s'avisera that is He will advise whether to confirme them or not It seemes to me strange to conclude thereupon Ergo the two Houses may make Laws without Him that is plainely a non sequitur but it doth directly imply that the King hath election to make it a Law or no Law else it were in vaine for Him to advise upon it And the words of King Rich 2. admitting that story to be true saying He conceived Himselfe bound by His Oath to consent unto that Law shewes first that it was in His power to consent or not to consent secondly that the Members could not do it without Him thirdly that it was only an obligation upon His Conscience And that He because He conceived it to be a just Law thought Himself tied in conscience to confirme it Upon the whole matter clear it is admitting the King to have taken an Oath in the words mentioned by the Members it rather proves the Kings power of a negative Voice then disproves it But the Members I am confident know that the King neither did nor was oblieged to take the aforesaid Oath The King pursuing former presidents recorded in the Exchequer tooke the Oath in words and according to the Ceremony as followeth viz. After the Sermon is done the King ariseth and goeth to the Altar and there the Archbishop administreth these questions And the King Answereth Bishop Sir will you grant and keep and by your Oath confirme to the people of England the Laws and Customes to them granted by the Kings of England your Lawful Religious Predecessors And namely the Laws Customes and Franchizes granted to the Clergy by the glorious King S. Edward your Predecessor according to the Laws of God the true profession of the Gospel established in this Kingdom and agreeable to the Prerogative of the Kings thereof and the ancient Customes of the Realme King I grant and promise to keep them Bishop Sir will you keep peace and godly agreement intirely according to your power both to God the holy Church the Clergy and the people King I will keep it Bishop Sir will you to your power cause Law Justice and discretion in mercy and truth to be executed in all your Judgements King I will Bishop Sir will you grant to hold and keep the Laws and rightfull customes which the Commonalty of this your Kingdome have And will you defend and uphold them to the honour of God so much as in you lieth King I grant and promise so to doe Then one of the Bishops reads this admonition to the King before the people with a loud voice Our Lord and King we beseech you to pardon and to grant and to preserve unto us and to the Churches committed to our Charge all Canonicall priviledges and due Law and Justice And that you would protect and defend us as every good King in His Kingdomes ought to be protector and defender of the Bishops and the Churches under their government King With a willing and devoute heart I promise and grant my pardon and that I will preserve and maintaine to you and the Churches committed to your Charge all Canonicall priviledges and due Law and Justice And that I will be your protector and defender to my power by the assistance of God as every good King in His Kingdome in right ought to protect and defend the Bishops and Churches under their government Then the King ariseth and is led to the Communion table where he makes a solemne Oath in sight of all the people to observe the premises And laying His hand upon the Booke saith The things which I have before promised I shall performe and keep so help me God and by the Contents of this Booke Now for the King to oblish Episcopacy to destroy the whole Government of the Church established by Law for the King so far as in Him lies to transfer unto His Subjects that regall power which is inherently in His Person to change the Monarchicall Government into a confusion to reduce his Subjects being a freeborne people unto a perpetuall slavery under their equals and fellow Subjects certainly cannot stand with this Oath All which in the proposals made to Him by the Members nay more and worse then words can expresse is required and by most Barbarous and inhumane cruelties attempted to be forced from Him Now having done with this Oath I shall proceed further to examine the legality of the Members doctrine to exclude the King from His negative Voice It is an undoubted maxime in every Law that no Person Court or Assembly can Act or do any thing concerning the publike affaires of the Kingdome or Common-wealth without Commission which stands with all the reason in the world else it followeth that every one hath equall power to make Laws Act and do what he thinks fit And by the constitutions of this Realme every Person Court or Assembly must derive its authority by one of these wayes viz. by the Kings grant by Act of Parliament or by custome and use if by the Kings grant the Patent it selfe declares the persons authorised if by Act of Parliament the Statute names the men if by custome and use that use and custome is their Commission For example if the King by His Commission authorize twenty persons or any ten of them whereof A. B. or C. to be one to determine a felony if seventeen of the twenty in the absence of A. B. and C. execute that Commission all their proceedings are void as done without Commission seventeen strangers not named in the Commission might as well act therein as they And if the Commission be by Act of Parliament none can execute that Commission but those authorized by the Statute And the like holds when custome and use is the Commission unlesse that custome and use warrant the persons to act it is done without authority and so void Then for the point in question The Members of the two Houses have no grant from the King nor is there any Act of Parliament to enable them to make Laws nor doth custome warrant it For untill this Parliament they never made Law without and against the Kings consent nor claimed power so to do But say the Members in the foresaid Declaration If there be not an agreement between His Majesty and His Parliament either His Majesty must be Judge against His Parliament or the Parliament without His Majesty for say they that question whereupon the safety of the Kingdome depends must not be undetermined And say they if His Majesty against His Parliament why not as well of the necessity in the question of making a Law without and against their consent as of denying a Law against their desire and advise The Judge of the necessity say they in either case by like reason is Judge in both Besides say they if His Majesty in this difference of opinions should be Judge He should be Judge in His owne case But the Parliament should be Judge between His
Authority the power to pardon the transgressours thereof and Authority to dispence with the Law it selfe is totally in Him for example if by Act of Parliament it be made felony or other crime to transport any commodity beyond the Seas the King after the fact committed may pardon the offence and before it be committed by His Letters patents without assent of the Members may by a non abstante dispence with the Law it self and legally Authorize any person notwithstanding that Statute to Transport that prohibited commodity and so in all publike and penall Acts not prohibiting malum in se Thus it appears that originally the Parliament consisted of the King calling to Him for their advice such as He thought fit But now by consent of former Kings as aforesaid no new Law can be made or the old altered or abrogated but by the King with the assent of the two Houses And so the King and the Members of these two Assemblies joyntly concurring at this day are the Parliament Upon which it consequently followeth that the King hath an absolute negative Voice in every Law to be propounded But in regard this is now not onely denied but a power usurped by those Members without the King to make Laws in the next place that point is more fully debated CHAP. III. That the Members of the two Houses have not power in any one particular to make a new Law or to change the old The King of England for the time being having an absolute negative Voice therein AGainst this I have seen a Treatise published by Order of the House of Commons in the name of William Pryn an utter Barrister of Lincolns Inne intituled thus viz. That the King hath no absolute negative Voice in passing Bils of common right and justice for the publike good And to make good his position proceeds to his proof in this manner The King saith he in most proceedings in Parliament as in reversing judgements damning Patents and the like hath no casting Voice 2. That Kings in ancient time have usually consented to Bils for the publicke good else gave such reasons of their deniall as satisfied both Houses 3. That Kingdomes were before Kings and then the people might have made Laws 4. That the King may die without heire and thereby the people may have such power againe 5. That the Lord Protectour in the infancy of a King may confirme Bils and so make Laws 6. That in Countries where Kings are elective and so an interregnum the people in the vacancy of their King may make Laws 7. That the two