The just measure of A Personal Treaty BETWEEN The KING'S Majesty, And both Houses of PARLIAMENT. Grounded on Divinity, Reason, History, Divine and Humane, Common and Civil Laws; with many other authentic Authors. By R. M. of the middle Temple, Esquire. Printed in the Year 1648. The just measure of a personal Treaty between the King's Majesty, and both Houses of Parliament. There are these only ways to reform these innovations, and to prevent the ruin of the Kingdom. 1. By a personal Treaty, and how conditioned. 2. If that may not be obtained so qualified from the Houses, it is lawful to levy War against them, and that War is hereby proved just. A Personal Treaty between His Majesty and the two Houses of Parliament, would be a Sovereign remedy against the innovations and growing evils of this Kingdom, and an assured means to settle a firm peace in it; provided, that this Treaty be thus qualified, both for the manner and matter of it; for if it be otherwise, I am much afraid it will prove both unprofitable and ineffectual. First, it ought to be when his Majesty is free and at liberty, without any preingagement on his Majesty's part, either by concession of any thing which they demand, as an inducement thereunto, at least of the most material things which the Treaty should consist of, such as the Militia, the settling of Presbyterial Government, and the rest now lately offered to his Majesty to be granted unto them; for until his Majesty be set free and at liberty, without any conditions preceding unto it, His Majesty cannot properly or securely (for the good of the people) treat of any matter conducing to a Peace; a Grotius de jure belli & pacis, lib. 3. cap. 10. sect 3. Nam (as learned Grotius saith) Rex qui aetatis est ejus quae judicii maturitatem non habet, qui imminutae mentis est, qui captivus, aut exul, pacem facere non potost. A King that is under age of an infirm mind, a captive or an exile, cannot treat of, or conclude a peace: And else where, b Grotius lib. 3. cap. 20. sect. 2 Sicut Rex infans jus habet, sed imperium exercere non potest, sic furiosus & captivus: As a King that is an infant hath right to govern, but cannot exercise his dominion, no more can a King that is a mad man, or a Prisoner; and without the King there can be no peace made, treated on, or concluded in this Kingdom: for the King having by the Law of England the Sovereign or supreme power of the Realm, as is amply manifested by the precedent discourse, he hath the only power to make peace and war, as the same Author observes, c Grot. l. 3. c. 20. Sect. 2 Pactiones inire quae bellum finiant, eorum est, quorum est bellum, Rei enim suae quisque est moderator, unde sequitur, ut in bello utroque publico, hoc eorum sit qui summum imperii exercendi jus habent: Regis igitur hoc erit in statu verè regio, modò is Rex etiam jus non habet impeditum; It is their office, and to them it belongs to make leagues or pactions to end a war, to whom the right of making war belongs; for every one ought to be a moderator in his own affair; from whence it follows, that in every public war, it is their right to make war or peace which have the right to exercise the sovereign power, therefore it is the Kings right only to make war or peace in his Kingdom, so that the Kings right be not hindered in the exercise of it, that is, by infancy, imprisonment, or the like infirmities aforesaid: this is the judgement of a most learned man: what fruit then can be expected of or from a Treaty with his Majesty dureing his restraint or imprisonment? certainly none: nay if his Majesty should grant what they desire dureing his imprisonment, and being enforced thereunto for his enlargement, what validity were there in such a grant? certainly none, it being a clear truth as that great Lawyer Bracton observes, d Bract. l. 2 c. 5 sect. 14. f. 17. Quod in nullo casu valet donatio cùm quis fuerit in Prisona, vel quia hoc facit per coactionem, & quia potestatem sui non habet, nec eorum quae sua esse debent, potestatem habebit; & sicut ille qui in servitute fuerit, nihil possidere poterit, quia possidetur; ita nec ille qui possidetur ab hostibus vel detentus fuerit: a concession or grant is in no case valid so long as a man is in prison, where he is in prison by force and not by right, where he is enforced to make such grant, because he hath not then the power of himself, and having not power of himself he hath not power of any thing that is his, for as he which is in servitude can possess nothing because he is possessed, so neither can he which is in the possession of his enemies or detained by them in prison: neither can we from any rule of policy expect, that whatsoever the King is enforced to grant by any restraint or coercion, if the grant were in itself good, the thing could be of any continuance, since the nature of all grants and accords is to be voluntary, therefore Clement edmond's, in his observations upon Caesar's Commentaries well noteth; e Clem. Edm. p. 629. That no accord made by force can be truly kept, and Machiavelli plainly excuses the breach of them, saying, f Mach. Discourse upon Livy pag. 629. that it is no dishonour to violate those promises, grants or accords, which by force a man is constrained to make, and that promises or accords extorted regarding the public, will be broken without the disgrace of him that breaks them; upon this ground did the Estates g of France