a Seneca de Clemeâ—â—â—a l. 1. as may winne their hearts and affections and not to straine their pretended Prerogatives beyond the bounds of Law this being a most certaine experimented rule which b Polit. l. 5. c. 10 11. p 367 368 See Polybius Hist l. 6. Aristotle the Prince of Politicians gives That there are two intestine causes most perilous and frequent of all others by which a kingdome is usually lost and subverted The first is if the Nobles and people dissent from the King himselfe The second if Kings will Reigne tyrannically and usurpe a greater domination or prerogative then the Lawes of their kingdomes give them Then he addes Verily a kingdome is preserved by contrary remedies specially by a moderate kinde and temperate forme of Government For by how much the c Deut. 17. 19 20. See Prov. 16. 12. c. 20. 28 c. 29. 4. 14. c. 25. 5. more moderate the King shall be and contented with smaller and fewer prerogatives by so much the more constant and longer-lasting shall his kingdome necessarily be For by this meanes it recedes farther from the domination of Tyrants and it comes nearer to the equability of manners and humanity of life and is lesse envyed by their Subjects which he proves by the notable speech and example of King Theopompus And indeed this is the principall policy which God himselfe hath prescribed a King to prolong his dayes in his kingdome he and his children after him to keepe all the words of this Law and those Statutes to doe them that â—s to governe himselfe and his Subjects onely by Law not power to doe justice and judgement avoid oppression and not to liftup his heart above his brethren as if they were his vassals and noâ— men or Christians of the same kinde and quality as himselfe is Wherefore I shall close up this with old Bractons resolution d Lib. 3. c. 9. f. 107. Fleta lib. 1. c. 17. Potestas itaque Regis juris est non injuriae Exercere igitur debet Rex potestatem Juris â—icut Dei vicarius Minister in terra quia illa potestas SOLIUS Dei est potestas autem injuriae Diaboli non Dei cujus horum operum fecerit Rex ejus Minister erit cujus opera fecerit Igitur dum facit justitiam vicarius est Regis aeterni minister autem Diaboli dum declinat ad injuriam * See Leges Edwardi Confessoris cap. 17. in Lambards Archaion f. 130. accordingly Dicitur enim Rex a bene regendo non a regnando quia Rex est dum bene regit Tyrannus dum populum sibi creditum violenta opprimit dominatione Temperet igitur potentiam suam per legem quae fraenum est potentiae quod secundum leges vivaâ— quia hoc sanxit Lex humana quod leges suum ligent latoreâ— alibi in eadem digna â—ox Majestate regnanâ—â—s est legibus alligatum se Principem profiteri Item nihil tâ—m proprium est imperii quam legibus vivere Et majus imperio est legibus submittere Principatum merito debet retribuere legi quia Lex tribuit ei facit enim Lex quod ipse sit Rex Item cum non semper oporteat Regem esse armaâ—um armis sed legibus addiscat Rex sapientiam conservet justitiam All which is notably seconded by Judge Fortescue De Laudibus Legum Angliae c. 9. to 15. worthy any Princes serious perusall And thus doing neither he nor his Posterity need â—eare this Supreame Prerogative Power of Parliaments which hath â—aine dead and buryed for many ages Et pereat positum rubigine telum 11. All Papists e See p 2 3. the Authours there quoted Bishop Jewels View of a seditious Bull and of the Popes Supremacy Cassanaeus Catagloria mundi part 4. attribute farre more divine authority and Soveraigne Jurisdiction over Emperours Kings Princes Kingdomes Subjects to the Pope their Lord and God whom they make the Supreame Monarch of the World and all kingdomes in it and give him greater Authority to summon ratify and dissolve generall Councels then ever any Christian King or Emperour challenged or usurped yet those who maintaine these Paradoxes of the Popes Supremacy confesse f See John Whites Way sect 36. n. 30. 34 35. p. 102. 104 105. Surius Tom. 3. 4. that a generall Councell is above the Pope and may upon just cause not onely convent and censure him for his misdemeanours but likewise actually depose him and set up another in his stead as the Councels of Pisa Constans Basil which deposed foure Popes namely Gregory the 12. Benedict the 13. John the 23. and Eugenius the fourth the Councell of Chalcedon against Pope Leo the Councell of Sinuessa against Pope Marcellinus the sixth seventh and eighth generall Councels against Honorius the Councels of q Wormes and Brixia against Hildebrand the Councell of Pisa summond 1511. of purpose to depose Pope Julius for his perjury h See John Whites Way sect 36. n. 30 p. 102 and n. 34 35. p. 104 105. sundry Popish Writers acknowledge Now the Councell of Basil as I shewed * See p. 4. before defined That the whole Kingdome and Parliament hath as great a power over their Kings as a Councell hath over the Pope therefore by Papists verdicts it is above the King in point of Soveraigne power as a Councell is above the Pope which John Mariana De Rege Regis Instit lib. 1. c 3. to 10. professedly proves at large 12. That Court which may lawfully coniure question depose banish execute the Kings greatest Favorites Officers Judges yea Lord Protectors themselves the highest Peeres of the Realme notwithstanding such are said to be i Psal 82. 1 2. Exod. 22. 2â— John 10. 34. Gods k Rom. 13. 1 2 3 4. Ordained of God Gods Ministers To l Prov. 8. 15. decree Judgement g Fox Acts Monuments vol. 1. p 231. 235. 879 to 890. 962. by God to be the higher powers c. in Scripture as well as Kings and that not onely with but against the Kings Good will must questionlesse be the highest power and Jurisdiction in the Realme else the King and their Authority might protect them against its Justice But the Parliament may lawfully censure question depose banish execute all or any of these not onely without but against the Kings consent witnesse the proceedings in Parliament against m Hoveden p. 702 703. 705 706. with Speed Holinshed Grafton Stow Matthew Paris Polychronicon Fabian William Longchamp Bishop of Ely Chiefe Justiciaâ— Lord Chancellor and Vice-roy of England in Richard the first his Reigne during his absence in the Holy Land from which Offices he was by the Peeres and Commons deposed for his misdâ—meanours and oppressions n Walsingh Speed Holinsh Fabian in Edw. 2. Froyssards Chron. part 1. c. 12 13. Piers Gaveston and the two Hugh Spensers in Edward the seconds Reigâ—e oft banished
2. c. 16. f. 24. That a King is created and elected by whom but by his kingdome to this purpose to doe justice unto all That a king cannot doe any thing else in earth seeing be is Gods Minister and Vicar niâ—â—id solum quod de jure a Luk. 2. 22. 23. 24. â—otest but that onely which he can doe by Law That God the Law and his Court to wit the Earles â—nd Barons in Parliament are above the King and ought to bridle him and are thence called c Comites viâ— quia a Comitatu â—ive a societate nomen sumpserunt qui etiam dicâ— possunt Consules a consulendo Reges enim tales siâ—â— associant ad consulendum regendum populum Dei. ordinaâ—tes eos in magna potestate honore nomine c. Idem l. â— c. 8. f. 5. 6. Coâ—ites because they are the Kings Companions Fleta an Ancient Law-booke written in King Edward â—he third his raigne lib. 3. c. 3. and 17. useth the selfe same words that Bracton doth and concludes â—hat the King hath a Superior to wit God and the Law by which be is made a Kiâ—g and his Court of Earles â—nd Barons to wit the Parliament d De Laudibus Legum Argliae c. 9. to 15. Fortescue a great Lawyer Chauncellor to King Henry the 6. â—roves at large That the King is not above but under the Law that be cannot alter the Law of Ergland â—or â—ay any Taxes at all on his Subiects but by Parliament That all lawfull Kings and Kingdomes were at â—â—rst created and erected onely by the unanimous free assent of the people that the kingdome of England is a Poâ—cie or Aristocraticall mixt Government not an absolute royall Soveraignety That the e Hanc potestatem â popâ—lo effluxam ipse habet c. p. 25. King hath his â—â—yall power DERIVED TO HIM FROM THE PEOPLE whereby it is unlawfull for him to â—le his people by any other power which he prosecutes in sundry chapters too tedious to transcribe â—nd in one word f Chap. 8. vol. â— pag. 173. Raphael Holinshed Iohn Vowell and others in their Description of England â—rinted Cum Privilegio resolve thus of the Parliaments power This House hath the most high and â—bsolute power of the Realme for thereby kings and mighty Princes have from time to time beene â—eposed from their thrones and Lawes are enacted and abrogated Offenders of all sorts punished and corâ—pted Religion either disanulled or reformed It is THE HEAD AND BODY OF ALL THE â—EALME and the place where every particular man is intended to be present if not by himselfe yet by â—s Advocate and Attorney For this cause any thing that is there enacted is not to be withstood but obeyed â—â— all men without contradiction or grudge and to be short all that ever the people of Rome might doe eiâ—â—er Centuriatis Comitiis or Tribunitiis the same is and may be done by the Authority of Parliament Now the Romans in their assemblies had power to enact binding Lawes to create and elect â—â—eir Kings and Emperours and likewise to judge censure and depose them to create and elect all kindes â—â— Officers and to * See Bodine l. 2. c 5. l. â— c. 10 Eutropius and Grimston in the life of Nero Maximinius Heliogabalits and others Livy Rom. Hist l. 1. â—â— change the very forme of their State and Government as I shall hereafter manifest Therefore by these Authors resolution the Parliament hath an absolute power to doe the like when â—hey see just cause Sir Thomas Smith one of the Principall Secretaries of State to King Edward the 6. â—nd Queene Elizabeth and a Doctor of Law in his Common-wealth of England l. 2. c. 1. in the old but â—â— in the last Edition hath the same words in effect with Holinshead and addes that the Parliament giâ—eth forme of Succession to the Crowne c. Our kings royall power being then originally derived to â—hem conferred on them by the peoples and kingdomes common consents in Parliament and all their â—ew additionall Prerogatives too as the premises evidence it cannot be denied but that the whole â—ingdome and Parliament are really in this sence above him and the most Soveraigne prime power â—â—om whence all other powers were and are derived See Fortescue c. 9. to 15. Fourthly This is undeniable because the whole kingdome in Parliament may not onely augâ—ent but likewise * abridge allay abolish and resume some branches of the Kings royall power and â—â—erogative if there be just cause as when it becomes onorous mischievous and dangerous to the Subâ—ects inconvenient to or inconsistent with the kingdomes peoples welfare peace safety Liberty or â—he Lawes this is most apparant by Magna Charta Charta de Forresta Statutum de Prerogativa Regis De Tallâ—gio non-concedendo 1. E. 3. c. 6 7. 2. E. 3. c. 2. 8. 3. E. 1. c. 35. 9. E. 3. c. 12. 5. E 3. c. â— 10. E. 3. c. 2. 3 14. E 3. c. 1. 14. 18. E. 3. c. 8. 25 E. 3. c. 4. Stat. 3. c. 1 2. Stat. 5. c. 8. 11. 36. E. 3 c. 10. â— 7. E. 3. c. 18. 42. E. 3. c. 3. 10. R. 2. c. â— 11. R. 2. c. 1. to 7. 1. R. 3. c. 2. 4. H. 4. c 13. 21. Jac. c. 2. 3. 24. 7. H. 8 c. 3 â—he Petition of Right 3. Caroli most Statuts against Purveyens Pardons Protections the Acts made this Parliament against Ship-money Knight-hood Forrest-bounds Pressing of Souldiers the Star-Chamber High-Commission the Trienniall Parliament the Continuance of this Parliament whiles they please with g See the Arguments against Ship-money and Impositions and the Declarations against the Commission of Aray sunâ—ry other Acts which restraine abridge repeale and resume divers reall and pretended branches of the â—ings royall Prerogative because they proved grievous and mischievous to the people and dangeous and pernicious to the kingdome This then answers that irrationall groundlesse position of Doctor Ferne That h Resolving of Conscience Sect 4. 5. the Subjects neither lawfully may nor ought in any case to resume al or any part of that Regall power wherewith they have once invested their Kings by common consent Which as it is contrary â—o that received principle of nature and reason Eodem modo quo quid constituitur dissolvitur That â—ll Governments created by mens consents may be altered diminished or repealed by their consents â—â— i See Ioshua Iudges Samuel Kings Chron. Daniel throughout â—saiah Ieremy Ezickiel in sundry chap. sundry Presidents and Prophesies in Scripture concerning the alterations the Subversions and Dimiâ—utions of kings and kingdomes to the constant practise of k See Sleidan de 4. or Imperiis Mat. West Livy Iustin Opmerus Purchas Chronicon â—hronicorum and all generall Histories all Realmes and States whatsoever from â—dam till this instant who have undergone many strange alteratians eclipses diminutions yea Peâ—â—ods of Government to the Resolution of l Polit. l.
