ignorant of the true stare and qualitie of the Kingdome of England after the old triple distinction of Empire written by Bartolus and Baldus the best Civilian Doctors viz. That there is imperium merum and imperium mixtum cum Iurisdictione and that in some places tacre is only Iurisdictio sine imperio as is the state of the Low Countries and other Aristocraticall and Democraticall Governments whereof the first i. e Merum Imperium was the Romaâ—e Empire meerely gotten by the sword and for the most part kept by the sword according to the saying of Iustine the Historian in the beginning of his booke Imperiam lisdem modis tenetur quibus paratur And by that Empire Principis placitum legis habet vigorem As Iustinian in the first of his institutes mentioneth The second i. e. Mixtum imperium cum Iurisdictione is the Crowne or Kingly power of England Monarchicall indeed for Rex in solio is sine pari But in Parliamento or Concilio Regendi he hath pares Regni i. e. peeres so dignified by him and honoured from the fountaine of his Maiesties honour And he hath also the communitatem populi which the blessed and ever prosperous Queene Elizabeth accounted sibâ— preciosessimam And all these three estates of King peeres and commons were happily coniunct and preserved together by the ligaments of the ancient lawes of the land and priviledges of parliament which lawes and priviledges were never subiugated by any conquest but ever over-lived the change of Kings and appeased force and induced Kings into their setled reignes here According as that learned chiefe Iustice sir Edward Coke was bold in presence to tell his maiestie the late King Iames of famous memorie that the Law set the Crowne upon his head Whereat his maiestie seemed angry but was so prudent and wise as not to bee so And the old learned Bracton that wrote like as he was a studied Civilian as well as a Iudge of the Common law in King Henry the second his time adviseth every King of this land in these words Id tâ—ibuat Rex legi quod lex attribuit ei Which two maine points or principles in this present state of England that is to say the Church government established with the true protestant faith and religion and the free regall power qualified with the naturall and nationall lawes of this land the untouched priviledges of parliament and the rites and liberties of the people being not only cordially professed and protested by his maiestie but seucred by the high wisewome and care of the peeres and commons and his maiestie ioyously returning to his beloved Parliament May it please the Almighty God of his infinite goodnesse so to inspire both King and peeres and commons with his Divine grace that Anarchie and dissolution of Church government bee avoided and prevented by due restraint and correction of all Sectaries and Schismatickes Brownists Anabaptists c. Who in truth if they might obtain their fanatike intents would have no King a all over them on earth nor Church or material Churches but in rapture of the Spirit would fly up to heaven for the Iudaicke King and in the meane time would hold their Church and Conventicles in the aire or woods or barnes or Stables or intheir owne holy breasts whereas though Christ himselfe said his Kingdome was not of this World yet he taught his Disciples that in this world they should obey Kings as of Gods ordinance and be tributary to them Date Saesari quae suâ—t Saeâ—aris And that no conceit of any popular or plebeiansway in this land be in any true English heart But that the members of both Houses may so prepaire good and wholesome lawes for the Church as may quite extirpate popcry and prevent Schismes and all rendings or divisions of Christ his seamelesse garment of unitie of the spirit to be fast girt with the bond of peace And for the common wealth that never hereafter there be any more inrodes upon the lawes priviledges or liberties of free English men That finally God may be truly honoured and purely served and worshiped his holy word rightly dispensed and his Sacraments duely and decently administred And then his heavenly blessings will undoubtedly showre downe upon this little Isle of Great Britaine and the words and wishes of an ingenious Votary may be fulfilled Long live king Charles and leave brave Britaine to his Son And he to his and they to theirs Vntill the world be done In this treatise may be discovered and noted six sorts of malignant parties against this unity of King and Parliament and the happy effects and fruit thereof Whose corrections or Reformation if it so please God the King and parliament may be as followeth 1. All Papists Priests and Lay who certainly in their secret dispositions whatsoever they make shew of are against King and Church of England and doe plot and practise the advancement of popish religion and Church and to bring in againe that forraigne usurped power of the Pope Supra Reges which is banished and abolished by the Statute 1 Eliz. These may and ought to have the Law and Statutes of the Realme put in execution against them and more severe if need be to compell them to come to Church and receive the Communion which if they will doe then let them not be branded with a name of Church papist so to deterre them and drive them out againe 2. All papall affected Bishops and Clergie who though they contrariwise to the papist priests profer to obey Kings yet in their hearts could wish the Clergie to bee separate from the Kingly Authoritie and temporall Law but to beat downe Law and priviledge of parliament doe Hyperbolically exalt the monarchicall arbitrary power of the King as above and solute of all Law and responsall only to God These must know their errour and ignorance