refuse to submit to that accord & tréaty of Peace made between K. Edward of England, and John King of France, who was taken at the battle of Poitiers, and brought by King Edward Prisoner into England; where the said treaty and accord was made during his imprisonment; upon the like ground did King Francis the first of that name, King of France, avoid his treaty and accord made which Charles the Emperor, whilst he was Prisoner at Madrill in Spain, by which treaty he was obliged to grant unto the Emperor all his right in the Duchy of Burgundy, which after he was set at liberty he refused to do, because that accord was made during his restraint. By these authorities & precedents I conclude, that it is necessary that the King should be set at liberty before he can be in a condition to grant or treat of any thing concerning the public order for the good of the subject. The place where the treaty must be is also of consideration, for the Lords and Commons assembled in Parliament can treat with the King in no other place then in the Lord's house at Westminster, the King sitting upon the Throne or chair of State, they being no way enabled by the Law to treat with him in any other place or manner; and in this place they are by the tenor of their Writ, it being thus: i Regist. Bri. Cooks Instit. 4. par. p. Rex Vicecomiti salutem, quia nos de avisamento & assessensu Concilii nostri pro quibusdam arduis & urgentibus negotiis nostris, statum & defensionem regni nostri Angliae, & Ecclesiae Anglicanae concernentibus, quoddam Parliamentum apud Westmonast▪ teneri ordinaverimus, & sbid. cum Praelatis, magnatibus & proceribus dicti regni nostri colloquium habere, & tractatum &c. by this Writ the Lords have a power to treat with the King sitting in their House, of matters concerning the defence of the Realm, and of the Church of England, and the Commons may be present, and are to consent to what the King and Lords shall agree of, and in no other manner or place can they legally, or with their own safety treat with the King; for as free Princes or equals they cannot treat with him, the Law having invested them with no such powers or dignities, the King being caput Regni, and by the Law endowed with the Sovereign power of the Realm, and they being but Subjects; and inferior to him in all degrees, either of power or abilities whatsoever: In this capacity therefore as free Princes or equals, they cannot treat with him, if they treat with the King any where but in Parliament, and that of making of peace, which is the ending of war already begun by them, and yet prosecuted against him and his loyal Subjects. They must treat with him as his Subjects, and if as his Subjects, they therein will accuse themselves to be Traitors, or Rebels, in that they must treat of laying down those Arms that they have unlawfully raised against him: Therefore if they would follow mine advice, they should treat with His Majesty in no other place then the Lords House, and only of those things that by their Writ they are enabled to, viz. De arduis & urgentibus negotiis, Regem, statum & defensionem Regni Angliae, & Ecclesiae Anglicanae concernentibus: Of those things that cencerne the preservation and defence of the King, his state and dignity, and of the Realm and Church of England, and not to consult of a means, or to demand those things that tend to the ruin and destruction of them all. But in case the two Houses will not admit the King to come to the Lords House to treat with them, or that if they should, they demand of him those things that he neither can or aught to grant or part withal, (as the Militia, his Negative voice, or the destruction of the Church) being entrusted with them by God, and the Laws, for the good of the people committed to his charge, and for whom he must give an account to God: The Question will then properly fall out to be in the next place, Whether the people of England may not justly levy War against them? and whether the War be not just? which Question I shall hold affirmatively: Each War ought to have its foundation in reason, and force employed to a right use is no other than a servant to reason; if then the two Houses shall deny a personal Treaty to his Majesty so qualified as aforesaid, whereby the Kingdom may be preserved from ruin, it is agreeable to right reason, that the people should use force, and levy war upon them, to enforce them thereunto: for when ordinary remedies do fail, by the rule of right reason men are warranted and bound for their own preservation, to recurre to extraordinary means, provided, that they be in themselves lawful; and therefore since the Houses have denied the King a personal Treaty de integro, tying him up to terms of condescension to the most weighty matters, which should be the subject of the Treaty, before they will entertain a Treaty with him for the rest, (which can be only of matters of small or no importance) His Majesty having granted the things they demand of him beforehand, the people may aid the King, who is by the Law their only protector, with their Arms, for regaining their own lawful Liberties, and His Majesty's just Rights, which will never be restored unto them by petitioning, or any other civil course, and therefore Grotius saith, Vbi judicia deficiunt, incipit bellum, k Gro. l. 2. c. 1. sect. 2. where legal or civil remedies are wanting, or denied, War may justly begin: Plerique (saith the same Author) bellorum tres statunnt causas justas, defensionem, recuperationem rerum, & punitionem: Most men do determine these three causes of War to be just, defence of themselves, recovery of their goods, or estates, and punishment for injuries done; for as S. Augustine l Aug de fivit Dei, l. 4. saith, Injuria partis adversae, justa bella ingerit; an injury done by the Adverse Party doth ground a just War; and what are just Wars, he tells us in another place, m Aug. l. 6. 