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A96210 Refractoria disputatio: or, The thwarting conference, in a discourse between [brace] Thraso, one of the late Kings colonels. Neutralis, a sojourner in the city. Prelaticus, a chaplain to the late King. Patriotus, a well-willer to the Parliament. All of them differently affected, and disputing on the subjects inserted after the epistle, on the dissolution of the late Parliament, and other changes of state. T. L. W. 1654 (1654) Wing W136; Thomason E1502_1; ESTC R208654 71,936 174

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was a known Tyrant an Usurper and a murtherer of his own Brothers children an Enemy to the Clergy and the greatest depopulator of the Kingdom that ever before it had and yet the States and Nobility forget all his Tyrannies misdeeds and after his poysoning at Swinsteed admitted of his innocent young Son after call'd by the name of Henry the third and soon quitted the Land of Lewis the Dolphin of France whom before they had call'd in to their assistance and to whom most of the great Lords had sworn fealty In like manner the Parliament after the deposiog of Edward the second for his Tyranny made choyce of his young Son Edward the third who proved a very galland Prince likewise on the Parliaments deposing of Richard of Burdeaux for his misgovernment the State made choyse of his cousin-german Henry of Bulling-brook who though not the next in blood and consequently an Usurper as to the right of Succession yet was he made King by consent of the Parliament and he approved himself a very wise and politick Prince whence it appears that the Parliaments and Nobility of those times had ever an eye on the next Successor or to such a one of the blood-Royal as in their judgements they conceived to be most capable and fit to undertake the kingly Government as it may be instanced in their Election of Steven Earl of Bulloyn in the absence of Maude the Empress next in blood and since that of Henry of Richmon after the killing of that Tyrant Richard of Glocester on these premises I beseech you a little extend your patience and tell me what you conceive to have been the reasons that the late Parliament not only took away the Kings life by a new president and under colour of a legal hearing to the great regret of the major part of the Nation but have rerejected the young Prince of mature years hopeful and able to govern together with the Duke of York and Glocester with all the discendents of King James and have changed the Royal Government into a Common-wealth have sold all the Lands Honours Mannors and Revenues anciently by right belonging to the Crown as the proper Inheritance of the Kings of England Now Sir By what Law of God man or reason of State they have attempted on so strange an enterprise passes my understanding especially the exclusion of the poor innocent Princes goes directly against my conscience yet if you please I shall willing hear what you can say for my better satisfaction Patri Doctor your questions necessarily will require a long search into the reasons wherefore the Parliament enterprized on so high a concernment yet in brief I shall tell you what hath been told me and by some of the late Members on the same Queres you have propounded First they say that on consideration of the Kings seldom calling and often dissolving of such Parliaments as he summoned without their due effects and that for ten years together he refused to summon any but ruled during so long an intermission at will and pleasure whereby the common interest and liberties of the people were so much invaded and so many grievances and oppressions crept both into the Church and State that when this late Parliament was through the extremity of his wants call'd the Assembly was to seek where to begin to rectifie and repair the decays of the Commonwealth which through his own misgovernment the prodigaltie and dissoluteness of the Court and Clergy had befallen the universal Nation which although he wholly then left to their rectification yet immediately thereupon he not onely went from his word and falsified his promise but by the continuance of innumerable practises and his uttermost endevors he sought nothing more then to obstruct their Reformation ruine the Parliament and put all the Kingdom into consusion by a most bloody and destructive war which the Assembly perceiving and that his intent in pursuing his designs full six years together and so long as he was able aimed at the utter overthrow of the Laws and envassaladge of the people and that he had entailed this quarrel on his Son and his Heirs-males in perpetuum how impossible then it was for the Parliament to settle a firm peace throughout the three Kingdoms by re-admitting the King full fraught though a prisoner with his wonted Principles and designs or to take in any of his Posterity afore-hand indoctrinated in their Fathers frauds and subtilties might amaze the wisest of men even Salomon himself to finde out any other way how to free the Nation from pe●petual Tyranny and bloodshed but by cutting off both the Father and Son which were so deeply interessed in the controversie and to make the same use of their victories for the future security and indemnity of the people as the King himself intended to do in the behalf of himself and his Successor had the fortune of a Conquest befallen him thus much in general as to the grounds of the