in their Tenets of Kingly power and government within this Realme and be told by sir Edward Cook if he were living that never any man in England kicked his heele against the lawes of the Land but in fine the Law brake his neck and let these Hierarchicall Bishops be corrected of their superbity and reformed in their superioritie and domination in the Church and their worldly mindednesse in countrey and Common wealth as please the King and parliament 3 All court flatterers and Royalists who daily in their affections and discourses maintaine absolute and prerogative power in the King to grant by his letters Patents what and how he wiâ—l above the Lawes and statutes and would have Proclamations to be laws that so they might have Monopolies and projects to serve their turne These weake men of learning for the most part in the deepe points of Law and policie must be taught to wait on the King their Master with all diligent service and attendance and leave of their discourses of Kingly authoritie and of Parliamentiall privoledges and force of Lawes and content themselves henceforth with the King their Masters reward of their service without peeling or preying on the people with their Monopolies and projects 4 All cavaliers captains and Martlâ—â—â— men who desire warre and tumult and disturbance in the Land and commonwealth that so they may have rapine and spoyle These must be sent into forraigne parts where they may freely have and take their rapine and spoile upon forraigne Enemies and not to take the bowels and baggs of their own countrey men And there also they may gaine honour by valour which here is not to be used 5 All Sectaries and Schismatickes of the Church who disaffect government either Royall or Ecclesiastique These must learne to conforme themselves to the uniformitie of the Church and to obey and submit themselves to their lawfull King who is the Lords Anointed and set over them by his divine Ordinance 6 All popular and plebeian Humorists who doe affect and desire Democracy which they terme or call a free state and by their leaves be it said they would have neither this King nor his posteritie nor any King to sit on the Throne These must be put in minde or made to know that Monarchy qualified by law is the best government As the old poet Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so all the best learned Authors writing of States and policie doe affirme and conclude and the ancient Historians of England do shew that here was ever one or more Kings But this Land never more flourished then since it hath beene now these six or seven hundred yeares under one Christian King ruling according to the ancient Lawes Vsages and Customes of the Land FINIS
Questions resolved and propositions tending to accommodation and agreement betweene the King being the Royall head and both Houses of Parliament being the representative body of the Kingdome of ENGLAND The first Question 1. Whether a King be ordained of God for the welfare of the people or the people appointed subjects to the King for the honour and pleasure of a King THis must needs be resolved that the King is instituted of God by his divine Ordinance but by subordinate meanes of the people their first and primary Election or by their approbation of his precedent Title or allowed merits wherein though it be an hereditary successive right of a Crown Yet is that inheritance or succession either originally and immediately given or subsequently and mediately approved and allowed to him and his posterity by the people And by and with the meanes of the Lawes Customes or constitutions of the Nation whereof he becommeth the head and Governour To the end that he may and shall Rule guide and governe and protect the people under his charge and care in the true worship and service of God with love and faithfulnesse and with such tendernesse as a Lord and Master ought to use toward his family a shepheard towards his flock and a father towards his deare beloved children Not that he should in any wife like a domineering master cruelly beate and evill intreate his servants or an hired no true shepheard neglect or peele his flocke or be carelesse of their protection and safety from ravening Wolves and biting Curs Nor as an unnaturall and hard hearted father grieve and afflict his Children with overmuch chastisement or give them stones instead of bread And although it cannot be denied that the Kings of Israel were annointed by the holy Prophets of their time by the immediate appointment of God their proper King and heavenly father who miraculously ruled guided and protected them from the beginning before they had any earthly King like other Nations Yet when they desired a King like as other Nations had the Lord then told them what such Kings did and would take upon them and use to do Not that God did appoint or assigne or allow them so to do for God did not tell any King by the mouth of his Prophets that he would give him a people to use at his pleasure but he granted the people a King to guide and command them as he Muse long before And when Saul that first King was chosen being the tallest man among the people and annoynted by the Prophet to be King over Israel which height of stature did onely note that the people should remarke the height of his dignity when he was set over them The Declaration of Gods divine grace and holy Spirit infused by the word of the Prophet made him fit and worthy to Rule yea even to prophecy among the Prophets and so was he accepted by the Acclamation of the people For no sooner that Divine Spirit of grace had left him but he became an Apostate from God and his religious duty of well governing as a King