9, 10. Justa bella definiri solent, quae ulciscuntur injurias; those are just wars which are levied to punish great injuries: let all the world than judge, whether according to these rules, the Prince and the people of England, have not just cause to take Arms; the injury done to the person of his Royal Father, is reputed to be done to the Prince himself; the Prince then in defence of his Father's person by force oppressed, for the redemption of it forth of prison, for their recovery of the rights and revenues of the Crown, usurped and violated against all law and right, by those what were called together to advise the best they could for it, and have no manner or colour of Title unto it, for the restoring of the people unto their ancient Laws and Liberties, so much trodden upon and trampled under foot by those men, who should be the chief preservers of them, and for the resetling of men in their own proper offices, estates and goods, whereof they have been so illegally disseised, sequestered, devested, rob, and dispossessed of. And last of all, to bring the Ringleaders of these so great evils, innovations, iniquities, and injuries, to restitution and condign punishment; and as the Prince, so have the People, justifiable cause and warrant to take arms, and make war against those robbers, oppressors, and usurpers, who have not only brought in all the innovations and injuries aforesaid, imprisonments, taxes, arbitrary powers, Excizes, contributions, impositions, benevolences, and myriads of evils, only to enrich themselves, contrary to the known established and fundamental Laws of England, and contrary to their promises and engagements to the people, to whom they promised that their welfare should be their supreme Law, and care: for as Plato saith, n Plato in Alcib. Justa bella geri possunt, non modò si quis vi opprimatur aut expiletur, verumetiam si deceptus fuerit: Just wars may be waged, not only, where a man is oppressed by force or plunder of all he hath, but also where he hath been cheated and cozened; have any people under heaven been so cheated and cozened as the people of this nation have been cheated and cozened by those that usurp the present Government? Did they not at first so creep and insinuate themselves into the affections of the people, give out that they would make his Majesty the most potent, rich and glorious King in Christendom, that they would make the people a mighty, wealthy and flourishing people? that they would reform all the abuses both in Church and State, and settle the three Kingdoms in a firm and lasting peace? and have they not contrary to all their promises, Protestations, and Declarations to this purpose, imprisoned his Majesty's sacred person, deprived him of his power, rob him of his Royal revenue, and as much as in them lay, sought to weaken his Majesty's reputation, both with his allies abroad, & amongst foreign Nations & Princes, & at home amongst all his Subjects of his three Kingdoms, Have they not instead of making the people of this Land a flourishing & wealthy people, weakened them with a long barbarous and civil War, exhausted them with Contributions, loaden them with Taxes, polled them with Excize and benevolences, wearied them with continual Impositions, and almost lost the reputation of the Nation in all foreign parts? Have they not instead of reforming the abuses in Church and State almost destroyed both, instead of Monarchy brought in an Anarchy in the State, and instead of unity, and uniformity in the Church, let in accursed Heresy, ugly multiformity, and fantastical unstable Independency? Nay, I might say almost Turkism, or Atheism. And to conclude, instead of settling the peace of the three Kingdoms, have they not (though petitioned thereunto by many Counties) refused to restore His Majesty, to disband their Army, by which they resolve to govern and conquer the Kingdom, to keep the people in thraldom all their lives; yea and cut the throats of all such, as shall come to Petition them, as they did Surrey-mens', and do they not now make war upon Kent and Essex in order to these ends? Let this be denied by any sober and indifferent man, if he can: and being granted, I conclude infallibly upon all the rules & grounds aforesaid, that it is lawful both for the Prince & people, if they shall deny His Majesty a personal Treaty so qualified, as aforesaid, to make war against them, and that such a war is just, Sapienti Sal. in orar. ad Caesar. est, saith Sallust, pacis causâ bellum gerere, wise men make war to obtain peace; and S. Augustine, o Aug Ep. 1. ad Bonifac. Non pacem quari ut bellum exerceatur, sed bellum geri, ut pax acquiratur, men must not seek peace, to the end they may exercise war: but men must make war that peace may be obtained. And to deal candidly with the world in this point, mine own private opinion is, that a good and firm peace can never be obtained in this Kingdom without a vigorous