Houses have frequently denied to grant the King Aide by Subsidies 8. That the Kings of this Realme have been forced to give their Royall assent to Bils as in that of Magna Charta This is the substance of his objections and arguments against the Kings negative Voice in Parliament Answer M. Pryn hath spared no labour to make good his assertion fetching his arguments from a time supposed by him before Monarchy here began secondly upon accidents happening since this Monarchy And then imagineth a time to come that is when the King and all the bloud Royall of England shall be extinct for want of an heire at Law to inherit the Crowne First for his far fetched argument Kingdomes saith he were before Kings These words taken in their literall sense imply a grosse and absurd contradiction and he might as well say that servants were before Masters or the Son before the Father But doubtlesse Mr. Pryns meaning is that Countries and people were before they had Kings over them yet his words being so expounded make nothing to his purpose suppose that before Monarchy began in this Nation the people had been governed by a known Law to conclude thereupon That the Members of the two Houses at this day have power to make Laws without the King or that the King hath not a negative Voice in Parliament is to no more purpose then if he should say The Earth was made before it was peopled Ergo there is neither man woman nor child in the world or thus This Nation was peopled before they were governed by a Law Ergo the people neither had either Law or government The Jews upon the like ground may argue thus viz. our Religion was before Christ Ergo the people at this day ought not to professe Christian Religion But Mr. Pryns argument is more absurd he cannot shew that the people of this Nation before they were governed under Kings had either Literature known Law or Government However cleere it is This Nation hath been Monarchiall above 1200. years before the institution of the two Houses of Parliament And so Mr. Pryns argument that Kingdomes were before Kings is no weight at all to prove That the two Houses have power to make Laws without the King And much like unto it is his argument That the King may die without heire for if that should happen saith Mr. Pryn the people might make what Laws they should thinke fit Now thereupon he concludes thus Ergo the Members at this day have power without the King to make Laws With more reason the King might argue thus All the lands in England mediatly or immediatly are held of the King and if the owners die without heire by the Laws of the Realme Escheats to the Crown and so becomes at the Kings disposall but every man may die without heire Ergo all the lands in England at this present are the proper inheritance of the King No Lawyer can deny major or minor yet the conclution thereupon is absurd But in Mr. Pryns case admit the King should die without heire although it be granted that the people had thereby power to make Laws yet grosse it were to conclude upon it That the Members of the two Houses might so do For if the King and that Stem Royall were extinct without issue the two Houses would be extinct too By the Law of England if the King die during a Parliament ipso facto the Parliament is dissolved because the King who was head to advise with whom and by whose Writ and command the Members were summoned is dead Yet in that case the successour King if he please might call a new Parl. But when the King dies without heire there is no succeding King to summon it And so the constitution of Parliament and the whole Law and Government the fountaine of all which being stopped would be suspended if not ended and the people left without Law Then it might be granted Mr. Pryn That the strongest party concurring in that case would governe yet that is no proof that the Members had thereby power to make Laws And therefore more absurd it is to conclude upon Mr. Pryns reason That the two Houses at this day whilst the King and the blood Royall are in being have that power Then for his objections upon Authority or presidents happening since the beginning of the English Monarchy Kings saith he
is none either to umpire or mediate between the Members and the people And so the Members by this have assumed an arbitrary power Nor doth this power of a negative Voice in the King take away or lessen the authority of any Court of Justice Every Court of Judicature pursuing its Commission hath power to determine the interest both of King and people and that without assent either of King or Member The knowne Law is their ground to judge by not the opinion of the King or of either or both Houses Nor can the King in this be said to Judge out of his Courts or against the two Houses of Parliament for the King and the two Houses have herein equall power that is every one of them a negative Voice they are all together joyntly Judge of that high Court of Parliament but no one or two of these bodies is Judge thereof So that by the Kings and either Houses having a negative Voice it cannot be said they Judge each other out of that or any other Court of Justice But some object that if the refusall of the King shall hinder the making of Laws the Common-wealth is in danger to suffer for say they the King may be refractory and deny to passe good Laws Answer No humane Law can preserve a Common-wealth from every mischief That Law which avoideth the most inconveniencies is the best Law It is granted that the will of the King or of either House by refusing to passe a Law propounded may prove mischievous But upon pretence of necessity to give power to the King and either House or both Houses without the King to alter the Law or to make new Laws were more dangerous If that rule serve them to make good Laws it enables them to make bad ones too If they be Judge when to make one Law they are Judge to make as many and what Laws they please they who have this power may declare what they list to concerne the safety of the Kingdome Once breake this rule That no new Law can be made with consent of the King and the two Houses and there is no end of the distraction Upon the same ground that the Lords and Commons in the case of the Militia pretending a necessity and that the King was refractory assumed power to make Laws without Him the Lords House may exclude both King and Commons the Commons House Lords and King or the King both Houses When there ariseth a difference between the King and the two Houses if it be of necessity that the King or the two Houses must so far Judge the businesse as to make a Law without the other by the same reason when a difference happens between the two Houses one of them must be Judge against the other and make a Law without the others consent for such a difference between the two Houses may as well happen to concerne the safety of the Kingdome as when the difference fals out between the King and both Houses And if either House obtaine the sole power to make Laws still there is no period for if reason or reall necessity require it and should be Judge when and what Laws are to be made the lesser number of one of those Assemblies peradventure may be in the right But whether right or wrong the zelots may chance to side with the little flock rise up and in tumults call it Justice And so consequently the good Law of the Land destroyed and club-law introduced and the very being of Parliaments taken away whereas by observing the constitutions of the Realme in submitting this power of making Laws to the Judge thereof that is the King without the assent of the two Houses all these absurdities and inconveniences are avoided Which constitution being rightly understood is grounded upon great reason and is most equall between King and people for the Commons House upon just grounds for any thing to them appears may passe a Bill which the Lords upon as just reasons may reject the Members of that Assembly being persons who for the most part have a greater deeper reach insight in State affaires And both Houses may passe a Bill conceiving it necessary for the preservation of the Kingdome to have it made a Law and thereupon desire the Kings consent which the King may as justly reject And for such reasons they may be matters of that nature as not convenient and most unfit to be imparted and revealed to such a multitude as the seven hundred Members or more of both Houses But when all that is when the King and the two Houses concur the Common-wealth may as safely depend upon it as upon any humane institution Upon these grounds it is that when a dispute happeneth concerning the making of a Law the King being of one opinion the Lords of another and the Commons of a third or when any one of the three bodies dissent from the other two there is no umpire but themselves to end that controversie nor can they decide the question by any other way but by a joint agreement or quitting the dispute for untill a joint concurrence of all three their proceedings are but conferences and their results what they would have to be Lawes but no Laws indeed untill by consent