and was thenceforth relict of God and neither the haughtinesse of his stature nor the dignity of his Thron availed him any longer but the youngest and least of Ishai his sons was chosen from the sheepfolds to be King and to Rule and governe Gods people which after his anointment by the Prophet and the time of his exaltation to the Crowne he governed with a faithfull and true heart and ruled them prudently with all his power And in after ages the Chronicles of the Kings doe shew how often the good Kings that maintained the true Worship of God did long continue in their States and Throns and flourisht but such as were evill and set up Idols and hill Altars and caused or suffered the people to sin against their God God did rend and divide and utterly take away their kingdomes from them Only it is specially remarkeable of the good King Hezekiah who had slipped and erred but repented and recollected himselfe that the mercifull God quickly heard his prayers and saw his teares and added to his dayes and happy Raigne fifteene yeares which number if it be added to our good King Hezekiah his Raigne will exceed the time of many of his progenitors But God may please to adde fifty in steed of fifteene and then the yeares both of his life and Raigne will exceed all his noble Progenitors The like is to bee observed of Christian Kings and Emperours after our Saviour his Incarnation and that the Christian faith was established they had their Annointment from God by the hand of the Bishops but their acceptance was by the people And it is manifest that both the ancient Kings of Israel before the Incarnation of our Saviour as also all Christian Kings since were bound by Oath taken or by Royall obligation to Rule and Raigne by and according to the Lawes of the Land For Bartolus saith a King is Solutus legibus but obligatus vinculo pietatis to rule secundum loges Of all which it followeth that Kings Raignes are provided by God for the welfare of the people and their honour and dignity prolonged in reward of their righteousnesse ingovernment according to the Etymologies of the termes or titles Quia Reges 〈◊〉 a regendo in pace secundum Râ—gâ—lâ—â— normam Justuiae Imperaiores autem ab imperando in belle Ty auni 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Quod est saevire in popâ—lum The second Question 2. Whether a King maketh or imposeth the Lawes upon the people or the Lawes and ancient native nationall Customes of the Land doe erect and establish the Throne and Crowne of the King It is usuall indeed amonst the flattering Courtiers and Royalists in this Kingdome to terme the Lawes the Kings Lawes Quasi dicerent the King doth imponere leges'populo But that is their ignorance For the Lawes of England are most ancient right and rites and Customes of the Land Non Jura data neâ— leges impâ—siâ—e sed usu â—ongae vitate temporum inductae tanquam innatae For if it â—e as truely as vulgarly said Consuetudo est altera Natura Then are our Customary Lawes the most naturall Laws of this Land whereby also appeares the Levity of their conceipts or judgements who having stepped a little over the Seas in a Flie boate and parled 2 little French in Paris or Orleance doe peremptorily assume upon them to define and pronounce that ouâ— Lawes are illiterall and imperfect and that the Civill and Impertiall Law in other parts of Christendom are the most excellent absolute and best Lawes for all and for this Common-wealth Forgetting in meane while that even in those Forraign Lands where the Civill Law Romane or Imperiall hath place and Rule the Naturall and Nationall or provinciall usages and Customes there do abridge and restraine the Generall Rules Theses or Hypotheses of that generall Law And for our Statutory Lawes called Ius stratutorium
they are not Indicta or promulgata but enacted Statuta facta or Constituta by the King and both Houses of Parliament In which the chiefest consideration and ponderation of the reasons of making of them are most in the debate and Voting of both Houses and the Royall assent is onely left to the King with a le Rey la veult or his disassent stayeth them yet not peremptorily but with a modest answer Il Rey se advisera Neither is the abrogation or remission of any penall Law received left to the King though it bee only malum prohibitum not malum in se But His Majestie may dispence with or remit the penâ—â—ty of a Statute and that not meerely and perpetually but only Ad tempus and that not de jure but by his prerogative Royall upon collaterall or accidentall event happening ex post facto after the making of the Statute yet not without cause or consideration and for experience of some further or more weighty cause or consideration of benefit or conveniency to the Common-wealth which being discovered to be prejudiciall to the Common-wealth then the Letters Patents of the dispensation becommeth voyd in Law and frustrate and vanisheth again or is made utterly voyd and condemned for ever at the next Parliament The third question 3. What power or prerogative the King hath Supra legem prater legem or contra legem terrae ALthough it was anciently said by a King of this land H. 4 Nolumus praerogativam nostram disputari yet that was answered againe by the Peeres and Barons in Parliament with another Nolumus Nolumus leges Angliae mutari So that with favour and good manners and duty the Kings Prerogative may bee talked of in respect of the law of the Land and of the naturall right liberty and prosperity of the Subject And thus it is resolved That the King hath in some cases a regall power or prerogative supra legem and in some cases praeter or ultra legem But in no case hath his Majestie power or