war well prosecuted on his Majesty's behalf. That by the Laws of God, of nature, and of England, the Subjects of England are bound to rise, and join in Arms for the rescue and relief of the King out of prison, and to follow the Prince or any other of the King's Subjects, or friends that shall take Arms for the King, and lead an Army to that purpose; notwithstanding that they have not the King's actual Commission. FOr Subjects to imprison their King it's against all Laws, & especially the Laws of England, and not only an injury to the Person of the King, but the greatest prejudice that may be, to the right and interest of the Subject, for since the Laws do tell us that, a hobart's Reports p. 218. Rex est centrum & stabilimentum justitiae, the King is the Centre and support of justice, b Blow. Com. 242. 12. H. 7. f. 17. and that all administration of justice is both derived from him, and belongs to him originally, c Case de pen. Statutis. Cooks Repor. and is inseparable from him, since the King is d Beverleyes' case. Cooks 4. Reports. so. 124. Caput & salus reipublicae, & à Capite bona valetudo transit in omnes; the head and health of the Commonwealth, and from this head the health of all the people is derived, e Calvin's case. 7. par. Cook's Reports. since that all protection of the people must come from the King, and none other can protect the Subjects of the Kingdom, but the King alone, f hobart's Reports. f. 112. since the Law tells us that the reformation of all wrongs and injuries done to the people belongs to the King, g Blow. Com. 268. since the King is the chief Captain of Chivalry within the Kingdom, h Cooks Com. sur Littleton. f. 75, 76. Calvin's case ubi supra. since that the Militia doth wholly belong unto him, and hath so done to his Royal Progenitors, ever since the reign of King Edward the Confessor, i Cooks Inst. 3. par. f 160. 201. Stat. of Northampton. ●. E. 3. c. 13. and that no men may arm themselves in this Kingdom without the King's assent, k Cooks Instit. 4. par. p. 91. since that the King is subject to none within this realm, since that the Law speaks it l hobart's Reports. that access to the King may not be shut up from the Subjects, m Cooks Instit. 4. par. p. 93. which to do is a great presumption, since as Fortescue saith, n Fortescue c. 13. Rex ad tutelam legis, corporum & bonorum erectus est, the King is ordained for the preservation and defence of the Laws, and of men's bodies and goods, and as Bracton notes, o Bracton l. 2. p. 55. ch 24. Bract. l. 3. de astionibus. populus sibi traditus à Deo in pace sileat & quiescat, nè quis alterum verberet, vel malè tractet, nè quis alienam rem per vim vel per roberiam auferet vel asportet, nè quis hominem mahemiet vel occidat; That the people committed unto him by God may rest in peace and quiet, that one beat not, nor evil entreat another, nor take and carry away another man's goods by force or robbery, now called plunder, nor that any one of them kill and maim another; and since, as the same Author saith, * Bract l. 2 ubi supra Rex habet, etc. the King hath all rights in his hand which belong unto the Crown, all temporal power, that is the Militia, or the power over the people, and the material Sword, which is necessary to the Government of the Kingdom, and since that the King hath the only Jurisdiction of Judgement within this Kingdom, that thereby, as the Minister and Vicar or Vicegerent of God, he may give and deliver to every man that which of right belongs unto him. It is not only a most presumptuous offence against God and his Laws, a most injurious violation to the Laws of this Realm, nay even to the Laws of nature, a most barbarous and unparallelled affront to, and usurpation upon the Royal and sacreo Majesty, but the most prodigious and destructive mischief to the general peace, and public safety of his Majesty's Dominions, and the people inhabiting in them, to imprison the King, to detain him in prison under strong & military guards, to deny a personal Treaty with his Majesty for the setting of the Kingdoms, though his Majesty hath often sought it; and to vote an order, that none of his Subjects shall make address unto him upon pain to incur the punishment of High Treason: what is this but to displace God's Substitute? to rob the Almighty of the honour of appointing his own Deputy? What is it but to subvert and overthrow the ancient and fundamental Laws of England? to take away and utterly to destroy the Liberty and property of the people of England? to strip and rob them of the King's protection, the only means to preserve them, their families and posterities in a desired peace and an assured plenty, to the end, that they may pillage and plunder them of their goods, disseise them of their estates and Lands, deprive them of their offices and promotions, imprison their persons, nay take away their lives at pleasure without impunity of the King▪ o Bract. l. 4. c. 24. sect. 1. Qui solam habet jurisdictionem ut delinquentes puniat & castiget, as Braction for good Law assures us; Who hath the only jurisdiction to punish and chastise such Delinquents, and to protect his good people from such violence and rapine: or without the reprehension of the ancient and established Laws of England, which I am too much afraid they intent to lay aside, and subvert, and never more to observe, as being oppositely contrary to all their actions and purposes; What