of all three they be reduced to Acts of Parliament No Order Ordinance or what ever it is or shall be called made by consent of any one or two of these bodies alone hath the strength or force of a Law our Law takes no notice thereof like a verdict for life lands or goods in which case the major part of the Jury determineth not the question all twelve must agree else it is no verdict for the question being fact some one of the Jury may have better knowledge thereof then all the rest So in this case by the constitutions of the Realme no new Law can be made or the old altered without a joint concurrence of the King and the two Houses It is that united body which at this day as to the Legislative power represent the whole Kingdome The Members of the Commons House alone do not in that manner represent the Commons of England the Lords the Peers and the King for Himself but all together do represent the whole Kingdom no one or two of these bodies can herein be said to represent only any part every common person doth herein by the Laws of England asmuch depend upon the judgement of the King and the Lords as upon the Members of the Commons House And so do the King and the Lords upon those Members for the King the Lords and Commons as now by consent of former Kings it is setled are herewith joyntly trusted As if three Lords authorize three severall persons to sell their Lands if two of them sell it binds not therefore in judging that sale void no man is injured the Lords are seized of their Lands as before and the persons trusted have the same power that is
joyntly concurring to sell and by that sale the Lords are concluded it is done by the Commission of those Lords and therefore in Judgement of Law their owne Act. So for the Parliament the King the Lords and Commons by the constitutions of this Realme are jointly trusted to consent unto the making new or changing the old Law therefore no lesse then all have Commission for it And so if the King and either House or both Houses without the King passe a Bill or make a Law this ought to be judged invalid none are thereby wronged still the knowne Laws are in force the people as before by the knowne Law are protected in their persons and estates and those trusted that is the King the Lords and Commons joyntly concurring have power to make new Laws which consent concludes the whole Nation it is done by its representative body and so by their Commission Thus it appears that when there is a question and dispute in Parliament between the King and the two Houses it is not necessary to have it affirmatively determined nor needfull that His Majesty in such cases be Judge against the two Houses or the two Houses to Judge it without Him That is but a fiction of the Members devised by them to reduce the Nation unto their Tyranny which as the Members knew they could not effect but by excluding the King from His negative Voice in Parliament so that being done their worke was finished Then they without the King arrogate power to make new Laws and change the old for their owne advantage as they pleased And so both King and people inslaved Therefore herein to beguile the people a case was faigned and stated thus That such a difference between the King and the two Houses as concerned the safety of the Kingdome was happened in Parliament That unlesse this question were instantly determined the Kingdome was in danger to perish Then to draw the people to side with the Members they were told that the Lords and Commons were the representative body of the Kingdome That whatever the Members in those Assemblies do it is so much the Act of every particular person in the Kingdome as if he were within the wals of the House personally consenting And perswaded the vulgar that this dispute between the King and the Members in effect is between Him and all the people of England And then offer it to the consideration of the multitude whether it be not more likely that all the people of the Realme concurring in one opinion should better know what is for their owne good then the King being but one single person and dissenting in judgement from the whole Nation The poor people not being of capacity suddenly to discerne the fallacy hereof And being ravished with a conceipt to be Judge in their owne case in smarmes flocked to this Idoll the Members thinking they had thereby adored themselves as well as that beast and never ceased untill by violence they expelled the King from His negative Voice in Parliament But now by wofull experience they both understand by whom and how they are represented which is thus The Knights of Shires Citizens and Burgesses being elected by the Inhabitants of the severall Counties and Townes do in some sort represent the people who chose them but that is no further then their Cōmission extends And they have no other Commission then the Kings Writ of Summons the returne thereof word by word set downe before which gives them no other authority then to consent unto Laws agreed on by the King His great Councell the Peeres consequently they do represent the people no further then to consent unto such Laws And for the Peeres they have no Commission at all from the people nor can be said to represent them their authority is solely from the Kings said Writ of Summons directed to every particular Lord by which likewise his power is declared and stinted That is to advise with the King concerning the affaires of the Realme So that the Lords and Commons put together they have no Commission to make Laws we are still to seeke that Legislative power nor is it to be found but in the King He alone is properly the Law-maker But the Kings of England as before appears having excluded themselves to make Laws without consent of the two Houses Therefore that united body the King and the Members of those Assemblies is called the Legislative power and the representative body of the Kingdom But that either or both Houses or any Assembly or people in this or any other Nation governed by Monarchy hath or ever claimed to have a Legislative power or sofar to represent the Kingdome as to make new Laws or change the old without the Personall consent of the King is such a ridiculaus Bull as never was heard or thought of untill this frantick Parliament Therefore when either or both Houses without the King take upon them to make Laws they extend beyond the bounds of their Commission they thereby act of their owne head not as representatives For example a Lord by Commission gives power to A. and B. to let and set his Land for tearme of years so long as A. and B. pursue this authority they do represent that Lord but if by colour of that Commssion A. and B. demise for life or sell the Inheritance it is done without authority their Commission reacheth not so far and so not representatives Therefore such lease or sale is void it doth not bind the Lord. Or thus A. having contracted with B. to make A. feoffement unto him and his heirs of the Mannour of D. upon a condition by letter of Atturney gives power to C. to make livery and seisin upon that Condition C. performes it In this case the Land is as firmely setled in B. as if A. had executed it in his owne person because it is done by his representative But if C. omitting to express the Condition make livery and seisin absolutely nothing passeth to B. for saith our Law C. extending the bounds of his Commission he doth not represent A. Therefore his whole act void So here the Lords as before appears have Commission to advise with the King the Commons to do and consent unto things agreed on by the King and them Now those Lords and Commons taking upon them without the Personall assent of the King to make new or change the old Law it is a power usurped without Commission or authority therefore no representatives and consequently all their proceedings void Then for the distinctions in the aforesaid Declarations mentioned 1. That no Law made without the Kings consent binds unless His consent be first required and refused 2. That those Laws be necessary for the preservation of the Kingdome 3. That such Laws shall continue no longer in force then that necessity lasteth these are snares and subtilties only to catch the simple no wise man wil be taken with them Suppose the King upon refusall