The Treachery and Disloyalty of Papists to their Soveraignes both in Doctrine and Practise WHen I seriously consider the memorable Preamble of 3 Jac. ch 4. That it is found by daily experience that many of his Majesties Subjects who adhere in their hearts to the Popish Religion by the infection drawne from thence and by the wicked and divellish counsell of Jesuites Seminaries and other persons dangerous to the Church and State are so farre perverted in the point of their loyalties and due obedience unto the Kings Majesty and the Crowne of England as they are ready to entertaine and execute any Treasonable Conspiracies and Practises as evidently appeares by that more then barbarous and horrible attempt to have blowne up with Gunpowder the King Queene Prince â—ords and Commons in the House of Parliament assembled tending to the utter subversion of the whole State lately â—dertaken by the instigation of Jesuites and Seminaries and in advancement of their Religion by their Schollars â—ught and instructed by them for that purpose With the Statutes of 35. Eliz. ch 2. and 3 Jacobi ch 5. which â—â—act That all Popish Recusants shall be restrained to some certaine places of abode and confined to their private â—uses in the Country and not at any time after to passe or remove above five miles from thence under paine of forfeiting â—â— their Lands Goods and Chattels during life That none of them shall remaine within ten miles of the City of â—ondon nor come into the Court or house where his Majesty or Heire apparent to thâ— Crowne of England shall be nor â—ave in their owne houses or in the hands or possession of any other at their disposition any Armour Gunpowder or Muâ—tion of what kind soever And all this for the better discovering and avoiding of such Trayterous and most danâ—rous Conspiracies Treasoâ—â— Practises and attempts as are daily devised and practised against our most gracious â—overaignes Person and â—â—â— Commonweale by rebellious and trayterous Papists And when I read in * Dated January 10. 1606. and Februa 22. 1603. two of King â—â—mes his Proclamations That those adhering to the profession of the Church of Rome are blindly led together â—ith the superstition of their Religion both unto some points of Doctrine which * Note this cannot consist with the loyalty of Subâ—cts towards their Prince and oft times unto direct actions of conspiracies and conjurations against the State wherin â—â—ey live as hath most notoriously appeared by the late most horrible and almost incredible conjuration grounded upâ— points of Doctrine in that Church held and maintained and contrived and practised with the privity and warrant of â—any of the principall Priests of that profession to blow up our children and all the three Estates in Parliament assemâ—ed And when we consider the course and claime of the Sea of Rome we have no reason to imagine that Princes of â—r Religion and profession can expect any assurance long to continue unlesse it might be assented by the meditation of other â—rinces Christian that some good course might be taken by a generall Councell free and lawfully called to plucke up â—ose rootes of dangers and jealousies which arise for cause of Religion as well betweene Princes and Princes as beâ—eene them and their Subjects and to make it manifest that no State or Potentate either doth or can challenge powâ— to dispose of earthly Kingdomes or Monarchies or to dispense with Subjects obedience to their naturall Soveraignes Which was never yet attempted much lesse effected And in the Booke of Thankesgiving appointed for the â—â—h of November set forth by King James and the Parliaments speciall direction this observable Prayer â—omewhat altered by the now a Who confesseth Justifieth it in his Speech in Star-chamber June 14. 1637. Arch-prelate of Canterbury in the latter Editions to pleasure his Friends the â—pists To that end strengthen the hand of our gracious King the Nobles and Magistrates of the Land with Judgeâ—ent and Justice to cut off these workers of iniquity the Papists whose Râ—ligion is rebellion whose faith is factiâ— whose practise is murthering of Soules and Bodies and to roote them out of he confines of this Kingdome I canâ—ot but star damazed yea utterly confounded in my selfe at the Impudency and Treachery ofthose pernicious â—ounsellors who in affront of all these Lawes and premises have issued out sundry b See the Parliaments late Declaration Commissions under â—s Majesties hand and seale to divers notorious Papists not onely to furnish themselves with all sorts of â—mes and Munition but likewise to meet together armed and raise Forces in the Field to fight against the â—rliament Kingdome and Protestant Religion even contrary to divers his Majesties late Printed Declaraâ—ns and Protestations to all his loving Subjects advanced them to places of great trust and command in his â—ajesties severall Armies and procured them free accesse unto if not places of trust about his sacred person â— if they were his loyallest Subjects his surest guard as many now boldly stile them and more to be confiâ—ed in then his best and greatest Councell the Parliament whom they most execrably revile as Rebels â—â—d Traytors the more colourably to raise an Army of Papists to cut their throats and the throat of our Proâ—stant Religion first as they have already done in Ireland and then last of all his Majesties in case he refuse to become the Popes sworne vassall or alter his Religion which he hath ost protested and we beleeve he will never doe But I desire these ill Counsellours of the worst Edition to informe his Majesty or any rationall creature how it is either probable or possible that an Army of Papists should secure his Majesties person Crowne Dignity or protect the Protestant Religion the Parliament or its priviledges to all which they have shewed themselves most prosessed enemies We all know that Popish Recusants c See King James his Apology against Bellarmin Laurentius Byerlincke Opus Chronogr p. 319. Deus et Rex The Lord William Howards Sonnes late Booke in Defence of Papists taking the Oath of Allegiance obstinately refuse to take the Oath of Supremacy or Allegiance some of them that tooke it having beene excommunicated by their Priests for a reward Theâ— summe of which Oath is * 3 Jac. c. 4. That they doe truely and sincerely acknowledge and professe That the Pope hath â—â— authority to depose the King or to dispose of any his Kingdomes or to authorize any foraine Prince to invade his Countries or to discharge any his Subjects from their Allegiance to his Majesty or to license any of them to beare armes oâ— raise tumults against him or to offer any violence or hurt to his royall Person Government Subjects That notwithstanding any Declaration Excommunication or deprivation made or granted by the Pope or any Authority derived from him against the King his Heires and Successors or any absolution from their obedience they will beareâ— faith
Parliament Protestants Protestant Religion Lawes and Liberties of the Subject are like â—o receive from this Popish Army the late Gunpouder Treason the Spanish Armado the English and French booke of Martyrs the present proceedings in Ireland Yorkeshire and elsewhere will resolve without dispute And what peace and safetiè the Kingdome may expect in Church or State whiles Popery and Papists have any armed power or being among us f In his Sermon there Mar. 24. 1615. p. 43 44. Doctor John White hath long since proclaymed at Pauls Crosse and now we feele it by experience in these words Papistry can stand neither with peace nor piety the State therefore that would have these things hath just cause to suppresse it Touching our peace it bath not beene violated in our State these many yeares but by them nor scarce in any Christian State since Charles the great his time but the Pope and his ministers have had a hand in it All that these ill advisers to colour their close g See Plaine English designe of reestablishing Popery principally intended can alledge Obj. Crimination 1. for arming Papists against Law is That the Parliament hath traytorously invaded the Kings Prerogatives in a high degree claymed a power and jurisdiction above his Majesty in sundry particulars and â—surped â—o its selfe a more exorbitant unlimited arbitrary authority in making Lawes imposing taxes c. then any Parliaments challenged in former ages to represse which insolencies and reduce the Parliament to its due limits his Majestie is now necessited to raise an Army and pray in avde of Papists who in former ages have beene more moderate in their Parliaments and are like to prove most cordiall in this service To answer which pretence more fully though it be for the maine of it most palpably false yet by way of admission onely I shall suppose it true and with all possible brevitie manifest That Parliaments Prelates Peeres and Commons in times of Popery have both claimed and exercised farre greater authority over our Kings and their Prerogatives then this or any other Protestant Parliament hath done Wherefore Papists of â—ll others have least cause to taxe the Parliaments proceedings and those ill Counsellors small reason to imâ—loy Answ or trust Papists in this service To descend to some particular heads of complaint involved in this generall First it is objected that the Parliament and some of its h The observations A suller answer to Doctor Ferne with others Advocates with its approbation affirme that â—e Parliament being the representative body of the whole Kingdome is in some respects of greater power and authoritie â—hen the King who though he be singulis major yet he is universis minor which is contrary to the oath of supremacy wherein every Subject * 1 Eliz. ch 2. doth utterly testifie and declare in his conscience that the Kings highnesse is THE ONELY SVPREAME GOVERNOVR of this Realme c. as well in all spirituall or Ecclesiasticall causes as Temporall â—nd a kind of unkinging his Majestie no wayes to be indured To which I answer first that if this Doctrine be either Traytorous or Hereticall the Papists were the first broaâ—hers of it long agoe For Hen. de Bracton a famous English Lawyer who writ in King Henry the third his â—eigne lib. 2. cap. 16. f. 34. a. resolves thus i Rex habet superiorem Deum c. Item legem per quam factus est Rex-Item Curiam sâ—â—â— viz. Comites et Barones quia Comites dicuntur quasi socis Regis qui habet socium habet mâ—â—istrum Et ideo si Rex fuerit sine franâ— i fine lege DEBENTEI FRAENVM IMTONERE c. But the King hath a SVPERIOVR to wil God Also the Law by â—hich he is made a King likewise his Court namely the Earles and Barons because they are called Comites as being â—e Kings fellowes or companions and he who hath a fellow or associate hath a Master and therefore if the King shall â—e without a bridle that is without Law they OVGHT to impose a bridle on him unlesse they themselves with the King â—all be without bridle and then the Subjects shall ery out and say O Lord Jesus Christ doe thou bind their jawes with it and bridle c. A cleare resolution That the Law with the Earles and Barons assembled in Parliament are â—bove the King and ought to bridle him when he exorbitates from the Law which he also seconds in some sort â—b 3. cap. 9. f. 107. This Doctrine was so authenticke in those dayes and after times that in the great Councell of Basil Anno 143â— when this mighty question was debated whether a Pope were above a generall Councell or a Councell above him such a Councell was at last resolved to be above the Pope upon this reason among others k Fox Acts Monume Edit 1641. Vol. 2 p. 879 880. Aeneas Sylvius de gestis concilii Basiliensis Surius concil Tom. 4. The Pope is in the Church as a King is in his Kingdome and for a King to be of more authority then his Kingdome it were too absurd Ergo Neither ought the Pope to be above the Church In every well ordered Kingdome it ought specially to be desired that the whole Realme should be of more authority then the King which if it happened contrary were not to be called a Kingdome but a Tyranny And like as oftentimes Kings which doe wickedly governe the Common-wealth and expresse cruelty are deprived of â—heir Kingdomes even so it is not to bee doubted but that the Bishop of Rome may be deposed by the Church that is to say by the generall Councell At the beginning as * Lib. 2. Cicero in his Offices saith it is certaine there was a time when as the people lived without Kings But afterwards when Lands and possessions began to be divided according to the Custome of every Nation then were Kings ordained for no other causes but onely to execute justice for when at the beginning the common people were oppressed by rich and mighty men they ran by and by to some good and vertuous man which should defend the poore from injury and ordaine Lawes whereby the rich and poore might dwell together But when as yet under the rule of Kings the poore were oftentimeâ— oppressed Lawes were ordained and instituted the which should judge neither for hatred nor favour and give like eare unto the poore as rich whereby wee understand and know not onely the people but also the King to be subject to the Law For if wee doe see a King to contemne and dispise the Lawes violently rob and spoyle his Subjects dâ—flower Virgins dishonest Matrons and doe all things licentiously and temerariously doe not the Nobles of the Kingdome Assemble together deposing him from his Kingdome set up another in his place which shall sweare to rule and governe uprightly and be obedient unto the Lawes Verily as reason doth perswade even so
good Subjects as the Cavaliers doe 〈…〉 w and to take from them their victuals at their pleasure paying little or nothing for them and to ravish their 〈…〉 ves and daughters And if any man persumed to complaine to the King of them he was soone rid out of 〈…〉 way no man knew why nor by whom so that in effect they did what they listed In this Parliament 〈…〉 King having made the Speaker and a great part of mercinary proud ambitious men of the Commons 〈…〉 use to be of his side to act what he required them he then prevayled likewise with the upper house 〈…〉 with the Prelates then with the Lords more out of feare of him then any reason by meanes where 〈…〉 the Commission Charters of pardon and Acts made in Parliament in the 10. and 11. yeare of his raigne 〈…〉 re quite revoked and declared voyd in Law as being done without authoritie and against the will and 〈…〉 ertie of the King and of his Crowne And withall they declared the Judges opinions for which they were 〈…〉 demned in that Parliament to be good and lawfull and attainted the said imprisoned Lords of high 〈…〉 eason and confiscated their lands The two Earles hereupon were beheaded and the Duke by reason 〈…〉 is pâ—pulatâ—tie smothered onely for their former actions which done the King adjourned the Par 〈…〉 ent to Shrewâ—bury where he subrilly procured an o 21. R. c. 12. Act to passe by common consent that tâ—e power 〈…〉 he Parliament should remaine in seven or eight persons who after the Parliament dissolved should deter 〈…〉 e certaine petitions delivered that Parliament and not dispatched By colour whereof Those Commit 〈…〉 proceeded to other things generally touching the Parliament and that by the Kings app 〈…〉 ment in derogatien p 21. R. 2. c. 16. Walsing Hist Aug. Annâ— 1398. p 394 〈…〉 he state of the Parliament the disâ—ommodity and pernicious example of the whole Realme And by colour 〈…〉 Authority hereof the King caused the Parliament Rols to be altered and defaced against the effect of the 〈…〉 said grant After which he much vexed and oppressed his people with divers forced Loanes Oathes 〈…〉 positions and oppressing Projects to raise money seeking to trample them under his feet and 〈…〉 roy the Realme and tooke all the Jewels of the Crowne with him into Ireland without the Kingdomes 〈…〉 sent Which rendered him so odious to his people that Henry Duke of Lancaster landing in England the whole kingdome came flocking to his ayde so that he had an Army of 60000. men in a short time who v 〈…〉 ed to prosecute the Kings ill Counsellours Whereupon King Richard returning out of Ireland hearing 〈…〉 the Dukes great Army assembled against him and knowing that they would rather dye then yeeld 〈…〉 of their hatred and seare of him he dismissed his Courtiers hiding obscurely in corners till he was a 〈…〉 prehended and by a Parliament summoned in his name though against his will judicially deposed 〈…〉 his misgovernment Among which Articles of his misgovernment for which he was judicially dethroned these are rema 〈…〉 able First * Graft p. 400 401 402 c. That he wasâ—fully spent the Treasure of the Realme and had given the possessioâ—s of the Crow 〈…〉 