LEX TERRAE.
THE Law of this Land hath three grounds. First
Custom. Secondly
Iudiciall Records. Thirdly
Acts of
Parliament. The two latter are but declarations of the
Common-Law and
Custome of the Realme, touching
Royall Government. And this Law of
Royall-Government, is a
Law-Fundamentall.
The Government of this Kingdome by a
Royall Soveraign, hath beene as ancient as history is, or the memoriall of any time;
The kings prerogative is a principall part of the common Law.
Com: Litt
[...] 344: what power this
Soveraignty alwayes had and used in warre and peace in this land, is the scope of this discourse; That
Vsage so practised makes therein a
Fundamentall Law, and the
Common. Law of the Land is common
Vsage, Pl
[...]wdens Commentaries. 195.
For the first of our Kings
[...]ithence the Norman conquest, the first
William, second
William, Henry the first,
Stephen, Henry the second and
Richard the first, the Customs of the Realme touching
Royall Government, were never questioned: The said Kings injoyed them in a full measunt. In King
Iohns time the Nobles and Commons of the Realme conceiving that the arcient customes and Rights were violated, and thereupon pressing the said King to allow them in the seventeenth of King
Iohn the said Liberties were by King
Iohn allowed, and by his son
Hen. the third, after in the ninth yeere of his Reigne confirmed, and are called
Magna Charta, and
Charta de Foresta declared foure hundred twenty two yeeres sithhence by the said Charters.
Now rests to be considered, after the Subjects had obtained their Rights and Liberties, which w
[...]n
[...] no other then their ancient Customes (and the fundamentall Rights of the King as
Soveraigne are no other.) How the Rights of
Soveraignty continued in practise from
Henry the thirds time untill this present Par
[...]ament of the third of November 1640. for before
Henry the thirds time, the
Soveraignty had a very full Power.
Rex habet Potestatem & jurisdictionem super omnes qui in Regnosuo sunt, ea quae sunt jurisdictionis & Pacis ad nullum
[Page 4]pertinent nisi ad Regiam dignitatem,
[...]reacton temps. H. 3.
lib. 4.
cap. 24.
Sect 1
habet etiam coeroionem, ut Delinquentes puniat & coerceat; This proves where the supreame Power is.
A Delinquent is hee who adheres to the Kings Enemies
Com Sur. Littl. 261. This shewes who are Delinquents.
Omnis sub Rege, & ipse sub nullo nisi tuntum Deo, non est inferior sibi Subjectis,
Sect 5
Bractabid.
non parem habet in Regnosuo. This shewes where the supreame power is.
Rex non habet superiorem nisi Deum, satis habet ad poenam quod Deum expectat ultorem.
Bracton lib. 5.
tract 3.
de de saltis Cap. 3.
Bracton. Lib 3.
Cap. 7. This shewes where the suprerme power i
[...].
Treasons, Fellonies, and other Pleas of the Crowne, are
propri
[...] causa Regis. This shewes the same power.
By these passages it doth appeare what the Custome was for the power of
Soveraignty before that time; the power of the Militia, of coyning of Money, of making Leagues with forreigne Princes, the power of Pardoning, of making of Officers, &c. All Kings had them, the said Powers have no beginning.
Sexto Ed: 1.
Comsur. Littl. 85. Liege Homage, every Subject owes to the King
(viz) Faith
de Membre,
Ewd. 1.
de vita, de terren
[...] Honore, the forme of the Oath
inter vetera statuta is set down; We read of no such, or any Homage made to the two Houses but frequently of such made by them.
It is declared by the Prelates, Earles, Barrons, and Commonalty of the Realm, that it belongeth to the King and his Royall Segniory,
7. Ed. 1.
statuts at large
[...]l. 42. straitly to defend force of Armour, and all other force against the Kings peace, at all times when it shall please him, and to punish them that shall doe contrary according to the Law and Usage of the Realme, and hereunto they are bound to ayde their Soveraigne Lord, at all seasons when need shall be. Here the supreame power in the time of Parliament, by both Houses is declared to belong to the King.
At the beginning of every Parliament, all Armes are, or ought to be forbidden to be born in London,
7.
Ed. 2.4.
pars instit. 14. 1
Ed. 2.
de Militibus. Westminster, or the Subburbs. This condemnes the multitudes comming to Westminster, and the Guards of armed men.
All who held by Knights-service, and had twenty pounds
per
[...], were distraynable
ad Arma militaria suscipienda. This
[Page 5]agrees with the Records of ancient time, continued cer
[...]ntly in all Kings times, but at this Parliament 3. November 1640. The King, out of his grace, discharged this duty, which proves that the power of warre and preparation thereto, belongs not to the two houses, but only to the King.
The two
Spencers in
Ed. 2.
Ed 3.
Calvins Case Cook l. 7.
fol. 1 time hatched (to cover their Treason) this damnable and damned opinion
(viz.) That Ligeance was more by reason of the Kings politique capacity then of his person, upon which they inferred these execrable and detestable consequences. First, if the King demeaned not himselfe by reason in the right of his Crown, his Lieges are bound by Oath to remove him. Secondly, seeing the King could not be removed by suit of Law it was to be done by force. Thirdly, that his Lieges be bound to govern in default of him.
All which tenets were condemned by two Parliaments, the one called
exilium Hugonis in
Ed. 2. time; the other by 1.
Ed. 3.
cap. 2. All which Articles against the
Spencers are confirmed by this last Statute, the Articles are extant in the booke called
vetera Statuta. The separation of the Kings person from his power, is the principall Article condemned, and yet all these three damnable, detestable, and execrable consequents, are the grounds whereupon this present time relies, and the principles whereupon the two Houses found their Cause,
The Villeine of a Lord, in the presence of the King;
Plowdon com. 322, 27.
ass. pl. 49. 33
Ed. 3
[...]
ayde der
[...]y 103
Fitz. 10
H. 7 16. cannot be seized for the presence of the King is a protection for that time to him: This shewes what reverence the Law gives to the person of a King.
Reges, sacro oleo uncti sunt capaces spirituallis jurisdictionis But the two Houses were never held capable of that power.
Rex est persona mixta cum sacerdote, habet Ecclesiasticam & spititualem jurisdictionem. This shewes the Kings power in Ecclesiasticall Canses.
The lands of the King is caled in Law
Patromonium sacrum.
Com. Sur Littl Sect 4. 3. Ed. 3. 19 The houses should not have meddled with that sacred Patr
[...]y.
The King hath no Peere in his land, and cannot be judged?
Ergo the two Houses are not above him.
The Parliament 15.
Ed. 3 was repealed, for that it was against the Kings Lawes and prerogative. 4
pars. instit fol. 52. this shewes
[Page 6]cleerely the propositions sent to Newcastle, ought not to have been presented to his Majesty, for that they are contrary to the Lawes and his Prerogative.
The Lords and Commons cannot assent in Parliament to any thing that
[...]ends to the disinherision of the King and his Crowne,
4
pars Cookes instit. fol. 14 42.
E. 3. Parliament Rol. num. 7.
Lex & consuetudo Parliamenti. to which they are sworn. This condemnes the said Propositions likewise.
To depose the King, to imprison him untill he assent to certaine demands, A war to alter the Religion established by Law, or any other Law, or to remove Councellors, to hold a Castle or Fort against the King; are offences against that Law declared to be treason by the resolutions herein after mentioned, by that Law men are bound to ayd the King when war is levied against him in his Realme.
25.
