjects to serve their Prince in War. By a Statute made 4 and 5 P. M. In the Reign of a Woman, the Lords and Commons Assembled in Parliament declare thus, 4 & 5 P. M. c. 3. viz. That whereas heretofore commandment hath been given by the Queen and her Progenitors, Kings of England, to divers persons to muster their Subjects, and to levy them for the service of their Majesty and this Realm in their Wars; which service (saith the Statute) hath been hindered by persons absenting themselves from Musters, and by being released for rewards. And then provides remedy therein, when the Queen, her Heirs or successors shall authorise any to muster the people. And by that late unanimous and voluntary recognition made by the Lords and Commons in Parliament unto King James, they declared thus, viz. We being bound thereunto, both by the Laws of 1 Jaco. c. 1. God and Man, do recognize and acknowledge, (and thereby express our unspeakable Joys;) That immediately upon the death of Queen Elizabeth, the imperial Crown of the Realm of England, did by inherent birthright, and lawful and undoubted succession descend and come to your most Excellent Maj. & that by the goodness of Almighty God your Maj. is more able to Govern us, your Subjects in Peace and plenty than any of your Progenitors: And thereunto, we most humbly and faithfully submit, and oblige our heirs and posterities for ever, until the last drop of our bloods be spent. Now every man of sense will agree, that the opinion of the Members of this Parliament, is no more authentic, than the opinions of the Lords and Commons Assembled in former Parliaments. And that being granted, it followeth, that any one of the aforementioned Statutes, whereby the Lords and Commons declare, That by the Law of the Land, the power of the Militia is in the King, is so much the more weighty, and so much more to be relied upon, in this point of the Militia, than the opinion of these Members, by how much more persons are competent to determine a question concerning another, then to judge their own case, or when they resolve for, or against themselves. But these Members (setting aside their own Votes, in this their own case, & for their own advantage) cannot make their pretence to the Militia good, by any one Authority, Opinion, Practice, or Precedent. But this not all: These Westminster men themselves, even this Parliament, have both in their Ordinances (as they call them) and Petitions, acknowledged the Militia to be the King's right. Besides, it is resolved in our books of Law, that if all the people of England should break a League with a foreign Prince, without 22 Edw. 4▪ the King's consent, the League were not broken: And consequently, by the Judgement of the Law the sole power of the Militia is in the King; And with this agrees all the Authorities, both of our Books of Law and History. It was never for the space of 1700. years past, questioned or disputed, until now by these Usurpers injuriously wrested from the Crown. But the Members, in the name of the Lords and Commons, upon serious consideration, have lately Voted to this effect: That the Answer to the Scots pap. fol. Militia hath been long debated in black and red letters, and that God hath now given his Verdict on their sides. That, however the English men please themselves with their Magna Idem. fol. Charta, and because their Lives and Estates are not at the Kings Will; and for that, He cannot make Laws, or raise money without consent in Parliament. All this (say they) signifies nothing, if the Militia be in the King, for by that (say the Members) He may destroy the People. For (say the Members) if there be a true intention to leave unto the People their known rights, that no Law be made, or Money levied to maintain the Militia without their consent in Parliament. It cannot enable Him to do the Kingdom effectually any good alone, But may serve to make Him capable alone to do them hurt. Answer. Every man may be satisfied, these men have spoke what they can to maintain this their pretended Right; yet these their Votes being duly examined, every indifferent person will thereby, rather think that the Devil himself, who hath long owed them a shame, hath now paid that debt, then by these Votes be drawn to believe the Members Doctrine. First, for their supposed Verdict to be given by God himself. Their Argument therein, is suitable to that of the Jews and Turks, whose examples and precedents I presume they follow. The Jews (even to this day) audaciously scoff and taunt us Christians, for receiving Christ Jesus for our Messias; because upon the Cross, he being required by them to manifest his authority by saving himself; and thereupon, then offering to believe his Doctrine, which he did not: Therefore the wicked Jews concluded they could not. And the Turks, for the space of 1000 years past, to make good their Doctrine of Mahomet, and their claim to be the only Monarch of the World, much insult upon the Christians for their Victories obtained against them, whereby we cannot deny, but they do possess (amongst infinite other Kingdoms and Countries wrested from Christian Kings) the places, both of the Birth and Passion of our Saviour. And upon this, the Turks infer, that God hath Judged the cause for them, against the Christians. Now that difference which is to be found between the Arguments of the Jews and Turks, and these of the Zelots at Westminster, renders the latter to be the greater Blasphemous. They (althoughly wickedly protesting against Christ) pursued their Conscience; Neither Turk nor Jew (for any thing appears) did know, or believe Christ to be the Saviour of the World. These hypocritically make use of the name of God himself, and to establish themselves in their usurped possessions, with insolent boldness call him to testify, nay affirm, that God (in this point of the Militia) hath given his Verdict for them, and against the King, which themselves do not only know, but have acknowledged to be the Kings Right. And having with this semblance of sanctity, prepared the People with this forged Verdict: Then they Vote reasons to persuade the vulgar; That for the King to have the Militia, tends to their destruction; but that Authority being placed in the Members, the people are (if we may believe them) secured from harm. But of their own showing the express contrary, Appears, First, they tell us, (as the truth is) that by the Laws of England, the King hath not power by himself alone, to tax or impose payments of money upon the Subject; therefore say they, (mark this consequence) so long as the Law is therein observed, the Kings having of the Militia, is not effectual to the Kingdom: Hence it followeth, (by the Members own Argument) that if the King had an Arbitrary power, than the Militia were his own. So that, by the Members Doctrine, none but Tyrants have title to the power of the Sword, which I confess is a foundation aptly laid for their own structure. All the world will witness for them, that in point of Tyranny, the malice of man, with the advice and assistance of all the devils in hell, cannot outstrip them: Let the Members search Histories and Stories, Precedents and Examples, from the first Creation until this Parliament, and not only of this Nation, but throughout the face of the whole Earth; and I defy the most vigilant amongst them, to find one Tyrannical act, which these Members (since their usurpation upon the King) have not done, or audatiously claimed by the Law of the Land to have power to execute. Thus appears the different condition of the people, concerning the Militia under the King's Government, and this under the Members. By that under the King, whilst the people submit unto their lawful Superiors, and obey the just Sentence of Law; there is no need of the power of the Sword, for the King neither hath, nor claims Authority by the Militia to force his Subjects to make payment of money, or to do any one thing more, or otherwise then the known Law commands. We are not Governed by the Will of the King, but under Him, according as the Law of the Land directs: And the use of the Militia is no other than to preserve the Law. And therefore, in case of disobedience, to compel submission thereunto; wherein the power of the Sword, that is, the Militia is as necessary as the Law itself; for, as the people cannot be protected in their persons, lives or estates without the Law, so that Law is fruitless, where there wants power to put it in execution. Hence it followeth, (even by reason itself) that he, who hath the Sovereign power of Government, hath (as an incident inseparable unto it) the power of the Sword: And by our Law, the King hath the Sovereignty. From him (as before appears) is due to the people, protection of their persons and Estates; That, by Cok. 2. fol. 15. Cok. calvin's case. fol. 5. 7. the Laws of England, is employed in the word King. And so the word Subject implies a duty in the people to assist their King. And as this duty is reciprocal between King and Subject, so the performance thereof, is equally beneficial to both; And if either fail in their duty, both King and People are destroyed: Therefore to deny our King the Militia of the Realm, is no less an absurdity, then to appoint a General of an Army, with commands to fight an approaching Enemy, and to deny that General use of Arms, and power to command his Soldiers. But on the other side, to give the Militia unto the Members, is the same, as to put the Sword into the hands of a madman; for, as the one hath no reason to restrain himself from doing mischief, so the Members are not guided by any known Law, but having usurped an Arbitrary power over King and Subject, we find (by our woeful experience) make use of the power of the Sword to compel the people to submit unto their insatiable lusts; Witness, (besides the infinite murders and slaughters of the people) the vast sums of money these Members, since this Parliament by the power of the Sword have unlawfully wrested from the Subject, which being justly cast up, would amount to more than all the Subsidies & grants of that nature given unto all the Kings of England, for the space of 500 years before that. Upon the whole matter, clear it is, the Militia of the Realm, by the known Law of the Land, is the sole and only Right of the King. And consequently, all Commissions, Powers and Authorities, granted or given by the Members of the two Houses concerning this War, are void in Law, and no Justification for those acting thereby; But for the nature of that offence, it is showed in the next Chapter. CHAP. IX. That all persons, who have promoted this War in the name of King and Parliament, and such as have acted therein, or adhered thereunto, are guilty of Treason. THe Office of the King, and Duty of the Subject, appears before Cok. calvin's case. fol. 5. to be thus: The King to Command and Govern according to the Established Laws of the Realm; The Subject to obey those Commands, wherein the Law of all things abhors force, and enjoins peace, which Peace, by the Laws of England is called the King's Peace. Therefore in every Indictment for Murder, Felony, or Trespass done upon the person, or estate of a subject; These words, viz. contra pacem domini Regis nunc Coronam & dignitatem suam; aught to be expressed: for, although the fact be done immediately against a Subject, yet it trencheth against the King's Authority, His Law is thereby broken; And the Laws of England not only protects the King's Person from violence, but preserves Him in His Royal Throne and Government. Therefore, if any persons in this Kingdom, without command, or assent of the King, raise Forces, Powers, or Arms, (be it upon what pretence soever) it is a War levied against the King's Authority, His Crown and Dignity. For in that, the Subject assumes the Regal power of the King. Then for the Authors and Actors of this War; the King's Castles, Forts, His Navy, Arms, Ammunition, and Revenues of His Crown, are by force wrested out of His Hands; Arms raised, conducted into the Field, Himself fought with in several Battles, His Subjects in every part of the Kingdom, by the awe of those Armies, forced from their Allegiance. Therefore a War it is, and a War against the King. The next Question is, what the Law declares this offence to be. And that appears by the Statute of 25 Edw. 3. in these words. 