The Sovereign Power of Parliaments and Kingdoms
What God himself long since complained off; My people are destroyed for lack of knowledge; may now be as truly averred of the people of England, (seduced by these blind Guides, or over-reached by Iesuitically Policies,) they are destroyed for want of knowledge; even of the Kings just circumscribed Prerogative; of the Parliaments Supreame unlimited Authority, and Unquestionable Privileges; of their own Haereditary Liberties, and Native Rights: of the Law of God, of Nature, of the Realm in the points now controverted between King and Parliament; of the Machivilian deep Plots of Priests and Papist • long since contrived, and their Confederacies with foreign States (now visibly appearing) by secret Practises, or open violence, to set up Popery and Tyranny, throughout our Realms at once; and by false pretences, mixed with deceitful Protestations, to make ourselves the unhappy Instruments of our Kingdoms slavery, our Laws and Religions utter ruin. The Ignorance, or Inadvertency of these particulars, coupled with a Popish blind Obedience to all royal Commands though never so illegal; out of an implicit Faith, that what ever the King Commands (though against the express Laws of God and the Realm and Resolutions of both Houses of Parliament) may and ought to be obeyed 〈…〉 as some new Doctor • teach▪ hath induced not only many poor Ignorant English and Welsh silly souls, but likewise sundry Nobles and Gentlemen of quality, very unworthily to engage themselves in a most unnatural destructive war, against the High Court of Parliament, and their Dearest Native Country, to their eternal infamies, and (which is almost a miracle to consider) to join with the Jesuitical Popish Party now in Arms both in England and Ireland, (and some say under the Popes own Standard) not only to subvert their own Laws and Liberties, but the very Protestant Religion here estabished, which they profess they fight for. In this deplorable war many thousands have been already destroyed; and the whole Kingdom almost made a desolate wilderness, or like to be so ere this Spring pass over; and all only for want of knowledge, in the premises, which would have prevented all those Miseries and Distractions under which we now languish almost to desperation, and death it self.
To dissipate these black Clouds of Egyptian Darkness, spread over all the Land, distilling down upon it in showers of Blood instead of April drops of rain, (and I pray God they make not all our May-flowers of a Sanguine die,) I have, (after a long sad Contemplation, of my dear Countries bloody Tragedies) at the special Request of some Members of Parliament, (according to my weak Ability, and few Houres vacancy from other distracting Employments) hastily compiled this undigested ensuing Fragment▪ with the preceding Branch thereof, and by their Authority, published that in dismembered Parts, which by reason of its difficulty to the Printers, & urgencie of present public affairs now in agitation, I was disabled to put forth (together with the remaining member) in one entire Body, as I desired. Be pleased therefore kindly to accept that in Fractions, for the present, which time only must, and (God-willing) speedily shall complete; which by God's blessing on it, may prove a likely means to comprimise our present Differences; and re-establish our much-desired▪ Peace; together with our Religion, Laws, Liberties in their Native purity and glory; (the very Crowns, and Garlands of our Peace;) Peace accompanied with Slavery and Popery (both which now menace Us,) being worse then the worst of Wars; and an honorable death in the field fighting against them, better by far then a disconsolate sordid slavish life, or a wounded oppressed Conscience, (though in a royal Palace▪ under them. From such a disadvantageous, enslaving, ensnaring, unwelcome Peace, Good Lord Deliver Us.
All I shall add, is but this request; A Charitable Construction, of this mean Service for my Countries Liberty, Tranquility, Felicity: and if thou, or the Republic reap any benefit thereby, let God only enjoy thy Prayses, the Author thy Prayers. And because I have walked in an untrodden path, in all the Parts of this Discourse.
THE SOVERAIGNE POWER OF PARLIAMENTS AND KINGDOMES.
H AVING answered in the former Part, the Grand Objection against the Parliaments Sovereign Power, I shall in this proceed to the particular crimes now objected against it. The second grand complaint of his Majesty and others, against the Parliament is, That both Houses by a mere Ordinance, not only without but against the Kings assent, have unjustly usurped the power of the Militia, a chief flower of the Crown, and in pursuit thereof, not only appointed Lieutenants, and other Officers, to muster the Trained Bands in each County; but likewise seised the Ports, Forts, Navy, and Ammunition of the King, together with his Revenues; to regain all which, his Majesty hath been necessitated to raise an Army, and proceed against them in a Martial way.
This unhappy difference about the Mi • itia, being (next to the Introduction of Popery) the spring from whence our uncivil wars have issued, and the full discussion thereof, the most probable means to put a speedy period to them: I shall with as • uch impartiality and perspicuity, as I may, like a faithful Advocate to my Country, and cordial indifferent well-wisher both to King and Parliament, truly state and debate this controversy, beginning with the occasions which first s • t it on foot.
In the late happily composed War between England and Scotland, (occasioned by the Prelates) divers Counties of England were much oppressed by their Lieutenants with illegal Levies of Soldiers, Coat and Conduct money, taking away the Trained Bands Arms against their consents, and the like, for which many complaints were put up against them to this Parliament; many of them voted Delinquents, unfit for such a trust, and all their Commissions resolved to be against Law; so that the Militia of the Realm lay quite unsettled. Not long after, our Northern Army against he Scots, the pacification being concluded, was by some ill instruments labored to march up to London, to over-awe or dissolve the Parliament, and quash the Bill against the Bishops sitting in the House: Which plot being discovered, and the chief Actors in it flying over-sea ere it took effect, made the Parliament jealous and fearful of great dangers, if the Command of the Forces of the kingdom then vacant, should be continued in ill-affected, or untrusty Officers hands; which distrusts and fears of theirs were much augmented by the sudden general rebellion of the Papists in Ireland, who pretended his Majesty's and the Queens Commissions for their warrant; by his Majesty's unexpected accusation of, and personal coming (with an extraordinary Guard) into the House of Commons to demand the five Members of it, whom he charged with high Treason; by his entertaining of divers Captains, as a supernumerary Guard at White-hall; and denying a Guard to the House; by the Earl of New-castles attempt to seise upon Hull, and the Magazine there, by command; by the Lord Digbies advise to the King, to retire from the Parliament, to some place of strength; by the Reports of Foreign Forces prepared for England, through the solicitation of those Fugitives, who had a finger in the former plots; and by the Queens departure into the Netherlands, to raise a party there. Hereupon the Parliament, for their own and the kingdoms better security (in the midst of so many fears and dangers threatened to them) importuned his Majesty to settle the then unsettled Militia of the kingdom, by a Bill, for a convenient time; and seeing the King himself could not personally execute this great trust but by under-officers, by the same Bill, to intrust such persons of quality and sincerity (nominated by both Houses, and approved by the King) as both his Majesty, Parliament, and kingdom might securely confide in, to exercise the Militia, and keep the Forts, Magazine, and Ammunition of the kingdom under him only (as before) till these black clouds were dissipated. Which his Majesty refusing to grant in so ample manner as was thought meet for their security; by a Vote of both Houses (when they were full) the Militia was committed to divers Noble Lord's and others; many of whom have since laid down their Commissions, which they at first accepted from the Houses, and instead thereof, been active instruments in executing the Commission of Array; (issued out by his Majesty, in direct opposition to the Militia ) which the Houses by two several Declarations have since Voted and manifested, To be against the Law, and Liberty of the Subjects. And to prevent the arrivals of Foreign Forces, and a civil war in the bow • ls of the kingdom, they first put the Tower of London, by the Kings consent, into a confiding hand, trusted by either party; then they secured Hull and the Magazine there; after this, when they were informed his Majesty had seised Newcastle, and was raising an Army, they possessed themselves of the Navy, Portsmouth, with other Ports and Forts; and sequestered his Revenues; (the Nerves with which he should support this unnatural civil war) which by degrees hath now overspread the whole kingdom, and threatens inevitable desolation to it, if not speedily determined, by an honorable safe Accommodation.