Ed. 3.
cap. 2. King, in this Statute must be intended in his naturall body and person that only can die; for to compass his death, and declare it by overt Act is declared thereby treason, to incounter in fight such as come to ayd the King in his wars, is treason.
Compassing of the Queenes death, of the Kings eldest son, to coyne his money, to counterfeit his Great-Seale, to levie Warre against him, to adhere to such as shall so do, are declared by that Act to be high Treason. This Statute cannot refer to the King in his politique capacity, but to his naturall, which is inseperable from the politique, for a body politique can have neither. Wife nor Child,
21.
Ed. 4.14. not, levie Warre, nor do any Act but by the operation of the naturall body: A Corporation or body politique hath no soule or life, but is a fiction of the Law, and the Statute meant not fictitious persons, but the body naturall, conjoyned with the publique, which are inseperable.
The clause in that Act, that no man should sue for grace or pardon for any offence condemned,
R. 2.11.
[...] cap. 13. 4.
pars instit. fol. 42. or forfeiture given by that Act, was repealed by a subsequent Act in
[...] R
[...] holden unreasonable, without example and against the Law and custom of the Parliament. This condemnes the Proposition for disabling the King to Pardon. 4.
pars instit, fol. 42. The Act of 11. R. 2. so much urged by the other side, was an Act to the which the King consented, and so a perfect Act: yet Note the Army then about the Town: Note that that Law is against private persons, and by the 3.
cap. thereof, the Treasons there declared, are declared to be new
[Page 7]Treasons made by that Act, and not to be drawne to example, it was abrogated 21. R. 2. and revived by an usurper 1.
H. 4. to please the people, and by the tenth chap. thereof enacts that nothing shall be treason but what is declared by 25.
Ed. 3.
16.
R
[...]. cap. 5.
The Regality of the Crown of England is immediatly subject to God and to none other. Plaine words,
H. 4. shewing where the supreame power is.
The Commission of Array is in force and no other Commission
Ret. Parim.
[...].
H. 4.
numb. 24. an Act not printed, this Act was repealed by 4. and 5. P.
& M. cap. 2. this repealed by the Act of 1.
Iacobi and so it is of force at this day, for the repealing Statute is repealed 4.
pars institu. fol. 51.
& 125. published sithence this Parliament, by the desire of the house of Commons, their Order is printed in the last leafe of the commentaries upon
Magna Charta.
Sir
Edward Cooke,
A booke alowed by Sir
Nat. Brent, called the reason of the War:
fol. 65. by their party is holden for the Oracle of the Law, who wrote the said fourth part, in a calme and quiet time, and I may say, when there was no need to defend the authority of the Commission of Array.
For that objection, that that Commission leaves power to the Commissioners to tax men
secundum facultates, and so make all mens estates Arbitrary: the Answer is, that in levying of publick ayds upon mens goods & estates, which are variable, and probably cannot be certainly knowne by any but the owners, it is impossible to avoid discretion in the assessements, for so it ever was, and ever will be. By this appeares that the Votes of the two houses against the commission of Array, were against the Law.
The death of the King dissolves the Parliament,
H. 5. if Kings should refer to the politique capacity it would continue after his death 4.
pars Inst. 46. which proves that the King cannot be said to be there when he is absent, as now he is:
2.
H. 5. 4
pars instit 46. there is no
interregnum in the Kingdome the dissolution of the Parliament by his death, shewes that the beginning and end thereof refers to the naturall person of the King, and therefore he may lawfully refuse the Propositions.
2. H. 5.
Chap. 6. to the King only it belongs to make Leagues with Forraigne Princes
[...] this shewes where the supreame power is.
8. H. 6.
numb. 57.
R
[...]tt. Parl-Cookes 4.
p
[...]ns instit. 25, N
[...] peiviledge of Parliament is grantable for treason,
H. 6. Felony, or Breach of the Peace; if not to any one member, not to two, not to ten, not to the Major part, 19. H. 6.62. The Law is the inheritance of the King and his people by which they are ruled, King and people; And the people are by the law bound to ayde the King, and the King hath an inheritance to hould Parliaments and in the ayds granted by the Common
[...]alty. If the major part of a Parliament commit treason they must not be Judges of it, for no man or body, can be Judge in his owne cause, and aswell as ten or any number may commit treason, the greater number may aswell.
The King by his letters pattents may constitute a County palatine and grant Regall rights,
32.
H. 6 13.
Plowd. 334. this shewes where the supreame power is.
17.
Ed. 4.
rot parl. numb. 39.
Ed 4. No priviledge of Parliament is grantable for Treason, Fellony, or Breach of the peace, if not for one, not for two or more, or a Major part.
The same persons must not be Judge and party. A corporate body can committ no treason,
Calvins Case 7
pars fol. 11 12 nor can treason be committed against a corporate body, 21. E. 4, 13. ond 14. but the persons of the men who make that body may committ treason, and commit it against the naturall person of him who to some purposes is a body corporate, but
quatenus corporate no treason can be committed by or against such a body; that body hath no soul, no life, and subsists only by the fiction of the Law, and for that reason the Law doth conclude as aforesaid;
Plow. com. 213. therefore the statute of 25. E. 3. must be intended of the Kings naturall person conjoyned with the politique which are inseparable and the Kings naturall person being at Holmby, his politique is there also, and not at Westminster;
19.
Ed. 4.46. for the politique and naturall make one body indivisible.
If all the people of England should breake the league made with a forreigne Prince,
22.
Ed. 4.
Fitz: juvisdiction. last placite. without the Kings consent, the league holds and is not broken; and therefore the representative body is inferior to his Majesties.
The King may erect a Court of Common-pleas in what part of the kingdome be pleaseth by his letters patents; can the two houses do the like?.
1.
Ed. 5.
fol. 2. It cannot be said that the King doth wrong,
Ed. 5. 4
Ed. 4.25. 5
Ed. 4.29. declared by all the Judges and Serjeants at law then there.
The reason is, nothing can be done in this Common wealth by the Kings grant or any other act of his, as to the subjects persons, goods, lands or liberties, but must be according to established lawes, which the Judges are sworn to observe and deliver betwene the King and his people impartially to rich and poor, high and low; and therefore the Justices and the Ministers of Justice are to be questioned and punished if the Lawes be violated: And no reflection to be made on the King. All Counsellors and Judges for a yeare and three months untill the tumults began this Parliament were all left to the ordinary course of Justice, what hath beene done sithence is notorious.
For great Causes and considerations an act of Parliament was made for the surety of the said Kings person;
R. 3 1
R. 3.
cap. 15. if a Parliament were so tender of King
Rich. the 3. the houses have greater reason to care for the preservation of his Majestie.
The Subjects are bound by their allegiance to serve the King for the time being against every Rebellion, power and might,
H. 7. 11
H. 7.
cap. 1. reared against him within this land, that it is against all lawes, reason and good canscience, if the King should happen to be vanquished, that for the said deede and true duty and alligeance they should suffer in any thing, it is ordeined they should not: and all acts of processe of law hereafter to be made to the conteary are to be void. This law is to be understood of the naturall person of the King, for his politique capacity cannot be vanquished; nor war reared against it.
Relapsers are to have no benefit of this act.
It is no statute, if the King assent not to it,
12
H. 7.20.
H. 8. and he may disassent, this proves the negative voice.
The King hath full power in all causes to doe justice to all men this is affirmed of the King,
24
H. 8.
cap. 1
[...] 25
H. 8.
cap. 2
[...] and not of the two Houses.