Roy le veilt So that if any difference be the Kings words are more prevalent for before that it is but a written piece of parchment not valid but by tht Kings words instantly it hath life and is become a Law binding the whole Kingdome and people And this as before is said is the Kings Law Then Mr. Pryn fals to presidents which he cals proofs King Ed. 2. and King R. 2. saith he were deposed by the Parliament Answer The case concerning these two Kings was thus Against King Ed. 2. after many distractions in the Kingdome the Queen His Wife and other of Her adherents increased the faction raised a Rebellion barbarously tooke the King prisoner and during His imprisonment without any lawfull authority or consent of the King in His name summoned a Parliament and by force drew him in words to resigne His Crowne unto His Son afterwards King Ed. 3. and that of King R. 2. was much to the like purpose He was drawne to resigne His Crowne to H. of Bullingbrooke Afterwards King Hen. 4. and these two lawfull Kings being thus injuriously bereft of their Scepters were shortly after most barbarously murdered too The whole proceedings of which Acts all such Pryn excepted as have mentioned them have condemned the same not onely to be illegall but as Acts most wicked and notoriously impious But saith Mr. Pryn Pierce Gaveston and the two Hugh Spencers were by Parliament banished the Spencers violently put to death Humphrey Duke of Gloucester arrested of high Treason at a Parliament at Berry and there murdered That the Earle of Strafford this Parliament lost his head against the Kings will Answer For the banishment of Gaveston and the two Spencers his Argument is but thus The King with the assent of the two Houses made an Act of Parliament to banish them Ergo the two Houses without the King have the Soveraigne power of Government And admit Mr. Pryn hath proved which he endeavours that the Members of the two Houses murdered the Duke of Gloucester and the Spencers still that proves not the Soveraigne power of government to be in the Members That example of the late Bishop of Canterbury I conceive to be a President far more proper to be cited for this purpose then the case of the Duke of Gloucester or the Spencers For all men know that Bishop was put to death by no other authority then by order of the two Houses yet this no more proves the Soveraigne power to be in the Members then that murder acted by Felton upon the person of the Duke of Buckingham proves Felton to be the King of England For the Members of the two Houses had no more authority to condemne to death the Bishop then Felton had to kill the Duke And consequently the murder of the Bishop whatever his offence was or however guilty it â—â—…ing done by pretext and colour of Law was more horrid And for the Earle of Strafford it was thus By the Laws of England no man can or ought to be convict of a crime but by Act of Parliament by utlagare or by triall of his Peeres That is if a Lord of the Parliament by a Jury of Lords if under that degree by a Jury of like quality and being convict the Judge ought to give no other sentence but what the knowne Law doth pronounce for that fact Now that Earle by the Members of the Commons House was accused of high Treason The King thereupon declared His resolution not to protect him from the tryall or just sentence of the Law After this the Members waving the ordinary proceedings of the Law passed a Bill to attaint him of Treason by Act of Parliament This Bill was presented to the King He for some time refused to make it a Law which peradventure He might be induced unto by the Bill it selfe There being a speciall proviso therein that the Judges shall not condemn any other for the like offences which might cause the King to be very tender of passing the Act thereby to condemne a man as a Traytor for facts passed which at the time committed was not Treason This if duely considered is so far from being evill in the King as that the whole Kingdome hath thereby great cause to acknowledge his goodnesse It hereby appears he desired to governe as King not as a Tyrant to proceed against offenders according to the knowne Law not by an arbitrary power And if some particular persons too much thirsting after Straffords blood occasioned such things as might draw the King against His conscience to consent unto that Act woe be unto them But however whether the King passed this Act willingly or against His will or whether the Earle of Strafford were guilty or not guilty of Treason That nothing proves that the Members have Soveraigne power of government above the King Thus for Mr. Pryns objections against the Kings right to Soveraignty And that the Members have no authority therein is further proved thus 1. So long as the people have been governed by a knowne Law there must have been a Supreame Governour but we have had the same Law by which we are now governed long before the Institution of the two Houses 2. It is absolutely necessary that the supreame Governour be a person constantly permanent and visible but the Members out of Parliament are not in being they are invisible 3. It is a contradiction to Soveraignty to be subject to the commands of an other But the Members are called together and dissolved againe at the Kings pleasure 4. The Composier of the Members is such As that to make them supreame Governours tends to the destruction not to the preservation of the Kingdome and people If a woman bring forth a Monster not having the shape of man-kind our Law judgeth it no issue it is lawfull to kill it it ought not to be baptized To have two heads of one body is monstrous so to have two Kings of one Kingdome must be destructive to that Nation But here which is a far more prodigious monster we by the Members usurpation are governed by two severall distinct bodies consisting of multitudes without any head This government is new there yet never was the like upon the face of the earth It is not Monarchicall Alligarchicall Aristocraticall Democraticall nor although the neerest to it Anarchicall it is worse then confusion It can have no proper name unlesse it be called contradiction Thus for the negative part that the two Houses have not the Soveraigne power it now rests to shew in whom it is And for that these two things are considerable first what is the office of the Supreame Governour secondly who hath performed that duty For the first all men grant it is to preserve the people in peace by causing the Laws to be justly distributed and the like which have ever been performed by the King of England for the time being and by none else He hath denounced War proclaimed peace inhaunced and
politick Capacity If the King die during a Parliament ipso facto the Parliament is dissolved Therefore Soveraignty is not virtually in the two Houses By the Kings death untill a late Statute made therein all suites in Law even between party and party were discontinued And at this day the Chancellor the Keeper of the Great Seal the Judges the Sheriffes of Counties Justices of Peace and other Officers by his death are void which could not be if Soveraigne power were not in the naturall person of the King or if that Authority were virtually in the Members The Law of the Land saith that Allegeance is due from the Subject to the King so soon as he is born therefore he is called Subditus natus And so both Soveraignty and Allegeance inherently and by birth-right the one in the person of the King and the other in the person of the Subject And this duty is reciprocall The King ex Officio as King is obliged to protect the people And the Subject in duty is bound to obey their Soveraign for protectio trahit subjectionem subjectio protectionem There be two sorts of Homage viz. Homagium Ligeum homagium feudale The first being Allegeance is due onely to the Kings Person And therefore our Law saith it is inherent inseparable and cannot be respited But the latter being due by reason of the tenure of Land a Writ lies to respite it Besides a body politick can neither doe nor receive Homage It cannot be done but to the naturall person of a man The Lords and Commons 10 Jacobi made this recognition viz. Albeit within few houres after the death of Queen Elizabeth we declared your Majesty our onely and rightfull Leige Lord and Soveraigne Yet as we cannot doe it too often or enough So it cannot be more fit then in this High Court of Parliament where the whole Kingdome in person or by representation is present upon the knees of our hearts to agnize our most constant Faith Obedience and Loyalty to your Majesty your Royall Progeny humbly beseeching it may be as a Memoriall to all Posterity recorded in Parliament and enacted by the same that we recognize and acknowledge that immediately upon the death of Queen Elizabeth the Imperiall Crown of this Realme did by inherent birth-right and lawfull and undoubted succession descend and come to your Majesty And that by Lawfull right and discent under one Imperiall Crowne your Majesty is of England Scotland France and Ireland King And thereunto we most humbly and faithfully submit and oblige our selves our heires and posterities for ever untill the last drop of our bloods be spent And beseech your Majesty to accept the same as the first fruits of our Loyalty to your Majesty and Royall Progeny and Posterity for ever Which if your Majesty will adorne with your Royall Assent without which it neither can be compleat nor remaine to all Posterity we shall adde this to the rest of your Majesties inestimable benefits By this we see that this Kings Father by inherent birth-right had the Soveraigne power of Government That the Lords and Commons in Parliament did not onely submit thereunto but at their humble suite by Act of Parliament obliged themselves their heires and posterities for ever even to the spending of their last drop of blood to preserve Him and His Posterity