This being the true State and progress of the Militia, the sole question will be; Whether all the former circumstances of danger, & his Majesty's refusal to settle the Militia, Ports, &c. by an act; in such trusty hands, as both King and Parliament might confide in; the Parliament by an Ordinance of both Houses only, without the King, refusing to join with them, and willfully absenting himself from the Parliament, might not in this case of necessity and extremity, (for their own, and the kingdoms safety) lawfully settle and seise the premises, for the present, as they have done? and whether this be a just ground for the King to begin or continue a desperate civil war against his Subjects? For my part, I shall not undertake to justify all passages on either side, in the managing of this business; it may be there have been errors at least in both parties: which to reconcile, as near as possible, I shall premise such propositions on either hand, as Neither can in justice deny.
On the Kings part it is irrefragable:
First, That the Kings of England, (yea generally all Kings where ever) have usually enjoyed the chief Ministerial Ordering of the Militia (in such sort as it hath been settled by their Parliaments) for the defense of the kingdom by Land and Sea, against Foreign Enemies: A Truth acknowledged, not only by Judge Crooke, and Hutton, in their Arguments against Ship-money, but by the Parliament it self, in their two Declarations against the Commission of Array; the Scripture it self in sundry places, together with Aristotle, Polybius, Cicero, Jacobus Valdesius, the Histories of all kingdoms attesting, that the original cause of erecting Kings was, and one principal part of their Royal Office is, to be their Kingdoms Generals in their Wars, and fight their Battailes for them; the Kings of Sparta, and others, yea, the ancient Roman Emperors, being nothing but their Generalls to manage their Wars, and oft elected Emperors by the Roman Legions, for their skill in Martial affairs.
Secondly, That it is not only expedient, but in some respects necessary, that this chief ministerial command of the Militia, Forts, and Navy, should constantly continue in the Crown; unless it be in some special cases; as when the King is an Infant, or unable, or unwilling to discharge this trust; or intends to employ this power against his Subjects to infringe their Liberties, and erect a Tyranny instead of a Royalty over them: And that it is not meet nor honorable to deprive his Majesty of this part of his Sovereignty, as long as he shall faithfully discharge his trust herein, but only to recommend unto him such persons of trust and quality to manage the Militia, Forts, and Navy under him, in these times of war and danger, in whose fidelity the Parliament and whole kingdom may confide, and so be freed from their just jealousies, fears, and dangers. Thus far the Houses have already condescended; and upon these indifferent terms (as they conceive them) have oft proffered to resign up all the Ports, Forts, Ships, Magazines, and Ammunition they have seised on, into his Majesty's hands, they never desiring, nor intending to devest him of this his Sovereign power over them.
On the Parliaments part, it must necessarily be granted to them by the King:
First, That the whole power which either his Majesty hath or claims, or his Predecessors enjoyed over the Militia, Forts, Navy, Ammunition, & Revenues of the Crown; was originally derived and granted to his Ancestors, by the Parliaments and kingdoms free consents, And that only upon trust and confidence for their prot • ction, benefit, security, as the premises abundantly evidence.
Secondly, that the King hath no other power over the Militia, to Array, Arm, or Muster his Subjects in any case, then only in such manner as the Parliament by special Acts hath prescribed, as Sir Edward Cook in his Institutes on Magna Charta, f. 528. 529. this Parliament in the two Declarations against the Commission of Array, and Judge Crooke and Hutton in their Arguments against Ship-money, have largely proved.
Thirdly, That in ancient times, in and before Edward the Confessors days, and since the Heretoches (or Lord Lieutenants of every Province and Country) who had the chief power of the Militia, and commanded them as their Generals in the Wars, were elected by the Common Council of the kingdom (the Parliament) throughout all Provinces of the Realm, and in every County (by the Freeholders) in a full Folkmote, or County Court; as appears by the express words of King Edwards own Laws, Recorded in Mr. Lambard; Recited and affirmed by Sir Edward Cook in his Institutes on Magna Charta, f. 174, 175.
Fourthly, That the Sheriff of every County (who both then had, and now hath full power to raise the Militia, and Forces of the County upon any occasion, to apprehend Delinquents, execute Proces of the Law, suppress Riots, and preserve the peace of the County ) were not elected by the King, but by the Free-holders of each County, as the Conservators of the Peace, and all great Officers of trust, then were, and the Coroners, Foresters, and other Officers, then and yet are elected by the Free-holders, (as well as Knights, Citizens, and Burgesses of Parliament ) even at this very day; This is evident by the express words of King Edward the Confessors Laws. Cap. de Heretochiis (Recorded by Mr. Lambard, Archaion, p. 135. and Sir Edward Cook ) attesting that the Sheriffs of every County were chosen by the Freeholders in the County Court: And by the Articles of deprivation against Richard the second, charging this upon him as an illegal encroachment, That he put out divers Sheriffs, lawfully ELECTED (to wit, by the Free-holders,) and put in their rooms divers of his own Minions, subverting the Law, contrary to his Oath and honor. In the year 1261. The Barons, by virtue of an Ordinance of Parliament made at Oxford, in the 45 year of Henry the third, admitted and made Sheriffs of divers Counties in England, and named them Guardians and Keepers of those Counties, and discharged them whom the King had before admitted. After which, great tumults and seditions arose throughout the Counties of England about the Sheriffs; for the King making new Sheriffs in every County, and removing with regal indignation, those to whom the custody of the Counties was committed by the Barons and Commons of the Land; the Inhabitants of the Counties animated with the ass • stance, and aided with the Counsel of some great men of the Realm, by whom they were instructed; with great sagacity, Novos r • pulere viriliter Vicecomites, manfully repulsed the new Sheriffs; Neither would they answer, regard, or obey them in anything. Whereat the King being grievously troubled in mind, to gain the people's devotion & fidelity, directed his Letters to all the Inhabitants of the several Counties of England, moving to piety & tending to regain the Subjects love. Wherupon great discord increased between the King and his Barons; who coming to London with great forces, the King finding himself too weak, ended the matter for the present with a feigned Accommodation, which soon after was infringed by him; and so, Conquievit tandem per internuncios ipsa perturbatio, SUB SPE PACIS reformandae, sine strepit •• guerrae, quorundum Procerum ad hoc electorum considerationibus, parte utraque concorditer inclinata: Sicque Baronum omnis labor, atque omne studium praecogitatum diu, QUORUNDAM ( ut putabatur ) ASTUTIA INTERMIXTA cassatum est ad hoc tempus, & emarcuit; quia semper nocuit differ paratis; writes Matthew Westminster▪ Notwithstanding these contests, the people still enjoyed the right of electin▪ Sheriffs, which is evident by the Statute of Articuli super Chartas, in the 28. year of King Edward the first, c. 8. The King granteth to the people (not by way of grace but of Right) that they shall have election of their Sheriff IN EVERY SHIRE ( where the Shrevalty is not of Fee ) IF THEY LIST, and chap. 13. For as much as the King hath granted the election of the Sheriffs to the COMMONS of the Shire, the King will, that THEY SHALL CHUSE such Sheriffs, that shall not charge them, &c. And Sir Edward Cook in his Commentary on Magna Charta, f. 174, 175. 558, 559. 566. proves at large, the right of electing Sheriffs, to be anciently, of late, (and at this day in many places) in the Free-holders and people, as in London, York, Bristol, Gloucester, Norwich, in all great Cities which are Counties, and in Middlesex. Seeing then the Parliament and Free-holders, in ancient times had a just right to elect their Generals, Captains, Sheriffs, (who had the sole power of the Militia, and Counties in their hands next under the King himself) and there is no negative Law in being (that I can find) to exclude them from this power; I humbly conceive, that their settling the Militia by an Ordinance of Both Houses, and electing of Commanders, Lieutenants, Captains in each County to execute it, and defend the Counties from plundering, and destruction, without his Majesty's consent (especially after his refusal to settle it by an Act) can be no encroachment at all upon his Prerogative Royal, but only a reviving and exercising of the old undoubted rightful power enjoyed by their Predecessors, now necessary to be resumed by them (in these times of fear and danger) for the kingdoms safety.