to men unworthy by reason whereof daily new charges more and more were laid on the neckes of the poore C 〈…〉 monalty And when divers Lords were appointed by the High Court of Parliament to commune and t 〈…〉 of divers matters concerning the Common-wealth of the same which being busie about those Commissions he 〈…〉 other of his affinity went about to impeach them of high Treason and by force and threatning compelled 〈…〉 Justices of the Realme at Shrewesbury to condescend to his opinion for the destruction of the said Lords 〈…〉 somuch that he began to raise warre against John Duke of Lancaster Thomas Earle of Arundell Rich 〈…〉 Earle of Warwicke and other Lords contrary to his honour and promise Item He assembled certaine Lancashire and Cheshire men to the intent to make warre on the fores 〈…〉 Lords and suffered them to rob and pillage without correction or reproofe Item Although the King flatteringly and with great dissimulation made Proclamation throughout 〈…〉 Realme that the Lords before named were not attached for any crime of Treason but onely for extortions 〈…〉 oppressions done in the Realme yet be laid to them in the Parliament rebellion and manifest Treason Item He hath compelled divers of the said Lords servants and friends by menace and extreame paines 〈…〉 make great sines to their utter undoing And notwithstanding his pardon to them granted yet he made the fine of new Item That he put out divers * Note Sheriffes lawfully elected and put in their roomes divers of his owne Mi 〈…〉 on s subverting the Law contrary to his Oath and Honour Item For to serve his purpose he would suffer the Sheriffes of the Shire to remaine above one yeare or two Item He borrowed great summes of money and bound him under his Letters Patents for repayment of the sa 〈…〉 and yet not one penny paid Item He taxed men at the will of him and his unhappy Councell and the same Treasure spent in folly not pay 〈…〉 poore men for their victuall and viand Item He said That the Lawes of the Realme were in his head and sometime in his brest by reason of wh 〈…〉 phantasticall opinion he destroyed Noble men and impoverished the Commons Item The Parliament setling and enacting divers notable Statutes for the profit and advancement of the Co 〈…〉 monwealth he by his private friends and solicitors caused to be enacted * Such a kinde of proviso was endevoured to beadded to the Petition of Right 3 Caroli That no Act then enacted should 〈…〉 more prejudiciall to him then it was to any of his Predecessors though with proviso he did often as he listed 〈…〉 not as the Law meant Item That he at his going into Ireland exacted many notable summes of money besides Plate and Jew 〈…〉 without Law or custome contrary to his Oath taken at his Coronation Item That without the assent of the Nobility he carryed the Jewels Plate and Treasure of the kingdome o 〈…〉 the Sea in to Ireland to the great impoverishing of the Realme And all the good Records for the Comm 〈…〉 wealth and against his extortions he privily caused to be imbezeled and conveyed away Item When divers Lords and Justices were sworne to say the truth of divers things to them committed in cha 〈…〉 both for the honour of the Realme and profit of the King the said King so menaced them with sore threatning 〈…〉 that no man would or durst say the right Item He most tyrannically and unprincely said that the lives and goods of all his Subjects were in the Prin 〈…〉 hands and at his disposing Item He crafâ—ily devised certaine privy Oathes contrary to the Law and caused divers of his
which these Acts disable the King who is so farre inferior to the Law that he cannot so much as delay the smallest proceedings of it in any Court or Session by his supreame power by any meanes whatsoever to effect in his meanest Courts much lesse then in the greatest from whence the subvertion of Lawes Libertie Iustice and the whole Realme would ensue If any therefore cavill at the All for the continuance of this Parliament till both houses shall agree to adjourne or dissolve it or at the Bill for Trienniall Parliaments which when they meete shall not be dissolved without their consents for 40. dayes space next after their first meeting Let them now learne that this is no Innovation nor encroachment on the Crowne but an ancient Priviledge of Parliament both claimed practised and resolved in times of Popery in an higher degree then now it is And thus you see how in these particulars the Popish Parliaments Prelates Lords and Commons in former times have claimed and exercised far greater Priviledges and Iurisdictions then this or any other Pâ—orestant Parliament hath hitherto claimed or practised which I hope will for ever silence the clamourous tongues of all ill Counsellors Courtiers Royalists Malignants Papists and Cavaliers against the present Parliament of whose highest yeâ— moderate proceedâ—ngs themselves alone have beene the occasions and therefore of all others have least cause to complaine against them But to returne againe to the first grand Objection Thirdly I answer that the High Court of Parliament and whole kingdome which it represents may in divers respects be truely and properly 3. The Parliament and kingdome proved to be above the king sayd to be the Highest Soveraigne power of all others and above the King himselfe which because it may â—eeme a dangerous paradox and tends much to the vindication both of the Priviledges Honour and â—urisdictions of our High Court of Parliament now so much undervalued because not really knowne to most and to the justification of the proceedings in this present Parliament which many out of ignorance and malice so much declaime against both by Word and writing in a most licentious manner I shall take a little liberty to demonstrate the truth of it by such convincing reasons of Authorities as no rationall man I hope shall be able to contradict but must necessarily submit to First it is undeniable that See Cromptons jurisdiction of Courts Title Parliament Brooke Title Parliament Holinsh Description of England c. 8. p. 173. Chron. of Ireland p. 120 to 130. Sir Th. Smiths CoÌ„mon-wealth of England l. 2. c. 1. 2. 3. Cowel and Minshew Tit. Parliament Camdens Brit. p. 177. the Court of Parliament hath a lawfull power to question all the Kings Paâ—ents Charters Commissions Proclamations Grants Warrants Writs and Commitments whatsoever whether they be Legall yea to cancell or repeale them in case they be illegall mischeivous or onerous to the Subject not onely without but against the Kings consent and mandate to the contrary as appeares by infinite presidents in this and all former Parliaments the scourges of Monopolists Patentees and Projectors the Pests of the Commonwealth The like power have all other Courts of Iustice within the Kingdome in some degree when such Charters and Writs of the King are brought judicially before them because they are Courts of the Law to which the King and all his Actions are and must be subject Now that which can thus question cancell disanull revoke the Kings owne royall Charters Writs Commissions Patents c. though ratified with the great seale and regall power even against his will must certainely be a Soveraigne power and Authority which in point of Law and Iustice is fuâ—eriour to the King This is Bractons resolution l. 2. c. 16. f 34 a and Fletaes l. 1. c. 17. Where â—hey affirme the Law and Parliament to be above the King because they may censure judge and rescinde the Kings Acts and Charters legally and judicially even against his personall though not legall Will which â—s the Law Secondly It is unquestionably true that in all cases of difference betweene the King and all or any of his Subjects though they concerne the Kings Prerogative and the highest branches thereof the Parliament is the supremest and most proper judge and its resolution from which there is no appeale â—o any higher tribunall shall finally binde not onely all the subjects but the King himselfe notwithstanding his owne personall disassent This is manifest by the many late resolutions given in Parliament against sundry Patents Commissions Writs Charters Impositions Loanes Shipmoney i See 21. Iacob c. 3. Co. l. 8. f. 125. to 130. l. 10. f. 113. l. 11. f. 84. to 89. Fitz Brooke and Ash Tit. Charters Grant le Roy Comissions Habeas Corpus Bayle and the Iudges arguments against Ship-money Forrest-Bounds Marshall Law Pressing and â—illetting souldiers Imprisonment by speciall Command of the King or his Privie Counsell Tonnage and Poundage Knighthood and Taxes The Commission of Array and â—he like which obliege both King and Subject the King in receiving justice in such cases being subject â—o the Law as well as the meanest of his subjects as k Rex in justitia reâ— pienda minimo de â—egno suo comparatur minimus esse debet vel quaâ—i in judicio suscipiendo Bracton l. 1. c. 8. f. 5. b. l. 3 c 9. f. 107. Bracton truely avers against all Royalists mistakes Now that which can thus finally conclude and binde the King himselfe even volens nolens â—n cases of highest concernment entrenching farthest upon his Prerogative Royall must doubtlesse â—e the most Soveraigne power Superiour to the Kings And in this sence every Court of Justice whose just resolutions and every petty Jury whose upright verdicts obliege the King because warâ—anted by the Law which is paramont the King as Bracton m Lib. 1. c. 5. 17. Fleta n Cap. 9. to 15. Fortescus o Speech in Parliament 1609 King Iames p In his â—awes in Fox Acts Mon. Edit vol 1. p. 214. Edward the Confâ—ssor yea and q Aristotle resolve may be truely sayd to be above the Kings â—erson which they binde but not above the Parliament which by its suparlative power may examine â—ll Å¿ 1 H. 7. 1. Br. parliament 92. Ash tab 65. 67. judgements and verdicts in other Courts by way of error or appeale and reverse them if there be â—â—use when as the King in person cannot by law examine or reverse them but onely in his Courts â—f Iustice by his Iudges Thirdly Parliaments oft times doe and may as they see cause enlarge the Kings Prerogative and Royall â—ower in sundry particulars in which the King had no such jurisdiction before these Acts witnesse the â—tatute de Praerogativa Regis 25. H. 8. c. 19. 20 21. 26. H. 8. c. 1. 3. 31. H. 8. c. 8. 9. 34. 35. H. â— c. 23. 27 H. 8. c. 15. 28. H. 8. c.
7. 17. 3. 4. E. 6. c. 11. 12. 1. Eliz. 1. 2. with sundry more Now â— Lib. 1. c. 8. l. 3. c. 9. f. 107. r polit l. 3. c. 1â— 11. 12. that Parlimentary power which onely can create and conferre on Kings a greater regall Authority and Prerogative then they had before must needs be the Originall and supreame authoritie for as we rightly argue m See 1 Eliz. c. 1. Rastal T it Sewers or Commissioners Rastall Tit. Iustices c. that the Kings Authority is superiour to all other his greatest Officers and subordinate Ministers of Iustice because their power is by Patent or Commission derived from his So we may from the selfe-same reason conclude that the High Court of Parliaments power the representative body of the whole kingdome is the most primitive soveraigne and greatest authoritie of all other yea larger and higher than the kings n Quiâ—quid â—fficit tale est magis tale nemo potest dare quod non habet are true in this case because it onely can enlarge the Kings prerogative whose originall or additionall Royalties proceede not from the king himselfe or his Ancestors owne inherent hereditary power for what king could justly without his peoples consents usurpe a Crowne or lawfull royall Prerogative to himselfe over an whole Countrey but meerely from the voluntary consent and grant of his people in the Parliament This is irrefragably evident not onely by the various o See Alex. ab Alexandro â— 3. c. 2. Facile perspici potest regni multa esse genera nec eandemimperii formam in omnibus esse regibus Regalis potentiae genâ—ra numero sunt quatuoâ— Aristot Polit. l. 3. c. 10. 11. See Dan. c. 8. 11. kinds of kings whereof some are of greater power and authority others of lesse some by Election others by succession by reason of their Subjects originall institution by the diverse alterations of the Monarchy in this kingdome which hath beene sometimes divided into 7. sometimes into 5. sometimes into 3. or two kingdomes and at last reduced unto one by the great changes and alterations made in all forraigne Realmes which have sometimes multiplied sometimes diminished the number and power of their Princes and sometimes quite abolished the royall forme of Government changing it into an Aristocraticall or popular rule by the divine Authority of S. Peter who in this regard calls Kings and their Supremacy a r 1 Pet. 2. 13 14. Alex ab Alexandro Gen. Dierâ—m l. 3 c. 3. l. 4. c. 23. humane creature or Ordinance of man because instituted limited and moulded into severall degrees of power by men over whom they râ—igneâ— by two expresse determinations of Aristotle in these termes s Politicorum l. 3. c 10. p. 209 2â—0 Regna patriis moribus legibus FVNDATA CONFIRMATASVNT And t Ibid l. 5 c â—3 p. 367. Verum Regnum est imperium majoribus praestantioribus viris VOLVNTAT â— CIVIVM DELATVM seconded by v De Officiis l. 2. Caeliâ—â— Rhodi Antiq. Lect l 8. c. 1 Alexander ab Alexandro Gen. Dierum l. 4. â— 23. Livie Hist Rom. l. 1. Sect. 17. p. 14. 15. l. 4 p. 144. 145. Plâ—â—archi Numâ—â—ompilius Tully Livie and others but likewise by Andrew Horne an eminent Lawyer in Edward the 1. his raigne in his Myrroâ—r of Justices Chap. 1. Sect. 2. p. 7. 8. 9. where he thus writes of the originall institution of our English Monarches After that God had abated the Nobility of the Britans who rather used force then right he delivered it to the most humble and simple of all the neighbour Nations the Saxons who came from Germany to conquer it of which Nation there have beene 40. Kings all which held themselves to have COMPANIONS These Princes called this Land England which before was named Greater Britain These after great warres elected from among them a King to Raigne over them to governe the people of God and to maintaine and defend their persons and goods in peace by the Rules of Law or Right And at the beginning they caused the King to sweare that he will maintaine the holy Christian faith to the utmost of his power and guide his people by p See Mathew Paris Speed Holinshed Grafton and others Law without respect to any person and shall be obedient to suffer or undergoe Law as well as others of his people And afterwards this Realme was turned to an heritage according to the number of his Companions who divided the Realme into 38. Counties and delivered each one a County to keepe and defend from Enemies according to every ones estate And although the King ought to have no Pâ—â—res in the Land yet because if the King of his owne wrong should offend against any of his people neither he nor any his Commissaries can be both Iudge and Party OF RIGHT IT BEHOVES that the King should have q Livie Hist Rom. l. 1. Arist Polit. l. 2. c. 8. Goodwins Rom. Aâ—tiq COMPANIONS for to heare and determine in Parliaments all the Writs and Plaints of the wrongs of the King the Queene and their children and of those especially of whose wrongs they could noâ— otherwise have common right These Companions are now called Counts after the Latine Comites and so at this day these Countries are called Counties and in Latine Comitatus c. Henry de Bracton who writ in Henry the 3. his raigne as in his forecited Passages so in others resolves x Lib. 1. c 8. f. 5. lib. 3. c 9 f 07. That the King is under the Law because the Law makes him a King by giving him dominion and power Now how doth the Law thus make him a kâ—ng but by the Parliament the kingdomes great Counsel by whose counsell and consent alone all Lawes were first enacted and yet are as the y Hujusmodi leges Anglicanae cum â—uerâ—m approbatae Sacramento Regis confirmatae mutari non poterunt c. Idem l. â— c. 2 f. 1. 6. same Author informes us who further addes That the King ought to be under the Law because Christ whose Vicar he is on Earth when he came to redeeme mankinde made choyse of this way especially to destroy the workes of the Devill using not the strength of his power but the reason of his iustice and so would be z Gal. 4. 4. â— under the Law that he might redeeme those that are under the Law Thus the Virgin Mary the mother of our Lord who by singular priviledge was above the Law yet to shew an example of humilitie refused not to be a subiect to Legall Ceremonies So therefore the King lest his power should remaine unbridled there ought not to be a greater then he in the Kingdome in the exhibition of Iustices yet he OVGHT TO BE THE LEAST or AS THE LEAST IN RECEIVING IVDGMENT if he require it b â—ract â—â—â— 3. c. 9. f. 107. lib. 1. c. 8. f. 5. l.