25 Edw. 3. c. 2. Whereas divers opinions, have been before this time, in what case Treason shall be said, and in what not: The King, at the request of the Lords, and of the Commons, hath made a Declaration in this manner. When a man doth compass or imagine the death of our Sovereign Lord the King, or of my Lady the Queen, or of their Eldest Son and Heir; or if a man do levy War against our Sovereign Lord the King in this Realm, or be adherent to the King's Enemies in this Realm, giving aid or comfort in the Realm, or elsewhere; and thereof, be probably attainted of open deed, by people of their condition, etc. It is to be understood, that it ought to be Judged Treason. By this, clear it is, That it is Treason to Levy War against the King, to compass or imagine the death of the King, the Queen or Prince, to adhere unto, or aid the King's Enemies: Of all which, (the death of the King, Queen, and Prince excepted) the Authors and Actors of this War are guilty. But M. Prin, hath by Authority of the Commons House of Parliament, published a Treatise, entitled thus. The Parliaments present necessary defensive War, is Just and Lawful, both in Law and Conscience, and no Treason or Rebellion. Answer. This Title is like his whole discourse, totally, either impertinent or false. This is not the Parliaments War, but a War of the Members of the two Houses. Nor is it a War on the Members behalf defensive, but offensive; which (omitting to express, when, and by whom the Armies and Forces were first raised, that being obvious to all men) appears by considering the Cause of the War, which was thus. The Members having form a Law, to take out of the Crown, the power of the Militia, and to settle it in themselves, the King refused to consent unto it; which refusal was the ground a Declaration against the Scots papers. of this War, wherein the King was only Passive, and the Members Active. They pressed upon Him to change the Law, He refused. It were gross in this case, to conceive the King should make a War. But the Members had no way to gain their ends, but by force, and so began the War. Then Master Prin proceeds, to prove that this War of the Members is not Treason: For (saith he) they intended no violence to the King's Person, His Crown or Dignity, only to rescue Him from His Cavaliers, and bring Him back to His Great Council. Answer. It is true, sometimes the intent of the party committing the fact, altars the case. For example. A man travelling, the passage is stopped by water: And finding a horse there, makes use thereof, to get over the water. This is not Felony: But it is a Trespaas. Suppose this party indicted for felony, at his trial, it is pertinent for him to confess the fact, That he used the horse, and by circumstances to make it appear, he intended thereby only to get over the water, and so to quit himself of the felony. But this man being indicted only for a Trespass, for him to confess he used the horse to get over the water, alleging he could not otherwise have passed, thereby to quit himself of the Trespass were foolish. So here, raising of Armies against the King's Command, conducting them into the field, etc. is confessed. But (saith M. Pryn) that is not Treason, for they intended no harm to the King's Person, His Crown or Dignity. Which is a fond contradiction, for admitting they intended no harm to the King's Person, the fact confessed, is a harm to His Crown and Dignity. And that in the highest nature that may be; It is a War Levied against Him, and His Regal Authority, which by the Laws of England is High Treason. Raviliake, who killed the King of France; upon M. pryn's ground, might have justified the fact. Although he had confessed to have wilfully killed that King, yet he might with as much truth and sense, have said, he intended not to hurt the King's Person. As M. Pryn, first confessing the foresaid facts of Levying War, doth deny an intent to harm the King in His Crown or Dignity. Then for rescuing the King from His Cavaliers. If M. Pryn reflect upon the case of Robert Earl of Essex, in the time of Queen Elizabeth, he will find, That that Earl (in comparison of Edg-hill Battaile) gathered together but a handful of men, nor was that Queen fought with, nor her Person in danger. All which things the foresaid Earl, at his Arraignment alleged for himself, And protested his intent was only to remove from the Queen, some evil Councillors about her, yet not available. The fact by him confessed, viz. without warrant from the Queen, in a tumultuous manner, to raise force, was Judged Treason, for which, that Earl, and his Adherents were executed as Traitors. Thus for the point of Levying War against the King. Then for imagining the death of the King, Queen, and Prince, In this case the intent of the party acting is considerable. For example, suppose the King to be distracted or distempered, endeavours to violate himself, or assaults a Subject. To lay hands upon the King, to preserve His, or the Subject's life, in those cases, and such like, the facts are lawful. And it may so happen, that the King may be slain, and yet no Treason: As in case of tilting, and such like. Now the intent of any man cannot appear, otherwise then by the party's confession, or by Proofs, Circumstances, and Presumptions. Then for the Authors and Actors in this War; It is true, they deny an intention to kill the King, the Queen, or Prince. But the Circumstances are as full and pregnant to prove they intended it, as is possible. A man seem to come out of a house with a naked sword bloody, none being in the house but the Corpse of a dead body newly slain with a Sword. This is so pregnant a presumption, as that, before a just Judge, and an equal Jury, the man's denial will not avail him. Suppose one should assault and strike the King, the Queen, or Prince, and with violence pursue the same, and for this, be indicted to have imagined their death; for that man to allege, he intended not to kill him or them so assaulted, were in vain. But certainly the presumptions to prove the Authors, and Actors of this War, intended to kill the King, the Queen and Prince, are far more pregnant. Suppose the Members and their Soldiers had declared their intent to be, to kill them; no man can devise how they could have endeavoured to have effected it, more than hath been done by this War. Several Battles have been joined, the King and Prince in person. And many thousands on the King's party slain: And for the Queen, witness the business at Burlington. The Authors and Actors of the powder-plot, were justly condemned for Treason. Upon that point of imagining to kill the King, the Queen, and and Prince. But upon this ground of M. pryn's, they might have escaped punishment. It had been as easy for them to have alleged, that they intended not to kill the King, the Queen, and Prince, As for the Actors in this War, to pretend it. But Master Pryn undertakes to make this War against the King to be Lawful, by Authority and precedents. Julius Caesar (saith he) by a Conspiracy of the Senate of Rome was murdered, having 23 wounds given him. And then shows the Rebellions in the Reign of King John, Henry 3. Edward 2. Richard 2. and other Kings; And some of them, it is true, were murdered by their Subjects. Answer. I confess, if precedents and examples of this kind, be Authorities to prove the facts lawful: It is easy enough to justify this, and every Rebellion: And M. Pryn having cited that precedent of Julius Caesar and himself acknowledging that fact to be murder, he was overseen to omit citing that of Judas, for it was somewhat later in time, it excels that fact against Caesar, and is very suitable with this of the Members. He betrayed his Master, and the Saviour of the world with a Kiss; these, their Sovereign with an Oath. Oath of Supremacy And like unto those Treasons and Murders against Caesar: King Edw. 2. and King Rich. 2. they might very aptly have cited the examples of some of their dear brethren the Scots; several King have been Rebelled against, and Murdered too, by the Subjects of that Nation: Yet we see they are not (by the people of Scotland) made examples, or cited for Authorities, to prove the lawfulness thereof. But contrariwise, That Nation doth unanimously declare it their duty to relieve and rescue their King from out of the hands of His Rebellious English Subjects. And many other examples I confess there be in foreign Countries, both Christians, Turks and Infidels, where Kings, by their own Subjects, have been betrayed and murdered. And so the discontented people in any Nation, may allege, that King Edw. 2. & Rich. 2. of England, being lawful Kings, were by their own Subjects, Rebelled against, and Murdered. And so (be the scene in Spain, France, or any other Kingdom) conclude it is lawful for them to do the like. Then M. Pryn explains the meaning of the aforesaid Statute of 25 Edw. 3. by which it is declared to be Treason to Levy War against the King, to compass, or imagine the death of the King, the Queen, or Prince. But the words of the foresaid Act (saith he) must be understood with this Limitation, viz. so long as Kings execute their Just Royal powers, according to the Laws of God, and of their Realms, that (saith he) is the meaning of the holy Ghost. And even so, saith he, are these words of Saint Paul, viz. (let every Soul be subject to the higher powers) to be understood with that limitation, yet (saith he) No private man of his own authority, aught to rise in Arms against them, without the general consent of the whole Kingdom, or both Houses of Parliament. Answer. This was a doctrine aptly divulged for the justification of this Rebellion: And a ready way I confess to draw the multitude to their party, who oftentimes are (as in this case they were) misled, upon pretence of Law, and Religion, to their own ruin. Now admit the Members to have got the Sovereign power. If Mr. Pryn be asked this question, How he will have the holy Ghost now to speak? If the Members make a Law, and declare it Treason for the people to levy War against them, whether that Law shall be understood with the same limitation. Mr. pryn's answer will be, that the limitation is now ended. The Members he will say must expound the meaning of their own Law, and S. Paul's words too. For the Members themselves tell the people, that they are the Kingdom, whatever they do they would have us believe to be the act of every person in the whole Nation. And so not examinable, but by God himself in the next world; so that the Declaration against the Scots Papers. Members having got the power into their own hands, whether they govern by the Laws of God, or man, although they be the greatest Tyrants in the world, & the highest persecutors of Christian Religion, be it either spiritual or temporal, although never so pernicious, to foul, or body, it must be admitted for good Law and true Gospel. Thus the people (being drawn to recede from their true principle) have occasioned their own confusion; Whereas by their observing the Laws of the Realm, these distractions have been avoided. For by the constitutions of this Kingdom, both King and Subject are regulated by a known Law, which Law, permits neither King, nor people to be Judge in their own case. If one Subject wrongfully imprison the person of another, seize his Lands, or take away his goods, the party injured, hath his legal remedy, but is not permitted to be his own carver, or revenger: if he for his own satisfaction, kill his adversary, it is murder; If he seize his Lands, or take his goods, it is a trespass. So in the King's case, If by His Command, any Subject be imprisoned, or his estate taken from him, against the rules of the known Law, that Subject hath his legal remedy against the King's ministers, wherein, neither the King nor his officers, are Judge. Therefore, if that Subject thus injured, should, to revenge himself kill the King, or seize His Revenues, it were a most barbarous and unjust Law, not to condemn this Act unlawful. And that being admitted, it must be unlawful to attempt His death, or to levy War against Him, for any such cause; And consequently all those facts (although committed upon the grounds aforesaid) are Treason. Now that person who conceives himself to be most highly injured, being required to set down the motives of his taking up Arms against the King, his pretence can be no other than this. That his person hath been imprisoned, his Lands seized, and his goods taken from him. And this (in his judgement) against Law, none but Brutes can conclude, these are legal justifications to act, and do, such things against their King. And so consequently the authors and actors of this War, are guilty of Treason. But saith Mr. Pryn, The Parliament is not within the meaning of this Statute of 25 Ed. 3. Therefore not Treason for the Members to seize the King's Forts, Arms, Ammunition and Revenues of the Crown, for (saith he) the King is a Member of the Parliament, and therefore if the Parliament could commit Treason, the King should commit Treason against himself: And (saith he) the Parliament is a corporation and a Court of Justice, and so not capable of the guilt of Treason. Answer. Most true it is, That the King is exempt from the guilt of Treason, for all Treasons are committed against Him. But every Subject (which includes all the rest of the people) is capable, both to commit the fact, and is subject to punishment for the same. And herein there is no difference of persons. It is no more lawful for a Peer, then for a peasant, to commit that crime, the place where altars not the nature of that fact, nor doth it avail the actors, in being Members of any Assembly, Corporation, body politic, or Court of Justice. For every one of these Members, or persons, besides their politic capacity, hath a natural capacity too. In which capacity, he