Houses without the King represent the Universall Realm shall be considered anon passing that by I conceive that the Parliament truely so called is above the King taken solely for that it doth involve the King without whom they are not truely a Parliament The Parliament then thus considered is a whole compared with some part and the King but a part though the most excellent part of the whole Now every whole is greater then any part the Head though more excellent then all the other Members yet not more excellent then the whole Man whereof the Head is but a part But the King solely compared with the Parliament or rather the Houses of Parliament excluding or not involving the King is superiour and above them whether you consider them scorsim or conjunctim for taken conjunctim they make but a Body which though it be greater then then the Head in Bulk yet doth the Head excell in Vertue Excellence and Authority And although by vertue of representation they are the Body of the whole Kingdom yet is the King the Head of that Body and the Representative of God himself who I am sure is above the Body they represent It is a Principall undeniable Pax in parem non habet imperium multo minus in superiorâ—â—â— If then the Houses be above nay if but equall with the King He can have no Command over them But it is evident He hath Command over them He calls and commands them to assemble being assembled or united together He may command them to prorogue or adjourn for time or place upon which Command it is then their Duty to rise and remove and again at His pleasure He can dissolve them Although for this time His Majesty hath been graciously pleased to restrain Himself from the exercise of that Power yet the Power it self is still in Him as an Inheritance inseparable from His Crown The Representatives of the Kingdom either are Subjects or not That they are not Subjects by reason that they are assembled is absurd and so would not the Kings Protection due unto Subjects belong unto them If they are Subjects then doth the King remain their Soveraign and Superiour And indeed so far is their uniting and assembling in Parliament from diminishing the Kingly Soveraignty to which they were before all and every one Subject as that the Regall Majesty is thereby much more encreased and augmented Cromp. Jurisâ— 10. We are informed by Our Judges saith King H. 8. to His Parliament That We at no time stand so highly in Our Estate Royall as in the time of Parliament wherein We as Head and you as Members are conâ—oyned and knit together in one Body Politique If the Houses as representing the Universall Realm are above the King then they may judge Him punish or depose Him But they cannot judge Him 22 Edw. 3. 3. Le Roy per cux ne doit estre ajuge 3 Edw. 3. 19. Scrope Those which are Judges of Parliament are Judges of their Pâ—â—rs but the King hath no Peer within His Own Kingdom and therefore ought not to be judgedly them And for deposing a King or depriving Him of His Right and Authority or any necessary part thereof no Act of Parliament can prevail much lesse the Lords and Commons An Attainder by Parliament could not barre the title to the Crowne from descending on King H. 7. nor was an act of Parliament disabling King H. 6. to reassume the Government of his people of any force but without any repeale in it selfe frustrate and voyd 7. Rep. 14. Calvins case an act of Parliament cannot take away the Kings protection or the Subjects service which is due by the Law of nature 11. Rep. Sur de la wares Case William de la ware although disabled by act of Parliament was neverthelesse called by Q. Eliz. to sit as a Peere in Parliament for that it seemes the Queene could not be barred of the service and Counsell of any of her Subjects 2. H. 7. 6. A statute that the King by no non obstante shall dispence with it is void because it would take a necessary part of Governement out of the King If then no act of Parliament be of force to take away the government or any necessary part thereof from the King then surely is not any Ordinance of the Lord and Commons of force to doe it And consequently the Lords and Commons as representing the vniversall Realme cannot be above the King but inferior to him Before the King commanded them to assemble each particular and all of them were his Subjects and inferior to him If by assembling into one body and the vertue of representation they cease to be his Subjects and inferiors why doe they then in all their petitions and declarations or Answers proceeding from them not as particular men but as houses of Parliament united stile him Their gracious Soveraigne and themselves His Majesties most humble Subjects the Lords and Commons in Parliament Let our Observator judge whether these representatives have not ill discharged their duty to the Kingdome by debasing thus the underived Majestie so he calls it of the people by petitioning in so low and humble a forme him that is but their creature and in whom there is no Majestie but what is from them derived downe unto him for so the Obseruator conceives it But now to answer the Observators Argument which is thus There is nothing saith he more known or assented to then this that although the King be singulis major yet universis minor being below the people then in universali he must likewise be below the representatives of that universalitie I will not stand to question what necessary connexion these propositions have The people are above the King therefore their representatives are so The King of England is above the King of Spain doth the English Embassadour therefore take place of the King of Spain But admitting a necessary Connexion The people are above the King ergo the houses representing them Why then è converso The houses representing are not above the King ergo the people represented are not and so having proved the houses below the King I have already proved the King above the people yet a word more 'T is true as the Observator saith nothing is more known or assented to then this that the King solely is Minor universis the universalitie including the King For no part be it the head can exceed or be greater then the whole But againe if the King and universalitie bee contradistinguished nothing is more known or assented to then this That the King I speake of the King of England a Soveraign King not a Duke of Venice is not onely singulis major but major universis Nay most properly is the King above the people considered as an entire Congregation For chiefly as he is King he is above all others Now King relates to kingdome Rex to Regnum and Kingdome or Regnum denotes an
The King onely cites the Writ the Form whereof is ancient whereby they are summoned to counsell the King de quibusdam arduis not in all things but in some things saith the King Is this to say only in such points as the King shall please to propose Did not His Majesty in expresse words at the beginning of this Parliament leave them to their own method Again Doth the King say If they make any transition they are liable to imprisonment at His pleasure Not His pleasure but the Law is the Rule he tyes Himself unto these then are but false Calumnies Pag. 8. 9. 