42. 76. 33. H. 6. 17. adjudged accordingly Br. Prerogative â—34 cannot with his Lords devise make or establish any Law The reasons are these wheâ— Parliaments were first begun and ordained there were no Prelates or Barons of the Parliament anâ— the temporall Lords were very few or none and then the king and his Commons did make a fuâ—â— Parliament which authority was never hitherto abridged Againe every Baron in Parliament doâ— represent but his owne person and speaketh in the behalfe of himselfe alone But in the Knights Citizens and Burgesses are represented the Commons of the whole Realme and every of these gâ—veth not consent onely for himselfe but for all those also for whom he is sent And the king witâ— the consent of his Commons had ever a sufficient and full authority to make ordaine and establisâ— good and wholesome Lawes for the Common-wealth of his Realme Wherefore the Lords beinâ— lawfully sommoned and yet refusing to come sit or consent in Parliament cannot by their folly â— bridge the king and the Commons of their lawfull proceedings in Parliament Thus and moâ—â— Iohn Vowell in his Order and usage how to keepe a Parliament Printed Cum PrivilegiÌ„o But we needâ— not retire to this last refuge the Honorable faithfull Lords now present though not so many â— could be desired are the intire House of Peeres in judgement of Law as those present at the Election of Knights of the shire or Burgesses though the major part be negligently or wilfully absent are the whole shire or Burrough and the wilfull absence of the residue though the greater number being e See Stamford â— 38. 155. 3. E. 3. 19. Coro 161. contrary to Law contrary to the Priviledges of Parliament and their late Protestationâ— tending to the very subvertion of Parliaments for which they and their posterities too may justly bâ— disabled for ever to sit as members of that House which they have so dishonourably if not treacheâ— rouâ—ly deserted even as f Dyer f. 60. n. well as Knights and Bargesses whose personall attendance is so necessary thâ— if during the Parliament they absent themselves from it about any businesses of their owne without leave â— the House they may be presently expelled and others chosen in their place to make the House compleat caâ— no more disable those now present from being a true and lawfull House of Peeres then the multitudes departing from the true Church of God to the false disproves it to be the true Church of Christ g Luke 12. 32 Mat. 13. 23. Mat. 7. 13. 14 whose true flock is but little In a word h See Bishop Iewell Defence of the Apologie part 6 c. 7. Diâ—is 1. Bishop Bilsonsâ—â— true difference of Christian Subjection unchristiaÌ„ Reb part 3. p. 540. 541. 542. Bishop Pilkington of the burning of Pauls steeple Keilway f. 184. b. Cromptons Iurisdiction of Courts f. 19. 20. 10. E. 4. f. 6. Stamfords Plees l. 3. 6. 1. f. 153. Br. Corone 135. Antiq. Ecclesiae Brit. p. 299. 300. Speed p. 1156. Martyns Hist p. 450. to 454. Iohn Vowelâ— Chronicle of Ireland p. 127. 128. divers Parliaments have beene kept and held and * 25. E. 3. stat 6. de Provisionibus 31. E. 3. c. 4. 36. E. 3. c. 8. 3. R. 2. c. 12. 1â— R. â— Preface c. 3. 12. 1. E. 3. c. 2. 14 E. 3. stat 3. Preface See 20. H. 3. c. 9. 21. H. 3. stat of Leape-yeare 4. H. 3. stat of Marlbridge 4. E. 1. de Big Prolog c. 6. 6. E. 1. stat de Gloster Preface 13. E. 1. Acton Burnel 13. E. â— c. 43. â—â—â—â—alefact in part 21. E. 1. Eschetors 3. E. 1. Quo warranto 9. E. 2. Artic. Cleri Pref. Actâ— made without Bishops or Abbots heretofore even while they were reputed members of the Lords House anâ— one of the 3. Estates in Parliament therefore this Parliament which hath taken away Bishops Vote for ever â— may be lawfully held notwithstanding any Lords or Commons wilfuls absence from it iâ— person who yet as long as they are members of the Parliament shall still be adjudged legally present wherher they will or no. One puny Iudge in the Courts of Westminster may and doth usually give judgement and make binding Orders though the Chiefe Justice and his fellowes be absent Sixthly It is most apparent both by i Sam. 19. 20. 2 Sam. 5. â— 12. 2 Chron. 9. 8. Isay 49. 23. Rom. 13 4. 5. 1 Pet. 2. 13. 14. Scripture the verdict of all k Atist Polit. l. 3. 5. Plato Ageâ—ilans Xenophon de Inâ—â—it Cyri. Hist Caelius Rhodig Antiq. Lect. â—8 c. 1. Bodin de Republica Osorius de Rege Regum Inâ—â—it Polititians and writers â— note the l The preambles of all ancient statutes Bracton l. 1. c. 8 l. 3. c. 9. Fleta l. 1. c. 5. 17. Fortescue c. 9. to 15. Statutes of our Realme and Lawyers that Kingdomes Subjects and Parliaments were not created by God for the wills pleasures profit or benefit of Kings who by birth and nature differ not at all from the meanest of their Subjects but Kings were at first constituted and stil continued for the protection welfare benefit service of their Kingdomes Parliaments People whose publike Servants Ministers Sheapheards Fathers Stewards and Officers they are Now nature reason and n Gen. 1. 26. to 31. c. 9. 2. 3. 4. Psal 8. 6. 7. 8. Scriptures resolve that he whâ— is instituted meerely for the benefit and service of another as all the n Creatures were created for manâ— use and therefore are inferiour unto man in dignity and power is of lesse dignity power and jurisdiction then the intire body of those for whose good he was instituted as the o Ephes 6. 5. Col. 3. 22. 23. 24. servant is inferiour to his Master the p Gen. 8. 18. c. 3. 16. 1 Cor. 11. 3. 8. 9. Ephes 5. 23. 24 1 Pet. 3. 1. 1. 3. 18. wife to her husband for whom they were created the Major to the whole Corporation and the King to his whole Kingdome and Parliament which consideration hath caused sundry Kings and Emperors not onely to adventure their lives in bloody battles but to lay downe their Crownes for the peace and safety of their Subjects witnesse q See Eutropius Grimston and others in his life Otho the first and others with the Examples of Moses m 1 Cor. 3. 21. 22. 23 Exod. 32. 9. to 15. 32. Numb 14. 11. to 15. of David â— Saâ— â—9 â—7 1 Chron. 21. 17. and Iohn 10 â—1 15. with other presidents which I pretermit The King then being made King onely for the Kingdomes Parliaments Peoples service must needs â—n this regard be inferiour to not Paramont them in absolute Soveraigne power though greater * 2 Sam. 18. â— better then any particular Subjects Seventhly the Parliament as our q Law bookes and r Cromptons Iurisdiction of Courts f. 1. c. Bracton l.
1. c. 2. 19. H. 6. 63 a. 64. b. 31. H. 8. c. 10. Dyer 60 a. Cookes Institutes on Littleton f. 109. 110. Writers resolve is the most high and abâ—olute power the supreamest and most ancient Court of the Realme of England and hath the power of the whole Realme both Head and Body and amorg other Priviledges this is the highest that it is above the Law â—t selfe having power upon just grounds to alter the very common Law of England to abrogate and repeale old Lawes to enact new Lawes of all sorts to impose taxes upon the people yea it hath power to declare the meaning of any doubtfull Lawes and to repeale all Patents Charters Grants and â—udgements whatsoever of the King or any other Courts of Iustice if they be erronious or illegall not onely without but against the Kings personall consent so far as finally to obliege both King and Subjects Now it is cleare on the contrary side that the King hath not the power of the whole Realm â—ested in his person that he t Fortescue c. 10. to 1â— Bracton l. 1. c. 8. l 3. c 9. Fleta l 1 c. 5. 17. Brooke Patents 25. 41. 12. 51. 53. 69 73. 100 Prerogative 15. 103. Commissions 15. 16. See Iudge Crooks and Iudge Huttons Arguments against Ship-money Petition of Right 3. Carol. Br. Parliament 42. and his Prerogative are not above but subordinate to the Lawes of the Realme that he cannot by his absolute regall power altar the Common Law of the Realme in any particular point whatsoever that he cannot repeale any old nor enact any new Law whatsoever norimpose the least taxe or common charge upon his people nor imprison their persons distraine s Sir Thomaâ— Smith of the Common-wealth of England l. â— c. 1. 2. Holinshed Description of England c. 8. p. 173. Cambdens Brittania p. 173. Iohn Vowels Order and usage how to keepe a Parliament in Holinsheads Chronicles of Ireland p. 101. to 120. Minshewes Dictionary Tit. Parliament their goods declare any Law or reverse any judgement in the meanest of his Courts without or against his peoples joynt consents in Parliament For Potestas sua Juris est non Injuriae Nihil â—liud potest Rexin terris niâ—i ID SOLVM QVOD DE JVRE POTEST Bracton l. 3. c. 9. f. 107. Therefore without any peradventure the Parliament in this regard is the most Soveraigne Authority and greater in jurisdiction than the King v Of the Common-wealth l. 2. c. 10. p. 159. Iohn Bodin that great Lawyer and Polititian resolves That the chiefe marke of an absolute and Soveraigne Prince is to give Lawes â—o all his Subjects in generall and to every of them in particular without consent of any other greater equall or lesse than himselfe For if a Prince be bound not to make any Lawes without the consent of a greater than himselfe he is then a very Subject if not without his equall he then hath a Companion as x l. 2. c. 16. f. 34. a. l. 1. c. 8. f. 5. b. Fleta l. 1. c. 17. Walfingham Hist p. 36 37. 40. Bracton and others forecited say our English King hath namely his Earles and Lords thence-stiled Comites if not without the consent of his inferiours whether it be of his Subjects or of the Senate or of the people he is then no Soveraigne Whence it followes that the Kings of England who cannot make any Law to obliege either all or any of their Subjects nor impose any * Taxes nor repeale any Common or Statute Law but in and by their Parliaments are no absolute Soveraigne Princes as some Royalists and Court Divines most falsly averre them to be but meere mixt Soveraignes inferiour to their Lawes and Parliaments the â—ole Law-makers and Law-alterers though not against but with the Kings assents considered not abstractively as Kings but copulative as a branch and member of the Parliament And indeede to speake impartially though the kings Royall assent y See Sir Thomas Smiths Common wealth of England l. z. c. 1. 2. 3. Holinshed Description of England c. 8. p. 173. Chronicles of Ireland p. 101. 102. M. Hackwels manner of passing B 〈…〉 Sect. 8. p. 74. Brooke Parliament 4. 107. 33. H. 6. 33. 33 H. 8. c. 21. Cromptons Iurisdiction f. 7. b. Br. Parliament 26. 39. 40 41. be generally requisite to passe and ratifie Lawes yet I humbly conceive that the originall prime Legislative power of making Lawes to binde the Subjects and their Posteritie rests not in the kings owne royall person but in the Kingdome and Parliament which represents it For first admit the king should propound any Lawes to his people as kings and Lawgivers usually did at first yet these Lawes would no wayes obliege them unlesse they voluntarily consented and submitted to them in Parliament and the sole reason why our Acts of Parliament binde the Subjects in former times and at this day is not because the king willed them z 4. H. 7. 18. 7. H. 7 14. 11. H. 7. 27. 33. H 6. 17. Bro. Parliament 4. 40. 76. 107. Cromptons Iurisdiction f. 8. but because the people gave their a Bro. Ancient Demesne 2â— 10. H. 7. 20. a. 33. H. 8. c. 17. generall consents unto them in Parliament as Sir Thomas Smith in his Common-wealth of England Holinshed the Prologues to most Ancient Statutes the King by the advise and assent of the Lords Spirituall and Temporall and Commons and at the speciall request of the Commons in Parliament assembled and by THE * See 2. 7. 8. 12. 14. 17. 4. H. 7. AUTHORITY OF THE SAME PARLIAMENT doth grant and ordaine c and all our Law-bookes resolve and that upon this received Maxi ne of Law Quod tangit omnes ab omnibus debet approbari The king doth but like the Minister in Marriage declare it to be a Law but t is the parties consents which makes the marriage and the people onely that makes it â— Law to binde them whence those in a Cook 7. â—â—luins case 7. H. 6. 35. b. Dyer 373. Br. Parliament 98. Scotland Ireland Man Garnsey â—â—â— Jerâ—â—e are not bound by our English Statutes nor we by theirs nor tenants in Ancient demesne because they consented not to them Therefore the chiefe Legislative power is in the people and both Houses oâ— Parliament not in the king as it was in the Roman State Where the b Livy Hist â— 1. 2. Bodin Common-wealth â— 1 c. 10. people had the Soâ—eraigne Iurisdiction of making and confirming Lawes to binde them not their Kings Emperours oâ— Senate as I shall hereafter manifest Secondly this appeares by the case of c Fiz Assise 413. Avowry 74. Praescriâ—â—ion 67. Broo Custome 31. Co. 5. Rep. f. 63. 64. 67. 68 Kitâ—chin 45. 73 â—0 Customes and By-Lawes in Corporations and Manoâ—â—s which binde all the Corporation and Tenants if they be reasonable without the Kings or Lords consents by reason of