Parliaments resolution of cutting off the King and his Posterity as to the particular reasons I pray take them in their order 1. They alledge that they had no choyce left them whereby to save the Nation from utter ruine but were by the Law of necessity inforc't upon them by the King himself and of his own seeking both to cut off him and exclude his Post●rity 2. That having had so long patience and taken such infinite pains during all the wars after he had lost all and was a Prisoner to satisfie him from time to time in what possibly they could in all things questionable between them and on all his exceptions to reason the case all along with him in their several Answers and Replies to his Papers Expresses and Protestations attested before God and his Holy Angels pretending still how really he meant when by long and sad experience they found all his pretences fraudulent yet could they never satisfie him with any Arguments either of Law or Reason but that his own Reason his Will his Honour his Conscience must be the onely Directory to the Parliament theirs of no esteem with him 3. That notwithstanding their many Addresses and humble Petitions presented unto him after his causless recess from the Parliament for his return with honor and profit with this onely reservation to leave Delinquents to the judgement of his Supream Court they prevailed not but he defended them and was the skreen to most notorious Offendors professing still a willingness to peace and Treaties onely to get advantages when he most intended War and Conquest 4. That such was the obstinacy of his natural inclination which himself miscalls constancy from which they found it was impossible to disswade him or yeeld to any reason never so well measured by them but that they must yeeld to his though never so unreasonably prest by himself 5. That in this wilsull pursuance to obtain his most unjust ends he incorrigibly persisted to the last without the least reluctation
●or acknowledgement that any fault was in himself until he was a Prisoner but evermore laid all the blame on the Parliament 6. That in this long persistance he had wearied and beggered all his friends and assistants at home and abroad to the desolation of three flourishing Kingdoms by the continuation of his Hostility to the destruction of a million of poor Innocent souls without any remorse of so much blood spilt more then of one man his wicked * Straford Instrument 7. That when he protested most and to the height of imprecation the Parliament at last found by the Testimony of his own Letters under his hand-writing that he meant nothing less and more contrary then to his usual Protestations 8. That neither all the Honors Mannors and Lands of the Crown or his own blood without true repentance could be a sufficient expiation to God or recompence to his subjects for the infinite bloodshed rapines and dilapidatins made on the Natives of three Kingdoms 9. That such was his insensibility of bloodshed that the many Lords Gentlemen and infinite others of inferiour quality slaughtetered in his bloody quarrel he made no other reckoning of them then this viz. that they suffered no more then of duty they were bound to do for their King which he avouched on the death of the Earl of Northampton 10. That those unjust pretences which he made under the notion of his Royal Prerogatives viz. the Militia power of War Peace Leagues Treaties Array of the people his negative Voyce in all Parliaments pardoning of Murderers and Fellons condemned by the Laws of the Land were all at his only disposure whereas by the known Laws of the Realm they have been onely entrusted and conferr'd on our Kings by the indulgence of the people in their Representatives as hereafter shall manifestly appear 11. That all his Treaties with the Parliament for peace were persidious and his Propositions evermore umbrated under ●pecious pretexts subtilties subtersuges and mental reservations as 't was evident in that at Colebrook and Vxbridge and more apparent by his own Letters to the Duke of * Vide The Kings Letters to the Duke of Rich. mond with others to the Queen Richmond viz. Not to forget to cajole well the Scots and by that at Oxford by Registring in the Councel-books his calling them a Parliament with mental reservations though not ex animo so acknowledged yet summoned by his own Writs and often so esteemed and call'd by himself and acknowledged to be a legal Parliament by his own mungril Conventicle at Oxford 12 That in all his Declarations and Expresses to the Parliament he evermore seemed to have a tender regard both towards them and the people when he onely intended his own interests with the advance of the Soveraignty to absoluteness by the power of the sword and to convey his designs to his Successors as in the instance of the * Vide One of the Kings Expresses where he yeelds the Militia during his own life but not sor his Sons Militia is most perspicuous when he perceived that the Parliament would no longer trust so dangerous weapons in his hands 13. That some of his best friends suspected him to be too much vers't in the Florentine Principles as indoctrinated by a French and Italian party constantly resident in his own Court and stickled on by the in●usions of the Queen-Mother the Daughter both which had gained a great interest had chiefest influence on his Concels and as'tis well known was wholy governed as the Queen lifted and at last his