46. he charges the King with this Position The Lords and Commons in Parliament are meerly to councell the King As if without their consent the King might make a Law That they are limitted by the Writ ad consilium onely That if we make the Lords and Commons to be more then Counsellors we make them commanders and controllers and this is not suitable to royalty From hence the Observator takes occasion to argue very sadly That the Lords and Commons are summoned not onely ad câ—nsilium but ad consensum also in the making and altering Laws And in this though in nothing else he brings authority to back his reasons withall citing the close Roll 7. Ed. 1. Quodomnes tangit ab omnibus approbâ—ri dâ—bet or tratâ—ari He did well to corrupt the Record by putting approbari dâ—bet for tractari otherwise it would not have served his turn But surely the Point needed not proof for never did the King nor any body else deny it the King no where sayes They are called ad consilium onely meerly or that to allow them mere then to counsell were to make them Commanders He saith they are called to counsell that 's true not to command that 's true but he doth not deny them power of consenting which the Observator contradicting himself doth afterwards acknowledge Pag. 16. It is lâ—sâ— unqâ—â—sâ—imed saith he That the legislative power is partly in the King partly in the Kingdome and that the King in ordinary cases cannot make a Law or Ordiaâ—nâ—â— without the Parliament Is it left unquestioned why then would you abuse the people as if the King had claimed a legislative power to himself whereto the consent of the Lords and Commons were not requisite Pag. 7. The King saith he deniâ—s the Lords and Commons if hâ— withdraw himselâ— to have any power of any Court Pag. 10. He cites these as the Kings precise words 'T is improbable and impossible that His Cabinet-Councellors or His Bishops or Souldiers who must have so great a share in the misery should take such pains in the procuring thereof Pag. 25. He tells you That the King saith he cannot without renouncing His own conscience and reason preforce the Parliaments counsell before the Courts All which and many more are falsly imposed upon the King to alienate and corrupt the affections of His Majesties Subjects Pag. 25. He saith The King charges the Parliament with these Doctrines as so offensive 1. That the Parliament hath an absolute indisputablâ— power of dâ—â—laring Law 2. That Parliaments are bound to no Presidents And then the Observator justifies these Doctrines as well as he may for they are most true And had the King denied them as the Observator wou'd have it thought he had indeed destroyed the power of Parliaments But the Doctrines the King chargeth them with are That the then major part of the two Houses had indisputable power of declaring Iaw and were not bound to Presidents Had the Observator taken the Charge aright he would not have answered Statutes are not binding to them why then should Presidents For I hope the now major part of the Houses are bound by Statutes and cannot repeal them though the Parliament may What though his Pamphlet be stuffed with such corruptions yet let me speak one word for him He is no more faulty in this kinde then others You see his iâ—genuity I shall now consider the solidity of his Reasons and the goodly Consequences he draws from them Omitting then those loose extravagant Passages which have no connexion with the Body of his Discourse the sum of that part which seemeth rationall is as followeth Quicquid efficit tale est magis tale The efficient cause is ever superiour unto and more excellent then that which it causeth But the people in whom Power is originall and Majestie underived are the efficient cause conveying Regall Power and Majestie unto Princes not God who is no more the author of Regall then Aristocraticall Power The same people being the efficient cause are also the finall cause for whose good and preservation onely that Power is conveyed and their conveyance is fiduciary upon trust and under such Conditions as they please The people being the efficient cause of Kingly Power he hence infâ—rres They are above the King Rex etsi singâ—lis major universis minor est And from thence to bring it on to his purpose it must needs follow as he thinks the people being above the King The Houses being by vertue of representation the same people must likewise be above the King The Houses then being by vertue of representation the efficient cause conveying Regall Power upon Trust and to no other end but to the good and preservation of the people may when they please to say That it is not disposed of by the King to that end and according to that Trust re-assume that Power and make themselves the disposers thereof from all which Grounds he inferres their power of making Ordinances obliging the People in generall The Ordinance of the Militia to be legall and consequently the Commissions of Array illegall The taking and retaining Hull to be justifiable The taking the Magazine and whatsoever else hath been taken from the King That the King hath in nothing appertaining to His Crown an unconditionable Property That whatsoever Acts he hath passed whatsoever he hath done or can do for His subjects is meer Duty That He ought to acknowledge that he can in nothing merit of the whole State That he ought to assent to all Bills that they approve and adjudge fit to passe That His great Officers be such as they shall allow of That without him they may authoritivè declare the Law and consequently make and repeal Laws and Statutes at their pleasure That when they adjudge the Power intrusted with Him for the Kingdoms safety to be turned against them they and all are ipso facto absolved of all Obedience of all Oaths and Tyes of Allegiance whatsoever to His Majesty and bound to seek their preservation by resistance and defence Desperate Conclusions I shall examine his Grounds ordine retrogradâ— beginning with that immediately antecedent to all his Conclusions Whethâ—r the Parliament so he would have you call the major part of the Lords and Commons remaining are above the King by reason of their representing the whole Kingdom How true it is That the
summam supremam gubernationem potestatem in oâ—nes regni ordines habere Here is no distinction of being superiour singulis but not universis 16. R. 2. cap. 5. The Crowne of England immediately subject to God and to none other If immediately subject to God then will not that distinction salve that the people in universali are above it The iudgement then of Bodin may be well applyed unto this observator They which have written of the duetie of magistrates and other such like books have deceived themselves in mayntayning that the power of the people is greater then the Prince A thing which oft-times causeth the true subjects to revolt from the obedience which they owe unto their Soveraigne Prince And ministreth matter of great troubles in Common wealthes of which their opinion there is neither reason nor ground except the King be Captive furious or in his infancy and so needeth to have a protector or Lieutenant appoynted him by the suffrages of the people For otherwise if the King should be subiect unto the assemblyes and decrees of the people he should neither be King nor Soveraigne and the Common wealth neither Realme nor monarchy but a mere Aristocracy of many Lords in power equall where the greater commandeth the lesse in generall and every one in particular and wherein the Edicts and Lawes are not to be published in the name of him that ruleth but in the name and authoritie of the States as in an Aristocraticall Seigniory where he that is cheife hath no power but oweth obeysance unto the Commandements of the Seigniory unto whom yet they all and every one of them feigne themselves to owe their faith and obedience which are all things so absurd as hard it is to say which is farthest from reason Thus he which he doth a little after apply unto the state of England Consider I pray whither it be not true which this author saith that the maintayners of this doctrine doe but feigne themselves to owe faith and obedience unto their Soveraigne They will take the Oath of Allegiance to be every one true and faithfull But then they will tell you that they were particulars onely that tooke the Oath and each in his particular is thereby bound but the people in generall is a certaine universall body in power and nature divided from every man in particular and as an universall body they neither did nor