is subject to the frailties of man, he may actually break the Law, and passively suffer for it. But b Coke 10. f. 32. the Assembly itself, the Corporation, the body politic, or the Court of Justice, can neither commit a crime, nor is capable of punishment. For example, the Parliament, that is, the King, the Members of the Lords House, and the Members of the Commons House, their power is only to make Laws by Act of Parliament. Therefore when the Members of the two Houses in a Parliamentary way, pass a Bill, which the King confirms with His Royal Assent; Absurd it were to think this could be an Act of Treason. And so it is for the Judges of every Court of Justice, keeping themselves within their jurisdiction, they cannot, in the proceedings of their own Court, commit Treason. And the like holds with all Corporations and bodies politic. But if a Member in either House assault or strike his fellow Member, that is a trespass, and wilfully to kill him, is murder: And by the same reason, to kill the King, although within the walls of the House, is Treason; And that being granted, it followeth that to imagine His death, or attempt to kill the King, or agree to levy War against Him, although in that place, is Treason in such Members. And herein no formal, or seeming Parliamentary proceedings, will alter the case. The putting it to the question, voting the business, and settling it by a Major part, or composing it into a formal Law, and calling it by the name of an Ordinance of Parliament, neither alter the nature of the crime, nor takes away the guilt of Treason. If one who hath acted in this War, be indicted for Treason, who at his arraignment, shows an Ordinance of both Houses, for his justification. The trial being before a just Judge; It will no more avail him, than Adam was justified, saying Eve tempted him to eat the forbidden fruit. And the Members, who commanded those things to be done, being legally questioned, have no more to say then Eve had. For it was the Serpent who tempted them to commit this treason. The rightful Judge will inform them, that the Law cannot be altered, but by Act of Parliament. The Judges of the Realm understand not the Language of an Ordinance of the two Houses, nor is any such thing pleadable in a Court of Justice, the Law takes no notice thereof. These things are done by the Members, not in their politic, but in their natural capacities. They are not Acts of Parliament, they are unlawful facts of Parliament-men; And such offenders being attainted and executed, the Parliament suffers not. Besides, it is the fact which the Law doth look upon: And in this case the greatness of the person offending, the number committing the offence, and the place where acted, is so far from extenuating, as that it rather aggravates the crime. For a conservator of the peace, in his own person to break it, or a Judge of the Law, to be an example of transgressing it, is more odious then in other men. Then considering the persons acting, viz. Members of the House of Parliament, the thing acted high Treason, the place where, in those Houses, words cannot express the barbarousness of it. Now to conclude this point, I here set down what facts the known Law judgeth Treason, the Members Law therein, and the proof on both sides. What facts the Law judgeth high Treason, the foresaid Statute of 25 Ed. 3. makes it manifest in these words. viz. Whereas divers opinions have been before this time, In what case Treason shall be said, and in what not, then declares that by the Law of the Land, these particular facts following are Treason. 1. To compass or imagine the death of the King, the Queen, or the Prince. 2. To violate the Queen, the King's eldest daughter unmarried, or his eldest sons wife. 3. To levy War against the King, or to adhere unto His enemies, giving them aid or comforts in this Realm or elsewhere. 4. To counterfeit the King's Great Seal, the Privy Seal, or His money. 5. To bring false money into this Realm, sergeant to the money of England. 6. To slay the Chancellor, Treasurer, or the Judges of either Bench, the Justices of Eyre of Assize, and all other Justices assigned to hear and determine, in their places doing their office: And then it is enacted in the negative, that no other thing shall be judged Treason, until it be declared by the King and His Parliament: And accordingly by several Acts of Parliament some other things have been made Treason, viz. 7. To deny the King to be our only Supreme Governor, and so in some other particulars. The Members Law herein, both Affirmatively and Negatively follow thus. 1. That it is not Treason to imagine the death of the King, the Queen, or Prince. 2. That it is not Treason to Levy War against the King, to adhere unto His Enemies, or to give aid or comforts to them, in England, or elsewhere. 3. That it is not Treason to Counterfeit the King's Great Seal, or His Money. 4. That it is not Treason to deny the King to be the Supreme Governor. Then for their Doctrine, in their Affirmative it followeth thus. 1. That it is Treason to endeavour the preservation of the King's Person from violence. 2. That it is Treason for a Subject to aid the King against His Rebellious Subjects Levying War against Him. 3. That it is Treason to maintain, or affirm, that the King is the only Supreme Governor. 4. That it is Treason for any Man, to deny the Members (their fellow Subjects) to have the Sovereign power of Government. 5. That it is Treason for a Subject, without leave of the Members, to reside or dwell in London. But it is not possible to instance in all the particulars of the new Treasons: therefore in general, the people must know, that whatever the Members shall say is Treason, They must believe it to be Treason. Now for the poofs. The foresaid Statute doth clearly demonstrate what the known Law is. And therewith agrees all the Authorities, Judgements, and Resolutions of the Law. But for the Members, their Law is so new, as that they cannot look beyond the beginning of this Parliament, nor produce any one Judgement, Resolution, or Opinion to make good any one of their Doctrines; And consequently, their own fictions. Let them speak out, and all that they can say for themselves, is but thus, viz. We have gotten possession of the King's Revenue, we have besides that, settled unto ourselves a yearly Revenue, amounting to at least thrice treble the profits of the Crown of England: and which is still more sweet, we have the dominion over King and People, we have a power unlimited, to impose taxes and payments upon whom we please, and what sums we think fit: their persons we have in vassalage, and can take away their lives, when, and for what cause we please; for the obtaining whereof, we did Levy War against the King; we did in that War attempt to kill the King, the Queen and Prince; we did adhere unto His Enemies, and gave unto them relief and comforts; we have counterfeited the King's Great Seal, and His Money; we have, and yet do most barbarously imprison the King's Person; we have subverted both Law and Religion. Now for us to confess the known Law, and submit ourselves thereunto, were no other than to put our necks into the halter: Therefore we must of necessity deny the old, and forge new Laws. These things considered, I suppose every one (not particeps criminis) in this odious Rebellion, will judge it more absolutely necessary for him to endeavour his enfranchisement from His slavery, than it was for the Members to commit this foul Treason and Rebellion, whereby the people are brought to this Vassalage. Upon the whole matter, clear it is, that all those Members of either House of Parliament who consented to the making of any Order or Ordinance, for the promoting of this War, pretended for King and Parliament; and all other persons who have acted therein, consented or adhered thereunto, are guilty of High Treason. CHAP. X. That the Subjects of this Nation are not only commanded from doing violence to the King's Person, or prejudice to His Authority, but are obliged with their lives and fortunes to assist and preserve His Person and Just Rights from the fury of His enemies, both foreign and domestic. ALL the people of this Nation are divided thus, viz. King and Subject; which of itself is proof sufficient to make this good. The word King, (as before appears) implies a duty in the King, to protect His people; and the word Subject, a duty in them to assist Him. By the Laws of England, for a servant to kill his Master, is an offence of a higher nature, and the punishment for it, more severe then for the meanest Subject (without such relation of service) to kill the greatest Peer; for, besides the Subordination between them, a trust is employed, the breach whereof, (by an act of that nature) by the Laws of England is petty Treason. Besides, the Law expects from the servant, a personal assistance, to preserve his Master from violence or hurt; and in that regard, the Master being assaulted, the servant, by the Laws of England, may justify to resist the assailant, in defence of his Master's person. And between the King and His Subjects, the Subordination and Subjection is of a far higher nature. The trust reposed in the Subject, and his duty to the King, is far more transcendent: the King being head of the weal public. By violating his person (saith our Law) every Member of the Commonwealth suffers: Therefore in assisting Him, we do defend ourselves. He is Pater Patriae, we are His natural born Subjects, and so by the Law of nature, obliged to preserve Him from injury. Now the person of my Sovereign Liege Lord the King, by an unnatural War, raised and prosecuted by His own Subjects, being assaulted, and War made against His Crown and Dignity; And the King, having by His Proclamations summoned His Loyal Subjects to assist him: upon serious consideration thereof, I found that nothing was more clear, or pregnant, both by a 7 Edw. 1. c. 1. 11 Hen. 7. c. 1. 2 Edw. 6. c. 11 4. 5. P. M. c. 3. Cok. calvin's case. fol. 7. 14. Authorities of the books of Law, and several Acts of Parliament (by which it is abundantly declared to be our bounden duty to serve the King in His Wars, both against foreign invasions, & domestic insurrections and rebellions.) Then that I was obliged in duty, by the Laws of this Realm, by the Law of Nature, by the Law of Reason, and by the Law of God, even by that precept of Saint Paul in these words, viz. Let ' every soul be subject to the higher powers, to assist Him against these assaults. And upon these grounds I took up Arms for Him, and in His defence, against the forces raised by command of the foresaid Members of the two Houses of Parliament. CHAP. XI. That the persons at Westminster, who call themselves the Parliament of England, are not the two Houses, nor Members of the Parliament. IN my foresaid Treatise, I have (by way of admittance) granted these men at Westminster to be the two Houses of Parliament. The Houses, from their first Assembling, to have been completely full, To have unanimously concurred in Votes, and every Member, to have consented unto all those horrid things, acted in the name of the Parliament. And in case it had so fallen out, still the Law (in every particular before mentioned) had been the same; That concurrence of the Members had nothing altered the case. Therefore sure without dishonouring the two Houses of Parliament; injuring (in a manner) the whole Peereage, and the far greater number of the Members duly elected of the Commons House: I cannot omit, First, to express the cause of these my admittances. Secondly, to show that these men at Westminster (who now assume the name and power thereof) are so far from being the Parliament of England, as that they are neither the two Houses of Parliament, nor Members of them. For the first, had I, at the beginning fallen upon these questions; whether Members, or not Members, Houses, or no Houses; I had thereby barred all further progress in that my Treatise. For, if no Houses of Parliament, than no dispute can arise, what votes or proceedings of the Members are valid, and which void. Therefore to introduce these questions, viz. what is a Parliament, the Authority, and use thereof? The proper office of either House singly, and of both Houses jointly without the King. I granted (but that I say only by way of admittance) the foresaid persons to be the two Houses of Parliament: and to have all powers, and authorities due unto those Assemblies. Then for the second, viz. that these men at Westminster are neither the two Houses, nor Members of them, is proved thus. 1. First clear it is, that the essency of a House of Parliament, doth not consist merely in the legal assembling of the Members thereof. Besides that, it is necessarily required, that every Member have liberty to repair unto the place of sitting: And there freely (according to his conscience) to Vote, and deliver his opinion in all things agitated. For example, a Commission is granted to twenty, with power to them, or any five, or more of them, to execute the same. Here, although five, (if no more appear) have full