inclinations so strictly tyed up as that they were not subject to any other alteration then as she prescribed which was a Rule to whatsoever he undretook 14. That he was not wanting to himself for promoting of his arbitrary designs to make use of Machiavels principle Divide impera evermore to sow divisions and to cherish any dissention arising between the Parliament and their friends thereby to ruine them by themselves Thus Gentlemen according to your desires I have given you an accompt of those Reasons which have been given me wherefore the Parliament enterprized on the change of the Government by cutting off the King and his Posterity the premises being so true and undenyable that they satisfied me and prevailed so sar on my belief that I conceive the Parliament could not otherwise possibly have secured the Nation from farther ruine as also that their resolutions therein were directed by the special hand of God considered together with the and great constant charge incident to Monarchy the often pressures and oppressions of the subject through the Tyranny ambition and prodigalitie of most of our Kings the two last having beggered and impoverished them most of all others on which considerations the Parliament in reason of State and as the state of the controyersie then was between them and the King they found it much better to quit themselves and the people of Regal Government and to change it into a Republick as a more safe and cheaper Government rather then any longer to hazard the common liberty on the Rule of any one Prince whatsoever especially not to trust those of the Sotch Nation all our Histories and the Parliaments sad experience having taught them that of late years the Soveraignty by the ambition and artifices of both the late Kings was strain'd and tentered up to so high a pitch that it would not stoop to a lower power then that of absolutenes Now more particularly to answer your Querie as concerning the King of Scots the two Dukes with the rest of the late Kings loyns it seems likewise that the Parliament knowing them to be the Sons of that father who had more wasted the Land then all of the Norman Race before him they had small hopes left them that any of the same line would be much better being tutor'd afore-hand by the Father and at present residing in a French Academy which if admitted to the Government in all likelyhood would be no other then the cause of more blood more charge trouble misery and sorrow to the people very few of our Kings having given the Nation any great cause to be over-much enamoured with their Governments but most of the best much repentance through their Tyrannies and oppressions Prel Sir I profess you have given me fuller satisfaction then I could expect and I believe that you have taken the right measure of the Parliaments foot with the true reasons wherefore they have not onely cut off the Father but excluded all his Discendants onely in the point of their changing the kingly Government into a Republick as more secure and cheaper for the Nation this is a riddle to me for lamentable experience enforms us that all the oppressions and grievances of the people by all or most of our Kings and those so much upbraided and caft in the face of the late King I dare affirm amounts not to the fisth part of the charge and
work to the enslaving of the Nation Of the Prerogatives Royall which the late King claimed as inseparables of the Crown 1. OF the Royal Power what it is 2. His sole and absolute power over the Militia 3. His Negative voyce in all Parliaments 4. His power to Array the people at will and pleasure 5. His Prerogative to call and dissolve Parliaments at pleasure 6. His Prerogative to pardon Murderers and Fellons 7. His Prerogative to dispose of Wards Mad-men and Lunaticks c. 8. Lastly that Tyrannous assertion of his own and his Father King Iames viz. That they were not bound to give account of their actions to any but to God alone These Prerogatives claimed by the late King as the Royalists say were invaded by the Parliament and the grounds of the late destructive Wars happily after-Ages as well as the present may be inquisitive to know whether they were so legally in the Kings absolute power that he stood bound to uphold them by the sword to the ruine of the Kingdom and whether the Parliament by their trust stood not more obliged to withstand them as encroachments on the common freedoms and liberties of the people We shall therefore for the general satisfaction briefly shew the extent of them all as they are either defined by our ancient Lawyers or confined and limited by our common Laws and Statutes The Royal power what it is FIrst then that this Royal power of our Kings hath never been any other then a limited and intrusted power to govern by Law to which their Coronation Oathes oblige them which may very well satisfie any rational man and save us the labour farther to dispute this point But we shall make it more plain that the highest of this Royal power was never more by the Law of the Land throughout all Ages then in the executive power Ius suum cuique tribuere to give to every subject his right neither can the King otherwise dispence this right or Law to the people but in and by his Courts of Judicature non per se tantum not by himself out of the law of his own breast for that 's plain Tyranny Stat pro ratione voluntas quod principi placuit legis habet vigorem which are the common