could sweare and consequently are not bound Each particular member to bee admitted into the house of Parliament may sweare that the King is the onely Supreme Governour in all things or causes but being admitted they may altogether deny the King to be supream Governour in any cause or thing Is the King onely supream Governour in disposing of the Militia The making of Laws is a cause or thing and by and under them are all causes things governed yet so far is the King in this thing from being supream Governour that he must be governed and ought to follow the major vote And it were well if he might as a Burgesse intervote or at least as an honest Tradesman might be admitted to vote in election of some Burgesse for so at least by his proxie hee should have some share in the supreame Government though not the only supream Governour But how inconvenient soever this position may be that the people in universali are above the King yet the Observator will prove it true for that the people are the efficient cause and authour of Regall power But we shall first deny that ground And secondly we shall prove that admitting they were the authour of the Regall power yet it doth not follow that therefore they are above it For the first Let us examine whether the people are the authour and efficient cause of conveying Regall power For better understanding whereof it will be requisite first to search out the originall cause and ground of Politicall Government or power to govern in generall and surely wee shall finde that to be no other then the very Law of nature it self The naturall condition of mankind is such as necessarily requires society Naked and impotent weaklings are we when we enter the World and unable without mutuall help and assistance to preserve our selves whence society is absolutely requisite for the preservation of mankind in his infant being as likewise for his future protection from the violence of beasts and brutish men Againe would wee preserve our being without Civill society yet should we be more like beasts then men dumbe and void of all discourse Man therefore naturally needeth Civill society and that society necessarily requires some forme of Civill Government without which it were a confused assembly not a society and such as would ere long become destructive to it self Vbi non est Gubernator corruet populus So then from the Law of nature and necessity is government in generall derived which Law of nature is no other then the Divine Morall Law it self whence I conclude that God is the fountaine efficient cause of all Government or power to governe in the generall So S. Paul Rom. 13. Non est potestas nisi à Deo and again Qui potestati resistit Dei ordinationi resistit True it is although God be the Authour of all politicall power yet doth he not always determine it to this or that particular forme but with the peoples mediate election So that it is lawfull yet not altogether indifferent for a multitude among whom no forme of Government is already established to chuse to themselves either a Democraticall Aristocraticall Monarchicall or mixt Government and to designe the particular person or persons that shall be therewith invested But the power so determined by their vote unto a particular forme and person is from God still not onely as hee is the Authour and universall cause of all things but as from the immediate efficient cause As when anciently Bishops and Presbyters were elected by the people their order or power was not from the people but immediatly from God The people onely nominated or designed the person but neither did nor could confer the power or order of Priesthood Surely the Observator doth not believe that a Horse was the authour of Darius his power and yet was the neighing of his horse the means by which the Kingdome was determined unto him before all the other Persian Lords Neverthelesse he cannot imagine but that this peoples election is the very efficient cause of that Regall power that is elected and setled in some particular person whereas in truth it is but a medium used in the conveyance of it from God the onely authour which instrumentally operates in the conveyance but hath no causall influx at all into the Regall power conveyed whence it is that God challengeth to be acknowledged the authour of Regall power Dan. 2. Hee GOD removeth Kings and setteth up Kings The God of Heaven hath given thee a Kingdome power
Conventions will appeare by these ensuing proofes Com. 79. Although the Lords and Commons agree to a thing it is but as an Embrio or issue in the belly and yet unborne It were to bee wished these Embrio's â—id not at present too much trouble this part of the world Lamberts Archeion 271. The necessitie of the assent of all the three Estates in Parliament is such as without any one of them the rest doe but lose their labour 11. H. 7. 27. per Davers Le Roy est assentus ceo fait un Act de Parliament Polidore 185. Nihil ratum habetur nisi quod major pars utriusque concessus senserit idque rex comprobarit Cowell â—nter verbo prorog. The King may quash any Law 8. Rep. 20. b. Cromptons Iurisd. 8. 6. Institut 1 part 90. b. Institut 2. part 158. accord ' Sir Tho. Smyth at Republica Anglicana lib. 2. cap. 3. No Bill is an Act of Parliament Ordiâ—inaâ—ce or Edict of Law untill both the Houses severally have agreed unto it No nor then neither but the last day of that Parliament or Session the Prince commeth in person and declares his pleasure concerning their proceedings whereby the same may have perfect life and accomplishment by princely authority and so have the whole consent of the Realm those that the Prince doth â—â—ow be taken as perfect Lawes and Ordinances of the Realm of England and none other to those which the Prince liketh not he answereth Le Roy advisera and thâ—se be accounted utterly dashed and of none effect Bodin de Republica lib. 1. cap. 8. Albeit that in the Parliaments of England which have commonly been holden every third yeare there the Estates seeme to have every great libertie as the Northern people almost all breath thereafter yet so it is that in effect they proceed not but by way of supplications and requests unto the King As in the Parliament of England holden in October 1566. When the Estates by a common consent had resolved as they gave the Queene to understand not to entreat of any thing untill they had first appointed who should succeed her in the Crowâ— shee gave them no other answer but that they were not to make her grave before she were dead All those resolutions were to no purpose without her good liking neither did she in that any thing that they required Now also the Estaies of England are never otherwise assembled no more then they are in this Realm of France or Spaine then by Parliament Writs and expresse commandments proceeding from the King which sheweth very well that the Estates have no power of themselves to determine command or decreâ— any thing seeing that they cannot so much as assemble themselves neither being assembled depart without expresse commandment from the King Yet this may seeme one speciall thing that the Lawes made by the King of England at the request of the States cannot be againe repealed but by calling again of the States which is much used and ordinarily done as I understood by Master Dale the English Embassadour an honourable Gentleman and a man of good understanding who yet assured me that the King received or rejected the Law as seemed best unto himselfe and stuck not to dispose thereof at his pleasure and contrary to the will of the Estats I might adde many more but that by understanding men I should be laught at as holding a Candle to the Sun Let the Observator tell me which of all these doth not say fully as much as that which he saith at one blow confounds all Parliaments and subiects us to as unbounded a regiment