basenesse for so many and great Peeres to be subject to a woman and that they were freeâ— of their oath by her marying out of the Realme without their consents and Stephen Earle of Mortainâ— who had no good Title assembling the Bishops and Peeres at London promising to them an amendment of the Lawes according to all their pleasures and liking was by them all proclamed kingâ— whereupon they all toâ—ke their oathes of Allegiance to him conditionally to obey him as their king so long as he should pâ—esâ—rve the Churches Liberties and keepe all Covenants and confirme them with his Charter according to the old proverbe Quamdiâ— habebis me pro Senatore â—go te pro Imperatore All this the king at his Coronation swore and promised to God the people and Church to performeâ— And presently after going to Oxford he in pursuance of his oath there sealed his fore promised Charter of many indulgâ—uâ— favouâ—s the summe whereof was this That all Liberties Customes and Possessions granted to the Church should be firme and in force that all bad usages in the lanâ— touching Forrests exactions and annuall Taxes which his Ancestors usually received should beâ— eâ—â—rnally abolished the ancient Lawes restored prefacing therein d Assensa Cleri Populi in Reg â—e Angliaeelectus Mâ—lm p. 179. That he obtained the Crownâ— by election onely Haec â—â—tem specialâ—ter aliâ—â—ulta generaliter se servaturâ—m juravit sed nihil â—onum quae Deo promiserâ—t observavit writes Mathew Paris Hovenden and Huntingdon Pene omniâ— perperam mutavit quisi ad hoc tanâ—um jurâ—ssâ—â— â—t praevaricatorem Sacramenti se regno toti ostenderet saith Maâ—mesâ—ury * See Speed p. 483. 484. granting those inâ—â—â—â—â—ties rather to blind their eyes than with any purpose to manâ—cle his oâ—ne hands with such paâ—chment chaines Such faith is to be given to the soâ—emnest Oathes of kings But this his perjâ—ry was like to cost him his Crowne his Prelates and Peeres thereupon revolting unto Maude The forme of King Henry the second his Oath I finde not onely I read e Hoveden p. 491. Graft p. 50. that upon his â—oronarion he caused the Lawes tâ— be reformed by advise of discâ—eet men learned in the Law and by his Proclamation commanded that the good Lawes of his grand father Henry should be observed and firmely kept throughout the Realme Whe â—â—ore it is probable he tooke the same oath that he did f Mat. Par. p 147. Hoved. p. 657 Waâ—siâ— â—podigma Neustr An. 1189. p. 45. 46. Speed â— â—â—â— Richard the first succeeding at his Coronation in Westminster Church comming to the High Altar before the Clergie and people tooke this solemne oath upon the Holy Evangelists and many Saints reliques 1. That all the dayâ—s of his liâ—e he would beare peace honour and reverence to God and hâ—ly Church and the ordinances thereof Secondly that to the people committed to his charge he would exercise Right Justice and Eâ—uitiâ— Thirdly that he would abolish naughty Lawes and Customes if any were brought upon his kingdome and would enact good Lawes and the same in good sort keepe and without Mal-engyâ— Which oath most solemnely taken Baldwin Archbishop of Canterbury standing at the Altar forbad him in the name of Almighty God to assume that â—â—nâ—â—r VNLESSE HE HAD â— FVLL PVRPOSE TO KEEPE WHAT HE HAD SWORNE Whereunto Richard ASSENTING and promisiâ—g by Gods helpe to performe all the premises WITHâ—VT FRAVD With his owne hand humbly taking â—he Imperiall Crowne from the Altar delivered it to the Archbishop who set it on his head g Hoveden p. 793. Mat. Par. p. 189. 190. Speed p. 548. 549 550. See Polydore Virgil Holins King Richard deceasing John his younger Brother to put by Arthur the next heire to the Crowne came â—eedily out of Normandy into England where the great assembly at Northampâ—on to preserve their â—ights and Liberties were content to accept of him for their king and yeeld fealty to him to keepe â—ith and Peace to King John upon condition onely if he would restore to every of them their Rights which â—fterwards was the occasion of great dissentions And-comming to London to be crowned Hubert â—rchbishop of Canterbury the Pillar of the Common-wealths stabilitie â—nd incomparable for deepe â—aching wisedome steps forth in the midst of all the Bishops Lords Barons and others there asâ—mbled at his Coronation and spake thus unto them Heare you all you are in discretion to know â—at no man hath right or any other fore-title to succeede another in a kingdome * A strange Archiepiscopall Doctrin unlesse first with invoâ—tion for grace and guidance of Gods Spirit he bâ— BY THE BODY OF THE KINGDOME THEREVNTO CHOSEN and â—e indeede some choyce man and picked out for some â—menencie of â—is vertues according to the example and similitude of Saul the first annointed Kiâ—g whom God set over â—is people though neither the Sonne of a King nor of any royall discent So after him likewise David â—e son of Iâ—sse the one for beiâ—g valorous and a person fitting Royall dignity the other for being holy and â—â—ble minded To shew that whosoever in a kingdome excelleth all in valour and vertue ought to surâ—ount all in Rule and Authority yet so as that if any of the Of spring of a deceased King surpâ—sseth oâ—ers it is fit joyntly to consent in election of such a one This therefore we have spoken in favour of eminent â—arle John who is present the brother of our most illustrious King Richard â—ow deceâ—sed wanting â—â— heire of his body who being provident valiant and truely noble we haviâ—g invocated the grace of the â—oly Spirit have all unanimoâ—sly ELECTED as well in regard of his Merits as of his royal Blood Neither durst any doubt or demurre on these things knowing that the Archbishop had not thus deâ—ned without cause Wherefore Earle John and all men approving this speech they ELECTED â—nd ASSVMFD the Earle for their king and cryed out saying Let the King live But the Archâ—ishop being afterwards demaunded why he had spoken these things answered that he was assured â—â— some divining foresight that king John would worke the ruine of the kingdome corrupt the Crowne â—nd precipitate it into great confusion And that he might not have the reines free to doe this he OVGHT TO BE CHOSEN BY ELECTION NOâ— BY SUCCESSION King John at this â—is Coronation was involved in a threefold Oath namely That he should love holy Church and its Miâ—isters and preserve it harmelesse from the inâ—ursion of Malignants That abolishing perverse Lawes be â—ould substitute good ones and exercise Right Iudgement in the Kingdome of England After which he â—as adjured by the Archbishop in the behalfe of God and strictly prohibited not to presume to accept this â—onour unlesse he fully purposed in his minde actually to fulfill what he had sworne To which he answeâ—ng promised that by Gods assistance he would bona â—ide keepe those things which he
Soveraigne and violently usurped his Crowne at first before any Parliament â—â—ve it him compelling the Lords and Commons afterwards to Elect him King out of feare after his slaughâ—â— in Bosworth field was declared an usurper by Act of Parliament 1. H. 7 c. 6. and so adjudged to by 1 E. 4. c. 1. 8. H. 7 c. 1. 9. E. 4. f. 1. 2. and Henry the 7. had the Crowne set upon his head in the â—â—ld by my Lord Standly as though saith s Page 8 â— â—â— Grafton he had beene elected king by the voyce of the people â— in ancient times past in divers Realmes it hath beene accustomed Secondly that those kings who have enjoyed the Crowne by succession discent or election have still taken it upon the condition and covenants conteined in their Coronation Oathes which if they refused to sweare to the Peeâ—â— and people really and bona fide to performe they were not then to be crowned or received as kings â—â— adjured in the name of God to renounce this dignity And though in point of Law t Cooke 7. Report f. 10. 11. Calvins case Marâ—il Patauinus Defen Pacis pars 2. c. 25. those who enjoy â—â— Crowne by Succession be Kings before their Coronations yet it is still upon those subsequent * Littleton sect 378. 379. Cookes Instit Ibid. f. 232. 233. 234. Condition in Law contained in their Coronation Oathes which impose no new but onely ratifie the old conditions â— separably annexed to the Crowne by the Common Law ever since Edward the Confessors dayes if not â—â—fore as the Oathes of all our kings to their people really to performe thâ—se Articles and Condition fully demonstrate Thirdly that these Oathes are not meerely arbitrary or voluntary at the kiâ—â— pleasure to take or refuse them if he will but necessary and inevitable by the Law and constâ—â—â—sage of the Realme yea of all v Baldus Proaem de Feud n 32. Dr Crakenth defence of Constantine p. 163. to 175. Grimst Imperiall Hist p. 653. Christian kingdomes whatsoever which prescribe like Oathes to tâ—â— kings From all which I may firmely conclude that the whole Kingdome and Parliament are â—â— Supreame Authoritie and Paramount the king because they may lawfully and doe usually prescrâ—â— such conditions termes and rules of governing them to him and binde him by Oath faithfully to perfoâ—â— the same as long as he shall continue king which oath our kings usually tooke or at least faithfuâ—â— promised to take to their Subjects in ancient times before ever they did or would take an Oath â— fealty homage or Allegiance to them as the premises evidence Claus Rot. 1. R. 2. M. 44. Tenthly Our Parliaments and kingdome anciently in times of Popery and Paganisme â—â— both challenged and exercised a Supreame power over the Crowne of England it selfe to transfeâ—â— it from the right heire and setled it on whom themselves thought meete to elect for their King â—â— likewise to call their Kings to an account for their misgovernment and breach of Oath to the prejudice of their people so farre as to article against them and either by force of Armes or a judicâ—â— sentence in Parliament actually to depose them and set up others in the Throne as many * See Fortescue c. 12. to 15 Iohan. Mar. de Rege Regis Instit l. 1. â— 7. 8. 9. foreciâ—â— presidents together with the examples of Archigallo and Emerian two ancient British Kings and Edwin King of Mercia deprived of allhonour and Kingly dignity by the unanimous consent of their Subjects for their Tyranny Oppression misgovernment and vicious lives and others elected and made Kings their places evidence which Acts of theirs they then reputed just and Legall Those Parliament then and Nationall Assemblies which have thus disposed of the Crowne and Kings themselves and exercised such jurisdiction over them must certainely be above them and the highest Soveraingâ— power True it is our Protestant Peeres Commons and Parliaments never challenged nor exercised such jurisdiction and I presume they will never doe it However it is neither honourable nâ—â— safe for Kihgs and the most destructive policy their ill Counsellours can suggest unto them so faâ— to oppresse their Subjects or exasporate their Parliaments as to provoke them to use the extremity x See p. 4. 5. 6. their power and revive dead sleeping presidents the consideration whereof when they were fresh mâ—â— succeeding Kings more just and moderate in their governments and reclaimed many Vitious and Oppressâ—â—â— * See Mat. West Jeofry Monmouth Polych Fab. Graft Holin Speed in their lives Princes as Archigallo and others witnes for their reliefe We know what Solomon saith y Eccles 7. 7. Surely â—â—pression maketh a wise man mad and if Kings or their evill Instruments shall so farre mad their Subject and Parliaments either by oppressions rapines misgovernment destroying making warre upon them putting them out of their protections as to make them cry out as they did against King Iohn z Mat. Par. p. 264. 265. 268. Grafton p. 111. 112. Bishop Bilson part 3. p. 480. Rex Iohâ—nes factus est de Rege Tyrannus imo de homine in â—estialem praerumpens feritatem Veâ— tibi Iohanni Regâ— ultime Anglorum Principum abominatio Nobilitatis Anglicanae confusio Heu Anglia vastata â— plius vastanda c. Whereupon presently ensued a Nolumus hunc regnare Tandemque decretum â— ut aliquem potentem in Regem eligerent per quem possint ad possessiones prisâ—inas revâ—cari credentes â— nuâ—lus Iohanne peior vel durior possit dominari tale miserabile statuentes argumentum Fortuna miserima tuta est Nam timor eventus deterioris abest Cumque aliquandiâ— quem eligerent â—aeâ—itâ—ssent demum in hoc pariter consensâ—runt ut Ludovicum filâ—â— Philippi Regis Francorum sibi praeficerent ipsum in Regem Angliae sublimâ—rent Which they did King Iohns their owne and the whole kingdomes great prejudice We know what the ill advise of Râ—â— boams rough young Counsellors produced 2 Chron. 10. And the King answered the people roughly â—â— the advice of the young men saying My father made your yoake heavie but I will adde thereto â— * See 2 Chro. 10. 11. father chastised you with whips but I will chastise you with scorpions And when all Israel saw that â— king would not harken unto them the people answered the King though he came to the crown by succeâ—â— on saying What portion have we in David and we have none inheritance in the Son of Iesse every maâ— your tents O Israel and now David see to thine owne house So all Israel went to their tents and eleâ—â— Ieroboam for their King and fell away from the house of David to this day being never after united to â— but continuing a distinct Kingdome from it wherefore the best policy Kings can use to perpetuate their Thrones to them and their Posterity is to â—â—â—at their Subjects so
by Parliament and violently pâ—t to death though the Kings highest Officer and darling Minions o Walsingham Holinsh Speed Grafton Stow in 11 R. 2. c. 1. 6 7. Froysards Chron. part c. 97. Michael De La Pole wiâ—h other great Officers and Favourites to King Richard the second condemned deprived of their Offices banished and executed by the Peereâ— in Parliament together with Trisilian Belknap and their fellow Judges who misadvised him in point of Law p Hall Stow Speed Holinsh Grafton Fox in H. 6. Humphâ—ey Duke of Glocester Protector to King Henry the sixt arrested of high Treason in a Parliament at Bury and there murdered q Hall Holi Grafton Stow in H. 8. Cardinall Wolsey that powerfull favourite â—o King Henâ—y the eight accused and put from his Chancellorship and other Offices by the Parliament r Fox Speed Holinshed Stow Grafton in Ed. 6 The Duke of Sommerset Lord Protector to King Edward the sixt accused and attainted of high Treason in Parliament for which he lost his head the great Earle of Strafford Lord Depuâ—y of Ireland who lost his head this Parliament for Treason full sore against his Majesties and the Queenes wills with infinite others mentioned in our Stories and Records Nay Queenes themselves have undergone â—he censures of Parliament of which we have sundry precedents in Å¿ See Fox Hall Speed Holinshed Grafton in his life 28. H. 8. c. 7. p. 35. p. 8. c. 1. King Henry the eight his Reigne not onely to divorce but losse of their very heads and shall any Delinquent then thinke to be protected by any power against the Parliaments justice now 13. Not to mention the Parliaments Soveraigne Power and Jurisdiction t Matth. Paris p. 560. 562. 933 934 935. Speed p. 750. Grafton p. 188 189. 240 241. 221 222 223. The severall Acts for Subsidies and Rastal Warre Truce Armes Money Mint Musters Taxes Tonnage Poundage The Parliaments two Remonstrances concerning the Militia Câ—oks Instit on Artic Super Chartas in Making or proclaiming warre or Peace in which they have oft tiâ—es not onely advised but overswayed the King in creating the highest Officers in Ordering the Militia of the Kingdome by Sea and Land by setled Lawes of which more an on or in ordering the coyne and Money of the Land together wâ—th the Mint or designing how the Subsidies and Aydes granted by them to the King shall be disposed of to the Kingdomes use of which there are sundry precedents All which are strong See Bodines Commen wealth l. 1. c. 10. evidences of its Soveraigne Authority together with the Acts concerning his Purveyance and all Revenues royall Nor yet to remember this infallible Argument to prove Kingdomes greater and more valuable then Kings that Kings as publique Servants to their Realmes ought to hazard their lives for their Kingdomes safety and preservation as many have done in waâ—â—es against enemies but never ought the whole kingdome to be lost or hazarded to preserve its Kings Pâ—erogatives that of John 11. 48 49 50. and chap. 18. 