power: Yet if all be present, and consenting to act, no five, nor less than the whole twenty have authority. So that if nineteen of them injuriously exclude one, the proceedings of the nineteen are void, which stands with great reason; for, if nineteen may exclude one, eighteen may exclude another: And in like manner, one by one they may expel each other, until reduced to the last man. Besides, frequent it is, in every Assembly consisting of many, where the major part determineth the question. For the business in dispute, (of what nature or moment soever) to be carried on either side, by one voice. Therefore injuriously to exclude one single person from Voting, is as destructive to Justice as to reject Two, Three, or more: Yet herein let not me be mistaken. I grant, that either House of Parliament, frequently doth, and may legally proceed, although not completely full. And that each Assembly, hath authority (in some cases) to suspend particular Members from sitting. But I say, that whilst either House, (without lawful cause) wrongfully hinders any one of their fellow Members to sit, or freely to Vote with them according to his conscience: The rest of the Members of that Assembly, (what number soever) have not Parliamentary authority to proceed in any thing. Therefore when a competent number of either House is Assembled, all those so met, and no less (I mean without expelling them, or any of them, or forcing any one's conscience) have power to perform the office of that House. And the same it is if any one legally returned, shall (by his fellow-Members) be hindered to repair unto the House. Those disturbers do thereby disable themselves to act in that Assembly. Now for application to these men at Westminster: It cannot be forgotten, But that within few days after the first meeting of the two Houses, the election of many Knights and Burgesses (known to be honest moderate men) were questioned: Their persons instantly suspended from sitting; but unto this day, whether rightfully or wrongfully elected (notwithstanding all possible endeavours to obtain it) not suffered to be determined. Therefore manifest it is, that to be rid of those Members out of the House, was the only cause of such questions, and suspensions: But that more clearly appears by the progress of the business: For not long after those suspensions by Order of the Commons House, every Member of that Assembly, whose name had been used in any Patent of Monopoly, or acted therein, was in words disabled to sit or Vote there. And by colour of this Order, divers Members were expelled, and forced to quit the House: For no other cause, but for that their names were used in some Patents or grants of the King, which grants these Members, before and without any legal trial, judgement, or determination thereof Voted to be void. Yet (which is a remarkable sign of their injustice) their own babes of grace, such of them I mean as the faction could confide in (although within the express words of that Order, and (at least) as guilty of that fact, as any other) have ever since been, and still are, a Mildemay. principal Voters there. Now if these Members expelled by the foresaid Order, were wrongfully expulsed, it followeth, that the whole Assemby did thereby suspend itself from acting as the House of Commons; And that they were wrongfully expulsed, and injuriously debarred sitting, or voting there, is thus proved. No person duly elected, and returned of the House of Commons, can be lawfully expulsed that House but for such cause as by the Law of the Land he is disabled to sit or Vote there. But the cause mentioned in that Order, by which those Members were expulsed, doth not (by the Law of the Land) disable any man to sit, or Vote in the House of Commons, Ergo. To deny the major cannot enter into the heart of any honest Englishman. That is no less than to give unto the greater part of that Assembly (at all times) an arbytrary power, without lawful cause to expel thence (although equally trusted and authorized by King and people with themselves) their fellow Members; which being admitted unto them, it followeth, that the people's power of electing, is (in effect) taken away: and consequently no representatives in that House. For although it be admitted, that after such expulsion the inhabitants shall elect again; The people cannot expect an end of choosing, until return be made of such as the present prevalent faction likes of. And we see (almost as frequently as the tide turns) that the faction of that House changeth; And accordingly expulsions follow, and new elections are made: So that (admitting this power to expel) it would ease the people of much trouble, for the Members to endorse upon every Writ, the names of such as shall be chosen; Or rather, by their Speaker (after a Vote to that purpose naming the man) to summon him to the House, and so as they Vote out one Member to Vote in another. Which in effect is exercised at present. We see it is not at all considered, whether the party chosen be fitly qualified for the service or not. If he be of an humour to concur in opinion with the present faction, good enough. Hence it is that we find the children, or kindred of those who for the time being starve the House (of what age or capacity soever) and none else are judged fit for the employment. And so admitting this authority in the major part of that Assembly: The issuing out of the Writs, the people's electing, and the returning of the Members, are become but frivolous, and useless ceremonies. Therefore the Members no representatives; and consequently no House of Parliament. And for the minor, It needs not the help of a Lawyer to make it good; every man of the meanest capacity may judge it. For, if being named in a Patent of Monopoly, or acting therein, because to disable a Member of either House, to sit or Vote, it follows, that no man in the Kingdom is qualified for that service. Every one (in some degree) is guilty of the breach, both of the Laws of God, and of the Realm. Suppose another faction in that House (happening to be the major part present) Order, that every Member, who in any fort hath broken the King's peace, committed fornication, sworn an Oath, or transgressed the Law of God, or man, be forthwith expulsed the House. If that Order concerning Monopolies be binding, absurd it were to deny this to have the same effect. For every one comprised in each Order, is a transgressor of the Law, and punishable according to the quality of the offence: But no one of them, more than the other, (by the known Law) is disabled to sit, or Vote in the Parliament: He who hath been an actor in a void Patent of Monopoly, is as capable to be a Parliament man, as another who hath committed fornication, adultery, assaulted or beaten his neighbour, or the like. So that, it appears to be the Order of the House, and the will of the Members, (not the Law of the Land) which doth now (in that Assembly) regulate, and balance the business. Therefore clear it is, that those Members were wrongfully, injuriously, and illegally expulsed the House. So that, if no more were in the case, those persons at Westminster, are not the Commons House of Parliament. 2. Secondly, The Members finding the aforesaid Order of expulsion far too short, still appearing in the House many honest Englishmen. It was resolved to cast them out by club-law: It was hereupon insinuated unto the giddy multitude, that several Members of each House, opposed reformation, and Justice. The names of such Members as descent in Votes from the sense of the present major part, are posted in the streets, and injuriously branded with a character of evil affected persons to reformation. The people hereupon (in great multitudes) swarm to the doors of both Houses, and there (being prepared and instructed accordingly) with hideous noise, clamour against Bishops, Popish Lords, and evil affected Members; And (although most ignorant what it is) call for Justice. Now this violent medicine, was so long, and so often applied, that the Houses (according as empirics commonly use their patients) absolutely confounded their own bodies; for of above two hundred Lords, 5. 6. or 7. at this day is a complete House of Peers: And in matters of greatest moment, rare it is to have ten of that Assembly to carry the question. And for the Commons House of 500 Members, not 100 of those now permitted to sit or vote there (were at any time by the Law of the Land) Parliament men. And so unless the whole World hath hitherto been mistaken, in attributing the powers of those Assemblies to the Major part of the Members, whereas it ought to have been given to the least number. And that by the constitution of the Realm, it is lawful for a part of them by force, and without lawful cause, to drive from thence, their fellow Members. We have no House of Parliament at this day. Nor is the case of the lower House any thing better by their excrease of number: That forgery of the King's Great Seal, doth no more authorise the Inhabitants to elect a Knight, Citizen or Burgess, then should the Speaker of the lower House (in pursuance of the Votes of both Assemblies) sergeant a deed in the name of the Speaker of the higher House, purporting a conveyance to himself, of that Lords Estate, would legally entitle him thereunto. Besides, were that no counterfeit Seal, The Inhabitants of the County, the free men of the Cities and Boroughs being deprived of their freedom of election, not daring (as before is said) to choose other, but such as are intimated to them, to be nominated by the House, or the Soldiers; they are not in Law Members of that Assembly. Thirdly, the Members, although reduced to so small a number, were not hereby cured of all their griefs: The haunting Ghosts, and inseparable Companions of every Traitor, (fears and Jealousies) still stick close unto them; by driving from the Houses, such as visibly opposed this work of destruction; gave not sufficient confidence to the rest of their own perseverance therein. The conscience therefore of every one this elect little remnant, in the next place must be fettered; wherein special use is made of that clause concerning privileges of Parliament, contained both in the Protestation and Covenant: The words thereof being general, to defend all privileges, the Members declared, that by whom, and when this privilege is broken; themselves and none else must be Judge, And like Judges in their own case, they have determined the question, no less to their own advantage then by enthralling, not only the Consciences of their fellow Members, but of every Soul in the Kingdom to their sense. In order whereunto (as before appears) they have voted, that every one who shall oppose any result of theirs, is an Infringer of Parliament Privileges. Now although the nature of this crime is not yet by them defined; it may (at every instant time) when they think fit, even by one blast of wind be made to exceed the highest Treason: So that, most clear it is, after these Votes, no man endued with honesty or courage, could with safety, sit or vote in either House; Every one not of the tribe, (unless he run into his own ruin) must stand mute until the design of the present prevalent faction be visible: And then (however it suits with his heart) his tongue must chime with that party: And although this rule be exactly observed, yet once having declared himself, he is every hour in danger of destruction: For when a new faction gets up, (which is very frequent) changing his note, oftentimes preserves him, not from an impeachment; he is from thence, but dandled as a whelp under a Lion's Paw; when that party thinks fit, cru head in pieces. Now should some of the Judges of any Court of Justice in Westminster-Hall, demean themselves in this manner with their fellow Judges, no wise man would esteem them to have the power of Judicature: And why a part of the Members of either House should have this Privilege, more than they, is beyond the reach of the Westminster-men to make it good: By this it appears, that the Members have not freedom of Speech, and consequently no House of Parliament. Fourthly, admitting the Members had not been injuriously expulsed; And had they been permitted freely to give their opinions; yet these men at Westminster have disabled themselves to sit or Vote there; which is proved thus. Every Traitor, Murderer, and Felon, by the Law of the Land is disabled to sit or vote in Parliament: But these persons are Traitors, Murderers, and Felons, Ergo. The Major needs no proof, every one grants it. And for the Minor, Those men have not only committed such facts as the Law judgeth Treason, Murder and Felony; but even making it their daily work, are still constant to those their principles. They (as before appears) actually Levied War against their King, which is Treason: They have actually endeavoured to kill the King, the Queen and Prince, which is Treason: They have counterfeited the King's Great Seal, which is Treason: They have counterfeited His Money, which is Treason: They have not only denied their King to be the Supreme