therein But to insist upon particulars of this nature were too tedious There is no other Language to be found from the beginning of this Parliament up to the Romane conquest Every Statute booke of Law History and the constant practice of the Kingdome herein concurs Neither tongue nor pen untill these Antipodes the Members who belch nothing but contradictions to truth justice and honesty ever made other expressions But the juggle is now even by the vulgar clearly discovered and found to be too slight an Hocus Pocus trick to gaine three Kingdomes But it is visible to the world The Members use the word King as they do the name of God himself either for their owne advantage or to gull the people which amongst infinite other particulars by their various proceedings concerning the Kings Soveraigne power it is manifest First by their foresaid Declaration in words they ascribe unto the King a greater power then he either hath or challengeth He is say they absolutely Supreame head and Governour And this in all things and that finall too for say they from him there is no appeale But even by the same Instrument they tell us that this Soveraignty is not in the Kings person but totally in the Members of the two Houses And after their preaching of this doctrine and exercising the Kings office for some years then they tooke the boldnesse in plaine tearmes to tell us they would have no King that they themselves would without their Soveraigne governe the Kingdome But herein they catched themselves for instantly thereupon the people plainely discerned their intention even from the first they were by this Vote satisfied that the Members aime was not for the publicke but for their owne private to subvert the knowne Law and to reduce the people to the slavery of an everlasting arbitrary and tyrannicall power under their equals The Subjects of England upon this Vote unanimously even through the whole Kingdome as if they were at one instant generally inspired make their Protestation against these usurpers They cry out and call for their leige Lord their King They resolve to submit unto no other government then by our ancient and knowne Laws which the Members perceiving they returned to their owne vomit and thinking to deceive the people with a new sleight do now againe begin to word it for a King and Vote thus That this Nation shall be Governed by King Lords and Commons Which is as perfect a juggle as that whereby they Declared the Kings power to be virtually in themselves If those Votes binde it followeth that we neither have nor can have otherwise then at the Members will either King Law or Government Their last Vote in words seemes in some sort to set up a King But for any thing we know before the next new Moon the Members may fancy to themselves the same motives as formerly and Vote Him quite downe againe So that admitting this power in the Members to set up and pull downe to Vote and uâ—-Vote it is indifferent both to King and people whether to have a Statue and call it King or a King by the Members Vote Then for the Vote it selfe admitting the Members to have authority by their Votes to alter the Law which they have not it is in it selfe most grosse We must say they be governed by King Lords and Commons But what power is hereby intended for the King non constat By the next Vote the Members may declare they meant hereby that the King shall not have any authority in his owne person but still judge the Soveraigne power as formerly
they did to be virtually in themselves And if so it only differs in words from that Vote whereby they resolved to have no King In substance it is one and the same And if the Members mean as the words seeme to import that the power of Government shall be in the King Lords and Commons joyntly and that this Vote be so far binding as to settle that government for ever which is in it selfe inconsistent with that arbitrary power they now even by this very Vote assume it is likewise in it selfe most absurd It is true that we having a knowne Law whereby we are protected in our persons lives and estates to have this Law unalterable otherwise then by the joynt concurrence of the King and two Houses is a constitution beneficiall for the Kingdome but in point of Government it is a Composier not onely improper but destructive to the whole Nation In every Common-wealth accidents frequently happen which of necessity require things to be done yet if not acted with secrecy hazards the ruine of the people For example The King hath intelligence that a forraigne Nation is prepared and resolved to invade this Kingdome Hereupon with great care and secrecy a designe is laid to surprize the enemy In this case for the King at the same time to proclaime his plot not onely frustrates his designe but endangers the destruction of the whole Kingdome Now admit the King Lords and Commons jointly to have the power of Government and it is impossible whatever the designe be although the publishing thereof unavoidably destroy both Nation and people to keep it secret First for the Lords The Members sit and Vote in that House of what capacity or disposition soever by descent and experience shewes that wise men although Lords too sometimes beget fooles Honest men knaves and Loyall men Traytors And for the Commons House he who examines his owne Country be it in any part of the Realme I am confident will find the greater number of those elected Knights and Burgesses unfit for Statesmen or Privy Councellors Nor is it possible that the multitude if they had authority to make such elections which they have not should make choice of apt persons to governe the Kingdome Then adding hereunto the number of those Members amounting unto seven hundred or more and doubtlesse in point of secrecy to proclaime it at the market Crosse and to advise with them is one and the same thing But admit every Member a perfect Statesman the composier of that Body consisting of the King Lords and Commons is such as not onely renders them incapable to governe the Realme but is in it selfe so pernitious to the Common-wealth as that it is impossible for the Divel himselfe to invent unlesse it be that the two Houses without the King a plat-forme more apt to introduce confusion both to Church and State When a Capitall or Criminall offender is convict the knowne Law in point of punishment doth not distinguish of persons The Judge whether the offender be capable of pardon or not must give sentence according to the nature and quality of the offence upon every one alike He hath not power either to pardon or mitigate the punishment That is the office of the Supreame Magistrate Then what a Tyrannicall constitution it were that the King shall not have power to distribute mercy untill the major part of the two Houses have Voted it common experience makes it easie to judge And on the other side if the King without that joynt consent hath not authority to punish offenders It will be very difficult to bring the most horrid malefactors to triall be the offence Treason Murder Sacriledge or any other crime how execrable soever whilst either House doth omit or refuse to Vote it so no punishment An infallible way I confesse it is to embolden themselves and all others their adherents to perpetrate all wickednesse under the Sun If a dispute happen whether to make War or to proclaime Peace to fight or not to fight an enemy and the like it cannot be expected but that those three bodies shall even to the ruine of the Nation irreconcileably differ in opinion But it were endlesse to insist upon particulars of this nature the calamities which have befallen us by the Members arrogating the Soveraigne power of Government and which daily must ensue whilst they either continue that usurpation or shall be suffered in point of Government to share with the King words cannot expresse Suppose three single persons had jointly the Soveraigne power of government no man can imagine but that they would even in matters of greatest weight and perill sterne severall wayes But in point of Government to adde unto the King the Members of the two Houses make it a composier far more preposterous and absurd And consequently to submit to that Vote to be governed by King Lords and Commons although it be admitted the Members intend it a joynt power were no other then to introduce contradictions distractions and confusion Besides by setling the government in King Lords and Commons ipso facto the knowne Law is subverted and an arbitrary power introduced for as before appears they who have the Government and also power to make new and change the old Law cannot be guided but by their owne will Whereas by observing the constitutions of the Realme in submitting to the King alone for matter of Government unto the King and the two Houses joyntlie for making new Laws or altering the old and unto the lawfull Judges of the Realme to expound and declare the Law all arbitrary power is avoided And the King for his assistance in matters of Government hath by the Laws of England three sorts of Councellors viz. His Great Councell His Privy Councell and His Learned Councell The first is properly the Prelates and Peeres of the Realme which besides infinite other testimonies is proved by the Writ of Summons to every Parliament The words are these viz. Rex Vicecomiti c. Quia de advisamento assensu Concilii nostri c. quoddam Parliamentum nostrum apud c. 1. die c. teneri ordinavimus ibidem cum Prelatis Magnatibus Proceribus dicti Regni nostri colloquium habere tract Tibi precipimus c. duos Milites c. venire facias ita quod iidem Milites plenam sufficientem potestatem proâ—se CoÌ„munitate Commitat predict ' c. habeant ad faciendum consentiendum his quae tunc ibidem de communâ— concilio dicti Regni nostri favente Deo contigerint ordinari suantedictis And the Sheriffs returne is thus viz. Virtute istius brevis eligi feci duos Milites viz. A. B. qui plenam sufficientem potestatem c. habent ad faciendum consentiendum iis quae c. de communi concilio Regni Angliae ordinari contigerint Thus it is manifest that it is the Prelates and Peeres who have assistants unto them the Judges and others