then? is there no legal remedy to prevent the Kingdom's destruction? Yes there is, and if there were no more to be said in it or for it, then that which these men laid down for a Maxim to ground all their rebellious practices upon (falsely supposing causes of misgovernment in the King, which the Kingdom now too sensibly feels under them, raising of jealousies, and fomenting of fear where no fear was, yea even of the utter ruin and destruction of the Kingdom, by the King, as they then falsely alleged; but by their own actions have assured us will follow from themselves) this their own Maxim I say might serve, q Declar. that a Kingdom must not be left without a means to preserve itself. This mysterious rule were sufficient to warrant the whole Kingdom, in case they will not admit the King to a personal Treaty, and restore him to his Rights, Prerogatives, and Power of protecting his people, (to whom as a learned Author in the Laws of England observes, r Gervas'. Tilburiensis in praefat. ad Hen. 2. Ab ipso Deo singulariter ost credila cura subditorum: Even from God himself the care of his Subjects are credited and committed) to rise up in Arms to suppress and subdue them; but there are known Laws of England, and sufficient Precedents to warrant such a proceeding: and without this manner of acting, the work will never be done, but the Kingdom must ruin, Salus populi est suprema Lex, the welfare of the people is the supreme Law, it's their own Maxim, and we agree to it; but withal we say, with that learned Sir Edw. Cook * Cook's Reports Beverl. case ubi suprà Rex est caput & salus reipublicae, & à capite bona valetudo transit in omnes; The King is the head and health of the Commonwealth, from whom all welfare is derived to the people; therefore the welfare of the King is the chief Law to preserve him, to serve him, which is the health of all; all men by nature are bound to it, as is well observed by learned, s Geru. Tilbur. ubi supra. Oportet Regibus servire, non in conservandis tantùm dignitatibus per quas gloria regiae Majestatis elucet, verumetiam mundanarum facultatum copiis, quae eis sui status ratione contingunt; All Subjects ought to serve their King, not only in maintaining those dignities by which the glory of the Kingly Majesty doth appear, but also in the strength and abundance of all those worldly faculties and powers which belong unto him by reason of their degrees, Illa enim illustrant, haec subveniunt, the former do serve to make him famous, but the latter aught to be aiding and assisting unto him, (saith he) we ought not only that are subjects to the King to pity him and to speak well of him, to honour him with our lips and words only, but we ought to honour him with our substance, assist him with our arms, for the recovery of his rights, and of his liberty, and for the subduing and suppressing of his enemies, and of those that traitorously rise up and rebel against him. The law t Blow. Com. c. 319. doth not make the Subject greater than the King, nor the servant than the Master, the Law here compares the King to a Master, a subject to a servant, yet all men know that the Prerogative of the King over his Subject is larger and greater than the praeeminence of a Master over his servant, even as much as the Law of Nature, hath precedency of the civil Law, or Law of Nations; the Allegiance due from a Subject to the King, being due u Calvin's case ubi supra. by the Law of Nature, the duty that a servant owes to his Master being but grounded either upon his own contract, the Law of his country, or at most the Law of Nations. The duty then that a Subject owes to his King, is more obligatory to him, then that which a servant or a slave owes his Master, and the Law doth more exact it at his hands, and justify him in the performance of it. The law of England tells us, that w 35. H. 6. f. 50, 51. a servant by the Law may justify the battery or beating a man in defence of his Master, and to take bows and arrows, or other invasive weapons, x 9 Ed. 4. f. 28. 19 H. 6 f. 31 nay a servant may justify the beating of any man for the defence of his Master's goods; Nay yet more, y 21. H. 7. f. 39 3. Ed. 3. Fits. Coron. pl. 303. 305. 26. ass. pl. 23. a servant may justify by the Law the kill of any man in defence of the life of his Master, of his house or goods. Doth the Law protect a servant in his Master's defence to perform this duty, and shall it not a Subject in the performance of his towards his King? yes surely à fortiori, therefore by the Law every man hath power given him z to seize upon the goods of those that are the King's Enemies; a 27 Ed. 4. f. 5. 