prerogative contra legem Terrae or Statuta Regni The cases of example wherein his Majesty may by his great Seale doe something supra legem 〈◊〉 diverse but especially those of his mercy and Grace extended to delinquent Subjects that fall into some offences and danger of Law by trespasses or felonies Although the Law be positive and penall condemning the offenders yet his Majestie may pardon them the trespasse or felony and the punishment fine or forfeiture thereupon Quo ad interesse suum but therein also the Law doth stay or restraine the Kings power that he cannot by his pardon remit or give away Interesse partis But that the party grieved or wronged may and ought to have his action And the son or wife may have and prosecute the Appeale de morte patris or viâ—i and the King by no power Imperiall can take it from them The cases praeter legem are some dispensative Proclamations or grants of experience whether something be pro bono publico or not as for importation or exportation of some or other forrein or native commodity or the exercise or practise of some new invented Art Science or Mystery among the people which having most commonly the specious shew of good yet no sooner that it bee discovered to be hurtfull to the Common-wealth or deragatory to the liberty or property of the Subject or that it bring on any burden tax or charge or doe secretly exhaust or diminish the rightfull profits of any Trade Mystery or Science before lawfully used or belonging to any of the Kings Liege people or Subjects then the same is to be abhorred condemned and suppressed as an odious project monopely or unwarrantable thing And the Rule and Reason of common Law which is that In omnibus salus populi suprema Lex esto hindereth that no regall or Prerogative power can uphold or maintaine it though the case be praeter Legem and not provided for by any Statute or if it be provided for and the King hath dispensed by a Non obstante The cases of example Contra Legem are either when the King doth grant Authorize or permit any thing whatsoever against the common Law of the Land or the rule or reason thereof such His Majesties grant by Letters Patents Prâ—clamations or other commands or such licence or permission cannot be nor is of any orce or can or ought to stand or be used practised or suffered in this Land And this is first to be understood of the common Law of this Land in point of commutative justice that concerneth the right and interest of every Subject vâ—z Ius personarum rerum actionum of everyman whereof the first is expressely preserved by the great charter of England Nullus liber homo capietur imprisonetur c. The second is secured to every man by the Law of property wherein it is said Quod nostrum est fine furto aut assensu nostro a nobis tolli non potest upon which no Regall Power or Prerogative can trench And the third both by the words of the great Charter Nulli negabimus c. justitiam and by the Statute Ordaining that every man should enjoy the benefit of the Law and Courts of Iustice for his Free-hold Lands goods or Chattels And that neither the great Seale nor Privie Seale should hinder the due course of Law Secondly in point of distributive justice either in paena or prae mio for good or evill behaviour in the publike conversation or actions of one towards another And in this part of common Law of the Land Malum in se is most concerned that vice should be punished and ought not to be spared by any Regall power leave or licence in any case whatsoever for it were improper that the King being Gods Vicegerent might or ever should connive at or leave unpunished any crime or offence contrary to the Commandements of God or the Law of Nature For His Majestie is said to be like God Dixi Dii estis and the Schoole men say Deus non potest malum agere quia non vult non vult quod non potest according to which the Lawyers say Id possumus quod de jure possumus and that Le Rey ne poit faire tort And for the malum prohibitum by Statutes or Ordinances of Parliament His Majesty cannot nor will goe against them but in Tutiorem partem to pardon where there is hope of amendment Otherwise see the Statute of Northampton wherein some odious crimes are denyed the King to pardon Wherefore so it is that if the King through that naturall propensity of King spoken of by God Himselfe doe more than he should doe toward the people or that by his omission some enormities are crept in then it behoveth him to call together his great Councell in Parliament to advise with them for his own better direction and for Reformation of abuses and corrections of such as have abused and
the Generall and Captaines for the safety and peace of his land and people against any forraigne foes or domesticke traiterous enemies But this is to be understood when his Majestie with his owne prospective eye and watchfulnesse or by the advise of his privie Councell before parliament or great councell in parliament hath or doth discover the plots or purposes of forraigne enemies intending mischiefe assault or ruine by invasion forraigne or of domestick traitors by Insurrection and rebellion at home For in truth it is a flower of the Kings crowne and an incident of his Regalitie as hee is a King to have Liberam absolutam potestatem or Ius Bellum indicendi gerendi to or against any forraigne Prince or potentate and againe Ius potestatem pacis contrahendae paciscendae with any of them and thus all the learned Authours writing of Law and policie by the titles of their Bookes de lege Regia have averred and maintained and it is not to be denyed because the King is the head of the body politicke which compared to the naturall body wherein the five senses are