Fifthly, The Mayors, Bailiffs, Sheriffs, chief Officers of Cities and Towns corporate throughout • the Realm, (who under the King have the principal command of those Cities, Towns, Ports▪ and in many places of the Militia, and Trained Bands within them) are always chosen by the Corporations and Freemen, not the King, without any derogation to, or usurpation on his Prerogative. Why then may not those Corporations, (yea each County too by the like reason) and the Parliament, which represents them and the whole kingdom, without any prejudice or dishonor to his Majesty's Authority, by an Ordinance of both Houses of Parliament, without the King, dispose of the Militia, and these Military Officers, for the defense of those Corporations, and the Realm too, now, in times of such apparent danger?
Sixthly, all Military affairs of the kingdom heretofore, have usually, even of right, (for their original determining, counseling, ann disposing part) 〈◊〉 Ordered by the Parliament; the executive, or ministerial part only, by the King; and so hath been the use in most other kingdoms: To instance in particulars.
First, the denouncing of war against Foreign enemies, hath been usually concluded and resolved on by the Parliament, before it was proclaimed by the King: as our Records of Parliament, and Histories of wars in the Holy-Land, Fr •• ce, Scotland, Ireland, abundantly evidence. King Henry the fifth by the advise of his Prelates, Lord's, and Commons in Parliament, and at their encitement, twice denounced and undertook his victorious war against France, to which Crown he then laid claim, for which end they granted him Subsidies: King Edward the 1. in the 21 year of his Reign, calling a Parliament at London, de Concilio Praelatorum & Procerum, &c. by the advise of his Prelates, Lord's and Parliament, denounced war against the King of France: to recover his right and lands there seised. Which to effect, both the Clergy and Laity granted him large Subsidies. In the fifth year of King Edward the third, the war against Scotland was concluded and resolved on, in and by the Parliament; all the Nobles and Commons of England telling the King, they would gladly and willingly assist and go with him in that expedition, which they vigorously prosecuted: Before this, Anno 1227. A peace (as well as war) was conec • uded with the Scots in and by a Parliament at Northampton. Anno 1242. King Henry the third summoning a Parliament, and demanding aid of his Subjects to assist him in his war against the King of France, to recover his rights there, they gave him a resolute answer, that they would grant him no aid, and that he should make no war with France till the Truce were expired: which Matthew Paris thus further expresseth: The Nobles answered him with great bitterness of heart; that he had conceived this war and vnyage into France without their advise: Et talia effrons impudenter postularat, exagitans & depauperans fideles suos tam frequenter, tra • ens exactiones in consequentiam quasi a servis ultimae conditionis, & tantam pecuniam toties extorsit inutiliter dispensandam. Contradixerunt igitur Regi in faciem, nolentes amplius sic pecunia sua frustratorie spoliari. The King hereupon put them off till the next day (Romanorum usus vertutis fallaciis) and then they should hear his mind concerning this and other matters. The next day he calls them one by one into his privy Chamber, Now one, then another, like a Priest calling penitents to confession; and thus those whom he could not all together overcome, weakened by being everyone apart, he endeavored more cunningly to enervate with his words▪ and demanding a pecuniary aid of them he said; See what this Abbot hath granted me towards my aide; behold what another hath subscribed, producing a feigned Roll, that such and such an Abbot or Peer had subscribed such a sum, when in truth not one of them had consented to it, neither came it into their thoughts. The King therefore with such false copies, and ensnaring words. cunningly inveagled many: Notwithstanding most stood out, and would by no means recede from the common answer, which they had sworn not to recede from under pain of an Anathema. To whom the King answered in anger, Shall I be perjured? I have sworn with an inviolable oath, that passing over sea, I will with a stretched out arm demand my rights of the King of France, which I cannot do without store of Treasure, which must proceed from your liberality, else I can by no means do it. Neither yet with these, or other words could he entrap any, albeit, he called every man single to confer with. After this, he again called others which were more familiar with him, and so talking to them said, What a pernicious example give you to others? you who are Earls, Barons, and valiant Soldiers, ought not to tremble as others, to wit, Prelates of the Church do. You ought to be more covetous to demand the Kings rights, and valiantly to fight against those who wrong me, &c. with what face then can you relinquish me poor and desolate now, being your Lord, in such a weighty business which concerns the Common-wealth, when I am bound by promises to pass the Seas, which I ratified with an oath? Which when it came to the knowledge of all, they answered:
We admire beyond all that can be spoken, into what bottomless pit the innumerable sums of money are sunk, which thou Lord King hast cunningly gained, by divers wardships of great men, by various escheates, frequent extortions, as well from Churches void of a Pastor, as from the lands of Noblemen, free granted Donatives, engendering amazement in the hearts of the hearers, all which have never brought so much as the least increase to the kingdom. Moreover all the Nobles of England do overmuch admire, QUOD SINE EORUM CONSILIO ET CONSENSU, that without their counsel or consent you have undertaken so difficult and perilous a business, giving credit to those who want faith, and contemning the favor of thy natural Subjects, exposest thyself to cases of so doubtful fortune: thou dishonestly and impudently, not without just peril of thy Soul, and wounding of thy Fame breakest the Articles of the truce between the King of France and thee, which thou hast sworn upon thy Soul indissolubly and unviolably to keep for three years space, &c. The King hearing these things, was exceeding angry, swearing by all the Saints, that he would be revoked by no terror, nor persuaded by any circumstances of words, to retard his begun purpose, and taking ship on Quindena Paschae, would undauntedly try the fortune of War in Foreign parts. And so the Parliament dissolving in discontent and secret heart-burning on both sides, the Lord's and Barons for a perpetual memory of their Heroicke Answer returned to the King, set it down in a notable Remonstrance (too large to transcribe) which you may read in Matthew Paris. After this in the year 1248. this King summoned a general Parliament at London, wherein he demanded an aid from his Lord's and Commons to recover his Right in France; who instead of granting it, informed him very roundly and fully of his unkingly and base oppressions both of his Subjects and strangers, to his own and the kingdoms dishonor, and of his tyranny and rapines: At which the King being confounded and ashamed in himself, promised a serious and speedy Reformation; Which because they thought to be but feigned, he answered they should shortly see it; Whereupon they replied, they would patiently expect it till fifteen days after St. John Baptist, adjourning the House till then. But the King seduced, hardened and much exasperated by his bad Counsellers and Courtiers, giving then a very high displeasing answer to their demands; they all unanimously answered, that they would no more unprofitably impoverish themselves to enrich and strengthen the King and kingdoms Enemies; and that he had precipitately and indiscreetly, and WITHOUT THEIR CONSENT hastened into Poitiers, and Gascoygne, and engaged himself in that war; whence he returned ingloriously with loss of his honor and treasure, to his great reproach. And so this Parliament dissolving with discontent, the King grew very angry with his ill Counselors, for putting him upon these courses, which lost the hearts of his Nobles and people: who to pacify his anger and supply his wants, advised him to sell all his Plate, Utensils, and Jewels to the Londoners, and then to resume and seise them again, as belonging to the Crown.