The commons in Parliament acknowledg no superior to the King under God, the houses of Commons confesse the king to be above the representative body of the Realme.
Of good right and equity the whol & sole power of pardning treasons, fellonies &c. belong to the King,
27
H. 8.
cap. 24
Note. as also to make all
[Page 8]Justices of Oyer & Terminor, Judges, Justices of the peace, &c. This law condemns the practise of both houses at this time.
The kings royall assent to any Act of Parliament signed with his hand expressed in his Letters-patents under the great Seale, and declared to the Lords and Commons shall bee as effectuall,
33
H. 8.
cap. 21 as if he assented in his owne person; a vaine act if the King be virtually in the Houses.
The King is the head of the Parliament, the Lords the princip
[...]ll members of the body,
Dier 38.
H. 8
fo 59.60. the Commons the inferior members, and so the body is composed, therefore there is no more Parliament without a king, then there is a body without a head.
There is a corporation by the Common-law, as the King. Lords,
14
H. 8
fol. 3. and Commons, are a corporation in Parliament, & therfore they are no body without the King.
The death of the King dischargeth all mainprise to appeare in any Court,
24
Ed. 3.48. 1
Ed. 4.2. 2
H. 4.8. 1
H. 7.10. 1
Ed 5.1. or to keepe the Peace.
The death of the King discontinues all pleas by the Common-law, which agreeth not with the virtuall power insisted upon now.
Writs are discontinued by the death of the King;
Ed. 6. 1
Ed. 6.
cap. 7. Patents of Judges, Commission for Justices of the Peace, Sheriffs, Escheators, determined by his death; Where is the virtuall power.
All authority and jurisdictions spirituall and temporall is derived from the King,
1
Ed. 6.
cap. 2. therefore none from the Houses.
His Majesties subjects,
2. 3
Ed 6.
ca. 2 11
H. 7.
cap. 1.
Calvins Case.
Sa. pars Cooke according to their bounden duties, ought to serve the king in his warres, of this side or beyond the Seas; beyond the seas is to be understood for wages: This proves the power of warres, and preparation for war to be in the king.
It is most necessary both for common policy and duty of the subject,
5. 6
Ed. cap. 11 to restrain all manner of shamefull standers against their king, which when they be heard, cannot but be odible to his true and loving subjects, upon whom dependeth the whole unity & universal weale of the realm. This condemns their continuing of the weekely pamphlets, who have been so foule mouthed against his Majesty.
The punishment of all offenders against the lawes, belongs to the king,
Q. Mary. 1
Mar. Pl. 2.
c. 2 and all jurisdictions doe, and of right ought to belong to the King. This leaves all to his Majesty.
All Commissions to levy men for the warre,
4 5
P & M.
c. 3
Q. Eliz. 10
Eliz pl 315 are a warded by the king. The power of warre only belongs to the king.
It belongs to the king to defend his people, and to provide Armes and Force. No speech of the two Houses.
Roy ad sole government de
[...]ses subjects.
Plow. 234.242 213.
Calvins case 7.
pars fol 12.
Plow. com. 213
Corps naturall le Roy & politique sunt un corps. that is, The king hath the sole government of his Subjects, the body politique and the naturall body of the king make one body and not divers, and are inseparable and indivisible.
The body naturall and politique make one body, and are not to be severed: Ligeance is due to the naturall body,
Plow. 934 243.213.
Calvins case 7.
pars fol. 12. and is due by nature; Gods Law, and Mans law, cannot be forfeited nor renounced by any meanes, it is inseparable from the person.
Every Member of the House of Commons, at every Parliament, takes a corporall Oath.
1
Eliz. cap. 1.
Cawdries case. 5.
pars fol. 1. That the King is the Supreme and only Governour in all Causes, in all his Dominions, otherwise he is no Member of that House; the words of the Law are, In all Causes, over all persons.
The said Act of 1
Eliz. is but declarative of the ancient Law,
Cawdries Case
ibid.
The Earle of Essex, and others, assembled multitudes of men to remove Councellors,
43
Eliz. 3
pars instit. fo, 6.2. adjudged Treason by all the Judges of England.
To depose the king, or take him by force, to imprison him untill he hath yeelded to certain demands, adjudged Treason,
39.
Eliz. Hil. 1
Jacobi ibid. and adjudged accordingly in the Lord
Cobhams Case.
Arising to alter Religion established, or any Lawe, is Treason;
39
Ed. B
[...]adf. case f 9.
& 16. By all the Judges of England
ibid. 10
Eliz Plow, 316. so for taking of the Kings Castles, Forts, Ports or Shipping
Brooke treason 24. 3 & 4.
Philip and
Mary, Dier, Staffords Case concerning Scarborough.
The Lawe makes not the servant greater then the Master, nor the subject greater then the King, for that were to subvert Order and Measure.
The Law is not knowne but by Usage,
10
Eliz. Plow, 319. and Usage proves the Law, and how Usage hath been is notoriously knowne.
The King is our only Rightfull and lawfull Liege Lord and Soveraigne,
K. James. 1
Jac. cap. 1. 9
Ed. 4.
fol. 8. We doe upon the knees of our hearts ag
[...]ze constant Faith, Loyalty and Obedience to the King and his Royall
[Page 10]progeny, in this high Court of Parliament, where all the body of the Realme is eyther in person or by representation: We doe acknowledge that the true and sincere Religion of the Church, is continued and established by the King. And doe recognize, as we are bound by the Law of God and Man, the Realme of England and the Imperiall Crowne thereof doth belong to him by inherent byrth-right, and lawfull and undoubted succession, and submit our selves and our posterities for ever, untill the last drop of our blood be spent, to his rule; and beseech the king to accept the same as the first fruits of our Loyalty and Faith to his Majesty and his posteritie for ever, and for that this Act is not compleat nor perfect without his Majesties assent, the same is humbly desired. This proves that the Houses are not above the King; that Kings have not their Titles to the Crowne by the two Houses, but by inherent byrth-right, and that there can bee no Statute without his expresse assent, and destroyes the chymera of the Kings virtuall being in the Houses.
To promise obedience to the Pope, or any other State, Prince or Potentate,
3
Jac. cap. 4, other then the King his Heires and Successors, is Treason; and therefore those persons who call the Houses the Estates offend this Lawe.
Such Bills as his Majesty is bound in Conscience and Justice to passe,
K. Charles. Collection of Ordinances
fo. 727. 1
pars ib. fol. 728. are no Law without his assent.
To designe the ruine of the Kings person, or of Monarchy is a monstrous and injurious charge.
Ʋbi Lex non distinguit,
ibid; fol. 865.
non est distinguendum, all the aforesaid Acts and Lawes doe evidently prove the Militia to belong to the king: that the king is not virtnally in the two Houses: that the king is not considerable separately in relation to his politique capacity: that the king is not a person trusted with a power, but that it is his inherent byrth-right, from God, Nature and Lawe, and that hee hath not his power from the people: These Lawes have none of those distinctions of naturall and politique,
abstractum & concretum, power and person, in
Caesars time this Island had kings, and ever since, which is almost 17 hundred yeeres agoe.
No King can be named, in any time, made in this kingdom by the people: A parliament never made king, for they were kings
[Page 11]before, the Parliaments are summoned by the kings Writs, which for Knights Citizens and Burgesses begins thus,
viz.