Governor, but have arrogated the power of Sovereignty to themselves, which is Treason: They have this Parliament declared it Treason to attempt to change the Law. But themselves have actually subverted both Law and Religion; And have reduced both King and people to their Arbitrary power, which is Treason. They have, and still do imprison the Person of their King, which is Treason. Then for Murder, besides their own consciences (if they have any remorse) inwardly gnawing the fatherless children and widows, of those slain on both sides in this unnatural War, raised, and prosecuted by them against King and Kingdom, in swarms to testify against them. But this not all, they do still in colder blood, and in further abuse of Justice, by pretext and colour of Law, sometimes in their own names, other while imitating the ordinary forms of Law, by the mouths of their nominal mock Judges (whose understandings and consciences by their foresaid Order, and with bribes and rewards they have in vassalage) condemn, murder, and put to death the King's Loyal Subjects as Traitors; and this principally for refusing to commit Treason. And for felony; That offence is included both in the crime of Treason and Murder; but there needs not that help to prove them guilty thereof. By the Law of England it is felony of death, to steal goods exceeding the value of twelve pence. But these persons (in the nature of robbery) have by force taken from King and People their whole livelihood. Suppose 20 Troopers to make an Order, that all persons passing through Highgate, shall deliver unto them, all such Money as shall be found about them. If the Troopers (by colour of this Order) force the passengers to deliver their Money: It were ridiculous to deny this to be robbery. Yet, if that Order made by the Troopers were binding, the fact were lawful. So here, those men at Westminster have ordered, (which they style an Ordinance of Parliament) that all the people of England, shall give unto them, the 5 part, and the 20 part of their Estates. That every man, who eats, or drinks, buys, or sells, shall pay unto them a certain sum by the name of Excise. That every County and Town shall likewise contribute unto them, and their Soldiers, vast sums of money. That all the King's Revenues, shall be disposed of to them, and to their use: That all persons who shall oppose them herein, shall be judged Traitors, and forfeit unto these men their whole estates, and fortunes; And by colour of those Orders we see they do by force seize and take all, to their own use. Now in regard the foresaid persons at Westminster have not power (as before is proved) to make such Laws, it directly followeth, that the forcing the King and people herein, is unlawful, and consequently both King and Subject are robbed of their money, and goods: And their estates wrongfully detained from them. But peradventure these incendiaries at Westminster will object, that although they be guilty of those crimes, yet until they be judicially convict thereof, it cannot be alleged against them. Answer. First, By their own practice, they have judged this point against themselves. For (as before appears) without any legal conviction, they have expulsed almost all their fellow-Members. And that for supposed facts, which if guilty of, disabled not them to sit or vote in the house. So that, these Westminster-men (having to the view of the world committed such facts, as by law disables them to sit or vote) to be judged no Members, themselves must confess, is (at the most) but lex Talionis. Secondly, it may appear (even in the judgement of Law) that a man is guilty of treason, murder, or felony, although not attainted, or convicted thereof. For example, one calls another (before any conviction of such a crime) Traitor, Murderer, or Thief. The Person thus charged, brings his action of slander. In this case, if the Defendant justify his words: alleging, that the Plaintif committed such a fact, which the law judgeth Treason, Felony, or Murder, and at the trial proved it. The Jury ought to acquit the Defendant of the slander, yet still that Traitor, Murderer, or Felon, is not convict of the fact. Therefore clear it is, a Traitor, is a Traitor. And the people may as well know him so to be, and as lawfully so call him, before attainder, or conviction, as to know a spade to be a spade, and so call it. Besides, when a treason, murder, or felony is committed, it is the proper office of every petty Constable, and of every Justice of peace; nay, it is the duty of every honest Subject, to apprehend the malefactor, and to bring him to due punishment; wherein, neither privilege a 4 Part Institutes. fo. 25. of Parliament, dignity of the Person, or employment of the Offender, is any protection. It is not only lawful, but the duty of every honest English man, to lay hands upon the Speakers of both Houses, or upon any Peer, or Parliament-man, or any other, having committed the crime of treason, murder, or felony; or justly suspected for the same: And consequently they ought to apprehend the aforesaid Westminster-men. It is true, that in the ordinary proceedings, no man can be convict of treason, murder, or felony, but by Act of Parliament, or by judicial proceedings recorded in his life time, yet there is another rule in Law too, viz. that no man shall take advantage of his own wrong. Therefore, if one before he be convict by such proceedings, be killed in rebellion, and his corpse viewed by the chief Justice, b Coke 4. fo. 57 he forfeits both lands and goods. Now suppose 500 ordinary persons (not claiming the power or name of a Parliament) to have committed the crime of treason, murder, or felony; Then assemble to themselves multitudes, out the Judges from their Justice seat, place those of their faction therein; seize the King's Great Seal; break it in pieces, and counterfeit an other; Imprison the King, and thus stop the course of Justice against themselves: Grosse it were in that case (because unattainted, or unconvicted) not to declare them Traitors: Should the people in that case, omit by all possible endeavours, to apprehend, and bring them to punishment, (wherein the Law c Coke 9 fo. 68 Coke 5. fo. 109. upon resistance doth warrant the kill of them) they were not only disobeyers of the Law, but the cause of their own misery; Even so it is with the people at this day: There is no difference to be found betwixt those 500 men, and them at Westminster, but the Westminster-mens' pretence of authority, which renders them more odious; And therefore the people ought to be more zealous to apprehend them. Fiftly, it is an undoubted truth, that whilst the Members are so overawed, as to act and do what others command them; It is no free Parliament; and consequently all their proceedings void and null. But those Westminster-men are in that manner awed, Even as they, by tumults expelled their fellow Members, and by their tyranny fettered their consciences; themselves are now (by the power of an Army) forced to captivate their own sense to the will of a few inconsiderable persons; some particular Officers of the Army: The Members do not, they dare not act any thing, but in obedience of the results of a Council of War. Nay more, we see, not to alter, and change opinion (how contradictory soever to former votes, how pernicious to King, Church, or Commonwealth) as they receive commands from thence, is ground sufficient both of an expulsion from the House, and an impeachment of Treason. Hence it is, That we find such contradictory results, sometimes these persons voting themselves a Parliament, sometimes no Parliament, sometimes much show of settling a Form of Religion, they unvote that again, and declare (upon pretence of satisfying tender Consciences) to have none at all. They do (in effect) say, and unsay, vote one and the same thing, lawful, and not law, even as the Cudgel hangs over them. And so unless persons, whose Souls, and Consciences, are so far in vassalage, as to say, act, and do, what ever the present prevailing Party commands, make the Houses of Parliament, these Westminster men are not they, and consequently if nothing but this were against them, it proves them no Members of Parliament. Sixtly, admitting these men not disabled by any, or all the foresaid means, yet by their late Votes declaring their resolution, not to make any address, or application to the King, nor to permit any from him, they have (by the Law of England) dissolved themselves; For, setting aside the King's Writs of summons, the people's electing the Knights, Citizens, and Burgesses, and the returns thereof made; And the Persons assembled have no more authority to sit, or vote in either House, than any other men. And by those Writs they have nothing else to do, but to treat with the King concerning the affairs of the Realm. Therefore by waving that, they quit all their employment. They do by it clearly publish unto the world, an absolute denial to take upon them those things which the King and people entrusted them with, and for which they had Commission. And consequently, what ever they do is without Commission, or Authority. But to do them right, they are in these votes more ingenuous then formerly. There is now a harmony between their words and actions, which heretofore jarred. For, notwithstanding their often Declarations, and high Protestations (even with deep execrations upon themselves if not performed) to make the King glorious, and the people to flourish: The world might (even from the first beginning of the Parliament) see, that all their actions tended to the destruction, both of King and Kingdom. Now suppose a new gang of four Judges set up in the Court of King's bench by colour of Authority of these Persons at Westminster, and three of them (by an Order of their own) to expel the fourth: then two of the three to expel the third: & then one of the two to assemble multitudes, and expel the other. And after this the last man by himself alone, or calling unto him two, or three other persons suitable to himself, to judge the Law, and thereby to declare the wealth of the Nation to be their own, and both the Members, and the rest of the people, to be their slaves: And having got an Army on foot to support their actions; Then to declare that they will have no more relation unto, or meddling with the Members; such Persons would quickly be denounced no Judges of that Court; Declared to act without commission, or authority; To be Subverters of the Law, and would be impeached of high Treason against this new State; Even so ought all the people to declare these Westminster-men. It is their case against the King, the people, and the old known fundamental Laws of England. Upon the whole matter, I cannot more aptly parallel these persons, then unto those men our Saviour in the Gospel warns us of: They have got within the walls of the Houses of Parliament, but Mat. 7. 15. 16. john 10. 1, 2, 10. entered not in by the door: They came in Sheep's clothing, expressing themselves most zealous to advance Religion, and to preserve the people's Liberty: But by their fruits, we find them inwardly ravening Wolves; they are like unto those who our Saviour calls thiefs, that come to steal, kill, and destroy; they have abolished all Religion, they have taken from the people their Liberty, and (almost to the last drop of blood) have sucked from them their livelihood. In a word, since they cast off their loyalty, and so making themselves masterless; those Wolves are so filled with pride, as that they disdain all other Creatures; They are so gorged with malice, as that they snarl and pinch at most men they meet, which hath its effects like unto the biting of a mad Dog, scarce curable, but by a medicine prepared with the heart, or liver of that biting Cur. So the world sees when these Westminster men have once fixed their malice, (whether upon those against them, or upon their own Party, whether he have deserved well, or ill, whether the fact charged upon him be lawful, or unlawful) it is a million to one, in fine, he perisheth. Nor can the wit of man find a cure for this grief; but to unkennel these Wolves. And to effect it, the people of England by the rule of reason, by the law of nature, of Nations, by the Laws of the Realm, and by the Laws of God, are obliged to do their uttermost endeavour: For to their doors it is now brought, wherein they cannot expect any formal Warrants, according to the ordinary proceedings. For (as before appears) the Malefactors themselves, have stopped the passage of the Law; the people therefore ought not only to declare these Westminster men, no Houses of Parliament, and no Members of them; but they are obliged to reject all their Orders, Ordinances, and Commands, what name or title soever they have given or shall give them: And also to apprehend their persons, and bring them to due punishment of Law. CHAP. XII. Results upon the premises. That the people of England under the government of the KING, according to the known Laws of the Realm, are a free Subject. THe use of a Law, is to protect every one under it, in his