Anno 1256. The same King Henry summoned a Parliament to assist him in his wars in Apulia; but because he had taken upon him that War WITHOUT HIS BARONS AND PARLIAMENTS CONSENT they and his own Brother, Richard Earl of Cornwall, refused to grant or lend him any aid. And because all the Barons and Commons were not summoned to this Parliament, as they ought to be, according to the tenor of Magna Charta, they refused to do anything, or grant any aide without the rest of the Peers were present; and so returned home discontented. After this, Anno 1258. this King summoning a Parliament at London, demanded aid of them towards his wars in Apulia; to which the Parliament gave this resolute answer, that they could no ways supply him in this case without their own undoing: And if he had unadvisedly, and unseemingly gotten from the Pope the kingdom of Apulia for the use of his Son Edward, he should impute it to his own simplicity, and that he had PRESUMED UNCIRCUMSPECTLY WITHOUT THE CONSENT OF HIS NOBLES TO UNDERTAKE THIS WARRE, as a contemner of deliberation and prudence, which is wont to forecast the end of things; therefore he should bring it to what issue he best could, and should take example from his brother Richard, who refused the Empire tendered to him, &c. In the second year of King Edward the second, he consented to this Act of Parliament, That he would begin no war without common consent in Parliament, which he then confirmed with an Oath. So An. 25 Edward 1. The Lord's and Commons utterly refused to go with the King to his wars in Flanders, though they were summoned to do it; Because this war was proclaimed without their consents and good likings; and they were not bound by their Tenures to go unto it; petitioning the King to desist from this War; and at last caused the King in Parliament to release these services. And Anno 1205. The Lord's and Commons for this very reason, refused to go with King John to his wars in France to recover his inheritance there. In the sixth year of King Richard the second, in a Parliament holden at London, it was for many days together debated, whether the Bishop of Norwich (Henry Spens • r) wh • m the Pope had made General of his Forces against the Schismatics of Flanders, giving great indulgences to those who should assist him in person or with Monies in this War, should undertake that War or no? and after mu • h opposition of the Captains of the kingdom, alleging, that it was not safe to commit the people of the King and kingdom to an unexpert Priest; it was at last resolved in Parliament (through the constancy and valor of the Knights and Commons) that he should undertake this war, and go General of the Army: Which office he valiantly managed with good success; being a better Soldier than Preacher. And the same year in another Parliament at London; it was Decreed BY THE PARLIAMENT, that because the Scots had broken their Faith with the English, Faith should be broken with them. (Frangenti fidem, fides frangatur eidem:) And that a select power should be sent into Scotland out of England, (to wit, a thousand Lances, and 2000. Archers) to curb their attempts, under the conduct of the Lord Thomas of Woodstock: which the Scots being informed of, were greatly afraid, and in the end of the Parliament sent humble supplicants to it, to treat with them about a peace or truce, which they desired. But the English having had such frequent experience of their falsehood, would neither treat nor compound with them; but reviling their messengers, commanded them to return home, wishing them to defend their heads and rights as well as they could. Who returning, the Northern Lord's undertook the defense of their Country, until Thomas of Woodstock should be p • epared to aid them with greater Forces. Loe here both Generalls, Armies, Wars appointed by the Parliament, and Subsidies likewise granted to supply them; and the making of a peace or truce referred to them, it being agreed in a former Treaty; that if any damage or injury should be done by either Nation one to another, some special Committees should be sent to the Parliament of both kingdoms every year, who should publicly relate the injuries sustained, and receive amends according to the damage suffered, by the judgment of the Lord's.
In the Printed Statutes of 18 Ed. 3. Parliament 2. and in our Historians too, (I find this preamble, recited almost verbatim, the next Parliament the same year, chap 1.) It is to be remembered, that at the Parliament h • lden at Westminster, the Monday next after the Utas of the Holy Trinity, in the Reign of our Sovereign Lord the King that now is, of England the 18. and of France the 5. many things were shown in full Parliament, which were attempted by the adversary party, against our Sovereign Lord the King of France, against the Truce late taken in Britain, betwixt our Sovereign Lord the King, and him. And how that he enforceth himself as much as he may, to destroy our said Sovereign Lord the King, and his Allies, Subjects, Lands and places and the tongue of England. And that was prayed by our said Sovereign Lord the King of the Prelates, great men and Commons, THAT THEY WOULD GIVE HIM SUCH COUNSELL and AIDE AS SHOULD BE EXPEDIENT IN SO GREAT NECESSITY. And the same Prelates, great men and Commons taking good deliberation and advice, and openly seeing the subversion of the Land of England, and Kings great business, which God defend, if hasty remedy be not provided, HAVE COUNSELLED JOYNTLY and SEVERALLY, and prayed with great instance our Sovereign Lord the King, that he would make him as strong as he might to pass the Sea, in assurance of the aid of God and his good quarrel, effectually at this time, TO MAKE AN END OF HIS WARRES BY WAY OF PEACE OR ELSE BY FORCE. And that for Letters, words, nor fair promises, he shall not let his passage, till he see the effect of his business. And for this cause the said great men do grant, to pass and adventure them with him. And the said Commons do grant to him for the same cause in a certain form, two Quinzimes of the Commonalty, and two Dismes of the Cities and Burroughs, to be levied in manner as the last Quinzime granted to him, and not in other manner, &c. So that the money levied of the same, be dispended in the business shown to them this Parliament, BY ADVICE OF THE GREAT MEN THERETO ASSIGNED. And that the aids beyond Trent, BE PUT IN DEFENCE OF THE NORTH. A pregnant Precedent of the Parliaments interest in concluding War and Peace, and disposing of the aid contributed towards wars, to such persons and uses as they deem meet to confide in. By these, with infinite other precedents, the Statute of 1 Iac. c. 2. and the Act of Pacification and oblivion between Scotland and England, made this very Parliament, enacting that no war shall be levied or made by any of either Nation against the other without consent of Parliament, under pain of High Treason; It is evident, that the principal right of concluding, denouncing War or peace, resides in the Parliament: and that the King without its previous advice and consent, ought not to proclaim any open war, since the Subjects estates; and persons must support, wage it, and receive most disadvantage by it; a truth not only implied but resolved by his Majesty's own royal assent this very Parliament in the Act of Pacification betwixt England and Scotland. Neither is this thing unusual but common in other Kingdoms. Livy, Polybius, Grimston, Plutarch, John Bodin expressly affirm and confirm by sundry examples; That in the Roman State, both under their Kings and Emperors, the chief power of denouncing war and concluding peace, was in the Senate and people: And if any of their Emperors, Consuls or Generals concluded peace without their consents, it did not bind, but was merely void, unless the Senate and people ratified it by a new decree: neither might any war be decreed, but in the great assembly of the Senate and people together, and by a public Law. And because Caesar had, without command of the people, made war in France, Cato Uticensis delivered his opinion in the Senate, that the Army was to be called home, and Caesar for his presumption delivered up to the Enemy. So in the States and Kingdoms of the Athenians, Aetolians, Polonia, Sweden, Denmark and Norway, no War was begun, nor Peace concluded by their Kings but by the authority and preceding decree of their Senates, Parliaments and Diets, as Bodin proves at large. The like Buchanan affirms of the Kings of Scotland; and we have divine authority concurring with it, Josh. 22. 11, 12, &c. Judge. 20. 1. to 48. compared with Prov. 20. 18. c. 24. 6. and Judge. 11.