of the Kings meere will as ever any Nation under Heaven suffered under Let him against all these and such others as I might adde alledge but one single opinion from the beginning of the world till 1640. that in publike Cases the Lords and Commons have any vertue and power without nay maugre the King to oblige the subiect in generall by any Law or Ordinance they shall make and I promise him upon that to turn Reformado Meane while I must think not the King but the Observator with one blow confounds all Parliaments for it doth not only cut off the head with which the vertue life and soule of that body expires but by the same reason it cuts off likewise the Lords from being any necessary part of the Parliament For if the Commons shall adiudge that the Militia for repelling danger ought to be put into such a way as dislikes the King and maior part of the Lords that 's in truth now the Case yet ought the House of Commons being virtually the whole kingdom to be obeyed by the people against the will and command of King and Lords and against the desire of the minor part perhaps by two Votes in the House of Commons If the maior part of the Lords shall be bâ—uited to bee Popishly affected or Malignant and thereupon their names shall be required that so the Rabble-rout may take a course with them by meanes whereof they are necessitated to absent themselves and by like seditious courses a considerable part if not the maior of the Commons shall be driven from Parliament if after this by the cunning practise of some few the Major part of Lords and Commons that shall be remaining shall adjudge such Assemblies not to have bin riotus and seditious and that therefore themselves have power as a free Parliament to provide for the safety of the Realme and shall therupon by or dinante require a Levy of Subsidies to be presently made throughout the Kingdome you will say the Subjects are bound in such case to lay along their necks and pay and is not this to subject us to as unbounded a regiment of meere will as any Nation under heaven ever suffered under This is more then ever the King pretended to he never claimed a power â—o make Lawes and lay taxes without the consent of Parliament he onely layes claime to a negative voice that they without him may not make any Lawes or charge his Subjects but that all be done by the joynt consent of him and his people and otherwise their proceedings without him to be vertulesse and of no force Against which so well knowne right let us see what worthy argument the Observator brings forth By the same reason saith he that Parliaments are thus vertulesse and void Courts upon the Kings desertion of them other Courts must needs be the like and then what remaines but that all our Laws rights and liberties be either no where at all determinable or else onely in the Kings brest He is very wary not to fall under the Kings determinations though as appeares before the â—nd why a King was set over Nations was to judge them and Bracton tels us That the King by his oath is obliged if he were able in person to judge his people And t is a known principle in the Lawes of England Rex presumitur habere
when not and if the people have power to Iudge of danger and defend themselves without and against their King then may they intrust that power unto some others for that all should assemble â—â— next to impossible and could not be without confusion a few thâ—refore may bee intrusted to judge for all and to direct the manner of their defence well It is admitted they may intrust this power with some few but that they have intrusted it with the Lords and Commons I must deny There is no colour to say it is intrusted with the Lords they judge only for themselves and if the King intended to alter the Government or Religion it is likelie he would create such as should assist his intentions and therefore it will be of little purpose to give the kingdome a power to judge of dangers and save it selfe unlesse they may doe it by the major part of their proxies alone both against King and Lords You put in the Lords only to glosse your actions for the present but by your principles the power must bee in the Commons onely if anywhere Now cleerely there is no such trust imparted to the Commons their trust is limited by the writ to advise with the King not to make Acts and Ordinances in any case against him Nor can I possibly see why the Coroners elected by the body of each Countie according to the Kings writ might not as reasonably claime this trust as the major part of the Commons alone unlesse we must therefore thinke it to bee the Commons right because they now pretend unto it The Observator tells us We may not imagine the Houses should be injurious no age will furnish us with one story of any Parliament freely elected and held that ever did injure a whole kingdome or exercise any Tyranny I 'le charge tirannie on none only I say if the now major part of Lords and Commons against the Kings pleasure and authenticke Proclamations have power to command the subiects in generall and to imprison kill and slay such as withstand their commands and obey his Maiesties Proclamations I would gladly bee instructed how this power is derived unto them either from King or people or whether we must think they above all other men were naturally borne unto it Meane while I like well the Observators note in honour of free Parliaments that never any such iniured a kingdome But yet such as have called themselves free Parliaments have injured King and kingdome this have the Lords and Commons done when they have left the head free in His Royall assent or disassent to such Bills as they had a minde to passe of which take one Example 15. E. 3. The Lords and Commons pressed the King to passe a Law derogatorie to his just prerogative that Parliament being ended and the kingdome representing it selfe againe the same yeare it was enacted Whereas in the last Parliament certaine Articles expressely contrary to the Lawes of England and the Prerogatives and Royall rights were pretended to be granted by manner of a Statute the King considering how that by the bond of his Oath he was bound to the defence of such Lawes and Prerogatives because the King never freely consented to the said pretended Statute It seemed good to the Earles Barons and other wise men that sithence the said statute did not of the Kings free-will proceed the same should be voyd It seemes at this time the King was not bound to passe whatsoever the Lords and Commons Voted to be for the good of the kingdome And his oath did tye him to seeke a restitution of his prerogative against such forced lawes so farre was it from tying him to passe all such lawes as the Houses should judge fit Questionlesse the King is bound by oath and office to passe all good and just lawes yet that part of the oath that hath beene urged doth not prove so much But the question is whether hee bee not free to judge what is a good and just Law and what not But must submit his understanding judgment and Conscience to the votes of Lords and Commons so that the sixe Articles for poperie passe them he is bound to passe it Queene Elizabeth was bounâ— to passe an Act abolishing popery because the Lords and Commons had Voted a Bill againâ—â— Protestancie Queene Mary was bound to passe that likewise So againe the King wishes all good subjects to put the case to themselves If the Papistâ— in Ireland should make themselves the major part of both Houses and pretending their Religion to bee in danger of extirpation by a Malignant party of Protestants and puritans should passe a Bill for setling the Militia in such as they should confide in is not the King bound to assent unto it Not in that case saith the Observator For England and Ireland are one and the same Dominion there is as true and intimate an union betwixt them and England as betwixt