Rex vic. Wilis. Saltem. Quia Nos de avisamento & assensu consilij nri. pro quibus. arduis & urgentib. negetiis nos statum & defensionem Regninri. Aug. & Eccles. Anglic. concernentibus quoddam Parliamentum urum, apud B. teneri ordinavimus & ibid cum Prelatis Magnatib. & proceribus dicti Regni uri. Colloqui, habere & tractatum, ipsi Vicecomiti precipimus firmiter injungendo qd. facta Proclamatione in prox. Comitatu tuo post receptionem ejusd. Brevis, dues Milites gladiis cinctos, &c. eligi facias ad faciendum & consentiendum hiis quae tunc ibidem de Communi Concilio nro. Angl faventi De
[...] contigerit ordinari super Negotiis antedictis, ita quod pro defectis potestatis hujusmodi seu propter improvidam electionem Milium, Civium, & Burgensium pred. dicta negotia ura. infecta non remanerent.
The King is
Principium, caput & finis Parliamenti, the body makes not the head,
4
pars Instit: fol. 3
& 4. nor that which is
posterior that which is
prior: concilium non est Preceptum, conciliarij non sunt Praeceptores, for Counsell to compell a consent, hath not beene heard of to this time in any age, and the house of Commons, by the writt, are not called ad
concilium; the Writts to the twelve Judges, Kings Councell, twelve Masters of the Chancery are
concilium impensuri, and so of the Peeres. The writts for the Cominalty,
Ad faciendum & consentiendum. Which shewes what power the representative body hath, they have not power to give an oath; neither do they claime it.
The Oath of the Justices 18 of
E. 3. among Statutes of that yeere.
The King at all times, when there is no parliament, & in Parliament is assisted with the advice of the Judges of the Lawe, 12 in number, for England at least hath 2 Sergeants when fewest: an Attorny and Solicitor, twelve Masters of the Chancery, his Councell of State, consisting of some great Prelates and other great Personages, versed in State affaires, when they are fewest to the number of twelve. All these persons are alwaies of great substance, which is not preserved but by the keeping of the Lawe, The Prelates versed in divine Lawe, the other Grandees in affaires of State & managery of Government. The Judges, Kings Sergeants, Attorny, Sollicitor, and Masters of the Chancery versed in the Lawe and Customes of the Realme: All
[Page 12]sworn to serve the King and his people justly & truly, the King is also sworn to observe the Laws, and the Judges have in their Oath a clause, That they shall do common right to the Kings people, according to the established Laws, not withstanding any command of the King to the contrary, under the Great Seale or otherwise, The people are safe by the Lawes in force without any new: The Law finding the Kings of this Realme assisted with so many great men of Conscience, Honour and skill in the rule of Common-wealth, knowledge of the Lawes, and bound by the high and holy bond of an Oath upon the Evangelists, settles among other powers upon the King, a power to refuse any Bill agreed upon by both Houses, and power to pardon all offences, to passe any Graunts in his Minority, (there are many great persons living hold many a thousand pound a yeare by Patents from
Edward the sixt, passed when he was but ten yeares of age) not to be bound to any Law to his prejudice, whereby he doth not binde himselfe; power of warre and peace, coyning of Money, making all Officers, &c. The Lawe, for the reasons aforesaid, hath approved these powers to be unquestionable in the King, and all Kings have enjoyed them till 3.
Nov. 1640.
It will bee said notwithstanding all this fence about the Lawes, the Lawes have beene violated, and therefore the said powers must not hold, the two Houses will remedy this.
The answere to this is evident: There is no time past, nor time present, nor will there bee time to come, so long as men mannage the Lawe, but the Lawes will be broken more or lesse, as appeares by the story of every age. All the pretended violations of this time were remedied by Acts to which the King consented before his departure 10.
Jan. 1641. being then driven away by Tumults. And the Houses for a yeere and almost three Moneths: From 3.
Nov. 1640 to 10
Jan. 1641. as aforesaid, being a yeare and almost three moneths, had time and liberty to question all those persons who were eyther causes or instruments of the violation of any of the Lawes.
Examine how both Houses remedied them in former times. First, touching Religion, What hath beens done this way? Both houses in
Henry the eights time tendred to him a Bill to
[Page 13]bee passed called commonly the Bill of the six Articles, this was conceivd by them to be a just and a necessary Bill: Had not
Henry the eighth done well to have refused the passing of this bill? both houses tendred a bill to him to take the reading of the Scriptures from most of the laity: had not King
Henry the eight deserved much prayse to reject this bill? In Queene
Maryes time both houses exhibited a bill to her to introduce the Popes power and the Roman Religion; had not Queen
Mary done well to have refused this bill? Many such instances may be given. The two Houses now at Westminster I am sure will not deny but the refusall of such Bills had beene just, the King being assisted as aforesaid, and why not so in these times?
For the Civill Government what a bill did both houses present to
Richard the third, to make good his title to the Crowne; had it not beene great honour to him to have rejected it? what bills were exhibited to
Henry the eight by both houses for bastardizing of his daughter
Elizabeth, a Queene of renowned memory, to settle the Crowne of this Relme, for default of Issue of his body, upon such persons as he should declare by his letters Patents or his last will, and many more of the like? had not this refusall of passing such bills magnified his vertue and rendred him to posterity in a different Character from what he now hath?
And by the experience of all times and the consideration of human frailty this conclusion is manifestly deduced, that it is not possible to keepe men at all times (be they the houses, or the King and his councell) but there will be sometimes some deviation from the Lawes, and therefore the constant and certain powers fixed by the ancient Law must not be made void, and the Kings Ministers; the Laws do punish where the Law is transgressed, and they only ought to suffer for the same.
In this Parliament the houses exhibited a bill to take away the suffrages of Bishops in the upper house of Parliament, and have sithence agreed there shall be no more Bishops at all, might not the King if he had so pleased have answered this bill with
Le Roy s'avisera, or
no voult. it was against
Magna Charta; Articuli Cleri and many other acts of Parliament. And might have farther given these reasons if it had so pleased him for the same: first that this Bill destroyes the writt whereby they are made two houses of Parliament the King in the writt to the Lords being
Cum praelatis colloquium habere; secondly they have beene in all Parliaments since we had any, and voted, but in such wherein they themselves were concerned: And there have beene Bishops here sithence we were Christians, and the fundamentall Law of the Kingdome approves of them: if any of them were conceived offensive; they were left to justice, and his Majestie would put in inoffensive men in their places: but sithence his Majestie hath passed the Bill for taking away their votes in Parliament, it is a Law that binds us so farr.
Upon the whole matter the Law hath notably determined that Bills agreed by both houses, pretended to be for the publique good, are to be judged by the King, for in all Kings reigns Bills have been preferred by both houses, which all wayes are pretended to be for the publique good, and many times are not, and were rejected with
Roy s'avisera or
Roy ne veult.
This Parliament beganne the third of
November 1640 before that time in all the Kings reigne no armed power did force any of the people to do any thing against the law: what was done, was by his Judges, officers Referees and Ministers from that time untill the tenth of
January 1641 (when the King went from London to avoyde the danger of frequent tumults, being a yeare and three months▪ Privy Councellors and all his Justices and
[Page 15]ministers were left to the Justice of the law, there wanted
[...] time to punishable men.
The Sphaere of the house of Comment is to represent the grievances of the Countrey, to grant aydes for the King upon all fit occasions extraordinary, to assent to the making or abrogating of lawes▪ The Orb of the house of Lords to Reforme eroneous judgements given in the Kings Bench, to redresse the delayes of Courts of Justice, to receive all Petitions, to advise his Majestie with their Councell, to have their votes in making or abrogating of Lawes, and to propose for the common good, what they conceive meete.