this day by the Laws of England the Members of the two Houses have right thereunto which is most absurd But Mr. Pryn affirming that these things were granted to the Kings Ancestors and the truth being that the King and His Ancestors time out of minde have enjoyed them It is a good argument to prove the King hath title to them And for Parliaments as before appeares The first Act we have is Magna Charta made 9 H. 3. but the Kings Auncestors and predecessors enjoyed the Militia the Forts the Navy Ammunition and Revenues of the Crowne many hundred of yeares before that time therefore could not be granted by the Parliament or by its consent And for the Kingdomes consent Master Pryn must explaine his meaning what he intends thereby before it be Intelligible Then saith M. Pryn the King hath no power to array arme or muster His Subjects but in such manner as the Parliament by speciall Acts hath prescribed Answer This being granted makes directly against Master Pryn it disproves the Members pretended power to the Militia and makes good the Kings interest therein The Argument is thus The King cannot muster His Subjects but in such sort as is prescribed by Act of Parliament To conclude thereupon that the Members of the two Houses have the power of the Militia nothing can be more absurd But it directly implies that none but the King can muster the people And consequently the Militia is in the King And for Acts of Parliament prescribing how or in what manner the people shall be mustered or arrayed we have none of that nature untill the Raign of King Ed. 1. But the Militia of the Kingdome was executed and commanded by the Kings of England 1200. yeares before that time And by every Act of Parliament which doth in any sort order or appoint the mustering or arraying of the Subject It appeares that the Power and Authority it self before that Law was in the King And by none of them is taken out of him And so this Argument of Master Pryns is to no purpose But saith M. Pryn The King hath these things and the Revenues of His Crown in His politick Capacity as saith he a Major and Commonalty a Dean and Chapter and the like are seized of their Lands And therefore saith he the King neither by His Will nor by His Letters Patents can devise alien or sell the same Answer If it be admitted that the King cannot alien such Lands and Revenues as He is seized of in His politick Capacity which is in it selfe most absurd how this disproves his title to the Militia the Forts the Navie Ammunition and Revenues of the Crowne is not intelligible The Argument in effect is but thus The King hath the Militia c. in his politick capacity Ergo he hath it not Or thus The King cannot sell the Revenues of his Crowne Ergo the Members have the Interest therein and may seize them But saith Master Pryn the Ships Armes and Ammunition seized of by the Members were bought with the Kingdomes Money And therefore the Members may seize them Answer Suppose it understood what is the Kingdomes Money and that with such Money Ships Armes and Ammunition are bought It seemes a good Argument for the King to Seize them For He as King ex Officio is obliged to preserve His people in Peace Besides that money or other things which no particular Subject can challenge property in by the Lawes of the Kingdome is the Kings But by the Lawes of England we have no person or pollitick body by the name of the Kingdome which is capable to have property either in Lands or Goods And for the Members of the two Houses as Parliament men they have not any politick Capacity they are not a body to sue or to be sued nor are capable to buy or sell nor have property in any estate And consequently Master Pryn by his own Argument hath as much title to seize the foresaid Ships Armes and Aummunition as they Then saith M. Pryn the Members seized the Ships and Revenues of the Crown to prevent the arrivall of forraign forces and a Civill Warre which they foresaw As saith he Queene Elizabeth in time of War with Spaine granting letters of Mart to seize all materialls for Warre transported through the narrow Seas Answer By this discourse we are told what moved the Members to seize the Kings Navy and the Revenues of his Crown which in effect is thus viz. The Members having usurped an Arbitrary power over King and people and thereby having destroyed the Monarchy of England had just cause not only to expect opposition from their own Soveraign but in his relief arrivall of forraigne forces from all the Kings in Christendome For upon the same grounds as the Members made this seizure the Subjects of any King may doe the like It is as easie for the people of Spaine France or any other Nation in the world to say they foresee a War as these Members pretend it And I am certaine it is as unlawfull and directly against the constitutions of England for the Subjects here to assume this power as for the people of any other Country to doe the like to their King Therefore I grant it was an act of Pollicy for the Members to seize the Kings Ships and the Revenues of His Crown It was a great and principle means to prevent the suppression of this their Rebellion But all that proves the legality of their proceedings no more then a high-way man having taken a purse murders the party robbed to prevent his own discovery makes the robbery lawfull And so M. Pryns Argument in effect is but thus The Members de facto have seized the Kings Ships and Revenues of his Crown ergo they have done it lawfully Thus in Answer to Master Pryns Arguments whereby he endeavours to prove that the Members have power over the Militia c. But that they have no colour to claime any Authority therein further appeares thus First all men must grant That so long as the people have been governed by a Law so long the power of the Militia must have been in some But the people of England as before appears have been governed by a Monarchicall power above 1200 yeares before the institution of the two Houses And all that while the Kings of England for the time being and none else have executed that Authority Therefore not in the Members Secondly it is absolutely necessary that the power of the Militâ—â— be in such hands as may at all times provide against approaching dangers to the Common-wealth But that cannot be the Members they are not in esse out of Parliament Suppose this Nation in the vacancy of a Parliament be suddenly invaded by a Forraigne enemy or infested by a domestick insurrection If none have power to command the people to assemble and make resistance untill the summoning of the two Houses of Parliament nothing but distraction to King and people
He is not Judge in His own case nor hath a power Arbitrary His Authority and interest is regulated by a known Law Thus appears the different condition of the people between that in the worst of times under the Kings Government and what they are now reduced unto under the men at Westminster So that if the people had onely exchanged that Government for this it had been miserable enough Therefore considering the blood which hath been spilt herein most irksome it must be to every honest soule to think thereof But still the peoples case is worse the former grievances under the King was no cause of their defection For before this War began they were reformed Ship-money and all grievances were taken away In a word the people had no other motive to draw their sword against their Soveraigne but thus They were by these incendiaries falsely told that the King meant not what he said nor intended to keep those Laws he had made But now every person thus seduced by his owne wofull experience finds that it was these persons at Westminster who meant contrary to what they pretended If he looke for the Protestant Religion freedome of conscience the Laws of the Realme Liberty of his person or property in his estate due unto 〈◊〉 〈◊〉 subject not one of them is to be found But instead thereof he finds himselfe poore man catched in the Members net His conscience His life His Liberty His estate and fortune