Secondly, All preparations belonging to war by Land or Sea, have in the gross and general, been usually ordered, limited and settled by the Parliaments: as namely,
First, What proportions and sums of money should be raised for the managing of the war; in what manner and time it should be levied; to what hands it should be paid; and how disbursed: which appears by all the Bills of Subsidies, Tenths, Taxes, Tonnage and Poundage in the Reignes of all our Kings.
Secondly, How every man should be Mustered, Arrayed, Armed, According to his estate, as is clear by all our Statutes of Armor, Musters, Captains, Ships, Horses, Wars, reduced under heads by Rastall; where you may peruse them: by Justice Crookes and Huttons Arguments against Ship-money; Sir Edward Cooks Institutes on Magna Charta, f. 528, 529. the Parliaments two late Declarations against the Commission of Array: and the Statute of Winchester, 13. E. 1. c. 6.
Thirdly, How far every man shall March when he is Arrayed, when he shall go out of his own County with his Arms, when not: who shall serve by Sea, who by Land; how long they shall continue in the Wars; when they shall be at their own, when at the Kingdoms, when at the Kings costs or wages, and for how long time; as the Marginall Statutes, and next forecited Law Authorities manifest.
Fourthly, When, where, and by whom Liveries, Hats, Coates, shall be given in Wars, when not, and what Protections or Privileges those who go to Wars, or continue in them shall have allowed them.
Fifthly, What shares or proportions of Prisoners, Prises, Booties, Captains and Soldiers should be allowed in the Wars: And at what Ports and rates they should be Shipped over Sea.
Sixthly, How and by whom the Sea shall be guarded, and what Jurisdiction, Authority, and share of Prises the Admirals of England shall have; When the Sea shall be open; when shut to enemies and strangers; What punishments inflicted for Mariners abuses on the Sea; And what redress for the Subjects there robbed by enemies or others.
Seventhly, What Castles, Forts, Bulwarks, shall be built or repaired for defense of the Realm, in what places, and by whose charges.
Eighthly, What punishment shall be inflicted upon Captains, who abuse their trust, detain the Soldiers wages, and on Soldiers, who sell their Arms, or desert their colors without special License.
Ninthly, What provision there shall be made for, and maintenance allowed to Soldiers hurt or maimed in the Wars by Land, and for Mariners by Sea.
Tenthly, That no aid, Armor, Horses, Victuals shall be conveyed to the enemies by way of Merchandise, or otherwise during the Wars; that all Scots, and other enemies should be banished the Kingdom and their goods seised whiles the wars continued between England and them.
Eleventhly, How Frontier Castles and Towns toward Wa • es, and other places of hostility should be well manned and guarded, and no Welchmen, Irish, Scots or alien Enemies should be permitted to stay in England to give intelligence, or suffered to dwell or purchase Houses or Lands within those Towns; and that they shall all be disarmed.
Twelfthly, After what manner Purveyances shall be made by the Captains of Castles, and how they shall take up victual. In one word, Wars have been ended, Leagues, Truces made, confirmed, and punishments for breach of them, provisions for preservation of them enacted by the Parliament, as infinite Precedents in the Parliament Rols and Printed Acts, demonstrate. So that our Parliaments in all former ages, even in the Reignes of our most Martial Kings, have had the Sovereign power of ordering, settling, determining both the beginning, progress, and conclusion of our Wars, and the chief ordering of * all things which concerned the managing of them by Sea and Land; being indeed the great Counsel of War, elected by the Kingdom, to direct our Kings; who were and are in truth but the kingdoms chief Lord Generalls, (as the ) Roman Emperors, and all Kings of old were their Senates, States and Peoples Generals, to manage their Wars and fight their battles) the Sovereign power of making and directing War or Peace, being not in the Emperors or Kings themselves, but in their Senates, States and Parliaments, as Bodin proves at large. And being but the Kingdoms Generals, who must support and maintain the Wars, there is as great reason that they should direct and over-rule Kings in the Ordering of their Wars and Militia when they see cause, as that they should direct and rule their Lord General now, or the King his Generals in both his Armies. During the minorities of King Henry the sixth, and Edward the sixth, the Parliament made the Duke of Bedford Regent of France, and the Dukes of Gloucester and Sommerset, Lord Protectors of England; committing the trust of the Militia, and Wars to them: And ( i ) 39. H. 6. the Parliament made Richard Duke of York, Lord Protector of the Realm, and gave him like power, when the King was of full age. And in our present times: The King himself this very Parliament voluntar • lie committed the whole care and managing of the Wars in Ireland and the Militia there to this present Parliament; who appointed both the Commanders and all other Officers of the Forces sent hence into Ireland: and that without any injury, or eclipse, to his Majesty's Royal Prerogative. If then the Subjects and Parliament in ancient times, have had the election of their Generals, Captains, Commanders, Sheriffs, Mayors, and other Officers, having the chief ordering of the Militia under the King; if they have constantly Ordered all parts and matters concerning the Wars in all former Kings Reignes; appointed Regents and Protectors, committing to them the Kings own Royal power over the Militia, during their Minorities; and his Majesty himself hath permitted this Parliament to Order the Militia of Ireland, to which they have no such right or Titleash to that of England, without any prejudice to his Prerogative; I can see no just exception, why his Majesty should at first, or now deny the Parliament such a power over the Militia, as they desired for a time; or why in point of Honor or Justice, their Bill for settling the Militia in safe under hands, in such persons as both sides may well confide in, should now be rejected, being for the Kings, Kingdoms, and Parliaments peace and security; much less, why a bloody intestine War should be raised or continued, upon such an unconsiderable point on his Majesty's part: who seeing he cannot manage the Militia in proper person in all Counties, but only by Substitutes; hath far more cause to accept of such persons of Honor and quality as his Parliament shall nominate (in whom himself and his whole Kingdom in these times of War and danger may repose confidence) to execute this trust, then any whom his own judgment alone, or some private Lord's or Courtiers shall recommend, in whom the Kingdom and Parliament, in these jealous deceitful times, dare not confide. The yielding to the Parliament in this just request, will remove all fears and jealousies, restore our peace, re-gain his Majesty the real affections of his discontented Subjects; the persisting in the contrary course will but add fuel to our flames, fears, doubts, dangers, and frustrate all hopes, all endeavors of Peace.
From the Militia it self, I descend to the consequences of its denial, the Parliaments seising upon Hull, with other Ports and Forts, the Royal Navy, Ammunition, Arms, Revenues, and detaining them still from his Majesty, the grand difference now pretended, whence the present war hath emerged; which these ensuing considerations will in a great measure qualify, if not altogether satisfy.