14. being an undoubted rule in Divinity and Policy * That it is expedient that any one man though a King should dye for the people that the whole Nation perish not rather then the whole Nation dye for him There is one cleare Demonstration yet remaining to prove the Supreame power of Parliaments above Kings themselves which is this That it is the highest Court and power to which all x See Sir Thomas Smiths Common wealth l. 2. c. 1. 2. Holinsheds Description of England c. 8. p. 173 and Chronicles of Ireland p. 127. to 130. Cromptons Jurisdiction Appeales are lastly and finally to be made from all other Courts and Judges whatsoever yea from the Kings owne personall resolutiâ—ns in or out of any other his Courts and such a transcendent Tribunall from whence â—here is no appeale to any other Court or person no not to the King himselfe but onely to another Parliament If any erroneous judgement be given in the Kings Bench Exchequer Chamber Chancery Court of Wards or any other Court within the Realme or in the Parliament in Ireland it is finally to be reversed oâ— determined in Parliament by a Writ of y 1 H. 7. 1. Br. Parliament 92. 98. Error 65 88. 137. See Ash Error 65 66 67 68 70. Error or upon a Petition or Bill If any sentence be unjustly given in any Ecclesiasticall Courts or before the Delegates the finall Appeale for redresse must be to the Parliament Illegall sentences in the now exploded extravagant Courts of Star-Chamber or High Commission Injuries done by the King and his privy Councell at the Councell Table are examinable and remediabâ—e in this High Court Nay if the King himselfe should sit in person in the Kings Bench or any other Court as sometimes our Kings have done and there give any judgement it is not so obligatory or finall but that the party against whom judgement is pronounced may appeale to the Parliament for reliefe But if the Parliament give any judgement There * See 22 E 3. 3 Error 8. 8 H 4. 12 13 can be no Appeale to any higâ—er Tribunall Court or Person no not to the King but onely to the next or some other Parliament as is evident by experience by all z 21 R. 2. c. â— to 15. 1 H. 4. c. 2 3 4. 8 H. 4. 12 13. See 1 Mariae c. 1. 1 Eliz. c. â— 3. 21 Jac. c. 28. And all Acts for restitution in blood of Persons Attainted and Acts of repealing Sâ—atutes Bracton l. 1. c. â— Attainders of Treason by or in Parlâ—ament by all inconveent and unjust Actâ— passed in Parliament which concerne either King or Subject Which cannot be reversed nor repealed though erroneous nor the right heire restored in blood by any Charter fâ—om the King but onely by an Act of repeale or restitution in bloâ—d by another Parliament Now this is an infallible Maxime both in the Common Civill and Canon Law that The Court or person to wâ—om the last appeale is to be made is the Supreamest power as the a See Ashes Tables Error 65 66 67 68 69 70. Kings Bench is above the Common Pleas the Escâ—equer Chamber * See Matthew Paris p. 268. Legimus quod multi alâ— Reges imo Reguli usque ad mortem dimicaâ—unt c. above the Kings Bench and the Parliament above them all because a Writ of Error to reverse erroneous judgements given in the Common Pleas lyeth in the Kings Bench Errors in the Kings Bench may be reversed in the Eschequer Chamber and errors in all or either of them may be redressed finally in Parliament from whence there is no further appeale Hence the Canonists conclude a b Bodin l. 1. c. 10. Summa Angelicâ— Rosella Tit. Appellatio Lindwood lib. 2 de Appellationibus Fox Acts and Monuments Vol. 1. p. 448 449. 452. 506. 24. H. 8. c. 12. All Papists and Protestants
Kings eldest sonne was created Duke of Cornwall by Parliament which then also entailed the Dutchy of Cornwall upon the eldest sonnes of the Kings of England See 21 R. 2. c. 9. * 7. H. 4. c. 2. Hals Chronicle 1. H. 4. f. 10. 15. Fabian parâ— 7. p. 376. Speed p. 763. King Henry the fourth the â—etâ—er to assure the inheritance of the Crownes and Realmes of England and France to him and his posterity caused them by a speciall Act of Parliament in the first yeare oâ— his raigne to be entailed and setled on himselfe and the heires of his body begotten and Prince Henry hiâ— eldest sonne to be established pronounced ordained and decreed heire apparant to him and to succeed hiâ— in the said Crownes and Realmes to have them with their appurtenances after the Kings death to him anâ— the heires of his body begotten And if he should die without heire of his body begotten then to remaine to thâ— Lord Thomas the Kings second sonne with successive remainders to Lord John the third and Lorâ— Humfry the Kings fourth sonne and the heires of their bodies begotten After which Act passed for tâ—â— avoyding for all claimes titles and ambiguities to be made unto the Crowne he thought never by any of his Subjects to be molested or troubled the rather because in this Parliament it was first concluded that deposed King Richard should continue in a large prison and â—e plenteously served of all things necessâ—ry both for viande and apparell and if any persons should presume to reare warre or congregate a multitude â—o deliver him out of prison that then he should be the first that should die â—or that sediâ—ious commâ—tion Which King Richard as * Fabian part 7. p. 373. Sir John Bâ—got by his Bill exhibited to this Parliament averred hâ—â— divers times at sundry Parliaments in his time holden said that he would have his intent and pleasurâ— concerning his owne matters whatsoever betide of the residue and if any withstood his will or minde bâ— would by one meanes or other bring him out of his life And further said to him at Lichfield in the one â—â— twentieth yeare of his raigne that he desired no longer for to live then to see his Lords and Commons haâ—â— him in â—s great awe and dread as ever they had of any his Progenitors so that it might be chronicled of him that none passed him of honour and dignity with condition that he were deposed and put â—â—rom his said dignity the next morrow after So wilfull was he as to preferre his will before his Crowne or safety n Hall An. 38. 39. H. 6. f. 176. to 183. Fabian Anâ—o 1441. p. 470. Grafton p. 643. to 648. Holins Stow Howes An. 1440 144â— In the yeares 1440. and 1441. Edward Duke of Yorke came into the Parliament House anâ— there in a large Oration laid claime and set forth his Title to the Crowne of England which King Heâ—ry the sixth had long enjoyed desiring the Parliament to determine the right of the Title betweene theâ— both â—ides submitting to their resolution as the proper Judges of this weighty royall controversie After lonâ— debate and consideration of the case among the Peers Prelates and Commons of the Realme it wâ—â— finally agreed and resolved by them That in as much as Henry the sixth had beene taken as King for 38. yeaâ—â— and more that he shâ—uld enjoy the name and title of King and â—ave pâ—ssessiâ—n of the Realme during his nâ—turall life And if he either died or resigned or FOR FAITED THE SAME for breaking â—â— part of this concord then tâ—e said Crowne and authority royall should immediately descend to the Duke â—â— Yorke King Edward the 4. his Father if he then liveâ— â—r else to the next heire of his line And that the sâ— Duke from thenceforth should be Protector and Regent of the Kingdome Provided alway that if the Kiâ—â— did closely or apertly study or goe about to breake or alter this agreement or to compasse or imagine the deâ—â— of the said Duke or his bloud then he TO FORFEIT THE CROWNE and the Duke Tâ— TAKE IT These Articles made by the Parliament betweene them they both subscribed sealed â— swore to and then caused them to be enacted Loe here we have these two Kings submiting their Titles â— the Crowne and Kingdome it selfe to the Resolution of both houses of Parliament as the Soveraigâ— Judge betwene them who settled the Crowne in this order under paine of â—orfeiting it by Kiâ—â— Henry if he violated their Decree herein and appointing a Lord Protector over the Kingdome in â—â— full age as o Historia Angliae p. 458. Parliamentum fuit câ—nvâ—catum in quâ— Parliamento ex assensu omnium Statuum idem Dux Defensor seu Protector Angliae fueraâ— nominaâ—us ordinaâ—us omniaque Regni offâ—cia beneficia ejus dispositioni sunt commissa Walsingâ—am informes us a Parliament câ—nstituted Duke Humsry to be protector of hiâ— and hâ—s Kingdome of England and the Duke of Bedford to â—e Regent of France during his minority whâ— exercised all regall power by vertue of that authority which the Parliament derived to them Aâ—â— this in these two Kings reignes p See Grafton p. 691. 692. Speed p. 869. 878. 859. 886. 1. E. 4. c. 1. 17. E. 4. c. 7. the Crown and its descent were variously setled by Parliament as I haâ—â— formerly manifested yet so as that which one Parliament setled in this kinde continued firme till it â—â— akered or reversed by another Parliament King q Speeds Hist p. 928. 931 Richard the third comming to the Crown by usurpâ—tion to strengthen his Title procured the Lords and Commons to passe an Act of Parliament where in thâ— declare him to be their lawfull King both by election and fuccession entaile the Crowne upon him and the heiâ—â— â—f his body lawfully begotten create his Sonne Edward Prince of Wales and declare him heire to succeed him in â—he royall Crowne and dignity after his decease In which Act of Parliament recited at large by Speed there is this memorable passage That the Court of Parliament is of such Authority and the people of this land of such a nature and disposition as experience teachâ—th that manifestation or declaration of any Truth or Right made by the three Estates of this Realme Assembled â—n Parliament and by the Authority of the â—ame makes before all other things most faith and certainty and â—uieting of mens mindes removeth the occasion of all doubts and seditious language r Halls Chro. 1 H. 7. f. 855. Henry the seventh afâ—erwards slaying this usurping Richard at Boswell-field to avoyd all ambiguities and questions of his Title to the Crowne in his first Parliament procured the Lords and Commons by a speciall Act to setâ—le the inheritance of â—he Crownes of England and France on him and the heires of his body lawfully begotten perpetually by the grace â—f God so to endure and on none
other and all attainders and Acts against him by Edward the fourth and King Richard s Grafton p. 856. this Parliament annibilated After him King Henâ—y the eighth to ratifie his divorce from Queâ—ne Katherine caused it to be confirmed and his t Sp. p. 1028. Marriage with her to be utterly dissolved by Act of Parâ—iament and by u 25 H. 8. c. 22. 26 He. 8. c. 13. 28 H. 8 c. 7. 35 H. 8. c. 5. See Hall sundry Acts ratified his subsequent Marriages and setled the descent of the Crowne to â—is posterity somewhat different from the course of the Common Law which Statutes were afterwards altered â—nd the descent of the Crowne setled by other speciall Bils in Parliament both in x 1 Mar. c. 1. Parliament 2. c. 1. 2. 1 Eli. c. 3. 13 Eliz. c. 1. Queene Maries and Queene Elizabeths Reignes Whose Titles to the Crowne were setled and in some sort created by the â—arliament By the notable Staâ— of 13. Eli. c. â— worthy reading for this purpose it is made no lesse then high Treason â—o affirme That the Queene WITH and BY THE AUTHORITY OF THE PARâ—IAMENT of England is not able to make Lawes and Statutes of sufficient force and validity to binde liâ—it restraine and governe all persons their Rights and Titles that in any wise may or might claime any interest or â—ossibility in or to the Crowne of England in possession reâ—ainder inheritance succession or otherwise howsoever â—nd all other persons whatsoever King Edward the sixt Queene Elizabeth and other our Princes holding â—heir Crownes by a Parliamentary Title rather then by the course of the * See Cooks Institut Littlei f. 15 16. Common Law which this â—tatute affirmes the Parliament hath power to alter even in case of descent of the Crowne It is observable that the Statutes of 25 H. 8. c. 22. 28 H 8. c. 7. and 35 H. 8. c. 1. doe not onely Nulâ—â—fie some of this Kings marriages and ratifie others of them declaring some of his issues legitimate and herediâ—ble to the Crowne others not and appoint the Queene if living to be Protector of the infant King or Queene â—at should inherit the Crowne or such of the Lords as the King by his last will should designe But likewise preâ—cribe strict Oathes for every Subject to take to maintaine the Succession of the Crowne as it is limited â—y those Acts which Oathes for any to refuse is made high Treason or to write or speake any thing aâ—ainst the Succession of the Crowne as it is therein limited And withall they derive a plenary authority â—â— the King who thereupon * 35 H. 8. c. 1. acknowledgeth the great trust and confidence his loving Subjects had in him â— putting in his hands wholly the Order and Declaâ—ation of the Succession of this Realme by his Letters Patents â—der his Seale or his last will in writing signed with his â—and for laâ—ke of issue lawfully begotten of his boâ—â— to * 28 H. 8. c. 7. 35 H. 8. c 1. give limit assigne appoint or dispose the imperiall Crowne of the Realme to what person or persons â—d for such estate in the same and under such conditions as it should please his Majesty The Parliament therein â—omising by oâ—e common assent to accept take love dread and obey as their legall Governours and Supreame â—ads such person or persons onely as the King by auâ—hority of those Acts shâ—uld give the Crowne unto and â—olly to stâ—cke to them as true faithfull Subjects Provided that if any of his Children or Heires afterward â—d usurâ—e one upon the oâ—her in the Crowne of this Realme or claime or challenge the said Imperiall Crowne â—â—erwise or in any other course forme degree or condition then the same should be given disposed or liâ—ted unto them by the King by verâ—ue of those Acts. Or if any person or persons to whom it should please â—â— King by authoâ—ity of those Acts to dispose the said Crowne and Dignity of this Realme or the Heires of any â— them should at any time hereafter demand challenge or claime the Crowne of this Realme otherwise or in â—y other course forme degree or condition then the same should be given disposed and limited unto them by â—â— King by verâ—ue and authority of these Acts That then all and singular offenders in any of the premises â—ntrary to these Acts and all their Abettouâ—s Maintainers Factours Counsellours and Aiders therein shall be â—emed and adjudged HIGH TRAYTORS TO THE REALME and that every such â—ence shall be accepted reputed and taken to be high Treason and the offenders therein their ayders c. â—â— every such offence shall suffer such judgement paiâ—es of death losses and forfeitures of Lands Goods and Priâ—ledges of sanctuary as in any cases of high Treason And over that as well the Kings said Heiâ—es and Children every such person and persons to whom the Crowne should be limited as aforesaid and eâ—ery of their Heires â—â— every such offence above specified by them or any of them to be committed shall lose and forfeit as well all such â—ight Title and interest that they may claime or challenge in or to the Crowne of this Realme as Heires by â—scent or by reason of any gift or Act done by the King for his or their advancement by authority of those Acts by any manner of meanes or pretence whatsoever And the Statute of 35. H. 8. c. 1. which entailed the Crowne upon Queene Mary after Edward the 6. his decease without issue hath this proviso That if the said Lady Mary doe not keepe and performe â—â— conditions as King Henry by his Letters Patents or last Will in writing should hereafter declare and limit â—â—â— said estate in the Imperiall Crowne That then and from thenceforth the said Imperiall Crowne shall beâ— come to the Lady Elizabeth and the heires of her body lawfully begotten in such like manner and forme aâ— thâ—â— the said Lady Mary were then dead without any â—eires of her body begotten any thing in this Act contained â— the contrary notwithstanding And the like proviso there is for Queene Elizabeth That if she performe not â—â— like conditions limited as aforesaid to her estate in the Crowne That then the said Imperiall Crowne shall â— and come to such person or persons as the King by his Letters patents or last will shall limit or appoint By â— which Acts worthy reading and consideration the Parliaments Supreame power of setling and disposing the descent and inheritance of the Crowne and giving Authority even to the King himselfe to â—â—pose of it upon condition on paine of forfeiture as aforesaid which the King alone had no right nor poâ—er at all to doe will easily appeare to the most malignant Spirits In the first y â— Jac. c. 1. Parliament of our late King James the first Bill then passed was an acknowledgemâ—â— and confirmation of his immediate lawfull and undoubted succession and right to