9 Ed. 4 f. 26. Cook's Reports 5. par f. 92. Semaines case. every man hath power by the Law to arrest Felons, Rebels, and Traitors; Nay it is their duty so to do: who those Traitors and Rebels are, the Law informs every man, and Commands him to pursue them, holding him indemnified if he do it, and if he do it not, one way or other the Law condemns him to punishment, because it is for the weal public to take & suppress Rebels and Traitors, every man b 12. H. 7. f 17. nay all men (say our books) are bound to go with the King into the wars, and there to * 11. H. 7. f. 18. aid him. c Horn's Mirror de Justices cap. 1. Stat. peach deal Majest p. 20. M. 8. They are guilty of perjury (saith a learned Author of our Laws) which bear arms against the King, or that sty from his battles, or from his lawful host, and those Ministers that disavowablement, viz. unlawfully stop men, or counsel men that they go not into war with the King, where they are bound to go, or are summoned thereunto: this is the ancient Common Law of England, and shows that it is the duty of every Subject to be aiding and assisting to the King, in his wars. d Stat. 11. H. 7. c. 1. By Statute Law all men are bound to attend the King in his wars, and to aid him with their true and faithful service, and it matters not whether the King be in person in the field or not; for if he be any where by the King's command, that is acting by the King's Commission, or by his power, or in preservation of the King's Royal Person, Crown and dignity, for that his service and doing, no man by the Law can or aught to be questioned, molested or impeached, and the reason of it is, because the Law saith e Stat. 7. E. 1. de de. fensione portandi arma. that to the King it belongs to preserve the peace of the Realm, and to suppress all force that shall be raised without him in the Kingdom at all times when it shall please him: f cowels Instit. in Proem. Name in Rege necessaria sunt duo haec, arma, viz. & leges, quibus utrumque tempus bollorum & pacis rectè possit gubernare: For as the learned in our Laws say. Two things are necessary for a King, that is to say, the power of Arms and Laws, by which he may rightly govern both in time of peace and war; * Blow. Com. f. 268. Bract. 1. 2. p. 55. cap. 24. for being the chief Captain of Chivalry as before is remembered, he hath all rights in his hands which belong to the Crown and his Kingly power, especially the material sword, which inables him to the government of his Kingdom: therefore are all his Subjects bound to assist him in his Wars, to repel foreign enemies, to suppress and subdue Rebels, and such disloyal Subjects as rise in Arms against him, and to assist him to chastise all traitorous Conspirators that seek to destroy his life, deflower his Crown, and subvert his Government. Rebellion hath ever been so odious in Law, that in all ages g Stat 17. R 2. c. 8. Stat 13. H. 4. c. 7. Stat. 2. H. 5. c. 8. 9 Stat. 19 H. 7. c. 13. Stat. 3. Ed. 6. c. 5. Stat. 7. Ed. 6. c. 11 Stat 1. Mar. c. 12. Sta. 1. Eliz. c. 17. Brief de assistance, de Ches. vic. de County. good Laws have been made in Parliament for the suppressing and punishing of it, by which Statutes every Subject of England, be he never so great in degree of honour or estate, or be he never so mean, be he Farmer, Artificer, Yeoman, Husbandman, Labourer, or other, being of the age of 18. years or more, and under the age of threescore years, being able to serve, and not sick, lame, or impotent, aught to be aiding and assisting to the suppression of it, and if he or they kill any of such as are in Rebellion, of that fact they ought to be free, discharged and unpunished. h Dalton justice de Peace p. 206. The King is the head, life and rule of the Commonwealth, against him only there may be Rebellion, and not against any other, pretend they never so much power, as to be a Parliament or State, every rising in Arms against the King, (without his power immediate or mediately derived) either by sound of Drum or Trumpet, ringing of bells, or otherwise, In terrorem populi, to do any unlawful act, which in itself contains and is high Treason, be there assembled to the number of 12. persons or above, is rebellion by the known Laws of England, and every loyal Subject of the King is bound to be aiding and assisting to the utmost of his power to the suppression of it. i Cooks Inst. 3. par. p. 12. Now to raise arms to imprison the King, or to detain him in prison, is rebellion, k 43. Eliz. Earl of Essex case. Cooks Instit. 3. par. f. 62. to make war against the King, upon pretence to remove evil Counsellors from him is rebellion, l Hill 1. jac. the Lord Cobham's case. Cooks Instit. 3. par. p. 9 39 Eliz. Bradfords' case. Brooke Treason. p. 24. or to depose him, or to alter the established Laws, or Religion by force, or with intent to surprise, take, detain or keep from the King any of his Castles, Forts, or shipping, or to impose unlawful Taxes, or impose new Oaths without the King's assent; these and many other of the same nature are Rebellions, which every Sheriff, Justice of Peace, and Constable in England, yea and every man when he shall be summoned thereunto, without expecting any particular Writ, or Commission, is bound to use his utmost power by force of Arms to suppress, and the sooner the better, taking this advice of the Poet, Principiis obsta, serò medicina paratur, Cùm mala per longas convaluere morat. But here it may be objected, that it is not lawful for any man to rise in defence of the King, and in aid of him to relieve him out of prison without the King's Commission or command: if any such objection be made, it must needs proceed from one that hath been heretofore, or still is of that party, which usually is called the Parliament party. To him I answer, that it is much more lawful for the King's loyal Subjects to fight for him, to set him at liberty, and to restore him to his rights, which is the only means to preserve the Kingdom, than it was either for the E. of Essex or the L Fairfax to fight for him without his Commission, to imprison his royal person and there to detain him, to the apparent ruin and destruction of the Realm. This is, I hope, a sufficient