L
[...]x non cogit ad impossibilia, Subjects are not to expect from Kings impossible things, so many Judges, Councellours Sheriffes, Justices of the peace, Commissioners, Ministers of State, that the King should over-looke them all cannot be, it is impossible.
The King is virtually in his ordinary Courts of Justice; so long as they continue has Courts: their charge is to administer the lawes in being, and not to delay, defarre or sell-justice for any commandement of the King. We have Lawes enough
[...]st
[...]u
[...]ta b
[...]i saculi sunt boni
[...] good ministers, as Judges and officers are many times wanting, the houses propose now Lawes, or abrogation of the old; both induce novelty; the law for the reasons aforesaid, makes the King the only Judge, who is assisted therein by a great number of grave learned, and prudent men, as aforesaid.
For the considerations aforesaid the Kings party adhered to him, the law of the Land is their birth-right, their guide, no offence is committed where that is not violated: they found the commission of Array warranted by the law; they found the King in this Parliament to have quitted the Ship-money, Knighthood-money, seven Courts of Justice, consented to a trienniall Parliament, setled the Forest bounds, tooke away the Clerke of the Market of the houshold, trusted the house with the Navie, passed an Act not to dissolve this Parliament without the Houses assent; no people in the world so free if they could have been
[Page 16]content with Lawes, oathes and reason, and nothing more could or can be devised to secure us, neither hath been in any time.
Notwithstanding all this we found the King driven from
London by frequent tumults, that two thirds and more of the Lords had disserted that house, for the same cause, and the greater part of the house of Commons left that house also for the same reason: new men chosen in their places, against Law, by the pretended Warrant of a counter set Seale; and in the Kings name against his consent, levying warre against him, and seizing his Ports, Forts, Magazines and Revenue, and converting them to his destruction, and the subversion of the Law and Land, laying taxes on the people, never heard of before in this Land; devised new oathes to oppose forces ray fed by the King, not to adhaere to him, but to them in this Warre which they call the Negative Oath, and the Vow and Covenant.
By severall wayes never used in this Kingdome they have raised monies to foment this warre, and especially to inrich some among them; namely first Excise, secondly Contributions, thirdly Sequestrations, fourthly Fift parts, fiftly Twentieth Parts, fixtly Meale-money seventhly Sale of Plundered goods,
[...]ightly Loanes, ninthly Benevolences, tenthly, Collections upon their Fast-dayes, eleventhly new Inpositions upon Merchandizes, twelvethly Guards maintained upon the charge of private men, thirteenthly Fifty Subsidies at one time, fourteenthly Compositions with such as they call Delinquents, fifteenthly Sale of Bishops lands, &c.
From the Kings party meanes of subsistance are taken;
1
R. 3.
cap. 3.
[...]ract. li. 3.
c. 8.
Stanford. 192.
Sir Ger. Fleetwoods Case. 8.
pars Cook 7.
H. 4
last lease. before any indictment, their Lands seized, their goods taken, the Law allows a Traytor or Fellon attainted,
Necessaria sibi & familie sua in vict
[...] & v
[...]stitu, where is the Covenant? where is the Petition of light? where is the liberty of the subject?
First, We have ayded the King in this warre contrary to the negative oath and other votes, Our warrant is the twenty fifth of
Edward the third, the second Chapter, and the said resolutions of all the Judges.
Secondly, Wee have maintained the Commission of Array by the Kings Command, contrary to their votes: We are warranted by the statute of the fifth of
Henry the fourth, and the judgement of Sir
Edward Cooke, the Oracle of the Law as they call him.
Thirdly, We maintained Arch-Bishops and Bishops, whom they would suppresse. Our warrant is
Magna Charta, and many statutes more.
Fourthly, we have maintained the booke of Common prayer, they suppresse it, Our warrant is five acts of Parliament in
Edward the sixt and Queene
Elizabeths time, 5.
Pesch
[...]. 35.
Elizabeth inter placita Coronae in Banco Regis, New booke of Entries, sol. 252.
Penry, for publishing two scandalous Libels against the Church government, was indicted, arraigned, attainted, and executed at Tyburne.
Fifthly, We maintained the Militia of the Kingdome to belong to the King, they the contrary, Our warrant is the statute of the seventh of
Edward the first, and many statures sithence, the practise of all times, and the custome of the Realm.
Sixthly, We maintained the counterfeiting of the great Seale to be high Treason, and so of the usurpation of the Kings Forts, Ports, Shipping, Castles and his Revenue, and the Coyning of money, against them; We have our warrant by the said statute of the twenty fifth of
Edward the third, Chapter the second, and divers others since, and the practise of all times.
Seventhly, We maintaine that the King is the only supreme govermour in all causes. They, that his Majesly is to be governed by them, Our warrant is the statures of the first of Q.
Eliza. Chapter the first, and the fifth of Q.
Elizabeth the first.
Eighthly,
9.
Ed. 4.
sol. 4. Wee maintaine that the King is King by an inhaerent birth-right; by nature, by Gods law, and by the lay
[...] of the Land, They say his Kingly right is an
[...], Our warrant is the statute of the first of King
Ja
[...]. Chapter the first. And the resolution of all the Judges of
England in
Calvins case.
Ninthly We maintain that the politick capacity i
[...] not to be severed from the naturall. They hold the contrary: Our warrant is two flatures
(viz.)
[...]xilium Hugonis in Edward the seconds time, and the first of
Edward the third Chapter the second, and their Oracle who hath published it to posterity, that it is damnable, detestable and execrable Treason,
Calvins case
pars 7.
fol. 11.
Tenthly we maintain that who aids the King at home or abroad ought not to be molested or questioned for the same, they hold and practise the contrary, our warrant is the statute of the eleventh of.
Henry the seventh. Chapter the first.
Eleventhly We maintain that the King hath power to disassent to any Bill agreed by the two Houses; which they deny. Our warrant is the Statute of the second of
Henry the fift and the practise of all times, the first of King
Charles, Chapter the seventh the first of King
James Chapter the first.
Twelfthly We maintain that Parliaments ought to be holden in a grave and peaceable manner, without
[...]ults, They allowed multitudes of the meanest sort of people to come to
Westminster to cry for,
Coll. of Ord.
fol. 31. Justice when they could not have their will, and keep guards of armed men to wait upon them. Our warrant is the Statute of the seventh of
Edward the second and their Oracle.
Thirteenthly We maintain that there is no state within this Kingdome but the Kings Majesty, and that to adhere to any other State within this Kingdome is high treason, our warrant is the Statute of the third of King
James Chapter the fourth, and the
[...]enty third of Queen
Elizabeth Chapter the first.
Fourteenthly, We maintain that to levy a warre to remove Councellours, to alter religion, or any Law established is high Treason, They hold the contrary.
One warrant is the resolutions of all the judges of
England in Queen
Elisabeths time, and their oracle agrees with the same.
Fifteenthly We maintain that no man should be imprisoned, put out of his Lands, but by due course of Law, and that no man ought to be adjudged to death but by the Law established,
[Page 19]the customer of the Realm, or by act of Parliament; They practise the contrary in
London, Bristol, Kent, &c. Our warrant is
Magna Charta, Chapter the twenty ninth, the
Petition of right the third of King
Charles, and divers Lawes there mentioned.
We of the Kings party, did and do detest Monopolies, and ship money, and all the grievances of the people as much as any men living, we do well know that our estates, lives and fortunes are preserved by the Lawes, and that the King is bound by his lawes, we love Parliaments, if the Kings, Judges, Counsell or Ministers have done amisse, they had from the third of
November 1640 to the tenth of
Ianuary 1641 time to punish them, being all left to Justice where is the Kings fault?