England and Wales though they meete not in one Parliament yet to sâ—â—â— purposes their Parliaments are not to be held severall Parliaments and therefore if Papistâ— were stronger and more in Parliament there yet would they want authority to over rule any thing voted and established before in England and they being the minor part of Ireland 〈◊〉 ENGLAND both ought to sit downe for that the major part will probability prevaile against them and in all suffrages the minor part that bloud may not bee shedâ— ought to 〈◊〉 downe Alack alack how doth the good man bestirre himselfe to bedge up a seeming answer unto this objection He supposeth England and Ireland to be one and the same dominion which is certainely false Statutes that are limitted to the Realme and Dominion of England do not extend to Ireland That there is as true and intimate an union betwixt England and Ireland as betwixt England and Wales is conâ—radicted by himselfe acknowledging England and Ireland to be governed by severall Parliaments severall to most if not to all purposes T is true Ireland is united to the Imperiall Crowne of England and so is Scotland yet all three are distinct kingdomes He saith they want authoritie there to over rule any thing established before in England But Ireland will say the English Parliament wants authority to establish a Religion in Ireland Or admit the Irish Parliament hath not authoritie to over rule any thing established before in England yet the point that the King instanteth in that is the Militia of Ireland is not established by Parliamâ—nt in England why ought not the King then to assâ—nt to the disposall of it according as the Irish parliament shall desire or if he will not assent why may not the Irish of themselves dispose of it as now the English doe If we shall admit them to be one Dominion why then if the papists in Ireland the popish partie in England and their adherents the Episcopall party and the misnamed Malignant partie shall joyne in one desire against
not an absolute but an admirably well tempered Monarchy Now if you compare the 3 simple formes of Government Aâ—istotle will thus determine Harâ—â—â—â— optima est Regnum deterima Democratia In so cleere a truth the spirit of opposition could not force him to dissent from his Master Plato who having set downe those 3 simple formes of Government with three mixt and compounded thus delivers his judgment Vâ—iâ—â— dominatio bonis instructa legâ—bus sex illarum omnium optima est Gubernationem vero â—aâ—in quâ— non multi imperant mediam censâ—re dâ—bâ—mus caeterum multorum administrationâ—m â—â—â—ibus is rebus debilematque infirmâ—m And surely if this judgement be not right neare all the world are in error But nâ—w though simple Monarchy doe farre excced their Consâ—â—ar or popular Government yet is it not without its inconveniencies and therefore it may be so tempered and mixt as that it may still remaine Monarchy and yet have its inconveniencies restrayned avoyded as farforth as may be then will it of all others whether absolute or mixt become the most usefull and convenient forme of Government Now such and no other is the constitution of Government in England so well poysed and molded by the wisedome of our ancestors as that it gives to this Kingdome the conveniencies of all without the inconveniencies of any one as far forth as by humane prudence they may be prevented The supreame power therefore of making Laws whereby to governe and judge the people in time of peace as likewise the power of armies for preventing of invasions and insurrections rests in a King only immovably whereby he is sufficiently enabled to protect his people And againe as the King himselfe acknowledgeth those lawes by which he is to govern may not be made but by the Consent of the house of Peers and by the house of Commons chosen by the people all hâ—ving free votes and particular priviledges And that the Prince may not make use of his high and perpetuall power to the hurt â—f â—hoâ—e for whose good he hath it the house of Commons as an â—â—cellent conservâ—r of liberty is solely intrusted with the first propositions concerning the levies of mâ—â—y the sinewes of peâ—câ— aâ—â—â—â— and for the impeâ—ckiâ—g of thoâ—e who for their own ends though countenanced by any surreptitiâ—usly gotten command of the King have violated that law which the King is bound when hâ— knows it to protect and to the protection of which they were bound to advise him at the least not to serve him in the contrary And the Lords being trusted with a judâ—â—atory power are an excâ—llent skâ—â—ene and bank between the prince people to assist each â—gainst the incroachment of the other Now whether it be more safe for the supreame indisputable power after this manner to rest in the King or els to be in the Lords and Commons excluding the king that 's the question The â—bserâ—ator vrgeth these inconveniences that sâ—eme to remâ—iâ— in this regulated Monarchy so that it is at the kings pleasure when hâ— shal iudgâ— fit to cal parliamentâ— and being called by dissent hee my frustrate their proceedings and at his pleasure dissolve â—heir being If this be so how have they a power more than sufficient to restraine Tyrannie â—â—â—â—ly if these principles hold Parliaments will be made the very Engines and Scaffolds whereby to erect a Government more tyrannicall then ever was knowne in any other kingdome What â—â—mes doe we live in when the known principles of ancient Government shall be thus impudently railed at That it is left at the Kings just pleasure to call Parliaments upon which oâ—â—er rights depend is a truth so manifest that I am ashamed to alleadge any proofe of it that the King hath indisputable power of dissolving of Parliaments is equally manifest and acknowledged by the Act for not dissolving this present Parliament and that the King in his â—udgment dissenting may thereby quash their proceedings for as much as it is at this time denied I have formerly proved it But if this be so what is left to restraine Tyrannie Marry as much as conveniently may be For though it be at the Kings pleasure to call and dissolve Parliaments he is disabled to make any new Lawes or repeale the old how great need soâ—ver there be for it Nor may he raise Subsidies for his Warres or other occasions without 〈◊〉 in Parliament If impositions be otherwise indirectly laid upon the subject the ministers ought not to levy it or if it be levied experience teacheth that the King will be thereby the greater looser These and many other motives there are inforcing a King to call Parliaments and to comply with the just desires of his subiects And yet of late I must confesse we have had occasion to bewaile the too long intermission of Parliaments of which a reverend Iudge complaining gives us the probable reason At the last meeting in Parliament saith he either by ill choice of the members of that House or by the great increase of the number or by the ambitious humours of some Members of that House who aimed more at their owne â—â—ds and designes then the generall good of the Common-wealth things were so carried not â—â— was used in ancient time but so disastrously that it hath wrought such a disease of this course of Parliaments as we and all that love the Common-wealth have just cause to be sorry for it But now the fruits that have sprung from this error in Government are discovered the remembrance whereof will ever hereafter put Princes in mind of calling Parliaments And to secure this unto us His Maiestie hath now passed an Act for Trieninall Parliaments not dâ—â—â—olvable within the space of 50 dayes then which can there be a better assurance against Tirannie not destroying Monarchie it selfe Yet all this will not satisfie the Observator If the King shall have the disposing of the Militia or power of the kingdome according to the established laws and may so claime a share in the Legislative power as that the Lords and Commons may not without him make lawes and ordinances whensoever themselves shall think fit and necessary so to do or if at any time without presupposing a necessity he shal not according to his oath and office assent to what lawes and ordinances the Houses shall Vote though they go against his own Iudgment and Conscience there will be still a meanes left for the King to make himselfe a tyrant or an absolute Lord not limited by Law but disposing all things according to his lawlesâ—e wil and pleasure A power you say is left that hee may these but the Law trusts him presuming he wil not abuse it and that obiection that is against the presumption of the Law none should presume to make Something must be left if it cannot be restrained but that Monarchy will be destroyed or disabled to performe its office that restraint that you would put upon