just Rights, which (I grant) cannot be done, unless by that Law, the lives, and estates of the people, be subject to the judgement of some known persons; without that, neither Malefactor can be punished, nor Controversy decided: Hence it followeth, that the happiness, or misery of the people depends upon the good, or the bad constitution of that law under which they are governed. For, such a law may be, as that the people are thereby little altered, from that condition they were in when they had no Law at all. For example, where there is no Law, and so the strongest party hath the best interest, every one is a Tyrant each to other; and where the supreme Magistrate hath an arbitrary power, the people are no better then legal slaves to that supreme Governor. Now this Arbitrary power, cannot be avoided but by observing these principles, viz. By placing the Sovereign power of Government in one hand, and the absolute determination of that Law, by which (under the Supreme Magistrate) the people are governed, in an other hand. And for making new Laws, or altering the old. That neither the supreme Governor by himself alone, nor any other without him, have that authority; But that such a composed body be therewith trusted as have not the power of government. All which, is observed by the Laws of England. The King by our law is the only supreme Governor; but his power is not unlimited, for the people under Him, are governed by a known Law: And this Law not declared by the King, but by the Judges of the Realm, being persons unconcerned, and sworn to decide controversies according to the Law; To the King is due forfeitures for Treason, fines imposed upon offenders transgressing the Law, and the like: But the King doth neither Judge what is Treason, what fact doth break the Law, nor hath power to impose a fine upon any offender. And for making Laws, the King alone hath not that power, nor is it in any other without him. It is no Law, without the joint consent of the King and the Members of the two Houses; which united Body, hath not the government of the people: And so every one is limited, and kept within his own bounds. But although we have a known Law, and for the most part (in the execution thereof) known process, which (and no other) the people are obliged to obey; yet sometimes (for necessity) the Law refers several things to be acted and done according to the discretion of persons trusted; whose Commands, (although they do not observe the ordinary rules and known process of the Law) the people are bound to submit unto. For example, It is the office of every Sheriff of his County, to preserve the King's peace within his liberty: Therefore upon any sudden insurrection, tumult, or other just occasion, the Law (to enable him to perform that duty) gives him authority to raise the power of that County; wherein it is best to the discretion of the Sheriff, to judge when it is necessary to command the people's assistance: But herein he is not the final Judge. In that case it is at the equal peril of the Sheriff, and the inhabitants of the County. To the one, when to command, and to the other, when to obey. If the Sheriff without just cause, force the people to rise, himself is punishable: And if he requires the inhabitants to assist him, when it is necessary, and they refuse, the people are punishable: In which case both Sheriffs and Inhabitants, being equally concerned; therefore neither the one, nor the other is Judge, to determine whether there was cause to require assistance or not. That question, (the cause being regularly brought before them) properly belongs to the Judges of the Law: And therein he who finds himself aggrieved, hath liberty to commence his action, and bring it to trial. And as in that case of the Sheriff for his particular County, the like accidents may happen, whereby the whole Kingdom may be in such danger, as not possible (by the ordinary means, and known practice of Law) to prevent the destruction of it; The Nation may be so suddenly invaded by a foreign enemy, or infested by a domestic insurrection, as that, without present supplies, and assistance of men, money, and other provisions of War, the whole people and Kingdom may perish. It were gross in such a case, to be tied unto the formalities of Law, or to want means to prevent that danger. And this cannot be supplied, unless some have legal power to command, and the people obliged to obey: Therefore by our Law, the King ex officio, as King, hath that power, He may in such cases (by His regal authority) compel His subjects, in His, and His people's defence, to serve in person, and contribute with their purses. Yet herein the King is not the final Judge, if so, the estate, and fortune of the subject, were at His will; He might then (upon pretence of necessity) draw from the people their whole fortunes, and estates, which were (in effect) a power arbitrary. Therefore as before in the case of the Sheriff, so here, as the people are at their extreme peril, in case of danger, bound to obey the King's commands: So it is at the peril of the King's Ministers therein employed, that the King hath just cause to make that command. For every subject, who (by the King's commands, or warrants) is molested, either in person, or estate, may prosecute suit in a Court of Justice, against the King's officers, who interrupted him, wherein the King's Warrants, Writs, or Commands, are no legal justification, unless it judicially appear to the Judges of that Court, where the suit depends, that the King had just cause to require that assistance. For, the King is not the final Judge in such a case. So that our Law, in the first place, preserves the Kingdom and people from danger, by providing remedy against those sudden accidents, yet protects the subject from tyranny, and arbitrary power. And this rule for the liberty of the subject, holds in all cases; that is to say, The Subject of England, under the government of the King, cannot be forced, either in person, or estate, otherwise then the known Law (judged by indifferent persons unconcerned as aforesaid) doth permit: And consequently the people of England, a most free subject. CHAP. XIII. That the people of England, under the government claimed by the Members of the two Houses, are absolute slaves. IT cannot be denied, but that, where the King or the Supreme Magistrates authority over the people is arbitrary, that government is tyrannical: No tyrant ever had, or can have a greater power. Nor is it possible for people, (where any Law is admitted) to be under a greater servitude. For, he whose will is a Law, as he hath no superior, so (by any under his command) he cannot be said to err in judgement; be his sentence never so bloody, cruel, or barbarous, the dispute is ended, no appeal, or Writ of Error lies; so that the wisest man, how industrious, or conscientious soever, cannot (for the least instant of time) promise to himself security of life, or challenge property in his estate: Therefore if the government in England, practised, and claimed by the Members, be arbitrary, it followeth that the people are absolute slaves, wherein these things are considerable. 1. Who they be that arrogate the government. 2. What those persons act de facto. 3. What power they claim to have de jure. 1. For the first, they are the Members of the two Houses, being in number (the Assemblies admitted full) about seven hundred persons. They are divided into two several distinct bodies, without any head, and every body having equal power. Then for their privileges: It is by themselves declared to this effect, viz. That none a Declaration of the House of Commons 17. Janu. 1641. Votes of the Parliament, 12. Maii 1642. Order of the House of Commons 3 Jan. 1641. of them, (although he hath committed Treason, Sacrilege, Murder, Rape, Felony, or any other crime, how execrable soever,) is to be appehended, questioned or prosecuted for the same, until licence be thereunto obtained from that House, whereof he is a Member. Every offender herein is by their Declarations denounced a breaker of the liberty of the Subject, of the privilege of Parliament, and a public enemy to the Commonwealth; And such a licence being obtained, and the Malefactor thereupon apprehended, he is not (say they) to be prosecuted, by indictment, or otherwise, but in such manner, and before such persons as that Assembly thinks fit to direct, their persons are so sacred, as that none but themselves must judge their actions. Thus for the persons commanding. 2. What they act de facto: We see, by a new Law (called an Ordinance) made by themselves, without the King, the late Archbishop of Canterbury was condemned to death and executed: They have confiscated his, and other men's estates, and by the same pretence, they have taxed the people to the twentieth and fifth part of their fortunes; They have laid an imposition upon the Subject (heretofore not heard of in England) called an Excise. They have taxed them with vast impositions, and payments of money by way of assessments, and otherwise at pleasure: They receive and dispose of the confiscations, and of all the aforesaid sums of money, as themselves think fit. They assume the power (finally) to declare, and Judge the Law; and by colour of their own authority, they have de facto, repealed several Acts of Parliament: And have imposed upon the people new Laws of their devising. 3. What they claim to have de Jure, if themselves be asked, whether (by Law) they have not power to act the foresaid things. If they have not authority (without appeal) to determine what is Treason, murder, felony, or other capital offence: To put to death who they please. To confiscate any man's estate; To tax or impose upon the people without stint, whether the profits of those confiscations, taxes, and impositions be not at their own dispose, and all this without any account. To these they do, they have already answered affirmatively; However all men of judgement may be herein satisfied. The Members had lawful power to put to death the Bishop of Canterbury, and to seize his estate, else he was murdered, and his estate seized against Law: now if they had therein lawful authority, it followeth, that by the same Law, they may (whether guilty or not guilty of a crime) put to death any other, who they shall say deserveth to die, and may confiscate whose estate they please, dispose thereof to their own use, or otherwise as they think fit: And accordingly we see they have, and are going fast on (as theives do their booties) to divide, and share the wealth of the Kingdom amongst themselves. If they did lawfully tax the people to a fifth part, by the same Law they may tax them to their full worth: And for excise admit them to have power to charge any commodity with one penny, and it cannot be denied them, to have power to tax every one, for every drop of drink, or morsel of m●●t, or what he buys, or sells, to the full, double, or treble value thereof. If they have power to repeal one Act of Parliament, they have authority to repeal all the statutes in England: And if they have authority to impose upon the people one Law, their power therein is without limitation. They may enforce upon the Subject what Laws they please; and consequently their power claimed, as highly arbitrary, and tyrannical, as any have, or can claim to have. And having made this claim: Then for their security therein, they tell us, that in all matters, both for soul and body, we have no a The Declaration in Answer to the Scots papers fo. 63. Judge upon earth but themselves; and denounce b Votes of both Houses. 16 Martii. 