The law faith the King can do no wrong,
11
pars Cooks Reports Magdalen Colledge Cale. that he is
medicus Regni, pater patriae sponsus regni qui per annlum is espoused to his Realm at his Coronation; The King is Gods Lieutenant, and is not able to do an unjust thing, these are the words of the Law.
One great matter is pretended that the people are not sure to enjoy the acts passed this Parliament, A succeeding Parliament may repeal them; The objection is very weak, a Parliament succeeding to that may repeal that repealing Parliament. That feare is endlesse and remedilesse, for it is the essence of Parliaments being compleat and as they ought to be, of head, and all the Members, to have power over Parliaments before; Parliaments are as the time are; if a turbulent faction prevails the Parliaments are wicked as appears by the examples recited before of extreme wicked Parliaments: if the times be sober and modest, prudent and not biassed, the Parliaments are right good, and honourable, and they are good medicines and salves, but in this Parliament
excessit medi
[...]i
[...]a medum.
In this cause and warre between the Kings Majesty, and the two Houses at
Westminster, what guide had the Subjects of the Land to direct them but the lawes? What means could they use to discern what to follow, what to avoid but the Lawes? The King declaresi
[...] treason to adhere to the Houses in this
[Page 20]warre: The Houses declare it Treason to adhere to the King in this Warre. The Subjects for a great and considerable part of them (treason being such a crime as forfets life and estate, also renders a mans posterity base beggerly and infamous) looke upon the Lawes, and find the letter of the law requires them to assist the King, as before is manifested, was ever subject criminally punisht in any age or nation for his pursuit of what the letter of the Law commands?
The Subjects of the kingdome find the distinction and interpretation now put upon the Lawes of
Abstractum & Concretam, Power and Person, body politique, and naturall, Personall presence and virtuall, to have beene condemned by the law: And so the Kings party hath both the letter of the law and the interpretation of the letter cleared to their judgements, whereby they might evidently perceive what side to adhaere to, what satisfaction could modest peaceable and loyall men more desire?
A verbo legis in criminibus & poenis non est recedendum, hath been an approved maxime of law in all ages and times. If the King be King and remain in his Kingly office (as they call it) then all the said lawes are against them without colour:
Coll of Ordinances 777. they say the said lawes relate to him in his Office, they cannot say otherwise, Commissions and pardon in the Kings name, and the person of the King and his body politique cannot▪ nor ought to be severed as hath beene before declared:
5
Eliz. cap. 1.1
Eliz. cap. 1. And the members of both houses have sworn constantly in this Parliament that the King is the only supreme Governour in all causes over all persons at this present time.
For that of verball or personall commands of the King which is objected, We affirme few things to be subject thereto by the law: But his Majesties Command under his great Seale, which in this warre hath beene used by the Kings command for his Commission to leavy and array men, that is no personall command (which the law in some cases disallowes) but that is such a command, so made, as all men hold their lands by, who hold by Patents; All corporations have their Charters which hold
[Page 21]by Charters, and all Judges and officers their places and callings.
It is objected the King cannot suppresse his Courts of Justice,
Ob. Sol. 7
pars The Earle of Westmerlands Case. 1
Eliz. Dier. 165.7.
pars Cooke. and that this warre tended to their suppression.
The answer is the King cannot nor ought to suppresse Justice or his Courts of Justice, nor ever did: But Courts of Justice by
abuser or non user cease to be courts of Justice; when Judges are made and proceedings in those courts holden by others then Judges made by the King, and against his command under the great Seale, and his Majestie is not obeyed, but the votes of the houses,
The case of discontinuance of Processe. they cease to be the Kings Courts and are become the Courts of the houses, and his Judges breaking that condition in law, of trust and loyalty, implied in their Patents, are no longer his Judges; they obey and exercise their places by vertue of writts and processes under a counterfet Seale. The King only can make Judges, the twenty seventh of
Henry the eighth, Chapter the twenty fourth,
Iustices of the peace, &c. twenty eighth of
Henry the eighth
Dier the eleventh, the Kings Patent makes Judges: The cheese Justice of the Kings Bench is made by the Kings writ only of all the judges.
The great Seale is the key of the kingdome,
Articuli super chartas cap. 5. and meet it is that the King should have the key of his kingdome about him; 2.
pars instit 552. which confutes their saying that the King got the Seale away surreptitiously.
The King, and he only,
Britton sol. 23. may remove his Courts from Westminster into some other place, at Yorke the Termes were kept for seaven yeares, in
Edward the first's time: but for the Court of Common pleas, the place must be certaine; for the Kings Bench and Chancery, the King by the law may command them to attend his person alwayes if it seeme so meete unto him: but the removing of the Common pleas must be to a place certaine and so notified to the people.
All the bookes of law in all times agree,
34.
Assis. pl. 24.22.
Ed. 4.
Fitz. jurisdiction last placit. that the King may grant conusance of all Pleas at his pleasure within any County or precinct to be holden there only, and remove the Courts from
[Page 22]Westminster to some other place (for the Common Pleas,
6
H. 7.9.6
Eliz. Dier. 226. the place must be certaine, and so notified to the people) and adjourne the termes as he sees cause. All which the two houses have violated.
Plebs sine lege ruis.
Some seeming objections of Master
Prin
[...]'s, scattered in divers books answered, and the truth thereby more fully cleared.
The first of
Henry the fourth reviveth the statute of the eleventh of
Richard second,
1
Ob. and repeales to the twelfth of
Richard the second, whereby certaine persons were declared traytors to the King and Kingdome, being of the Kings party.
True,
Sol. but note, the eleventh of
Richard the second, A Parliament beset with 40000 men, and the King assents to it so an Act, and besides the first of
Henry the fourth declares, that the treasons mentioned in the act of the eleventh of
Richard the second, being but against a few private men shall not be drawn into example, and that no Treason should be but such as the twenty fift of
Edward the third declares.
9
Ed. 4.
sol. 80. All these are Acts passed by the King and the three estates, not to be drawne into example, in a tumultuous time, by a besieged Parliament, with an army, and the confirmer of
Henry the fourth being an usurper makes that Act of the first of
Henry the fourth to secure himselfe. Also what is this in the votes of the two houses only at this time.
The Court of Parliament is above the King,
2
Ob. for it may avoid his Charters Commissions, &c. granted against the law.
And the Law is above the King.
Sol.
By the same reason you may say that the Courts of Chancery, or any of the Courts of Law at
Westminster are above the King, for they make of no effect the Kings Charters, which are passed against the Law: and the King is Subject to Law, and sworne to maintaine it. Again, it is no Parliament without the King, and the King is the head thereof, he is
principium Caput & finis of a Parliament, as
Medas tenends Parliament. hath it, and two houses only, want
principium Caput & fixis of a Parliament
[Page 23]and it is a sorry Parliament that wants all these. And therefore to say that Parliaments are above the King, is to say that the King is above himselfe.
The Parliament can enlarge the Kings prerogative,
3
Ob. therefore it is above him.
If the King assent, otherwise not;
Sol. and then it is an Act of Parliament, and otherwise no Act.
Bracton saith, God, the Law, and the Kings Court,
4
Ob
(viz.) his Earles and Barons are above the King,
(viz.) in Parliament, as Master
Prynne expounds it.