That they l Bracton l. 2 c. 16. f. 134. â— Fleta l. 1. c. 17. are above the Kiâ—â— and may and ought to restraine and question his actions if there be cause Secondly Bracton explaines himselfe how he is highest and without a Peere to wit In m Parem autem habere non debet nec multo forâ—â—us superiorem maxime in justitia exhibenda licet in justitia recipienda minimo de regno suo comparetur l. 3. c. 9. f. 167 a. distribuâ—â— Justice that is he is the highest Justiciar in the Kingdome but as small as any in receiving justice Thirdly Even in Parliament it selfe the King is the Supreme Member and in that regard the Parlâ—ment in most Acts and in all Petitions or Addresses usually stiles him n See Bodines Commonwealth l. 2. c 1 p. 192. the like of the Parliaments in France Their Soveraigne Lord Bâ—sides the Parliament it selfe is ever o See Modus tenendi Parliamentum Câ—mb Brit. p. 177. Crompt Juris of Ceurts f. 1. to 6. Sir Tho. Smithâ— Common-wealth l. 2. c. 2. 3 Hol. Descâ—â—p of England c. 8. Cowel Minsh Tit. Parl. Mr. Hack. manner of passing Bils sect 8. summoned dissolved by his wâ—it in his name by his Authority Aâ— in passing all Acts and Bils of Grace or such as are not simply necessary for the publicke safeâ—y and â—â—liâ—y of his people He hath an absolute negative voyce and his Royall assent is simply necessary for the passing ofâ— binding Lawes In which respects he is and may be truely said to be above the Parliament it selfe and â—â— onely supreme Governour but yeâ— in the forenamed respects the Parliament may be truely said to be Pâ—â— mount him and the highest power Fourthly The Oath of Supremacy That the King is the onely Supreme Governour relates onely or pâ—â—cipally to the Popes and foraine Princes authorities formerly usurped in this Realme as the Title Woâ—â— and scope of the Statute of 1. Eliz. c. 1. and the very next words in the Oath of Supremacy manifâ—â— and that NO FORAINE Power person Prelate State or Potentate hath or ought to have any Jurisdiâ—â—on power SUPERIORITY PREHEMINENCE or Authority Ecclesiasticall or spiriâ—â— within this Realme and therfore I do utterly renounce and forsake ALL FORAINE Jurisdictions â— Therefore it refers not at all to Parliaments or their Jurisdiction Power Superiority Preheminenâ—â— Authority not so much as once thought of by the prescribers of this Oath which had its Authority â—â—â— the Parliament and made some addition to the Kings Prerogative Fifthly p Common w. l. â— c. 9. l. 2. c. 5. Bodine and others as I shall hereafter manifest assure us that the Soveraâ—â— power and jurisdiction both in the Roman and German Emperours and most foraine Christian Kingdoâ—â— was and yet is in the Senate people Parliaments and Dyets yet this is no empeachment at all to their Suprâ—â—cies no more then the asserting of generall Councels to be above Popes themselves by the learnedâ—â— Papists is â— derogation as they hold it is not to the Popes most absolute pretended Soveraignty q See p. 2 3. above all Emâ—â—ours Kings Princes Prelates Subjects aâ—d the world it selfe of which they affirme him sole Monarch Thâ—â—fore by the selfe-same reason this asserting of the whole Kingdomes and Parliaments power to be abâ—â— the Kings is no diminution at all much lesse a denyall of his Supremacy and just Prerogative Râ— all If then the Parliaments power be thus higher and greater then the Kings personall power and Juriâ—â—ction out of Parliament it will necessarily follow from hence First That in these unhappy times of division and separation of the Kings personall presence not â—gall which cannot be severed from the Parliament the Lords and Commons Orders Votes and Oâ—â—nances made legally in Parliament it selfe are to be preferred obeyed by all the Kingdome before â— his Majestiâ—s Proclamations Declarations Commissions Warrants or Mandates made illegally out of â—â—liament in affront of Both Houses proceedings and Decrees since when ever two disâ—â— powers command different things that aâ—e lawfull or of the same nature the higher power ought â— to be obeyed As if a Master commands his Servant one thing and the King another or the King â—ne â—â— God another the King is to be obeyed before the Master because the Superiouâ— power but God before the Kâ— because the highest power as the r See Gratian causa 11. quaest 3 wher he quotes 〈◊〉 Hier. Isiâ—dor to this purpose Fathers and Canonists resolve most fully Yea the Parliament being the highest power the King himselfe ought to submit thereto and â—â—â— ruled and advised thereby This conclusion though it may seeme a paradox to most men is an undâ—â— table verity both in point of Divinity and Policy as is most apparent by the 1 Saâ— 14. 38. to 46. anâ— 29. 1. to 11. 2 Sam. 18. 2 3 4. c. 19. 1. to 9. 1 King 12. 1. to 25. 1 Chron. 13. 1. to 6. 2 Chron. â— and 11. c. 30. 2 3. 5. 23. Esther 1. 13. to 22. Jer. 38. 4. to 28. Dan. 6. 4. to 20. Jonah 3. 7. Ezra 10. â— â—ccles 4. 13. Prov. 11. 14. c. 15 22. c. 25 5. compared together and with Josh 22. 11. to 34. Judges 20. â— to 20. and in point of Law and Conscience even in our owne Kings and Kingdome as is cleare by 20 â— 3. the Preface and c. 1. 25 E. 3. Parliament 6. the Statute against Provisors 38 E. 3. Stat. 2. c. 1 2. 3 E. â— c. 17. and 48. and other Statutes which I shall hereafter cite at large in answer to the fourth Objection â—hich Texts and Statutes those who will may peruse at leâ—â—ure for their better satisfaction And in Pauls â—me the highest Powers in Rome were not the Roman Emperours as ignorant Doctors make the unleared world beleeve but the Romane Senate who had full power not onely to elect and command but â—â—nsure and depose their Emperours and adjudge them unto death as * Commonw l. 2. c. 5. John Bodin acknowledgeth â—nd I shall hereafter abundantly manifest in the Appendix Secondly That the Parliaments resisting of the Kings personall Commands especially such as are ilâ—gall and destructive to the Kingdome or any private Subjects resisting them by vertue of a publique â—rdinance or Countermand from the Parliament is no resisting of the higher Powers against Pauls inâ—nction Rom. 13. 1. to 7. as Å¿ Resolution of Conscience sect 1 2. c. Revindication of Psalme 105 15. Printed at Cambridg 1643 Doctor Fearne and other ignorant Doctors vainly fancy but a direct â—bmission and obedience to the highest powers the Parliament and those who resist the Parliaments â—rdinances and Commands especially such as tend to the preservation of Religion Lawes Liberties â—iviledges of Parliament and the Kingdome or bringing Delinquents to condigne punishment though â—ey doe it by vertue of any extrajudiciall countermand from the King or his ill Counsellours
doe both â— point of Law Divinity conscience resist the highest powers because they resist the Parliament and â— shall receive damnation to themselves for it either here or hereafter if they repent not which I seriously â—sire all those Delinquents Papists Malignants ill Counsellers and Cavaliers to consider who conâ—ary to severall Orders and Declarations of Parliament yea contrary to the Law of God of Nature of the â—ealme have like unnaturall Vipers taken up offensive Armes against the Parliament and Kingdome to â—ine them with our Religion Lawes and Liberties at once Thirdly Hence it followes that the Resolutions and Declarations of the Lords and Commons in Parliaâ—ent the supremest Court against the Commission of Array Arming of Papists raising of Forces impoâ—g Taxes to maintaine Warre against the Parliament plundering and the like ought to be obeyed and subâ—itted to as lawfull and binding both by the King himselfe the Kingdome and every private Subject â—hatsoever and that the Kings extrajudiciall and illegall Declarations out of Parliament in direct oppoâ—ion and contradiction to the resolutions and Votes of both Houses in Parliament ought not to be obeyed â—e King himselfe as our Law Bookes resolve being no t 8 H. 4. 13. b. 24 H. 8. c. 12. 52 H. 3. c. 1. 25 H. 8. c. 21. Cookes 1 Institutes on Mag. Charta f. 103. See here p. 14. 34. competent Judge especially out of his Courts â—hat is Law or what not in those Cases but the Parliament onely Which extrajudiciall new device of conâ—olling affronting the Resolutions and Declarations of both Houses by opposite Proclamations and â—â—clarations published in his Majesties name is such a transcendent violation of and contempt against â—e knowne priviledge the sacred venerable Authority and power of Parliaments as I am confident â—â— age can parallell and if not severely vindicated by exemplary punishments of the highest nature upâ—â— those ill Counsellors and corrupt Lawyers who contrive and pen them will bring this Highest greaâ—st and most honorable Court wherein the u 31 H. 8. c. 1 1 Jac. c. 1. Dr. Student 44. a. whole Kingdome and every member of it are represented into â—eater contempt and lesse estimation with all men whether Natives or Forainers then the basest Court â—â— Pipouders is No King nor Subject ever yet attempted such affronts against the Resolutions of any Judâ—s in inferiour Courts Let no person whatsoever then presume by pen or tongue any longer to aâ—â—igne or traduce the Resolutions and Ordinances of this highest Tribunall If Kings or Counsellors of â—ate willinstruct or excite the Subjects peremptoâ—ily to disobey and contemne the Ordinances the â—udgements of the Parliament let them never expect the least obedience or submission to any of their â—wn commands which are of lesser credit and Authority Fourthly That the Parliament and whole Kingdome being the highest power or any Member of â—â—e Parliament cannot by any publicke Acts or Votes of theirs consented to in Parliament become Trayâ—â—s or guilty of high Treason against the King either by the Common Law oâ— the Sâ—atute of 25. Ed. 3. b page 4 5. â— 2 of Treasons which running in the singular number If A MAN c. that is any private man â— men by their owne private authority shall levy warre against the King c. it ought to be judged high â—reason extends not to the whole Kingdome or Court of Parliament representing it of which no treaâ—n was ever yet presumed and by this very act is made the Judge of all Treasons that are doubtfull being â—ver yet included within the words or meaning of any Law concerning Treasons and therefore cannot be â—ilty of it Hence the depositions of a Graf parâ— 6. p. 62 63. Galfredus Moâ—â—â— Fabiaâ— Polychr others Archigallo and Emcrianus two ancient British Kings by the unaniâ—ous assent of the Lords and Commons for their rapines oppressions and Tyranny with other forenamed Saxâ— Kings and of Edward the second Richard the second Henry the sixth Edward the fourth by Acts â—â— Parliament the creating of Richard the third King and the frequent translations of the Crowne from â—e right heire at Common Law to others who had no good title by the whole Kingdome or Parliament â—o lesse then c Bracton l. 2 Glan l. 2. f. 112 Myrror c. 1 sect 4. Britton c. 8. f. 16. c. 22. f. 39 25. E. 3. â— 2. See Rastal â—rote Staâ—â—f Crompt Dalton in their Titles Chapters of Treason high Treason in private persons was never yet reputed much lesse questioned or adjudged â—igh Treason in the whole Kingdome or Parliament or any chiefe active Members in these Parliaments which being above the King are uncapable of Treason for any their judiciall actions and resolutions in such cases being onely Tortious and Erroneous reversible by other Acts in Parliament not Trayterous and Rebellious as appeares by all the forequoted Statutes and by 13 Eliz. c. â— which makes it high Treason d page for any person to affirme That the Queene by Authority of the Parliament of England is not able to make Lawes e Walsingham Holin Graf Sto. Speed Martyn Fab. Polychro in 21 R. 2. 11 R. 2. c. 3 4. 21 R. 2. c. 12. and Statutes of sufficient force to alter limit and binde the Crowne of this Realme and the descent limitation inheritance and government thereof And for direct Authorities in this very point Robert Tresylian and Belknap then chiefe Justices Holt Fulthorpe and Burgh Judges Locton Kings Sergeant and Blake the Kings Counsell in the Parliament oâ— 1â— Rich. 2. were condemned executed and banished the Realme as guilty of high Treason onely for affirming under their hands and seales f See the particulars more at large in 21 R. 2 c. 12. That the Duke of Glocester the Earles of Arundell aad Warwicke were and that other Lords and Commons might be guilty of high Treason for procuring a Commission and other proceedings in Parliament and be punished for it as Traytors Which opinion of theirs being afterwards affirmed for Law in a packed Parliament 21 Rich. 2. was the very next Parliament in 1 Hen. 4. c. 2 3 4. repealed and the judgement given against those Judges for this Trayterous opinion tending to the utter subversion of Parliaments resolved and enacted to be just This g See 1 H. 4. c. 3. and here p. 13. Judge h Spee p. 747 Belknap foresaw and therefore was unwilling to put his Seale to this opinion Saying There wanted but a hurdle a horse and halâ—â—â— to carry him where he might suffer the death HE HAD DESERVED for if I had not done this â— should have dyed for it and because I have done it I DESERVE DEATH for betraying the Lords Which makes me wonder at a passage in i Hist p. 675 Speed who records it now frequent in Malignants moutheâ— That the very shop where the Barons originall Treasons were forged was THE PARLIAMENT HOUSE wherein from time to time they