operative and do their Offices by their Organa rite disposita yet the naturallists doe affirme that the communis sensus is in the braine or in Occipite and that per discursum practicum it judgeth and resolveth of the other senses their pleasing or being usefull and profitable to the whole body or offending and annoying it And so the King hath the Ius militiae or power and command of Armes at home throughout his Kingdome for he hath potestatem vitae necis astâ—e Civilians terme it And in our Law the death of any is to be accounted for to the King and the taking away of any Liege subjects life is in the indictment said to be contra Coronam Dignitatem Regis But all this notwithstanding the generall position of the jus principis or Lex Regia placing the power of Armes and Militia in the Crowne yet his Majestie cannot otherwise levie the militia but by lawfull meanes and not by Commission of Array as lately hath beene for that is an undue charge not warranted by law And in case of particular accidents that the King the head be misinformed of his and the Common-wealths enemies conceiving them to be friends which are secret and desperate adversaries complotting clandestine ruine and destruction to the body and refuse to afford aid for the prevention of imminent danger will any judicious man doubt but the eyes of the body being the great Councell of Common-wealth discerning the mischiefe and danger doe well and providently if they call he armes and hands to strike and fights the loynes to joyne in strength and leggs and feet to goe and run to helpe to defend the totall that so the head being disquieted with ache and paines may be preserved in rest and quiet repose Wherefore in such case as now it is here in England the representative body hath and in all reason Pro salute Regis Populi ought to have and to use and command the Militia throughout the land untill such time as the King be better informed and the Common-wealth and body be setled againe in peace and safetie and that then some provident Law concerning the Militia be made for time to come to prevent such like accidents as this hath beene And hereupon it may be considered whether the two houses of Peeres and Commons had not cause to demand the approbation of some Officers of State The Milttia not consisting meerely in the having of armes but also in the power of force to defend against invasion or the fiercenesse of an enemy wherein if such Officers as should be intrusted with the dower and force of the armes and with the custodie of the forts and other places of strength within the kingdome should not bewell and truly affected to the government of this land how easily may it be perceived those strong holds which alreadie are or at least are intended by the wisedome of the parliament shortly to be fortified for the greatest defence will or may become the reatest offence and those bands of military forces which are to bee supposed for the safetie of the Kingdome turne to the ruine and destruction of the Common wealth These then being the true and genuine causes or motives of the wofull severance betweene the king and the Parliament whereat all true hearts have grieved What presumption shall it bee deemed in a true English heart bleeding with compassionate sorrow for the head and body politike so miserably indangered of utter perditron by unnaturall and civill broyles which Lucan writing of lamenteth and describâ—th in these words and lines Bella per Ema heos plusquam Civilia Campos Iusque datum sceleri canimus populemque potentem In sua victâ—iâ—i conversum visâ—â—ra dextra Cognitasque acies c If I say such a true hearted Englishman doe propose these Soveraign Salves for so deadly a sore and these present remedies for so desperate a sicknesse to prevent the instant death and desolation of this famous and renowned Kingdome and Nation whose people were of old time surnamed Angli quasi Angeli or ab Angulo dicti as being in an angle or corner of the world and severed from the rest according to that of the Poet Et penitus toto diversos orbe Britannos And which some Divines terme one of the beloved Isles of the Gentles wherein the Gospell of Christ was soonely Preached after his Ascention 1. First then may it please his most excellent Majestie piously and religiously to turne his Royall heart and gracious affection toward hiâ— great Councell of Parliament who doe represent all his deare people and be advised by them no more to respect or give eare to those Syrene hallucinations of flattering seducers the papists and Iesuite priests the papally inclined Bishops who stand so much for thsir Hierarchy as that they with Demas have forsaken the puritie of the Gospell and neglect the preaching of the holy Word of God and hâ—ve imbraced this present world making themselves Lords over Gods heritage not true Shepheards to seed his flock as they ought to doe in Season and out of Season and to wait upon the alseeing eye of Gods providence for his beloved spouse the Church to bee purged and cleansed of her late inbred and inbrought corruptions 2 Secondly that his Majestie will abandon and quite put away the thought or imagination of any Tyrannicall or Imperiall Government over this land which the papall Bishops and Hierarchicall prelates and priests and other Lay Flatterers did presume to use daily and insinuate and inculcate to his Sacred eares under the pretence of telling his Maiestie that he is an absolute imperiall Monarch free and above and without all Lawes to rule his people ad arbitrium Principis and that he being Gods Anointed is responsall only to God if he doe tyrannize or grieve his subiects whereas they are or make themselves utterly