First, his Majesty and all Royalists must necessarily yield, that the Ports, Forts, Navy, Ammunition, Arms, and Revenues thus seised on by the Parliament, though his Majesty's in point of possession, yet are not his, but the Kingdoms in point of right and interest; they being first transferred to, and placed on his Predecessors and himself by the Parliament and Kingdom: not in right of propriety, but conditionally upon trust, (his Majesty being but a public Officer) for the defense and safety of the Realm; and though his Majesty came to them by descent, yet it was but in nature of the Heir of a Feoffee in trust, for the use and service of the kingdom; as a King in his political; not as a man or Proprietor in his natural capacity; as our Law Books, Terminis terminantibus resolve. Hence it hath been oft adjudged; that the King can neither by his will in writing, nor by his Letters Patents, Devise or alien the Lands, Revenues, Jewels, Ships, Forts, or Ammunition of the Crown (unless it be by virtue of some special Act of Parliament enabling him to do it by the kingdoms general consent;) and if any such alienations be made, they are void in Law, and may be, yea have been oft resumed, reversed by the Parliament; because they are not the Kings, but kingdoms, in point of intere • t and propriety: the Kings, but in possession and trust for the kingdoms use and defense. Hence it is, that if the King die, all his Ships, Arms, Ammunition, Jewels, Plate, Debts to the Crown, Moneyes, Arrerages of Rents or Subsidies, Wards, and Rights of presentments to void Churches, go only to his Successors, not to his Executors, (as in case of a common person,) because he enjoys them not as a Proprietor (as other Subjects do) but as a Trustee only, for the kingdoms benefit and defense; as a Bishop, Abbot, Dean, Mayor, or such like Corporations, enjoy their Lands, not in their natural but political capacities, for the use and in the right of their Churches, Houses, Corporations, not their own. Upon this ground King Harold pleaded his Oath and promise of the Crown of England to William the Conqueror, without the Kingdoms consent, to be void; and King Philip, with all the Nobles, of France, and our own Parliament (40 E. 3. rot. Par • . nu. 8.) unanimously resolved, King John his resignation and grant of the Crown and Kingdom of England, to the Pope, without the Nobles and Parliaments consents, to be a mere nullity, void in Law, binding neither King nor Subject; the Crown and possessions of it, being not the Kings but kingdoms.
And before this, Anno Do • . 1245. in the great Council of Lions, under Pope Innocent, to which King Henry the third, sent four Earls and Barons, together with the English Prelates, and one Master William Powyke an Advocate, to complain of the Popes exactions in the Council, which they did; where they likewise openly protested against the annual tribute extorted by the Pope, by grant from King John, (whose detestable Charter granting that annual tribute, was reported to be burnt to ashes in the Popes closet, by a casual fire during this Council) as a mere nullity, and that in the behalf of the whole kingdom of England; EO QUOD DE REGNI ASSENSU NON PROCESSERAT, because the kingdom consented not thereto; and because the King himself could make no such Charter to charge the kingdom. Which Matthew Paris thus expresseth. W. De Poweric Anglicanae Vniversitatis Procurator assurgens, gravamina Regni Angliae ex parte universitatis Angliae, proponens satis eleganter; conquestus est graviter, quod tempore Belli per •• uriam Romanam, extortum est tributum injuriose, in quod nunquam patres Nobilium regni, vel ipsi consenserunt, nec consentiunt, neque in futurum consentient, unde sibi petunt justitiam exhiberi cum remedio. Ad quod Papa, nec oculos elevans, nec vocem, verbum non respondit.
Upon this reason (l) Matthew Paris speaking of King Henry the third his morgaging his kingdom to the Pope, Anno 1251. for such monies as he should expend in the Wars: useth this expression. Rex secus quam deceret, aut expediret, Se, suumque Regnum, sub paena exhaeredationis, QUOD TAMEN FACERE NEC POTUIT NEC DEBUIT, Domino Papae obligavit. Hence King Edward the third, having the Title of the King and Crown of France devolved to him, which made some of the English fear, that they should be put in subjection to the Realm of France, against the Law; the Parliament in the 14. year of his Reign, Stat. 4. passed a special Act, declaring; That the Realm of England never was, nor ought to be in subjection, nor in the obeisance of the Kings of France, nor of the Realm of France: and enacting; that the King of England or his Heirs, by color of his or their Titles to the Crown, Seal, Arms, and Title of the King of France should not in any time to come put the Realm of England, or people of the same, of what estate or condition soever they be, in subjection or obeisance, of him, nor his Heirs nor his Successors, as Kings of France, nor be subject, nor obedient, but shall be free and quite of all manner subjection, and obeisance as they were wont to be in the time of his Progenitors, Kings of England forever. By the Statute of 10 R. 2. c. 1. it is resolved, That the King could not alien the Land, Castles, Ships, Revenues, Jewels, and Goods of the Crown; and a Commission is thereby granted to inquire of, and resume all such alienations as illegal. Hence the Commons in the Parliament of 16 R. 2. c. 5. of Praemunire, in their Petition to the King, and the whole Parliament in and by that Law, declared; That the Crown and kingdom of England, hath been so free at all times, that it hath been in subjection to no Realm, but immediately subject to God, and to none other; which (by the prosecution of suites in the Court of Rome for Benefices, provided against by this Act) should in all things touching the Regality thereof, be submitted to the Bishop of Rome, and the Laws and Statutes of the Realm be by him defeated and frustrated at his will, to the destruction of the King, his Sovereignty, Crown and Regality, and of all his Realm; in defense whereof in all points, they would live and die. Hence the Kings of England have always settled, entailed, and disposed of the succession and Revenues of the Crown by special Acts of Parliament, and consent of the whole Realm, because the whole kingdom hath an interest therein, without whose concurring assent in Parliament, they had no power to dispose thereof: as the Statutes of 21 R. 2. c. 9. 7 H. 4. c. 2. 25 H. 8. c. 22. 26 H. 8. c. 13. 28 H. 8. c. 7. 35 H. 8. c. 1. 1 Mar. c. 1. and Parl. 2. c. 1, 2. 1 Eliz. c. 3. 13 Eliz. c. 1. 1 Iac. c. 1. Hals Chron. f. 10. 15. 1 H. 4. p. 763. 928. to 932. Doniels hist. p. 122. 138, 139. abundantly manifest, and Cook l. 8. the Princes case. Upon which ground King Edward the sixth, his devise of the Crown of England to the Lady Jane, by his last will in writing, without an Act of Parliament, contrary to the Statute of 35 H. 8. c. 1. was adjudged void; though subscribed and sworn to, by all the Lord's of the privy Counsel, and all the Judges but one; and Queen Jane, with the Duke of Northumberland and others, who proclaimed her as Queen of England by virtue of this devise, were condemned and executed as Traitors: Whereas auy private Subject may devise, and settle his estate as he pleaseth, without any special Act of Parliament to authorize him.
Hence in the Parliament Roll of 1 H. 6. Num. 18. The last Will and Testament of deceased Henry the fifth, and the Legacies therein bequeathed of 40000. Markes in Goods, Chattels, Jewels, Moneyes for Payment of the Kings debts, are ratified by the Lord's, Commons, and Protectors, concurring assents by an Act of Parliament, as being otherwise invalid to bind the King or Kingdom. And Num. 40. Queen Katherines Dower of 40000. Scutes per Annum, concluded on by Articles upon her Marriage, and by a Parliament held the second of May in the 9. year of King Henry the fifth, well approved, authorized and accepted, which Articles that King then swore unto, and the three Estates of the Realm of England, to wit, the Prelates, Nobles, and Commons of England, in that Parliament, and everyone of them, for them, their Heirs and Successors, promised well and truly to observe and fulfill forever, as much as to them and every of them appertained: Was after her Husbands death, upon her petition, by a special patent made by this Infant King her Son, WITH THE ASSENT OF THE LORD'S SPIRITUALL and TEMPORALL, and COMMONS OF ENGLAND, IN THAT PRESENT PARLIAMENT ASSEMBLED, assigned, settled, and confirmed, out of the Crown Lands therein specified: else it had not been binding to the Successor King or Realm: the Crown Lands being the Kings but only in the Kingdoms right; whence all our Queens Dowers and Joyntures have usually been settled and confirmed in and by Parliaments, (whereas any other man may endow or make his Wife a good Jointure, without the Parliaments assent or privity;) And in 2 E. 3. the Queen Dowagers great Jointure (which took up three parts of the Kings Revenues) by common consent in a Parliament, held at Nottingham, was all taken from her, (because not duly settled by Parliament, and too excessive, to the Kings and kingdoms prejudice) and she put to a pension of 1000. li. per annum, during her life.