principles of all Tyrants that That shall be the Law which the king wills which is more then the Grand Signior claims or exerciseth neither can this Royal power whatsoever of late times by flattering Lawyers hath been exposed to deceive the people enable the king to do that which the Law forbids What kings as Tyrants will do makes nothing to the matter in question but what they ought to do and what by the Law their Oath and duty of their Office they are bound to do is the true state of this Question Neither were any of our kings ever so absolute in power and Supremacy but that by the fundamental Laws of this Land they had their Superiours and those which were above them as one of the most eminent and ancient of our * Bracton Lawyers affirms often recited during the late Controversie viz. Rex habet superiorem scilicet legem per quam factus est Rex alterum scilicet curiam comites Barones which is The king hath a superiour to wit the Law by which he is made king another though very much scorned by the late king viz. The Court of Parliament composed of the Earls Barons and selected Gentry of the Land for this Court hath in it the Legislative power or the Authority of making Laws and who knows not the old principle Quod efficit tale est magis tale that which makes the thing is greater then the thing made And another of our eminent and learned Lawyers Fortiscue Chancellour to Henry the Sixth fol. 40. cap. 18. positively delivers it as a fundamental Law that the kings power is no other then that which the Law gives him and that cannot be farther extended or made greater without the assent of the whole Realm for should it be otherwise it follows that the king might then sell or dispose of the kingdom to whom he pleaseth which by the Law he cannot do neither by the ancient Laws of the Land can the king sell or alienate the Regalia and Jewels of the Crown though the late king took the liberty to sell them for Arms against the Parliament neither can the King by his own sole power dispose of the Cities Towns Forts and Castles of the Kingdom as the Scotch Lords 1639 told him in down-right terms on his fortifying of the Castles of Edenburgh and Dunbarton and the reasons they gave were valid both in Law and reason for that those Forts and Castles were built for defence security and safety of the people against Invadors and not for their offence to be man'd and fortified at the Kings pleasure against themselves And the reason of this Law is rendred by a most learned and expert * Novil 85. princi cap. 18. Jurist viz. Quod Magistratus sit nudus dispensator defensor Iurium Regni constat ex eo quod non possit alienare Imperium oppida urbes regionesve vel res subditorum bonave Regni quia Rex Regni non proprietarius Which is that a King or Magistrate is no more then a bare dispensor of the Laws of h●s Kingdom and the reason is manifest for that he cannot sell or alenate the Kingdom or the Cities Towns and Provinces thereof neither the Subjects goods or goods of the Kingdom because the King is onely the Director not the Owner and Propriator of the kingdom But Royalists and some jugling * Judge Ienkins Lawyers and ignorant Divines have both taught and written the contrary and made the late king believe that his power was absolute and without bounds which is fearful to imagine and shameful in those which continue to possess the people with such damnable untruths as lamentable it is to see the generality of the Nation to stand still unshaken in their belief that the kings rights were invaded and himself inforc'● to make war for his own the contrary whereunto that his power stood bounded and limited by the Laws of the Land hath been so often alledged and prest upon him by the Parliament in their Answers and Expresses that the re inforcing of more Arguments on a subject so much overworn would be nauseous to all ingenious Readers To period this particular as 't is the gound-work of all the kings other Prerogative claims I shall onely put all Royalists in remembrance of that which the Earl of Strafford aver'd to the king 1640. viz. * Vide The Iuncto loose and absolved from all the reines of Government whether this assertion amongst other of the Deputies tended not to place the kings power above the known Laws of the Land I appeal to the judgement of any rational man for as a late a worthy * Mr. John Pim in his Speech to the Lords Member of
unnaturally attempting to enslave themselves and their Posterity I shall particularly name some of them Judge * Lex terrae and Mr. Pryns Book Jenkins and another under the name of Mr Prynne which have avouched that the Commons were not summoned or sate in our ancient Parliaments which is a most imputent lye and false assertion as it evidently appears by those old authentick Authorities even now recited and indeed I have spent many an hour in a diligent search into Antiquities to finde out the time when our late form of King Lords and Bishops with the Commons all call'd by Writ from their respective Burroughs had its beginning though it may be enough to satisfie rational men that it hath been at least of 500 years standing if not 600 as by * Archyton Mr Lambert and many other better Authors and far better seen in the Laws then that false Judge Jenkins ever was it manifestly appears Doctor to put a period to this particular let me tell you for your own and the better satisfaction of thousands more of your opinion that new powers will