argument ad hominem, to convince any of that side concerning this truth. But I desire that it may be remembered, that it is proved before to be the duty of every loyal Subject, to arrest Traitors, and suppress Rebels; and withal that the King is a close prisoner, that all address to him is blocked up by Vote and Ordinance, that he cannot send his Commissions abroad, that it is impossible that he should, that per legem nemo tenetur ad impossibilia; & it being impossible to obtain the King's Commission to chastise Traitors & suppress Rebels, it is as justifiable for the preservation of the King & Kingdom to raise arms in this case, as it is in case a foreign enemy were landed, and ready to possess one of the strongest holds in the Kingdom, and the people within it should make resistance against that enemy without the King's Commission; or that one seeing a conspirator ready to stab the King, and should prevent the stroke before he asked the King's authority, to preserve him from murder; which if he should stay to do, it might be too late to save his lives; for as the Poet saith, Ignis ab exigua nascens extinguitur unda, Ovid. Sed postquam crevit, volitantque ad sidera flammae, Vix putei, fontes, fluvii succurrere possint: Therefore we must not expect to see the King at Liberty to grant his Commissions, before they act for the preservation of the King and Kingdom, but must make a virtue of necessity, always takeing this for an authentic Maxim, in Law, Quod id semper justum est quod omnino est necessarium, It is necessary the Kingdom should be preserved, it is therefore lawful, it matters not which way. But the case of those that shall engage in this war will be much better; The certainty of the Royal line (saith that great Lawyer * hobart's Reports, f. 332. the Lord Hobart (is the peace of the realm; The most excellent Prince of Wales; Qui coruscat radiis Regis, & censetur una persona cum Rege, as the Law saith; m 8. Rep. Cook, the Prince's case. 21. Ed. 3. Fitzh. Praerog. 16. who is the perfect Image of his Father, and shines with the glistering beams of Kingly Majesty, and is esteemed one person with the King, n Stat. 25▪ Ed. 3. c. 2. 1. H. 5. f. 7. and who ought to enjoy all the ancient Prerogatives of the Crown, whose death to imagine, compass or conspire, is as high a treason, as it is the Kings, o Br. Treason. pl. 27. and against whom to fight, he coming in aid of the King p Stamf. pl. de Coron. f. 1. I. his father, or to fight against those that shall assist him therein, is also High Treason: He, I say, is sufficient Commission in himself, had he not the King's Commission: but to avoid all scruples, he hath the King's warrant and authority, and issues out Commissions to such as require them in his own name as Generalissimo (under his Royal Father) of the three Kingdoms of England▪ Scotland and Ireland, to all such as desire them, whereby all that scruple may be satisfied in the Justice and formality of their engagements, though there▪ needs no such wary caution for men's undertake in so just and necessary a war, unless it be that they desire to support this rule; Abundans cautela non nocet, which speaks more of curiosity then of necessity, wherein not only the safety of the Royal person of his sacred Majesty their Royal Sovereign, the preservation of his Crown and dignity, (wherein all the people's protection and safety is included,) the maintenance of the Laws of the Land, the Liberties and properties of the free people of England is so much concerned; Nay I may justly say, the health, welfare and being of three famous Kingdoms lies at stake, they being now in a way of ruin and destruction. But to leave it without scruple, that if the Prince had not Commission from the King, yet both he and all the Subjects of England in his assistance may lawfully take arms in defence and preservation of the King's cause and person, and for his redemption forth of prison; and this I shall prove both by sufficient precedents, and the most uncontrollable Laws that are. We read in the Chronicles of England, q daniel's Chron. p. 152. Sir Rich. Bakers Chron. p. 86. That Anno Christi Incarnationis 1256. in the 49. year of his reign, King Hen. 3. of that name King of England, and Prince Edward his eldest son and heir apparent to the Crown, afterwards King Edward the first, were taken Prisoners by the douze Peers, or the twelve Governors of the Kingdom, and their adherents, at the battle of Lewis in Sussex, King Hen. himself was conveyed by them Prisoner to the Tower of London, and Prince Edward to the Castle of Hereford, the King remaining still a Prsoner, the Prince made an escape forth of the Castle of Hereford, and in Wales and the parts adjacent, raised an army and at Evesham in Worcestershire fought with these douze Peers, the chief whereof was Simon Monfort Earl of Leicester, who thinking to make their party the stronger, thereby declared for the King, took him out of the Tower, and brought him to the battle, but kept him as a Prisoner: But the Prince declaring also for the King his Father, the people rise in arms with him and defeated the Earl's army, killing him in the place, with many others of his confederates, and redeemed the person of his Royal Father from his imprisonment, restored him to his Crown, who enjoyed it in peace afterwards till his death, the fact of the Prince was approved of by the Law, but those that fought