is now at their arbitrary power These things considered he that thinkes either of this world or of the world to come upon his soule or body if he love himselfe or his Country if he fear God or honour the King must instantly make one in this worke to restore that King to his Throne Thus for the persons who ought to apply the medicine the next is to know how it shall be done And for that although considering the calamities this Nation hath suffered in being brought to bondage To redeeme it againe may seeme difficult yet upon consideration had thereupon it appears to be a thing easily effected That of the Members in excluding the King opposed the Law Therefore could not be done but by War and force But this of restoring the King pursues the Law and so proclaimes peace And as the Members could not have usurped this power but by War so they cannot hold it but by force Instantly upon the Law having its free passage their Kingdome is at an end And to every War is absolutely necessary the peoples personall assistance and money to pay the Soldiers If either of these faile the War is ended And obvious it is that the persons at Westminster can have neither of them but from those whom by the same persons have been thus brought to thraldome So that to perfect all this worke if every one would do his duty there would be no danger of bloodshed Then there needed no weapons not doing would do the worke Therefore whether thou bee'st in armes or not obey thy King according to the Law make thy payments to whom by Law they are due pay no Excise Loanes Benevolences Assessements Tax Tollage or other new impositions by them laid upon thee And if these Usurpers require these things as due by Law Tell them it is contrary to their owne doctrine Wish them to read the Petition of right whereby the Lords and Commons in Parliament declared That the people ought not to be Taxed with payments of money but by Act of Parliament that is by the King the Lords House and the Commons joyntly concurring Put them in minde of their Declarations this Parliament wherein they call it pernitious â—â—…mpt to goe about to Tax the people by way of Excise That it is against the liberty of the Subject to be charged with payments of money otherwise then the knowne Law doth warrant that nothing is more horrid then to have Soldiers billited to force upon the people voluntary contributions or to have new Oathes put upon them Yet these and thousand more exactions laid upon thee against Magna Charta the Petition of right and the knowne Law thou maist charge them with And needs no other Judge to condemne them but themselves out of their owne mouthes And further for thy incouragement herein be assured that by this restauration of the King not onely the people of England obtaine their freedome but instantly thereupon ensueth peace and unity throughout all the Kings Dominions For by that the Kingdomes of England Scotland and Ireland are againe united The people will then with great joy and acclamation according to the foresaid just recognition of the Lords and Commons unto King James performe their duty unto this our King Charls And acknowledge Him according to the foresaid Oath of Supremacy their onely Supreame Governour Upon the whole matter so long as the people continue in this slavery they are not onely their owne wilfull tormentors but disobeyers of the Laws of God and man And by quitting themselves from bondage which is at every instant in their power to do they performe their duty to both FINIS ERRATA PAg. 8. lin 11. read or our p. 10. l. 20. r. his advice p. 12. l. 14. r. never had p. 15. l. 32. r. motives p. 28. l. 34. r. we having p. 30. l. ult r. without consent p. 32. l. 26. blot the first and. p. 39. l. 28. r. denied p. 48. l. 29. r. the Law and l. 31. r. can gaine p. 53. l. 9. r. have been p. 58. l. 4. r. I conceive p. 67. l. 14. blot out the last that p. 88. l. 11. r. le Roy savisera p. 98. l. 7. r. he could not p. 116. l. 26. r. sterne p. 118. l. 31. r. of this p. 121. l. 34. blot out and. p. 124. l. 12. r. one p. 127. l. 2. r. left 25. Febr. 1641. 27. Maii 1642. Vide Pref. Cok. 8. Report Preface to Cok. 4. Report Coke 9. fol. 75. Plo. 195. 319. Cokes Preface 4. Report Magna Chart. 9 H. 3. The Charter of the Forrest 9 H. 3. Stat. of Ireland 9 H. 3. Stat. of Merton made 20 H. 3. Stat. of Marlebridge made 52 H. 3. Westminst the 1. made 3 E. 1. Stat. of Bygamy made 4 E. 1. 6 E. 1. Stat. of Mortmaime made 7 E. 1. Articuli super Cart. 28 E. 1. Stat. of Escheators made 29 E. 1. Coke Calvins case b. Stat. 33. H. 8. cap. 21. Coke 8. fo 20. b. 12 H. 7. 20 H. 8. Dyer 59. 60. 34 E. 1. c. 1. Statute of Staple made 27 E. 3. 7 H. 4. cap. 15. 1 H. 5. cap. 1. Stat. 33 H. 8. cap. 21. Coke 8. fo 20. 11 H. 7. 27. 7 H. 7. 14. Dyer 59. 60. Co. 4. Inst p. 25. Stat. 24 H. 8. ca. 12. Coke 5. f. 28. Coke 8. fo 20. Coke 7. fo 36 37. 2 H. 7. 6. Co. 7. 14. Plo. 502. 〈◊〉 f. 59. p. 19. Coke 8. fo 20. 12 H. 7. 20 H. 8. Plo. 79 4 H. 7.
nor any people from free Subjects become more absolute slaves then the Englishmen are and will be And being thus brought into misery that which is still worse our selves and posterity to the end of the world are likely to live under this vassallage without hope of redemption if not by Gods mercy timely remedied For it cannot be imagined that the Members so long as they have power over their Prince and other His good Subjects and whilst their persons estates and Fortunes are thus at their will and pleasure it cannot be imagined I say that by their owne judgement against themselves or sentence we shall be enfranchized Now if I appeale to any rationall man not prejudicated as a person herein particularly concerned whether that Law which declares such Acts of Parliament to binde or that which judgeth them void be the more prudent wholesome and reasonable Law I dare be bold to conclude that sentence herein will be given for the latter And since it followeth that some Acts of Parliament may and ought to be adjudged void that being granted reason dictates to every man of sense that not the Members but some other knowne persons must determine which Statutes bind the people and which are invalid Now that the Judges of the Realme have power not only to determine which Acts of Parliament are binding and which void but to expound the meaning of every Act is no new doctrine it is the knowne Law and the common practice of the Kingdome which is the Law it selfe In the bookes of our Law it is declared for a fundamentall ground That such Statutes as are against Common-right repugnant or impossible are void and that they ought to be so declared by the Judges of the Realme For example by the Statute of Carlile made 35. E. 1. it is ordained that the Seale of the order of the Cistercians and Augustines shall be kept in the custody of the Priour and foure others and that any deed sealed with any other seale shall be void and this Statute is judged to be void in Law and that the Priour notwithstanding this Law and against the expresse words thereof sealing deeds with any other seale those deeds are judged good for the Priour could not seale with that seale in the custody of the other four and therefore that Statute repugnant in it selfe and so void It is likewise declared by the Judges that where a Statute gives power to A. to determine all pleas happening within his mannour in that case A. shall not have power to determine such pleas as concerne himselfe and the same it were if the Statute should in expresse words grant to A. that authority for it is repugnant to reason and common justice that any man shall be judge in his owne case It is resolved by the Judges of the Realme that divers prerogatives are so inseperably annexed to the Crowne as that they cannot be severed by Act of Parliament for example by a Statute made 23 H. 6. c. 10. it is enacted that no man shall continue Sheriffe of a Shire above one year and by that Act declared in these words that all Patents from the King of that office of Sheriffe for yeers for life in taile or in fee shall be void any clause or words of non obstante put into such Patents notwithstanding Now thisStatute as to the Kings power is by the Judges of the Realm declared void and although that Statute was never repealed all Kings since might have granted that office for life in taile or in fee and grants thereof have been made accordingly contrary to the expresse words of that Statute yet resolved to be good And ever since that Act all Kings have most frequently continued Sheriffs in their office for longer time then a year Even common experience sheweth that the power of the old Sheriffe doth not cease or determine untill the King hath made a new Sheriffe and notice thereof given to the old which oftentimes happeneth to be after the year And in Michaelmas Terme 5. and 6. of Queen Eliz. the Sheriffs by reason of the great plague then and of the adjournment of that Terme wholly were made and named by the Queen without the Assembly of the Justices in the Exchequer according to the common usage and though for the most part none were named