have new Laws new Forms and we of the people must and ought to obey them or smart for our disobedience and so would the King have had you should have found it too true had he prevailed Prel I confess indeed you have given me full satisfaction as well to my first question Whether that relick of the late Parliament was a legal Parliament as to my last concerning the sitting of the Commons in our Antient Parliament but what say you to this new form that meerly is summoned by the power of the Souldiery and almost half Souldiers that now sit at Westminster by what right of a legal Election do they sit as a Parliament for by the Law and right of the people they were to have made choyce of their own Representative Patri By the right of the sword which in all Ages hath been the original foundation of all Laws and Powers and where that weapon hath predominance we must not altogether insist upon Law for silent leges inter arma but look upon Gods Providence with the effects which this power may produce in the issue for the good of the universal Nation since that after the States Army by Gods great blessing had no sooner freed the people from farther bloodshed and rapine the late Parliament being at ease and not playing their parts so dexterously as they might have done but minding their own interests more then that of the publick 't was thought fit by the Councel of war to put a period to their fruitless sitting as formerly they did to the Kings exorbitant Government and for his often breaches of Faith with God and his trust with the whole Nation over whom he was appointed to rule by the Laws of the Land and not by his own will and pleasure for bonus pastor ponit vitam pro ovibus the good Shepherd lays down his life for his sheep he never flayes or destroys them Thraso I hope Sir you cannot say as your intimation imports the King my late blessed Master was ever known to flay his Subjects you 'l never leave the Round-head lyes and slanders Patri No Sir I do not positively say so or that the King was guilty of pulling his Subjects skins over their heads as S. Bartholmew is reported to have been served by his cruel Persecutors but by your favor since you are so captious and uncivil to asperse me with lying and slandring as that you can do when you please on innocent children and then make them good with volleys of dam-mees other fearful Oathes and imprecations 't is well known that before the king levied war against the best Subjects he had some have had their ears cut off by the roots their bodies whipt all over in gore blood and their fore-heads branded with hot Irons no man knows well for what more then to please the great Arch-Prelate who would have it so and the Lords of the Star-Chamber and others of the High Inquisition could do no less or durst do no other then vote as he would have them and as sure it is that you and your Complices under the Kings Commissions kill'd plundered and shaved the poor innocent people wheresoever you march'c or quartered which in many places of the Land you perpetrated without mercy so that by your leave the King himself was the sole Author and cause of all the blood and miseries that besell the three Nations as himself sometimes hath confest but good Sir enough of this for it grows late and a time we must have to retreat as you my good Colonel have had a time to rob plunder and spoyl the poor people though I believe you have not purchased any great store of Lands with the remains of your stoln goods but in case you have any store left you there are yet very good peny-worths to be had of Delinquents estates and you may likewise buy wood and timber if you have any use for it if not that you will keep it by you for some other mischievous purposes and not live quietly and peaceably under the present Government the State you may be sure on 't will finde out a parcel that may serve your turn Neut Colonel I have often told you that he would be too hard for you at this kinde of fencing yet you 'l take no warning do you not understand Patriotus his meaning that the State will soon finde out a parcel of Timber for you if you stir and foment more mischief you may guess at his meaning if not take it into your second consideration that there is an intent of erecting a new Court of Justice which will tell us all our fortunes in case any of us should be over-busie and plot new insurrections Thraso A pox of him and the Court of Justice to boot that ever I saw or heard of either of them I pree-thee Doctor suffer not this round-headed-fellow thus to go away with the Bucklers and to send us away like mutes and with a flie in our ears Prel Colonel to deal plainly your langnage is insufferable at our last conference you gave the first offence and now again you are at your old lock for more boldly and uncivilly yon durst not have spoken when you were in the head of the greatest Army the King ever had the truth is you too much forget your self and think not where you are and to whom you speak should I judge of most that the Gentleman hath said I should be a Witness my self that he hath spoken truth and that with well measured Reason but I beseech you Patriotus pardon the Colonels incivility and be pleas'd to satisfie me in some particulars which I suppose you may do in a few minutes of time then I shall both thank you and wish you a good night and at your better leasure shall not fail to give you a friendly visit Sir in brief King John