And by the Statute of 1 H. 6. c. 5. it is expressly resolved, That King Henry the fifth could not alien or pledge the ancient Jewels or Goods of the Crown, to maintain his Wars, without a special Act of Parliament; and if he did, those to whom he pawned or sold them, were still accountable to the Crown for them, and the alienation void; whence, the carrying of the Jewels, Treasure, and Plate of the kingdom over Sea into Ireland without assent of the Nobility and Parliament, was one of the Articles objected against Richard the second in Parliament, when he was deposed; the Jewels and Crown Lands being not the Kings in right of property and interest, but the kingdoms only; and so all alienations of them without the Parliaments consent void, and usually resumed by the Parliament; witness the notable Act of Resumption in 8 H. 6. and 31 H. 6. c. 7. of all the Kings grants of any Honors, Castles, Towns, Villages, Manors, Lands, Rents, Reversions, Annuities, &c. from the first year of his Reign till then, with divers other precedents of Resumptions in the Margin, in King Stevens, Rich. 1, 2. & Hen. 2, 3, & 5. their Reignes.
These resolutions of our Common and Statute Law, are seconded by many foreign Civilians, as Baldus in Proem. de Feud. n. 32. 33. Aretine in Rubric. Lucas de Penna. Cod. de omni agro deserto. l. Quicunque f. 184, 185. Albericus de Rosate: Quodcunque. praescrip. been a Zenone. n. 4. f. 3. 1. 4. Boetius Epan. Haeroic. quest. qu. 3. n. 43. qu. 5. n. 19. 27. 34. Didacus Cavaruvius, Practic. qu. c. 4. n. 1. Martinus Laudensis, de Confaed. Tract. 1. qu. 13. John. Andreas, in cap. dilect. de Major. & Obed. Franciscus Vargas de Author. Pontif. Axiom. 1. n. 2. Concilium Toletanum 8. Surius Council. Tom. 2. p. 865, 866. with sundry others (many of whose words you may read in Doctor Crakenthorps defense of Constantine, p. 169. to 175.) who affirm; That the Emperor or any other King cannot give away any Towns or Territories belonging to their Empire or Kingdoms, contrary to their Oaths and Trusts, they being the Kingdoms not theirs in right. Whence they conclude, Constantine's pretended Donation of Rome, and Italy to the Pope, a mere Nullity. And Francis the first King of France, An. 1525. professed publicly to all the world; That it was not in the power of a French King, to bind himself to the alienation of any Lands, Towns, or Territories belonging to the Crown, without the consent of the general Estates of France, & of his Sovereign Courts and Officers, in whose hands the Authority of the whole Realm remained; And therefore • e refused to consigne the Duchy of Burgoyne to the Emperor Charles the fifth, who had taken him prisoner in the Battle of Pavia, or to release his right to any territories belonging to the Crown of France, though he had sworn to do it to procure his Liberty, alleging that he had no power to do it, without his kingdoms and Parliaments consents. It is true, our Law-books say; That the King cannot be seised of Lands to any private Subjects use, by way of feofment, because it stands not with his honor to be any private man's feoffee; because no Subpena lieth to force him to execute it, & he is a Corporation: yet he may have the possession of lands in others right, and for their uses (as of Wards, Idiots, Lunaticks, Bishops during the vacation, and the like) and if he alien these Lands in fee to their prejudice, the grant is void in Law, and shall be repealed, as hath been frequently judged; because he possesseth these lands not in his own, but others rights. So the King hath his Crown Lands, revenues, Forts, Ships, Ammunition, Wards, Escheates, not in his own but the Kingdoms right, for its defense and benefit; and though he cannot stand seised to private man's use, yet he may and doth stand seised of the premises to his whole kingdoms use, to whom he is but a public servant, not only in Law but Divinity too, 1 Sam. 8. 20. 2 Sam. 5. 12. Isa. 49. 23. Psal. 78. 72, 73, 74. Rom. 13. 4. 1 Pet. 2. 13. 14. 2 Chron. 9. 8.
Secondly, All the Ships, Ammunition, Arms the Parliament hath seised, were purchased not with the Kings, but Kingdoms monies, for the defense and service of the Kingdom, as the Subsidy Bills and Acts for Tunnage and Poundage, the Kings own Declaration, and Writs for Ship-money attest. If then the representative Body of the kingdom, to prevent the arrival of foreign Forces, and that civil war they then foresaw was like to ensue (and hath experimentally since fallen out even b • yond their fears, and overspread the whole kingdom, to which it threatens ruin;) hath seised, sequestered the kingdoms Ports, Forts, Navy, Ammunition into trusty hands for the Kings and Kingdoms use, to no other end, but that they should not be employed against the King and Parliament by his Majesty's Malignant Counselors, and outrageous plundering Cavaliers, what indifferent sober man can justly tax them for it? Queen Elizabeth (and the State of England heretofore) during the Wars with Spain, inhibited the Haunse towns and other foreign Merchants (over whom she had no jurisdiction) to transport any materials for War through the narrow Seas to Spain (though their usual Merchandize to those parts, and the Sea, as they alleged, was free, for fear they should be turned against our Kingdom, and after notice given, made them prize) for any of her Subjects to seise on. And it is the common policy this day, and anciently of all States whatsoever, to seise on all provisions of War, that are passing by way of Merchandize only towards their enemies, though they have no right or property in them (and to grant letters of Mart to seise them, as we have usually done) which they plead they may justly do, by the Law of Nature, of Nations, to prevent their own destruction. Much more then may the Houses of Parliament, after the sudden eruption of that horrid Popish rebellion in Ireland, and the fears of a like intestine war from the Malignant Popish Prelatical party in England, expecting Forces, supplies of money and ammunition from foreign parts, seise upon Hull, other Ports, the Navy and Ammunition (the Kingdoms proper goods, provided only for its defense in such times as these) when his Majesty refused to put them into such hands as the kingdom and they might justly confide in, and the contrary Malignant faction plotted to get possession of them to ruin Laws, Lib • rties, Religion, Parliament, Kingdom: And what mischief think you would these have long since done to Parliament and Subjects, had they first gotten them, who have already wrought so much mischief without them, by the Kings own encouragement and command? Doubtless the Parliament being the supreme power, now specially met together and entrusted by the Subjects, to provide for the kingdoms safety, had forfeited not only their discretion, but trust, and betrayed both themselves, their privileges, the Subjects Liberties, Religion, Country, Kingdom; and not only their friends, but enemies would have taxed them of infidelity, simplicity, (that I say not desperate folly) had they not seised what they did, in the season when they did it? which though some at first, imputed only to their over-much jealousy, yet time hath since sufficiently discovered, that it was only upon substantial reasons of true Christian Policy. Had the Cavaliers and Papists (now in arms) gotten first possession of them, in all probability we had lost our Liberties, Laws, Religion, Parliament long ere this: and those very persons (as wise men conceive) were designed to take possession of them at first (had they not been prevented) without resistance, whom his Majesty now employs to regain them by open wars and violence. It is known to all, that his Majesty had no actual personal possession of Hull, nor any extraordinary officer for him there, before Sir John Hoth • m seised it, but only the Major of the Town, elected by the Townsmen, not nominated by the King; neither did Sir John enter it, by order from the Houses, till the King had first commanded the Major and Townsmen (whom he had constantly entrusted before) to deliver Hull up to the Earl of Newcastle, now General of the Popish Northern Army; The first breach then of trust, and cause of jealousy proceeding from the King himself in a very unhappy season; where the quarrel first began, and who is most blame-worthy, let all men judge. If I commit my sword in trust to another's custody for my own defense, and then fear or • ee that he or some others will murder me with my own weapon, it is neither injury nor disloyalty in me for my own preservation, to seise my own Sword till the danger be past; it is madness or folly not to do it, there being many ancient and late examples for to warrant it; I shall instance in some few. By the Common Law of the Land, whiles Abbeys and Priories remained, when we had any Wars with foreign Nations, it was lawful and usual to seise all the Lands, goods, possessions of Abbots, of Priors aliens of those Countries▪ during the wars (though they possessed them only in right of their Houses) lest they should contribute any aid, intelligence, assistance to our enemies. Yea it anciently hath been, and now is the common custom of our own and other kingdoms, as soon as any breaches and wars begin, after Proclamation made, to seise and confiscate all the Ships, goods, and estates of those countries and kingdoms with whom they begin war, as are found within their dominions for the present, or shall arrive there afterwards, left the enemies should be aided by them in the Wars, (preventing Physic being as lawful, as useful in politique as natural bodies;) which act is warranted by Magna Charta, with sundry other Statutes quoted in the Margin. And though these seisures were made by the King, in his name only, yet it was by authority of Acts of Parliament, as the public Minister of the Realm, for the kingdoms security, and benefit rather then his own. But to come to more punctual precedents warranted by the supreme Law of Salus Populi, the only reason of the former.