forced on the King Edward the second presumptuous anâ— TREASONOUS ORDINATIONS not onely to reforme the Kings house and Counsell and tâ— place and displace all great Officers at their pleasure but even claim a joynt interest in the Regiment of the Kingdome together with the King which William Inge a Judge of the Common Law with other like sticklers trayâ—erously perswaded them was according to Law which grosse slander of the Parliament House would have beeâ— capitall at least in former ages and may now indanger the heads of those who speake or write the samâ— of the present Parliament Never did any of our Kings charge any Parliament with high Treason hither to much lesse indict or wage warre against the Parliaments as Traytors which questioned or deposeâ— them for offences against the Kingdome Let none then dare affirme that the Houses of Parliament are or can be Traytors now for providing for their owne and the Kingdomes safety Fifthly That to conspire or levy warre against the Parliament or Kingdome to dissolve or destroy it or the Members of it is no lesse then High Treason as hath beene solemnely adjudged in Parliament 15 E. 2. in the Act entituled Exilium Hugonis le de Spenser in 11 Rich. 2. c. 2 3 4. and in the Parliament Roll Printed by Order of both Houses August 27. 1642. And before both these in k Lib. 14. sect 112. Stamf. l. 1. c. 2. f. 1. b. and Cromptons Juâ—isdict f. 73. Glanvil who declares it to be Treason even at the Common Law Si quis machinatus fuerit vel aliquid fecerit in SEDITIONEM REGNI agreeable to l Instit l. ult Tit. 8. Vlpian and the m Tit. 3. Saxon Lawes which informe â—â— of Treasons against the Common-wealth and Kingdome the case of n Ciceâ—o Orat. in Catil Cateline and o Liv. hist l. 23. sect 17. others as well as against the King and to the Statute of 13 Eliz. c. â— which makes it High Treason for any person to stirrâ— up aâ—y Forainers or strangers with force to invade this Realme or Ireland And if it be no lesse then high Treason against the King to slay the Chancellour Treasurer or any of the Judges or Justiceâ— of either Bench Eyer Assizâ— or Oyer and Terminer being in their places doing their Offices though by the Kings command as is cleare by 25. E. 3. c. 2. and all our Law Bookes then much more must it be high Treason against the King and Kingdome to warre against the highest Court of Parliament or slay any member of it for doing theiâ— Offices and executing the Houses just Commands as I shall in due place more fully manifest In briefe the Gun powder plot in 3 Jacobi to blow up the Parliament House was then adjudged resolved by the Parliament * 3 Jac. c. 1 2. 4 5. in his Proclamations for apprehending those Traytors The proceedings against Traytors Spee hist p. 1248. to 1257. King and Judges to be high Treason not onely against the King but Parliamenâ— and Kingdome too and to blow up or assault the Parliament now in the Kings absence is question leâ—â— high Treason both against the King Parliament and Kingdome Yea the statute of 28. H. 8. c. 7. declares those Who shall claime the Crowne even of right in any other manner then it limited by vertue and authority of that act after the Kings death with all their Counsellors and abettors to be deemed and adjudged HIGâ— TRAITORS TO THE REALME not the King and such their offence to be repâ—ted HIGH TREASON and they for it to suffer such paines of death and forfeiture of Lands anâ— Goods as in any cases of high Treason is used And I read in * Par. 7. p. 186. Fabian that Eguiran chiefe Counsellor to Philip the third of France was judged to death and hanged on the Gibbet at Paris for Treason against King Philip and the REALME OF FRANCE as our powder Traytors were executed for high Treason against the King and Realme of England And by the Statutes of 5. R. 2. c. 6. II R. 2. c. 1. 3. 17. R. 2. c. 8. 21. R. 2. c. 2. 4. 20. 3. H. 5. Sâ—a 2. c. 6. 1. Mariae c. 6. certaine offences are declared and made high treason and the committers of theâ— Trayters and enemies not onely to and against the King but likewise TO AND AGAINST THâ— REALME and in particular the illegall indicting of some Lords to destroy them as guilty of High Treason for procuring a Commission in Parliament supposed prejudiciall to the King and his Crowne 10 R. 2. c. I. and the opposing and annulling of that Commission and of some Processe Judgements Executions made given and affirmed in some of those Parliaments raising forces and leâ—ying warre against the Parliament and Members of it to destroy them were then * See Walsingh Holinshed Fabian Grafton Stow Speed in 10. 11. R. 2. 21. R. 2. c. 12. adjudged High Treason both against the King and THE REALME though done by the Kings expresse Commission and command The reason is because the King in judgement of Law * See here p. 20 21. 22. is ever legally present in and with his Parliament when they sit as I have already proved where ever his person is and his royall legall will of which alone the Law takes notice is ever presumed to concurre with his greatest Councell the Parliament against whose Priviledges safety and protection he neither can nor ought by Law or right to attempt any thing and if any personall Commands or Commissions of the King under his great Seale to doe ought against Magna Charta the Subjects liberty safety property the Parliaments Priviledges the Common or Statute Lawes of the Realme all which expressely prohibit the levying of warre killing wounding murthering imprisâ—ning disinâ—eâ—iâ—ing robbing or plundering of the Subjects without legall triall or conviction as dâ—e the Statutes of 2 R. 2. c. 7. 1 H. 5. c. 6. 1 H. 5. c. 6. which prescribe exemplary punishments against such Plunderers and Robbers especially the Welshmen issue out to any person or persons whatsoever especially to raise forces on levie warre against the Parliament or Subjects they are meerely void in Law and will rather aggravate then extenuate the guilt of those who obey or execute them as is clearely resolved not onely by 42. Ass p. 5. 12. Brooke Commissions 15. 16. Cooke b. 5. f. 50. 51. l. 7. f. 36. 37. l. 8. f. 125. to 129. but likewise expressely adjudged and enacted by the Statutes of 15. E. 3. Stat. 1. c. 1. 3. 42. E. 3. c. 1. 3. 11. R. 2. c. 1. to 6. 21. Jac. c. 3. the Petition of Right 3. Caroli 28. E. 2. Artic super Chartas c. 2. 4. E. 3. c. 4. 5. E. 3. c. 2. 25. E. 3. c. 1. 15. 34. E. 3. c. 2. and generally byall Statutes concerning * See Rastals abridgement Tit. Purveyors Purveyors by the memorable old Statute of 25.
E. 3. Stat. 1. c. 3. If any Minister of the King or any other person of what condition soever he be doe or come against any point of the great Charter or other Statutes or the Lawes of the Land he shall answer to the Parliament as well as the SUTE OF THE KING as at the sute of the party AS FARRE FORTH WHERE â—T WAS DONE BY COMMISSION OR COMMANDEMENT OF THE KING as of his owne authority And by that parallel good Law recorded by * Part. 7 p. 376 Fabian made in Parliament in the first yeare of King Henry the fourth That no Lord nor other person of nâ— degree should after that day lay for his excuse as some then did any constraint or coacting of his Prince in executing of any wrong judgement or other criminous or unlawfull deeds saying that for feare they durst not otherwise doe for such excuse after this day SHALL STAND HIM IN NO STEED And in this Parliament * Fabian part 7. p. 342. 375. Hals Chron. 1. H. 4. f. 10. Grafton p. 408. Walsingham Hist p. 393. 402. Hall was judged to be drawne from the Tower of London unto Tiburne and there to be hanged and quartered which was accordingly executed only because he was one of those who secretly murâ—â— ered the Duke of Glocester at Calice illegally attainted of Treason in the Parliament of 21. R. 2. without due processe of the Law by King Richard the second his command and likewise the Dukes of Aumarl Surrey Exeter with other Noble men were deprived of their Dukedomes of most of their Lands Castles Honors for having a finger in this Dukes suffâ—cation and death by King Richards instigation and command and had lost their heads too if the common peopte had beene their Judges who murmured against King Henry for sparing their lives as you may read in * Histor p. 402. 403. Speed p. 763. Walsingham and Speed All which I would advise his Majesties Captainâ—s Cavalliers and ill Counsellors to consider The rather because all levying of warre either against the King or against the Kingdome and Parliament now made a matter of high Treason on both sides must and ought to be determined and resolâ—ed which of them is high Treason and which not and the parties guilty of it must and ought to be tried arraigned judged and condemned for it onely in and by the Parliament and in and by no other Court or Judges as is punctually resolved by the severall Statutes of 11. R. 2. c. 1. 2. 3. 4. 21. R. 2. c. 2. 3. 4. 1 2. 20. 1. H. 4. c. 10. and the very words of the Statute of 25 E. 3. c. 2. of Treasons especially being a new case If then the Parliament are and must be the onely judges of this question Which of the two parties now â—n Armes are Traytors and the onely Court wherein all must be tried on this point they may easily judge who are and must be the Traytors in this case and those who by the Kings meere personall command and presence whom they have treacheronâ—ly withdrawne from his Parliament fight now both against Parliament and King in his legall and regall capacity when the time of triall comes will be found reall Traytors both to King and Kingdome what ever their owne ignorance temporising Lawyers or hopes of prevailing may now suggest unto them In the Parliament of 15. Edward 2. the two Spensers were by â— * Exisium Hugonis le Despensor f. 50. 52. speciall Act of Parliament adjudged Traytors banished and their lands and goods confiscated for miscounâ—elling their King and advising him to ride with armed Troopes of horses and men into Glocestershire to assault the good people there and to levy warre within the Realme to the destruction of the Church and people contrary to the forme of the great Charter and breach of the peace of the Realme What severe judgement then may those ill Counsellors and Cavalliers deserve who have actually levied warre not onely against the Counâ—y of Glocester which they have pitifully harrowed and spoyled contrary to all Law sacked p See the Relation takinâ— cest Cicester â—o its utter ruine and led away the good people thence Captives to Oxford in triumph for the most part barefooted through dirt and mire in this cold Winter Season chained together in ropes more like to Turkish-Gally-slaves then English Christian Subjects onely for this new kinde of supposed Treason and Rebellion the defence of their Liberties lives and goods against theeving Cavalliers which they may defend by Law * Fitz. Corone 192. 194. 246. 258. 261. 330. Stamford f. 11 12 13. 22 H. 7. 39 24 H. 8. c. 5. Cooke I. 5. f. 51 52 53. and justifie the killing of all those who shall violently assault them to rob them of them denying them so much as a draught of cold water to quench their thirst by the way and keeping off all whâ— would give it to them many of them being since dead at Oxford of samine and more then barbarous usage â— but likewise against most Counties of England miserably wasted by them and the whole Kingdome Parliament and King himselfe in his politicke Capacity and raised an Army of Papists against expresâ—â— late Acts of Parliament who not onely now set up their long exploded Masse openly in Yorkeshire Reading and other places but which my very soule abhorres to thinke of have even freshly moâ—â— impiously Shit upon the English Bible in folio defaced and burnt many Testaments and godly English Bookâ— in John Hamonds house a Bookeseller in Marleborough when they sacked it in contempt of our Religion setting the chimney on fire with their excessive flames and if reports be credible have since buâ—ned divers English Bibles and other good Bookes in the publicke Market place at Reading under the very Gallowes in detestation of our Protestant faith whose utter extirpation is their chiefe designe Certainly if these ill Councellors once come to a legall triall a Gallowes will be too milde a punishment to expiate such a prodigious high Treason which former ages can hardly parallell especially if they perseverâ— therein But of this more fully hereafter Sixthly Hence likewise it necessarily followes that the Houses of Parliament being the Soveraigne Power ought of right to enjoy and may when they see just cause for the Kingdomes safety and benefiâ—â— order and dispose the Militia Navy Ports Forts and Ammunition of the Realme into such personâ— custodies as they may safely confide in nominate both the great Counsellors publique Officers anâ— Judges of the Kingdome of right require if not enforce if wilfully denyed the Kings Assent to all publicke Bils of Right and Justice necessary for the Commonweale and safety of his Subjects takâ— up defensive Armes to protect their Priviledges Lawes Liberties and established Religion not onely against Malignants and Popish Recusants but the King himselfe if he raise Forces against them yea impose taxes upon the Subject and distraine imprison secure them for the publicke defence and safety when they deeme it necessary All which particulars I shall God willing fully prove by such Demonstrations Arguments punctuall Authorities and undeniable precedents in former ages as shall I troâ—undeceive the blinded world and convince if not satisfie the greatest Royallists and Malignants both in point of Law and Conscience in the next part of this Discourse which shall passe the Presse with aâ— convenient expedition if God permit Finis partis Primae Errata Page 2. l. 31. read all the royall p. 15. l. 26. enact r. exact p. 17. l. 17. of and p. 20. l. 16. if it r. if being laâ— downe it p. 22. l. 18. last doubtfull rising