1641. every one an enemy to this new State, who shall deny that to be the Law, which they declare Law. Yet even now the people are told, that they are, and shall be governed by the known Law, because say they, Judges are appointed, and suits of Law admitted. Answer. There was never any Tyrant, but in some sort permitted a known Law among his vassals, else the slaves could not acquire estates, and so confiscations to the Tyrant, would prove inconsiderable. By the Laws of England, a villain hath power to buy and purchase, and is therein protected against all persons, his Lord excepted; But the Lord may seize his estate, a Littleton. fo. beat, or strike his villain at his pleasure. The Turk (who hath been accounted the greatest tyrant) his vassals acquire vast fortunes, and are by a Law protected therein against their fellow slaves. But the Turk (at pleasure) may not only seize their whole estates, but take their lives too. Even so it is at present with the people of England, we have liberty to buy and sell, and acquire wealth; we are (as an English villain or Turkish slave) sometimes (that is, when the Members please, else not) protected therein against one another. But when the Members think fit, every man's estate, his fortune, his person, his life, all is at their will and doom: That Law permitted amongst the people, reacheth not so high as the Members: when they think fit, their will is the Law; so that our slavery for the present, is worse than was the condition of an English villain, at the beginning of this Parliament. It is as bad, nay worse than that under the Turk, they have only one Tyrant, we seven hundred; They one head over their whole body, we two bodies without a head. And as it is with us in Temporal affairs; the same it is in Spiritual things too. The Members have de facto, abolished the Protestant Religion: And (both in doctrine and discipline) force men's consciences, how absurd or blasphemous soever it be, to submit to their resolutions: So that if the question be asked, whether the scripture or the Church be Judge, or how a man shall be informed of the truth: These Tyrants make answer, that neither Scripture nor Church is Judge of controversies, but the two Houses. We must no more search the Scriptures, but submit our selves, our souls, and bodies to the Votes of the Major part of those two Houses, and thus are the people slaves. CHAP. XIV. How the Subjects of England were brought unto this slavery. IT is true, the people of England, for some time before this Parliament, were grieved with illegal taxations, Monopolising of Trades, and other things not warranted by Law: And although there wants not means (besides a Parliament) to redress any disorder arising in the Commonwealth, yet the cause of the distempers may be such, as that, (without a Parliament) it would be difficult to reform them: When the Judges are corrupt, as the Members alleged they were in that case of Ship-money, when the Officers of State, or other persons of power near the King, occasioned the mischief, as it was conceived in the business of Monopolies, few (in the ordinary way of proceedings) dare inform, or prosecute. Therefore in such cases a Parliament is necessary: The Members in those things have freedom of speech. And the King having called His Parliament, at the first meeting thereof, expressed Himself most sensible of the disorders of the Kingdom, declared His desire to have a perfect reformation; His resolution to govern according to the known Law: such as were authors, or actors of the former distractions, he left them to legal trial. And to complete the business, promised to concur with the two Houses, in all things tending to reformation. Thus the Parliament had a happy beginning: and for a good space of time, a progress suitable. For, such as look upon the Statutes made this sitting, shall find the work of reformation (even by the King Himself) perfectly completed; That Judgement for Ship-money, the business of Monopolies, and all other visible, and Known greivances were taken away: And to prevent the like danger, for aftertimes, the King passed an Act, for calling a Parliament every third year. So that, to the obtaining of the greatest happiness, that any people in the world can desire, there wanted nothing, but to punish the authors of the former mischief, and then for the present, a dissolution of the Parliament. Then might every one (by observing a known Law) have promised to himself security of his person, and challenged property in his estate. But the sequel shows that it was not the public good, it was their own private, the government and wealth of the whole Nation, the Members aimed at. And as a foundation to it, the plot was to make this Parliament perpetual. But at the first (it not being thought fit to discover their intention therein) it was pretended that the affairs of the Kingdom, required instant supplies of great sums of money, which as they pretended, could not be obtained, but by Loane: And that the people (fearing a sudden dissolution of the Parliament) would not lend; A Bill therefore is cunningly form (not at all mentioning for what time the Parliament should sit) in general words, enacting that it shall not be dissolved, nor adjourned, but with the assent of the two Houses: And the King being informed by the hatchers of that plot, that this Act was for no other end but to procure the Loane of money for the public good, passed the Bill. The Members having obtained this Act, and conceiving that thereby the King could not dissolve the Parliament without their consent, than they began their intended work: From thence nothing is heard of, in the old Parliamentary way. The prosecution of the Judges in that heavy charge of corruption is, not only set aside, but some of them (formerly accused to be such high malefactors as to have subverted the known Law) are received into the greatest a Trevor Baron of Law. favour, as persons most proper to usher in the arbitrary power of the Members. Then are the people amused with fears and jealousies, by printed pamphlets, they are grossly abused by being told that the King intended to subvert the Law; and govern by His arbitrary power. To abolish the Protestant Religion, and to introduce Popery: The Kingdom therefore (it was resolved) must be put into a posture of defence: The Militia must be taken out of the King's hands, and settled in the Members. And accordingly by their command, the King's subjects are mustered, arrayed, and put into a readiness for War: they are instructed and prepared, to take upon them any enterprise the Members shall direct. The Forts, the Navy, the Arms, Ammunition, and Revenues of the Crown, are taken to the use of the Members. Thus having prepared, and strengthened themselves, the next thing was further to disinable the King to make resistance: It is therefore falsely and maliciously declared to the people, that it is against the liberty of the Subject (for any cause whatsoever, unless upon an actual invasion) to be forced (by the King's command) out of their own County. So that by this doctrine, in case of a foreign Invasion, the enemy must be landed, he must have footing in the Kingdom, before the people may be gathered together by the King to make defence: But in case of Rebellion (the business in hand) if the Rebels once get a form body, too strong for any one County, the business is done: They may, if this be true doctrine, undoubtedly conquer (County after County) the whole Kingdom. These things being done, it was then conceived opportunely and safe enough, to publish and declare their intent. Then without the King, they arrogate the name of the Parliament of England, take upon them to be the Supreme Court of Justice, to make Laws, and in a word a power arbitrary. So that the Members have (as an emprick by killing his patient, with improper medicines cures his disease) reform this Commonwealth; under pretence to restore the known Law. The Law itself is by them totally subverted: And that which is still more grievous, the people were made voluntary instruments of this tragedy, whilst they conceived they fought in defence of the Law, and their own Liberties, they were therein their own executioners. They have embrued their hands in the blood of their fellow Subjects, and by their victory, have plunged themselves into the debts of slavery. But these things being done in the name of a Parliament (with some persons) they still carry the face of Justice; although nothing ever was, or can be, more pernicious to King and people. Ket, Cade, Wat Tyler, and the like, in their insurrections, pretended reformation; To remove bad Councillors from the King: To restore the people to their Liberties, and to set up the Law, they protested, were the things they aimed at. Now admit, their intention had been to reform, yet their proceedings must necessarily destroy both Law and Government. Suppose Ket had been asked, who should judge what persons had broken the Law, who were bad Counsellors, who should nominate the Officers of State, and the like? Ket would have answered, that he, who reforms, must judge of the reformation. Therefore, none but Ket should judge of these things, which had been no less, then to have arrogated an Arbitrary power, & to enslave the people. And if so in Kets case, It is the same, when any persons (what ever their quality or number be) for it is the Authority and Commission, which the Law looks upon, to justify the fact, not the dignity or number of the persons acting: And as those things alter not the nature of the crime, so the consequence thereof to the people is all one. They are as much, and more damnified by an unlawful act committed by a Lord, as by a peasant, by a thousand, as by one single person. Then for the Members proceedings; Their assuming power to judge the Law, to exclude the King from His Negative voice in Parliament, taking upon them, Authority to make Laws, and the like, are in themselves as unlawful, as the foresaid acts of Ket, etc. The Members have no more Commission for this, than Ket had for that: And the consequence thereupon to the people, is one and the same. Suppose a single person to have conquered the Kingdom, And thereupon to assume an Arbitrary power. The lives, estates, and fortunes of the people were at his command; And so they now be at the will of the Members. And thus the Subjects were enslaved. CHAP. XV. The way how to restore the people to their former Liberties. WHen the Physician hath discovered the nature of his sick patient's disease, (and not before) he knows what medicine to apply for the cure: Which holds with a Commonwealth fallen into disorder. And for England, the cause of its grief is apparent: It is rather out of joint, then sick of a disease: Our misery is occasioned, (as before appears) only by setting aside the King. For, by that, the Sovereign power of Government, the Authority to make Laws, and the power to judge the Law, are wrested out of their proper places, and drawn into one hand. The Members by excluding the King, have usurped all these, so that, there is no other power or rule to guide their actions, but their own will. But whilst the King held His right, the power of Government was His, the Authority to make Laws, was in Him, and the two Houses jointly, and to declare the Law in the Judges; whereby every one was limited within His own bounds, and so avoid all Arbitrary power. Thus for the cause of our grief; Then for the cure, when any limb of a man is out of joint, it so much distempers every part, as that (if not timely prevented) the whole body is in danger to perish: And as no medicine, without putting it into joint again, will ease the pain; so by setting strait that joint at once, it is a perfect cure to the whole body. Now by setting aside the King, the disorder in our Commonwealth, is no less than an absolute subversion both of Law and Government: The people are thereby totally enslaved, & this incurable, but by restoring the King again. For, so long as the Members exclude the King, so long the aforesaid authorities are usurped by them, and so a power Arbitrary. For example: If the Members condemn an innocent man to death: And for a fact (if guilty) not punishable by Law. The Members having power (without appeal) both to determine the fact, and to declare the Law upon that fact: And those Members having Judged him to die, and to forfeit his Estate unto themselves; This innocent man (all the world must confess) is without remedy; he is hopeless without the mercy of those, who gain by his destruction. But the King being restored, the foresaid Authorities are returned into their proper places, and again divided into several hands: instantly from thence, every Court, Assembly, and person, not only enjoys its own Authority, but is limited within its own bounds; no man then is permitted to be both Judge and Party; he ought not by our Law to give sentence of death, if by that Sentence the Judge gave the fortune of the man condemned. Thus for the Medicine: In the next place it is considerable who shall apply it. And for that, as the people were the immediate instruments of their own thraldom, they ought to be the principal Agents of their own freedom; Their motives to return to their obedience, are far greater, than they had to recede from it. Was any heretofore hindered to exercise his own opinions in matters of Religion? Was his person imprisoned, taxes and impositions laid upon him, not warranted by the Law? If so, his condition is now far worse. First, for Religion; The sense of those Members we now find is made the rule of every man's faith; he is bound to change his Religion, as the Major part of the Houses shall Vote. The Ecclesiastical Judges heretofore, were limited in their punishments. The Members are boundless. And as they are not guided, either for Doctrine or Discipline, but by their own will: So in their punishments, they are a large too: Shall the Members Vote, that no man shall use the word Trinity, or call upon our Saviour by the name of Jesus, or what else soever it be? The punishment upon those breaking that Law, may be loss of all his Estate, or death, if the Members please. Then for imprisoments; formerly the Judges had power (by whose warrant or command soever committed) as the cause required, to bail, or set him at liberty. But now once committed by the Members, the cause is not examinable; unless released by them who committed him (without redemption or examination) in the gaol he must starve and perish. And for taxes and impositions, it is true, we have heard