are wee not happie and contented as they were Surely wee shall finde no other cause of our present misery but that unquiet spirit within our selves were wee not possessed with this unquiet spirit strong in its illusions vaine and ridiculous feares could not have so far prevailed with us Who to affright the world hath invented day by day those many plotts of Treason which experience hath assured us to bee all but vaine or wickedly invented What is it that carries on with fury and madnesse those disturbers of Church and State the Brownist the Anabaptist and those of the Family Is not this unquiet spirit that rages within their owne breasts This is that spirit with which some seditious preachers being themselves professed labour to infuse the same into their ignorant auditory with this seditious spirit some members finding themselves to have beene hurried on to the hazard of their lives and fortunes indeavour as much as they can to draw others into the same danger hoping thereby to make the multitude of offenders a refuge and safe guard for their owne offences It is the desperate fury of this bloud-thirstie spirit that rejects all tearmes of Accommodation The way of peace it will not know O most unhappie England Thou that for happinesse stoodest so lately in the envie of all Europe shalt now through the raging fury of this infernall spirit lye weltring in thine owne bloud Dead Carcasses shall be strowen up and downe thy streets the Father devided against his owne bowels brother against brother like the Children of Sadmus each slaying and imbruing their hands in the others bloud In this violent storme of intestine Warre who can promise to himselfe security of his fortunes family or life in it selfe Shall not we bee all split upon the rocks of selfe division or overwhelmed with the stormy wind of forraigne invasion unlesse with timely resistance wee either cast out or destroy this unquiet spirit Let us not deludâ— our selves with imaginations that to give way to its fury will be the shortest way to end our misery Consider those that are in opposition to it Consider the justnesse of their cause and you will not exact that they while there runnes but one drop of bloud in their vâ—ines should yeeld themselves to be trampled on by the fury of their insulting adversaries betraying their Religion and Liberty to the destroying Anabaptist or when they shall bee overborne and destroyed doe you that shall survive them expect to enjoy a calme after so bloudy a Tempest will there not arise dissentions amongst your selves You doe not all surely conspire the same end who neverthelesse infected by some few malignant spirits are united in opposition to your Soveraigne of many of you I cannot but say O quam honesta voluntate miseriâ—stis Yet are there not Anabaptists Brownists and other Sectaries abounding amongst you and do not each ayme at the establishing of his owne Sect Against all which you that are truely Protestants must oppose your selves and so must ingage your selves in a second war as bloudy as the former unlesse you will comply and suffâ—r your selves to be carried on beyond your proposed ends of reformation which is an effect that often befalls well-minding reformers when they at empt it by tumultuous force by some furie amongst them to bee forced on beyond their ayme and intended scope These and many other miseries will assuredly encountâ—r with you unlesse God shall please timely to unite the hearts of the King and His Parliament to the confusion of those sâ—ismaticall and seditious spirits who hope by abusing the good intentions of thâ—se â—onourable Houses to establish their designâ—s in the destrâ—ction of the Common-wealth If any harsh expressions have fallen from me in this discourse I desire they may bee applyed against the destroying pests and onely against them If in the matter which the Observator hath given occasion to treate of I have through error too strictly limitted the Royall power or in ought derogated from the right and auâ—hority of the houses of Parliament I shall be most sorry for such my mistake and be ready to retract the same upon the first intimation It was necessary if I would say any thing against the Observator that I should insist upon the actions of the major part of the House in which whatsoever hath beene said is by way of proposall of my doubts rather than dogmatizing any conclusions and that the observator may not from hâ—nce have any occasion further to debate and bandy the principles of Government which ought to remaine sacred and untouched I shall abstract from thence in way of recapitulation such doubts as without examining the cause and origen of Regall and Parliamentary power being well satisfied will much settle my now scrupulous mind and will I thinke goe farre in satisfaction of many others They arise from consideration of the meanes used in composing the House of Commons of the proceedings and Acts of the Houses so composed or from the consequences a and effects that from those acts and proceedings are likely to ensue His Majestie objects that in the determination of elections no other rule was observed then affection to the persons with reverence to their opinions for the abolition and destruction of Ecclesiasticall government c. witnesse the excelling at one clap a great number of persons fairely elected upon pretence of having had their hand in some Monopoly against whom to this day they never have proceeded whereby they might bee restored if innocent or if faultie others might be elected in their roomes to serve for the Counâ—ry And yet they continue among them some that are notoriously knowne to be promoters of Monopolies because their opinions are such as doe well please them This objection and many others in that Declaration concerning the determination of elections doth and will somewhat stagger me untill the observator shall furnish me with a sufficient answer Again I desire to be instructed whether it be but a calumny raised against some worthy Members that by their meanes and countenance terror and force should be used to amate the courage of some members who would not otherwise comply with their opinions whether nippie reprehensions and sometimes imprisonment and other punishments were not rigorously used towards such as did not run with the happie vote of the prime and worthy members whereas others combined for alteration did and might take a libertie to say and propose even what they pleased themselves If there be a truth in these objections it will be to little purpose to dispute what is the power of the Houses of Parliament fairely chosen and freely voâ—ing Concerning their arts and proceedings I am unsatisfied by the Observator whether the Commons alone may make binding Ordinances even out of the case of necessity Jf not how shall I defend their imposing the Protestation upon all the kingdome by a Declaration that what person soever shall not take it is unfit to beare office in