Where is then the House of Commons? Indeed, take God,
Sol. the Law, and Earles and Barons together it is true; but to affirme that the Earles and Barons in Parliament are above the King (the King being the head of the Parliament, and they one of the members) how an inferior member is above the head, is hard to conceive: besides, that position destroyes all M.
Pry
[...]es discourse, who attributes so much to the House of Commons.
The King is but one of the three estates of Parliament,
5
Ob. and two are greater then one; therefore above.
The Legs, Armes,
Sol. and Trunke of the Body are greater then the Head, and yet not above; nor with life, without it: the argument holds for quantitie, but not for qualitie; and in truth, the King is none of the three estates, but above them all; the three estates are, the Lords Spirituall, the Lords Temporall, and the Commons;
Coke, their Oracle, in his Chapter of Parliaments,
fol. 1.
In Corporations,
6
Ob. the greater number of voyces make all the Acts of the Corporation valid; therefore so in Parliament.
By this reason the Kings assent is needlesse, and to no end,
Sol. and all the Acts of Parliament formerly mentioned, and Law-Bookes have quite mistaken the matter, which with unanimous voyce requires the Kings assent as necessarie: besides, the Corporations are so constituted by the Kings Charters, that the greater number of Votes shall make their Acts valid.
The King, as King,
7 Ob. is present in his Parliament as well as in all other his Courts of Justice, how be it he is not ther.
In his other Courts of Justice he hath no voye,
Sol. he is none
[Page 24]of the Judges, in the Parliament he hath; if his presence be not necessarie, his voyce is not, nor his assent.
[...]
Ob. Soverain power of Parliaments,
[...]6, 47.
The originall prime legislative power of making Lawes to bind the subjects and their posteritie, rests not in the King, but in the Kingdome and Parliament, which represents it.
Master
Prynne in the same leafe affirmes, and truly, that the Kings assent is generally requisite to passe Lawes and ratifie them;
Sol. the King is the head of the Kingdome and Parliament, how then can a Body act without a Head?
A
major part of a Corporation binds,
9
Ob. therefore the
major part in Parliament, and so of by-Lawes.
The Corporation is so bound, either by the Kings Charters,
Sol. or by prescription, which sometimes had the Kings concession; but prescription, and Law, and practise, alwayes left the King a negative voyce.
The King cannot alter the Bills presented to him by both Houses,
10
Ob. g
o.
True;
Sol. but the King may refuse them.
Acts of Parliament and Lawes ministred in the Reignes of Usurpers,
11
Ob. bind rightfull Kings, g
o.
What is this to prove the two Houses power only,
Sol. which is the question? A King
de facto must be obeyed by them who submitted to him, and they are his Subjects by their submission, and not Subjects
de facto to the true King, and such being Traytors and Rebels to the Regent King (having renounced the true King) when the lawfull King is restored,
9. Id. 4.12 may be punished by him for their Treason against the Usurper. But here is a King still in both cases, and the proceedings at Law holds; the Judges having their Patents from the being Kings, in the reignes of Kings,
de facto or
de
[...]ur
[...], for all Kings are bound and sworne to observe the Lawes.
A King dies without Heire▪
12
Ob. is an infant,
non compes mentis, &c. the two Houses may establish Lawes. g
o.
There is no
Inter-regnum in
England,
Sol. as appeares by all ou
[...] Bookes of Law; and therefore the dying without Hei
[...]e is a vaine supposition, and by their principle
[...] is considerable in his politique capacitie, which cannot die at also The Protector,
[Page 25]assisted by the Councell of the King at Law, his twelve Judges, the Countell of State, his Attorney, Solicitor, and two Sergeants at Law, his twelve Masters of the Chancerie, hath in the Kings behalfe, and ever had, a negative Voyce: but what is thi no the present question? Wee have a King of fall age, of great wisdome and judgement; the power of the two Houses in such a case to be over the King, cannot be showne.
The King cannot dis-assent to publique and necessarie Bills for the common good, g
o.
13
[...].
Nor ever did good King: but who shall be judge,
Sol. whether they be publique and necessarie? The
major part in either of the Houses, for passing of Bills so pretended, may be but one or two voyces, or very few, and perhaps of no judicious men: is it not then fitter or more agreeable to reason, that his Majestie and Councell of State, his twelve Judges, his Sergeants, Attorney and Solicitor, twelve Masters of the Chancerie, should judge of the conveniencie and benefit of such Bills for the publique good, rather then a
minor, (of which sort there may be in the Houses) or a weake man, or a few, who oftentimes carry it by making the
major part, which involves the consent of all? let reason determine.
The Kings of
England have beene elective;
14
Ob. and the King by his Coronation-Oath is bound to maintaine
justas leges & consi
[...]tudines quas vulgas elegerit, g
o.
[...]perie hath beene in the kingdome,
So
[...]. and therefore to continue it still, will not be taken for a good argument; when things are setled for many ages, to look back to times of confusion is to destroy all repose: The Act of Parliament, of the first of
K. James, Chapter the first, and all our extant
Law
[...]s say, that the Kings Office is an heritage inherent in the bloud of our Kings, and their birth-right.
And Usurpers that come in by the consent of the people are
Kings de facto, but not
de jure,
Ed. 4. c.
[...]. but not
de jure, as appeares by the Acts of Parliament declaring them so: And by all our Law-Bookes and the fundamentall constitution of the Land, Regall power is hereditarie and not elective.
For the words
(vulgus-elegerit) if
vulgus be applyed to the
[Page 26]House of Commons,
1 H. 7. they of themselves can make no Lawes. The Peeres were never yet tearmed
vulgus; but allowing they be so called, the Lawes to be made must be just; and who is fit to judge thereof, is before made evident.
Customes cannot referre to future time,
[...]5
Ob. and both are conpled, Lawes and Customes.
Princes have beene deposed, and may be by the two Houfes, g
o.
The deposers were Traytors,
Sol. as appeares by the resolution of all the Judges of
England; Coke, Chap. Treason, in the second part of the Institutes. And never was King deposed but in tumultuous and mad times, and by the power of Armies, and they who were to be the succeeding Kings in the head of them, as
Edward the third and
Henry the fourth.
The appeale to the Parliament for errors in judgements in all Courts,
16
Ob. is frequent, g
o.
This is onely to the House of Lords,
Sol. and that is not the Parliament; the House of Commons have nothing to doe therewith: and in the House of Peeres, if a Writ of Error be brought to reverse any judgement, there is first a petition to the King for the allowance thereof; and the reason of the Law in this case is, for that the Judges of the Land all of them, the Kings Councell and twelve Masters of the Chancerie assist there, by whose advice erroneous judgements are redressed.
The Parliaments have determined of the rights of Kings,
17
Ob. as in
Henry the sixts time, and others; and Parliaments have bound the succession of Kings, as appeares by the Statute of the thirteenth of
Q. Elizab. Chapter the first: and the discent of the Crowne is guided rather by a Parliamentarie Title then by Common Law, g
o.
If this Objection be true,
Sol. that the Title to the Crowne is by Parliament, then we had no Usurpers, for they all had Parliaments to back them, yea,
Richard the third, that Monster. All cur Bookes of Law say they have the Crowne by discent, and the Statutes of the Land declare, that they have the same by inherent birth-right. And the Statute of the thirteenth of
Elizabeth, the first Chapter, was made to secure Q,
Elizabeth
[Page 27]against the Qu. of
Sca
[...], then in the kingdome, clayming the Grown of
England, and having many adherent
[...].
[...]
[...]