of Loans and Benevolences, and we know the business of Ship-money. But the people are now taxed by Assessments, Excize, and otherwise at pleasure. Peradventure the Excize now laid upon London, exceeds not 20000. l. a week, but by the same Law, that such a sum is imposed, it may be multiplied to a Million a day. If one County be assessed at 1000 l. a month, it may be raised to 10000 l. a week. And as these are new ways to tax the people: The Members by the same rule every day, may devise other new ways to burden them. And doubtless he, who hath his Estate taken from him by Assessments, or Excize, is left as little to feed himself and family, as if it were taken by way of Ship-money, Loan, or Benevolence: Nor is any man's hunger satisfied, his thirst quenched, or his children clothed, by being told that this is done by the representative body of the whole Kingdom. But on the other side, it is apparent, that the people are hereby generally impoverished, and the Members in pomp, glory, and wealth, advanced far beyond their ranks and fortunes. We had a Star-Chamber, and a High Commission, the Judges whereof, sometimes imposed exorbitant punishments. But we have now the Members (styled a Parliament) who have not only accumulated unto themselves, the power of those Courts, and of all other Courts of Justice in the Kingdom, but have therein assumed an unlimited power, when they think fit to censure, whether it be for a crime, or virtue, disobedience, or obedience of the Law. The punishment, if they please, is either pecuniary, corporal brands of infamy, confiscations of their whole estate, or death itself. And in all this (which by the Laws of England is most horrid) the Members are both Judge and Party, the profits of those forfeitures redound unto themselves. But the new mercenary Preachers, and other incendiaries appointed for that purpose, blaze those Westminster-men to be persons full of grace and mercy; They would make the people believe they are such as drive only at the public, not looking upon their own particulars. And herein make special use of the putting down of the Court of Wards. The truth whereof, is but thus. By the Laws of England, every one, who holds Lands by Knight's service, (whether of the King, or of his fellow Subject) and dies, his heir within age of 21 years, the King, or that Lord of whom it is held, hath the profits of such Lands, until his full age, and the government and marriage of his person. Which being an interest due unto his Lord, by reason of the tenure of his Land, is as justly his, as the rent of a Tenant for years, belongs to his Landlord. Now this right, both of King and Subject, these Westminster-men take upon them to dispose, and call it their own act of grace: Much like unto their taking from their King, and His Loyal Subjects their whole Estates, and bounteously dividing it amongst themselves. But admit they had had Authority (which they have not the least colour to challenge) to alter the Law in this case of tenors: yet the people are not by this alteration any whit bettered. It is true, formerly the eldest son, or the heir of some particular persons were (during their minorities) subject to wardships: But under the Tyranny of these men, and by the doctrine they preach, the King and all the people are hereditary slaves. Themselves, all their Children, their children's Children, and posterities for ever, in person, estate, and fortune, (whether owner, or not owner of Land, and however it is held, even to the world's end) are at all times at their absolute command. Suppose the King should quit His right of tenors, and then by other impositions, wrest from the people 40 times the value thereof: these Members would judge that to be no act of bounty: And if so in the King's case, much worse it is in them. For, they neither have power in the one, nor in the other. They cannot acquit any one of Wardship, nor lawfully tax the people one penny. And suitable to this, we hea● of another bounty intended. The people (say they) must be eased of freequarter; wherein the Countrymen are dealt with, as sometime it happeneth to an innocent man upon the rack, who (to gain a little respite from the present torment) falsely accuseth himself of a crime, for which he is put to death; or like unto the carriage of a sturdy bold thief (whereof these times afford examples enough) who tells the owner of a horse, that unless he may have the value of it, he will steal the horse; but having got the money, takes the horse too. So here the people are pestered with quartering of Soldiers, and are so barbarously used by these inhuman wretches; as that the poor men are prepared to part with their whole fortunes, to be eased of that present Tyranny. Hereupon a new, and an illegal tax of about 20000. l. the week is laid upon them; which done, although it a mounts to twice treble the charge of quartering, still the Soldiers must be bilited: And their insolency hereby, rather increased then abated. These, and such like, are all the favours we can expect to have, during the time of the reign of these Westminster-men. To be short, they have got possession of the wealth of the whole Nation, and have usurped an Arbitrary power. So that (did they incline thereunto) they cannot do unto the people any considerable favour, or act of grace. For, so long as they abide to these their own principles, of which Arbitrary power they cannot settle in any man, a permanent estate, interest, power, or authority, wherein the City of London may be a pattern to the whole Nation. We see these Westminster-men sometimes judge it fit, that the Citizens should enjoy all their liberties and privileges: Presently upon that (even by the same hand) they are not permitted so much freedom, as (from the Lord Major, to the petty Constable) to elect one officer. But those Officers are placed and displaced at the pleasure of these Members: To day is granted to them their own Militia, to morrow (by the same Authority) they are judged persons of so base a condition, as not capable of so great a power: And not long after that, courted to accept of it again. They are now exalted to the heavens, and instantly thereupon (even by the same mouths, and as it were with the same breath) impeached of Treason. And this is every man's condition. Suppose one, by these Members to be condemned to death, is by them afterwards pardoned: The next hour, even by ●●ese who pardoned, he may be put to death. An estate of Land, an Office, or other power, or authority is by these men given for life, or in fee, be it as strong and full, as words can express it; neither that, nor any other act of these Tyrants binds one minute longer than they please. And all this consonant to these their new principles; for these men tell us their will is the Law, we have no other Judge upon earth, either in soul or body, say they, but themselves. far otherwise it was with the people of this Nation under the King. The King neither hath, nor claims power to tax the people, or impose upon their estates, but as the known Law permits: When the King hath once made His grant, either of Land, Office, Power, or Authority, He is concluded; He cannot recall it, or take to himself any thing in Lieu thereof. Therefore shall the King quit His tenants of the foresaid tenors, and put down the Court of Wards? It may properly be said an Act of grace and bounty: And so it is in all other things granted by Him, He is not Judge in His own case, nor hath a power Arbitrary; His Authority and interest, is regulated by a known Law. Thus appears the different condition of the people, between that in the worst of times under the King's Government; and what they are now reduced unto, under the men at Westminster. So that, if the people had only exchanged that Government, for this, it had been miserable enough. Therefore considering the blood which hath been spilt herein, most irksome it must be to every honest soul to think thereof. But still the people's case is worse, the former grievances under the King, was no cause of their defection. For, before this War began, they were reform, Ship-money and all grievances were taken away. In a word, the people had no other motive to draw their sword against their Sovereign, but thus: They were by these incendiaries falsely told that the King meant not what he said, nor intended to keep those Laws he had made. But now every person thus seduced, by his own woeful experience finds, that it was these persons at Westminster, who meant contrary to what they pretended. If he look for the Protestant Religion, freedom of conscience, the Laws of the Realm, Liberty of his person, or property in his estate, due unto 〈◊〉 〈◊〉 subject, not one of them is to be found. But instead thereof he finds himself (poor man) catched in the Members net, His conscience, His life, His Liberty, His estate, and fortune is now at their arbitrary power. These things considered, he that thinks either of this world, or of the world to come, upon his soul, or body, if he love himself, or his Country, if he fear God, or honour the King, must instantly make one in this work to restore that King to his Throne. Thus for the persons who ought to apply the medicine, the next is to know how it shall be done. And for that, although considering the calamities this Nation hath suffered, in being brought to bondage: To redeem it again may seem difficult, yet upon consideration had thereupon, it appears to be a thing easily effected. That of the Members in excluding the King, opposed the Law: Therefore could not be done but by War, and force. But this of restoring the King, pursues the Law, and so proclaims peace: And as the Members could not have usurped this power, but by War, so they cannot hold it but by force. Instantly upon the Law having its free passage, their Kingdom is at an end; And to every War is absolutely necessary the people's personal assistance: and money to pay the Soldiers. If either of these fail, the War is ended: And obvious it is, that the persons at Westminster, can have neither of them, but from those, whom by the same persons have been thus brought to thraldom. So that to perfect all this work, if every one would do his duty, there would be no danger of bloodshed: Then there needed no weapons, not doing, would do the work; Therefore whether thou be'st in arms or not, obey thy King according to the Law, make thy payments to whom by Law they are due, pay no Excise, Loans, Benevolences, Assessments, Tax, Tollage, or other new impositions by them laid upon thee. And if these Usurpers require these things, as due by Law: Tell them, it is contrary to their own doctrine. Wish them to read the Petition of right, whereby the Lords and Commons in Parliament declared; That the people ought not to be Taxed with payments of money, but by Act of Parliament; that is, by the King, the Lords House, and the Commons jointly concurring: Put them in mind of their Declarations this Parliament, wherein they call it pernicious a The Commons House Remonstrance of the state of the Kingdom. 15. Dece. 1642. ●●…mpt, to go about to Tax the people by way of Excise: That it is against the liberty of the Subject to be charged with payments of money, otherwise then the known Law doth warrant; that nothing is more horrid then to have Soldiers b Idem. billeted, to force upon the people voluntary contributions, or to have new c Idem. Oaths put upon them. Yet these, and thousand more exactions laid upon thee, against Magna Charta, the Petition of right, and the known Law, thou mayst charge them with. And needs no other Judge to condemn them, but themselves, out of their own mouths. And further for thy encouragement herein, be assured, that by this restauration of the King, not only the people of England obtain their freedom, but instantly thereupon, ensueth peace and unity throughout all the King's Dominions. For by that, the Kingdoms of England, Scotland, and Ireland, are again united: The people will then (with great joy and acclamation) according to the foresaid just recognition of the Lords and Commons unto King James, perform their duty, unto this our King Charles; And acknowledge Him according to the foresaid Oath of Supremacy, their only Supreme Governor. Upon the whole matter, so long as the people continue in this slavery, they are not only their own wilful tormentors, but disobeyers of the Laws of God and man. And by quitting themselves from bondage (which is at every instant in their power to do) they perform their duty to both. FINIS. ERRATA. PAg. 8. lin. 11. read, or our. p. 10. l. 20. r. his advice. p. 12. l. 14. r. never had. p. 15. l. 32. r. motives. p. 28. l. 34. r. we having. p. 30. l. ult. r. without consent. p. 32. l. 26. blot the first and. p. 39 l. 28. r. denied. p. 48. l. 29. r. the Law, and l. 31. r. can gain. p. 53. l. 9 r. have been. p. 58. l. 4. r. I conceive. p. 67. l. 14. blot out the last that. p. 88 l. 11. r. le Roy savisera. p. 98. l. 7. r. he could not. p. 116. l. 26. r. stern. p. 118. l. 31. r. of this. p. 121. l. 34. blot out and. p. 124. l. 12. r. one. p. 127. l. 2. r. left.