Church and Common-wealth and yet before that the Lords had rejected a bill for imposing the same Protestation How shaâ—l I defend their published orders as that of the ninth of September in derogation of the book of Common prayer and for suspension of some lawes in force concerning Church-government Or if not in ordinary â—ases yet informe me whether in case of neâ—essitie the Commons may make Oâ—dinances mauger the King and Lords and dispose of the strengeh of the Realme And if so whether they may not likewise levie Subsidies and impose taxes in such manner as they shall think fiâ— Whether is it pliamentaâ—y when a Biâ—l hath been once and againe rejected to obtrude it a third time in the same Session taking advantage of the absence of such as are knowne to oppose it Thus it is said was done to passe the Ordinance for the Militia How shall I satisfie such as saw heard and felt the frequent tumults resorting to the Parliament house dâ—ores o be no tumults but lawfull assemblies although they threatned and assaulted some Members and afâ—righted very many If I yeeld they were tumults I contradict a Declaration in the name of the Lords and Commons defining them to be lawfull assemblies If I say they were not tumults I am threatned by a Declâ—ration formerly made by a fuller house of Peers and sâ—nt downe to the house of Commons to have had their assistance for the suppressing of such tumulâ—s If it be objected to me that the new major part of the Houses doe assume and challenge ordinary power to make new and repeale old lawes shall I answer that they have not as yet so farre incroached upon the libertie of the Subject my opponent will I doubt reply that indirectly and impliciteâ—y they have alrâ—ady done it though polâ—â—ie will that they forbeare a while to claime it in downe right termes for feare it should too much staâ—tle the subject whose libertie must be invaded by degrees at first thâ—refore the vâ—te shall be onely thus Whensoever the Lords aâ—â— Commons shall dâ—claâ—e what the law of the land is the same must be asseâ—ted to and obeyed Let this be â—rst swallâ—wed and it wâ—ll â—hence be early proved in good time that those that may authorative declare the law lâ—ying an obligation immediately upon all to obey such Declaration may likewise whensoever they please make new or repeale the old law this will wilâ— be proved by a Declaration of the Lords and Commons If it were admitted say they that the King by his Proclamation â—he â—ow major part of Loâ—ds and Commons by their vote may declare a law thereby his Proclamation their vote will in effect become lawes which would turne â—o the subversion of the law of the land and the rights and liberties of the Subject This againe the Observator proves There is saith hee in the interpretation of law upon the last appeale the same supremacy of power requisite as is in making it and therefore grant the King to be supreme interpreter and t is all one as if we grant him to be suprâ—mâ— maker of law grant him this and we grant â—im to be above all limits all conditions all humane bounds whatsoever we resigne all into his hands Lives Lawes Liberties Parliaments all to be held at meâ—re discreâ—ion But the King will my opponent say never câ—aimed to himselfe alone any such power but the now major part of the two Houses do claime to themselves and such as shall at any time make themselves a major part this supreme power of interpreting and declaring law and accordingly they declare that the King may not send for Serjeant Skippon nor require any subject to come to him which by some speciall service is not bound to come to him That the Kâ—ng could not by the law adjourne the Terme to York and many such other Declarations and Interpretations of law they have made to all which they require the kingdome should obey without appealing And so they not the King will have our Lawes Lives Liberties Parliaments all to be held at meere discretion Now what cleere answer may be made to this reply I desire to be instructed Another doubt that perplexeth me ariseth from their declaring the priviledge of Parliament to extend to high treason now I do not know that any priviledge can have its ground or commencement unlesse it be by statute grant or prescription no statute grant or presciption can be alledged for this priviledge against treason nor indeed can a grant in such case hold foâ—ce if the King and Pope when the Pope was conceived to have had plenitude of power should have both joyned in granting a Sanctuarie for treason although it were not to exempt traytors from all manner of triall or punishment yet was such a grant in it selfe meerly void 1 Hen. 7. Staffâ—rds case c. And by the statute 26 Hen. 8. cap. 13. it is enacted that no offendor in any kinde of high treason shall have the priviledge of any manner of Sanctuarie And as there is neither statute nor grant so no prescription neither to exempt the members of Parliament wholly from punishment nor yet to change the method and manner of their triall for no prescription can be but it must be both reasonable in it selfe and also used and allowed now there hath not been nor can be any one instance given to prove that this priviledge was either allowed or so much as claimed nay the contrary practise hath been witnessed by Wentworths case cited by his Majestie whereunto many others might be added and as it wants allowance or claime so is it in it selfe unreasonable for if after the rising of the House I shall overheare or discover a Parliament man plotting treason and yeâ— may not attach him till I have acquainted the House which cannot be till next day or perhaps two dayes after that they againe sit the treason in the meane while will be executed or the traytor perceiving himselfe discovered will be fled So if a Parliament man at York commit treason murder or robberie if you may not arrest him till you have been at London and got leave of the House the offendor without doubt will not stirre away till you returne to apprehend him Can we imagine any should have greater priviledge then the law of Nations gives to Embassadours and yet they have no priviledge iâ— case of high treason being an offence against the lawes of Nations and Nature Cambd. Eliz. fol. 201. May not every Iudge in Westminster Hall claime this priviledge with better colour then a Member of Parliament though the Parliament be a higher Court then any of them For as the King may impeach one Iudge so more and then it will be in his pleasure or of any other accuser to make the ordinarie Courts though setled by prescription and Acts of Parliament and lesse depending upon the will of the King then doth the being of the two Houses what they will