[...] And that Statute to that end a firmes no such power in the two Homfor (which is the Question) but in
Q Elizabeth, and the two Houses, which makes against the pretence of this time.
Master
Prynne, fol. 104. of his booke, intituled,
The Parliaments supreme power, &c. Objecting the Statute of the first of Queen
Elizabeth, and his own Oath, that the king is the onely supreme Governour of this Realme; Answers, The Parliament is the supreme power, and the king supreme Governour: And yet there he allowes him a Negative Voyce; and
fol. 107. confesseth that Acts of Parliament translated the Crowne from the right Heires at Common-law, to others who had no good Title; then the Parliamentary▪ Title makes not the king, so powerfull in truth, that it escapes from a man unawares: To make a distinction betweene Supreme Governour, and Supreme power, is very strange, for who can Governe without power?
The king assembles the Parliament by His Writ, adjourns,
Vide
Speed 645.4 par. Instit. 27. & 1. prorogues, and dissolves the Parliament, by the law at his pleasure, as is evident by constant practise, the House of Commons never sate after an adjournment of the Parliament by the kings command. Where is the supreme Power.
The king by his Oath;
1
[...].
Ob. is bound to deny no man right much lesse the Parliament, to agree to all just and necessary lawes proposed by them to the king. This is the substance of the discourse against the kings Negative Voyce.
The king is so bound as is set downe in the Objection, but who shall judge whether the Bill proposed be just and necessary:
Sol. For all that they doe propose are so pretended and carried in either House, sometimes by one or two Voyces; or some few as aforesaid, and certainly as hath been shewn, the king, his Councell of State, his Judges, Sargeants, Attorney, Sollicitor, and twelve Masters of the Chatcery can better judge of them, then two or three, or few more.
Mr.
Pryn fol. 45. In his book of the Parliaments interest to nominate Privie-Councellors, calleth the opinion of the
[Page 28]
Spencers, to divide the Person of the King from his Crowne, a strange opinion,
Calvins case, 7. pars, fol. 11. and cites
Calvins Case, but leaves out the conclusions there in mentioned,
fol. 15. Master
Prynne saith there, But let this opinion bee what it will: without the Kings Grace and Pardon it will goe very far, and two Acts of Parliament there mentioned are beyond an opinion. And in his Book of the opening of the Great Scale,
fol. 17. The Parliament hath no jurisdiction to use the Great Seale for Pardons Generall or Particular. Where is the Supreme power?
Mr.
[...]9.
Ob.
Prynnes (opening of the Seale)
pag. 19. saith, The Noblemen and State, the day after the Funerall of King
Henry the third (King
Edward the first his sonne being in the Holy Land) made a new Great Seale, and Keepers of the same: And in
Henry the sixts time, in the first yeere of his Reigne, the like was done in Parliament.
A facto,
Sol.
ad jus, is no good Argument, for that in
Edward the firsts time, it was no Parliament, for King
Henry the 3. was dead, which dissolved the Parliament, if called in his time, and it could be no Parliament of Edward the firsts time, for no Writ issued to summon a Parliament in his Name, nor could issue but under that New Seale, it was so sodainly done after
Henry the thirds death, King
Edward the first being then in the Holy Land, it was the first yeere of his Reign, and no Parliament was held that yeere, nor the second yeere of his Reigne: The first Parliament that was in his Reigne, was in the third yeere of his Reigne, as appeares by the Printed Acts. Also the making of that Seale was by some Lords then present, What hand had the Commons in it? Concerning the Seale made in
Henry the sixths time, the Protector was Vice-Roy according to the course of Law, and so the making of that Seal was by the Protector in the Kings name; and that Protector,
Humphrey Duke of
Gloucester, as Protector, in the kings Name summoned that Parliament, and was Protector made by the Lords, and not in Parliament, as appeareth plainely, for that Parliament was in the first of
Henry the sixth, and the first holden in his time, and power given by Commission to the said Duke, then Protector,
[Page 29]to summon that Parliament,
Prynne, ibid. fol. 19.
[...]t the new count c
[...]fe it Seale was made when the King was at
G
[...]xford, in his own kingdome, and not in the holy Land.
M
[...].
Prynne in his Book of the two Houses power to impose Taxes, restraines Malignants against any
Habeas Corpus,
20.
Ob. &c. saith, that the Parliament is above
Magna Charta, and
fol. 15.
ibid. The Parliament hath power over
Magna Charta to repeale the same when there is Cause.
This Argument supposeth that they have the kings power,
Sol. which hath appeared formerly they have not. But suppose they had,
Magna Charta containes many morall Lawes, which by the Law of the Land a Parliament cannot alter, 21
H. 7.2.
D. & Student, 2.
Dialogue. For example it saith
cap 18 Justice shall not be sold, delayed, no
[...] denyed to any man: but by this Argument the Parliament may make law to delay, deny, and to sell Justice, which surely is a very ill position to maintaine.
What they would have doth now by the Propositions sent to
N
[...] castl
[...] to his Majesty appeare, whereby they would have him divest himselfe, and settle in them all his kingly power by Sea and land, and of themselves
[...]o have power, without him, today upon the people of this land what taxes they think meet, to abolish the Common, prayer booke, to abolish Episcopacie, and to introduce a Church Government not yet agreed, but such as they shall agree on.
His Majes
[...]y finding
[...] prevailing p
[...]rty in both Houses to
[...], and being chased away with Tumults from
London, leaves the Houses for these Reasons,
(
[...].)
First, because to
[...] the Government for Religion, in against the king
[...].
[...], against their Oathes▪ For every of them hath sworne in this Parliament, That His M
[...]j
[...]sty is the
[...] supreme Governour in all Causes Ecclesiasticall and over all persons.
Thirdly, This course is against
Magna Charta, the 1. chap. and the last.
Salvae suis Episcopis omnes libertates suae, Confirmed by thirty two Acts of Parliament; and in the two and
[Page 30]fortieth of
Edward the third, in the first Chapter enacts; If any Statute be made to the contrary, it shall be holden for none, and so it is for Judgements at Law, in the 25. of
Edward the 1. chap. 1, 2. The Great Charter is declared to bee the Common Law of the Land.
Fourthly, they endeavour to take away by their Propositions, the Government of Bishops, which is as ancient as Christianity in this Land, and the Book of Common-Prayer setled by five Acts of Parliament, and compiled by the Reformers and Martyrs, and practised in the time of foure Princes.
Fifthly, these Propositions taking away from His Majesty all his power by land and Sea, rob him of that which all his Ancestours, kings of this Realme, have enjoyed. That Enjoyment and Usage makes the Law, and a Right, by the same to His Majesty. They are against their owne Protestation made this Parliament,
(viz.) to maintaine His Royall person, Honour, and Estate; They are against their Covenant, which doth say, that they will not diminish His Just Power and Greatnesse.
For these Reasons His Majesty hath left them, and as i
[...] beleeved, will refuse to agree to the said Propositions, as by the Fundamentall Law of the land hee may (having a Negative Voyce) to any Bills proposed.
The result of all is, upon the whole matter: That the king thus leaving of the Houses, and his Denyall to passe the said Propositions, are so farre from making him a Tyrant, or not in a condition to Governe, at the present; That thereby hee is rendred a Just, Magnanimous, and pious Prince: so that by this it appeares clearly to whom the Miseries of these Times are to be imputed. The remedy for all, is, an Act of Oblivion, and a Generall pardon.
God save the KING.
DAVID, JENKINS,
now Prisoner in the Tower.
28,
Aprilis, 1647.