against him were declared traitors and Rebels by act of Parliament, r Dictum de Kenilworth an. 51. H. 3. and paid their fines and forfeitures. The like precedent we find in King Hen. 6. his time, which is thus, Anno Domini 1459. King Hen. the 6. was taken Prisoner s Martin's Chron. p. p. 258, 259, 260. at the battle of Northampton, by Edward Earl of March, eldest son to Richard Duke of York, (afterwards King Edward the fourth) and by his then assistant Nevell the great Earl of Warwick, the King was conveyed as a prisoner to the Tower of London, and afterwards enlarged from thence and committed to the custody of the Duke of Norfolk: Queen Margaret wife to King Hen. 6. and his eldest son Prince Edward levied an Army, overthrew the Duke of York at Wakefield, and afterwards defeated the Duke of Norfolk, to whom the King was a prisoner, redeemed the Person of the King, and reestablished him in his Throne, notwithstanding that neither of them were armed with either of the King's Commissions for the doing thereof: these precedents we have of the like undertake, many others I could produce out of the Annals of France, and Scotland, if desire of brevity did not prevent me; but both these, and all others of this nature are warranted by the immutable and dispensable Laws of God and nature, t Exod. 10. 11. & 21. 17. God hath commanded children to honour their father and mother, this is a Moral and an eternal Law ever to be performed by children to their Parents, u Matth. 15. 4. our most blessed Saviour hath so declared it, upon which place x junius & Tremellius. Arrias Montanus Junius and Tremellius and others agree, that Honoris nomine, intelligitur officii omne genus, quod à liberis parentibus debetur, hic vero juxta proprietatem sermonis Hebraicae magis pertinet ad subsidium quàm ad salutationem, ac civilia illa vitae officia: By the word Honour, say they, is meant all kind of duty that is due from children to their Parents, but in this place by reason of the propriety of the Hebrew Speech it rather signifieth aid or assistance, than salutation or other civil duties of life; so then in this case by the Law of God, the Prince is bound to aid the King his Father by every possible means he can both in civil and military affairs, and by the equity of this Law all the King's Subjects are bound to do the like, as the King is Pater patriae, the Father of the Country and common Parent of us all, and as children, servants, and Subjects are bound by the Law of God to aid and assist their Father, and King, so are they no less bound by the Law of nature, for both are by the same Law obliged to be instrumental to their Father, Master or Common Parent in all cases of aid in time of necessity, were there no inducement of their own profit inviting them thereunto; for as learned Grotius hath it, y Grotius de jure belli & pacis l. 2. c 5 sect. 2. & 3. Sunt diversa hominum inter se vincula, quae ad opem superiorum invitant, tale instrumentum est Patri filius, pars ejus quippe naturaliter, tale & servus quasi ex lege, quale autem in familiis est servus, tale in republica est subditus, ac proinde instrumenta imperantis ut bellum licitè gerant: There are saith he, by the Law of nature divers bonds between men which invite them to the aid of their Superiors, such an instrument ought the son be to the father, because he is naturally a part of him; such an instrument ought the servant be to the master, because he is bound thereunto by the Law of Nations, (which is the part of the law of nature) and such an instrument as a servant is in a family, such a one ought a Subject of a Kingdom be to his King, that is, an instrument of his Sovereign, that may lawfully wage war for him: From these premises I gather this irrefragable argument, That whatsoever men are bound and enjoined to do by the Laws of God and Nature, is lawful for every man to do without further Commission. But Children are bound to assist their Parents and Sovereigns in all matters, either civil or military; therefore it is▪ lawful for the Prince to assist his Father, and all the Subjects of England to rise in Arms to aid their King and his urgent necessities against his oppressors, notwithstanding that they have not his actual Commissions, or any other derived from his power. Agreeable to this are those rules of the Common-Law of England, z Cooks Rep. 5. par. f. 115. Wades case. Quando aliquid mandatur, mandatur & omne quod pertinetur ad illud: When a man hath command to do his duty, every means that is conducing thereunto is warranted unto him, by the Law, and likewise, a Cooks Rep. 5. par. f. 12. Saunders case. Quando Lex aliquid al●●ui concedit, conceditur & id sine quo res ipsa esse non potest; when the Law gives a liberty to any man to do any act, it gives him all the necessary means to effect that, without which it cannot be brought to pass. The Law commands and gives licence to all the King's Subjects to aid, relieve, succour and redeem the King out of Prison (from whom they can expect no actual Commission,) therefore the Law supplies that defect by her own power, by a necessary means conducing to that end, the Kings and Kingdom's preservation. This is warrantable and justifiable by all the Laws aforesaid, let all good English men therefore take hold of the present opportunity, laying a side detestable Neutrality, and redeem their King, Laws and Liberties, or be slaves for ever. FINIS.