when they will and then if the King hath any suit depending in the Common Pleas and finds some of the Iudges inclyning against him they may be held under a fained accusation of Treason till the others have given judgement for the king Surely though the Parliament be a superiour Court yet have the ordinary Courts as firme a foundation as that can have and are more necessary for the people and yet without question upon such pretence no judge may claime a priviledge from arrest in Case of Treason If wee consult with our Law bookes they tell us that the priviledge of Parliament doth not extend to Treason nor yet breach of the peace nor yet as I thinke against the kings debt for the reason and ground of priviledge is because the king hath an Interest in the members to have their advice therefore no subject may arrest them for his debt But that cannot give them priviledge against the king himselfe Vidâ— Dyer 59. 60. Every Burgasse hath priviledge quant larrest nest forsque al suite dun Subject 2 8. 4. 8. b. per Danby Dyer 275. Crompton 8. b. 9. 10. 11 Elsmâ—re Postnati 20. 21. Now whereas the observator saith that this priviledge is Claymed in case of suspition onely and when leave may be had and when competent accusers appeare not This overthrowes the reasons given by the Houses and is not in it selfe satisfactory For thâ—e Attorney Generall in the most competent accuser and the accusation was of downe-right High Treason not onely of suspition and yet upon probable suspition the accused ought to be imprisoned I must therefore intreat the observator in this particular for that it hath beene a cause of so great combustion and taking up of armes within this Kingdome to give me a more full satisfaction There remaines one other scruple wherewith I am perplexed and it ariseth for their voting the Commissions of Array to be illegall whether they deny the power it selfe or onely dislike the â—orme of this present Commision is uncertaine Now as concerning the first it seemes to me that posse regni or the power over the Militia muster array c. is by the fundamentall Law inmovably setled in the Crowne or rather the Crowne setled on it â— being such an individuall right of the Crowne as if a King without it is in truth nothing Opâ—rtet saith Glanvill regiam potestatem armis esse decoratam Jn rege saith Bracto qui recteregit necessaria sunt hac duo arma viz et leges and the Statute maâ—e Elâ—â—ven Henry the Seaventh Cap 1. tells us that by duty of All glance the Subjects are bound to serve their Sovereigne Lord for the time being in his warres fâ—r dâ—fâ—nce of him and the Land against every Robellion power and miget reared agâ—inst â—im And with him to enter and abide in service in battailâ— if the case so require c. And another Statute 4. 5. Phil. Mary Cap 3 Shewes that the Kiâ—gs of his Realm have ever used to muster their Subjects and to Levy a number of them for servâ—ce in waâ—res And so those Reverend Iudges Hutton and Crooke arguing for the Sâ—â—ject in Case of Shipmoney acknowledge the mustering and arraying of the Subjects by Commissions to be undoubted right of the Crowne Hutton fol 39. That there have beene Commissions of Array and provision for Armes and for preparing Armour according to the variety of times for training and disciplining of Souldiers to be prepared for defence c. That this hath beene in use no man can or ever could deny But the armes where-with they were charged were still their owne proper goods And doth not the whole frame of Government of the Realme depend and ever hath done upon Commissions granted by the King to Shereiffs and Iustices of peace whiâ—h are in substance the same with this 12. Hen 7. 17. tels us that at first all administration of Iustice was in the Crowne till people multiplying Shereiffs were deputed under whom are all to be ready for defence of the Realme when enemies come And the Sherifâ—e is to attend the King in time of warre and shall cause the people to goe with the King for the defence of the Realme against enemies and now by all this it appeares that it is the kings right to discipline and array the souldierâ— and to dispose of the strength of the Realme And that this power is inseperable from him even an act of Parliament if it would disable the king tâ— defend the kingdom is voyd being agâ—inst Law and reason Cookâ—s Argument 56. But you saâ— that the Parliâ—ment â—esires no â—em vall of that power which was in the King but that which was in such or such a substituâ—e But whether they desire it or no they have by thâ—i ordinance of Militia taken away that power which was in the King unlesse we shall thinke those to be his substitutes that take it against his wiâ—l and hold it and imploy it against him Againe you tell us it is but for a time disposed of by a tâ—mporary Ordinanc and not absolâ—tely and for ever takâ—n from the King and seeing thâ—y deâ—â—red it not for the present occasion why shâ—uld the King dâ—ny it Should a good fellow desire the observators wiâ—e fâ—r the present occasion I doubt he would not be so kind hearted as to grant it And surely there bee some kinde of things that are not to be departed with though for a day Semiramis desired of her husband king Ninus that he would grant unto her the sovereigne power for five dayes as Diodorus Siculus or as Plutarch reporteth but for one day which being granted her she in that place caused her husband to be slaine and ever after ruled as Queene I hope no body is so wicked as to imagine any such vile intention and yet this story may well shew how a king is no more himselfe iâ— he but for a day depart from his individuall right And such it appeares by his right to the Militia of the Realme and therefore the Commission of Array is in substance undeniably good But then whether the forme of the Commission be legall I can see as little reason to doubt seeing it is for substance and forme both by a very act of Parliament now in force and by his Majesties Ceclararation cleared from all colour of objection So that in mine owne understanding it seemes unquestionable both for matter and forme You will say neverthelesse that I ought to submit my understanding and implicity beleeve it illegall because so voted But this sound somewhat harsh that we should be bound to submit to such votes against an Act of Parliament upon record vnlesse you can assure me that they are proper â—udges against the king and all such as discent from them wheather it be an Act of Parliament or not And if they are yet I pray satisfie mee concerning the manner of their proceedings why was it so hastily determined being a question of that weight and which required a perusall of many ancient Statutes and Records Why were none of the Iudges nor Sarjeants advised within such a quâ—stion of legalitie or illegalitie The Commission is in Latine and old legall Latine are all the members that voted against it able to give the Grammer Construction of it But above all why was it voted without so much as hearing the King or his Counsell to speake in his cause before it were condemned You know what the Poet saith Qui statuit aliquid parte inaudita altera aequum licet statuerit haud aequus futi I spare to load the Observator with any more doubts concerning their past votes the good Consequences whereof and of other concomitant proceedings I doe much feare If the observator shall give me but probable hope of the good event of things and satisfy my doubt in these perticulars I shall with cheerefulnesse ever after pay an humble obedience unto all such votes and proceedings and shall from thenceforth acknowledge my selfe for his industry in setling and satisfying my yet unsatisfied Conscience to be much indebted unto him Meane while I bid him heartily farewell FINIS Decl of the Lo Com of the 2 of Novemb. Luciâ—â— Sâ—â—mâ— 158. 1. H. 74. 6. Plow Com. 238. 244. Camb. Britan. 163. The King hath Soveraign power hee acknowledgeth no superiour but God alone See Sir Tho. Smith de Rep. Ang. li 2. cap. 4. 5. Rep. so 86. de Iure regis Eccl. siastico Rodin de Rep. cap 8. 7 Rep. 12 13. Câ—lv Case Prov. 11. Livy Gen. 14. â—â—od 32. Sir W. Rawley l. 2. Hist. Mund. Sozomen li 6. Seneca Stamford Preface Cokes Instiâ— 2 part pag. 379. â— H. 7. 20. Stamf. 72. 12 H. 7. 17. Mirror of Iustice Bracton lib. 3. fol. 107. Fortescue cap. â—â— 13. â— Rep. Calâ—ins â—ase 13. Virg Davis rep. Rex Angliae est monarcha Imperator in regno suo Cassaneus in catol. glor. mundi Rex Angliae est absolutus Monarcha in regno suo Vide Crompt Juâ—iâ—d 108. Modiâ— tenendi Parliament Page 1. Page 4. Bodin de Reput l. 2. cap. 5. Vide Cambd. Eliz. pa. 118. accord Page 45. Elsmere postnati 99. 33. H. 8. ca. 1. 28. H. 8. c. 19. Davis Rep. 25. Eccles. 8. vâ— 8. Bracton l. 5 tract. 3. c. 3. li. 1. cap. 8. Wâ—sd 6. pag. 45. Arist. Eth. 18. Cap. 10 Plato in Bolitico His Majesties Answer to the 19. propositions Huttons Argument against Ship mony p. 33 page 34. Deâ—lar Maii 27 concerning the Stat. of E. 1.