but one of the two which remained in the bill of the year then last passed yet by all the Justices and Serjeants at Law it was holden that the Queen by Her prerogative might have made a Sheriff without any such election notwithstanding any Statute to the contrary which appears in Dyers Reports The King is fountaine of Justice mercy therefore if it were enacted that he shall not grant Commissions to determine felonies or that from henceforth it shall not be in his power to pardon any Crime or that all such pardons shall be void such Laws would be void and would not bind as being repugnant to Law government and reason to stop that fountaine The King by His Prerogative hath authority to dispense with penall Laws which cannot be taken from Him by Act of Parliament although in expresse termes it be enacted that all such dispensations with a non obstante shall be void which cleerely appears by the foresaid case of the Sheriff for though by that Statute of 23 H. 6. it is inacted that all Patents of the King shall be void as before although with a non obstante yet the Judges at all times have resolved it as a thing without dispute That those Patents although expressely against the words and intent of that Act with a non obstante are good in Law And so the bookes take it for a fundamentall ground that the King may by His Patent with a non obstante dispense with Laws made by Act of Parliament and put the difference between Acts prohibiting what the Common-Law prohibits in which case the King cannot by His letters Patents with a non obstante how strong soever it be penned dispence with such Acts or any one point of the Common Law of England which forbids onely that which is malum in se otherwise it is of Acts prohibiting things not before prohibited by the Law which are onely mala quia prohibita the King may dispense with such Acts by His Letters Patents with a non obstante though those very Acts expressely say that such Letters Patents with a non obstante shal be void That Prerogative being inseperable as is shewed before and not to be abolished by Act of Parliament no more then His other prerogatives of as high a nature viz. those of denouncing War and concluding Peace inhaunsing or debasing of Coine or the like which are flowersinseperably annexed to the Crowne and most proper for a King but not sutable with the condition of a Subject therefore the Judges have resolved they cannot be severed by Act of Parliament And the same it is
still carry the face of Justice although nothing ever was or can be more pernitious to King and people Ket Cade Wat Tyler and the like in their insurrections pretended reformation To remove bad Councellors from the King To restore the people to their Liberties and to set up the Law they protested were the things they aimed at Now admit their intention had been to reforme yet their proceedings must necessarily destroy both Law and Government Suppose Ket had been asked who should judge what persons had broken the Law who were bad Councellours who should nominate the Officers of State and the like Ket would have answered that he who reformes must judge of the reformation Therefore none but Ket should judge of these things which had been no lesse then to have arrogated an Arbitrary power to enslave the people And if so in Kets case It is the same when any persons what ever their quality or number be for it is the Authority and Commission which the Law lookes upon to justifie the fact not the dignity or number of the persons acting And as those things alter not the nature of the crime so the consequence thereof to the people is all one They are as much and more damnified by an unlawfull act committed by a Lord as by a peasant by a thousand as by one single person Then for the Members proceedings Their assuming power to judge the Law to exclude the King from His Negative voice in Parliament taking upon them Authority to make Laws and the like are in themselves as unlawfull as the foresaid acts of Ket c. The Members have no more Commission for this then Ket had for that And the consequence thereupon to the people is one and the same Suppose a single person to have conquered the Kingdome And thereupon to assume an Arbitrary power The lives estates and fortunes of the people were at his command And so they now be at the will of the Members And thus the Subjects were enslaved CHAP. XV. The way how to restore the people to their former Liberties WHen the Physitian hath discovered the nature of his sick patients disease and not before he knowes what medicine to apply for the cure Which holds with a Common-wealth fallen into disorder And for England the cause of its grief is apparent It is rather out of joynt then sick of a disease Our misery is occasioned as before appears onely by setting aside the King For by that the Soveraign power of Government the Authority to make Lawes and the power to judge the Law are wrested out of their proper places and drawne into one hand The Members by excluding the King have usurped all these so that there is no other power or rule to guide their actions but their own will But whilst the King held His right the power of Government was His the Authority to make Lawes was in Him and the two Houses joyntly and to declare the Law in the Judges whereby every one was limited within His own bounds and so avoid all Arbitrary power Thus for the cause of our grief Then for the cure when any limbe of a man is out of joynt it so much distempers every part as that if not timely prevented the whole body is in danger to perish And as no medecine without putting it into joynt againe will ease the paine so by setting straight that joynt at once it is a perfect cure to the whole body Now by setting aside the King the disorder in our Common-wealth is no lesse then an absolute subversion both of Law and Government The people are thereby totally enslaved this incurable but by restoring the King again For so long as the Members exclude the King so long the aforesaid authorites are usurped by them and so a power Arbitrary For example If the Members condemne an innocent man to death And for a fact if guilty not punishable by Law The Members having power without appeal both to determine the fact and to declare the Law upon that fact And those Members having Judged him to dye and to forfeit his Estate unto themselves This innocent man all the world must confesse is without remedy he is hopelesse without the mercy of those who gaine by his destruction But the King being restored the foresaid Authorities are returned into their proper places and againe divided into severall hands instantly from thence every Court Assembly and person not only enjoyes its own Authority but is limited within its own bounds no man then is permitted to be both Judge and Party he ought not by our Law to give sentence of death if by that Sentence the Judge gave the fortune of the man condemned Thus for the Medicine In the next place it is considerable who shall apply it And for that as the people were the immediate instruments of their own thraldome they ought to be the principall Agents of their own freedome Their motives to returne to their obedience are farre greater then they had to recede from it Was any heretofore hindred to exercise his owne opinions in matters of Religion Was his person imprisoned taxes and impositions laid upon him not warranted by the Law If so his condition is now farre worse First for Religion The sence of those Members we now finde is made the rule of every mans faith he is bound to change his Religion as the Major part of the Houses shall Vote The Ecclesiasticall Judges heretofore were limited in their punishments The Members are boundlesse And as they are not guided either for Doctrine or Discipline but by their owne will So in their punishments they are a large too Shall the Members Vote that no man shall use the word Trinity or call upon our Saviour by the name of Jesus or what else soever it be The punishment upon those breaking that Law may be losse of all his Estate or death if the Members please Then for imprisoments formerly the Judges had power by whose warrant or command soever committed as the cause required to bail or set him at liberty But now once committed by the Members the cause is not examinable unlesse released by them who committed him without redemption or examination in the gaol he must starve and perish And for taxes and impositions it is true we have heard of Loans and Benevolences and we know the businesse of Ship-money But the people are now taxed by Assessements Excize and otherwise at pleasure Peradventure the Excize now laid upon London exceeds not 20000. l. a week but by the same Law that such a summe is imposed it may be multiplyed to a Million a day If one County be assessed at 1000. l. a moneth it may be raised to 10000. l. a weeke And as these are new wayes to tax the people The Members by the same rule every day may devise other new wayes to burthen them And doubtlesse he who hath his Estate taken from him by Assessements or Excize is left as little to feed