Anno Dom, 12 • 4. upon th • confirmation of the Great Charter and of the Forest by King John, it was agreed, granted and enacted in that Parliamentary assembly▪ at Running-mead▪ that the 25. Barons then elected for the conservators of those Liberties and Charters, with the Commons of the Land, might distrain and enforce the King (if he violated these Charters, and made no redress thereof within 40. days space after notice) by seising upon his CASTLES, lands, possessions, and other goods▪ till amends should be made according to their arbitration. And for more certainty, the fou • e Chatelaines (or chief Captains) of the Castles of Northampton, Kenelworth, Nottingham, and Scarborough, should be sworn to obey the commandment of the 25. Barons, or the major part of them in WHATSOEVER THEY THOUGHT GOOD CONCERNING THESE CASTLES. Wherein NONE SHOULD BE PLACED BUT SUCH AS WOULD BE FAITHFULL and OBSERVE THEIR OATH. And upon this accord, Rochester Castle and others, whose custody, of ancient right belonged to the Archbishop of Canterbury, with other Castles appertaining to the Barons, were restored to them by the King; who breaking all his vows & Charters immediately after, (through the Barons and people's supine negligence, overmuch confiding to the Kings Oath and confirmations, and fond conceit of holding that by peace which they had recovered by violence from a perfidious King,) in half a years space recovers all the Castles again even to the Borders of Scotland by means of foreign Forces, and a malignant, despicable, domemesticke party, (he having scarce seven Knights faithful to him, being generally forsaken of all) and made him • else absolute Master of all England, except the City of London, the Suburbs whereof he burned and sacked, and so tyrannised over his Subjects with fire, and Sword, pillaging them everywhere. Vastand • omnes domos, & aedificia Baronum divisis agminibus succendebat, spolia cum animalibus rapiebat▪ & de rapina iniquitatis ministros quos habebat nequissimos saginabat, &c. suffici • bat ad ca • sam mortis simplicibus incolis, si aliquid habere credebantur, & qui nihil habebant, fateri habere cogebantur; & qui non habeb at, habere ut persolveret, paenis exquisitis distringebatur. Diseurrebant • icarii caede humana cruentati, noctivagi, incendiarii, filii Belial strictis ensibus, ut delerent a faci • terrae, ab homine usque ad pecus, omnia • umanis usibus necessaria, eductisque cultellis villas, domos, caemiteria, ecclesias perlustrabant, omnes spoliabant, ita quidem ut nec muliebri s • xui, nec parvulorum vel decrepitorum par • erent aetati. Et quod consumere non valebant, incendio tradebant, vel despergentes inutile humanis usibus reddebant. Et quos nulla nota premebant, INIMICOS REGIS VOCANTES (si inimici sui appellandi sunt, qui eum ad mansuetudinem & justitiam mansuetam introducere voluerunt) ubicunque reperiebantur, raptim trahebantur in • arcerem paenalem, vinculis mancipati, & tandem ad gravissimam coacti redemptionem, &c. (A ture Character of our times, and plundering barbarous Cavaliers:) which so far exasperated the Barons and people, that they elected another King. But the end for which I cite this precedent is, to manifest, that the Lord's and Commons in that age, did not think the Kings own Charter, Promise, Protestations, Oaths, Proclamations, the Bishops and Popes solemn excommunications, and those 25. new Conservators, a sufficiant security to preserve their Laws and Liberties against the invasions of an, inconstant, willful foedifragous King, unless they had the Power and Command of his chief Castles and the Militia added to them; which we see through overmuch security, and want of vigilancy, were all too little to preserve their Liberties against an inconstant oppressing Prince, whose oaths and protestations were but like Samson's cords, broken all to pieces like a thread in a moment, by those who had Samson's strength. King Henry the third was no whit inferior to his father John, in inconstancy, and perfidiousness to his Subjects, with whom when he had oft broken his faith and solemn oaths, the Lord's and Barons (having no other means of security, left to preserve their Laws, Liberties, kingdom from vassalage and destruction, or to enforce the King to keep those ordinances which he had made and sworn to observe in a Parliament at Oxford but few years before; all which he labored to rescinde, having procured a dispensation of his Oath from the Pope to color his perjury;) in the year 1260. appointed new Sheriffs and Guardians of Shires, discharging such as the King had before admitted, and raising a strong power in the Marches of Wales, sent a Letter to the King under the Seal of Sir Roger Clifford, beseeching him to have in remembrance the Oath and promises he had made, f • r the observing of the Statutes enacted at Oxford, with other Ordinances made to the honor of God, for faith and allegiance to his person, and for the weal and profit of his Realm; willing him further to withstand and defy all such persons, as will be against the said acts, saving the Queen and her children. After which letter sent, and no answer to it received; the Barons with banners displayed, went against such Malignants as they knew held against those Acts. And first at Hereford, they took the Bishop and all his Canons who were aliens borne, taking away their money and cattle, and plundering their houses and manors. And marching towards London, much people fiocking to them, in their passage, ever as they found any that they knew to be against the maintenance of the said Acts, they imprisoned them and spoiled their houses, were they spiritual or temporal men: furnished the especial Fortresses of the kingdom with Guardians of their own, and in DIVERS OF THE KINGS CASTLES THEY SET IN SUCH MEN AS THEY LIKED, and PUT OUT SUCH AS THE KING HAD PLACED THERE BEFORE; and gave them an Oath, that they would be true and faithful to the King, and keep those Castles TO HIS USE, and TO THE WEALE OF THE REALME. And when William de Valens denied with oaths to render up any Castle which was given him, by the King (his brother) to keep; the Earl of Leycester and the rest of the Barons answered; they would either have his Castles or his head: which so terrified the Poictovines, that they left Oxford and their Castles to the Barons, and fled into France. Which Castles when the King and Lord's were accorded, together with the Castles of Dover (Nec Regi ablatum nec vetitum, sed tanquam clavis totius Regni, custodiae esset diligentiori a Baronibus deputatum ) and the Castle of Rochester and others were readily delivered up by the Barons to the King, qui ubique liberum invenit introitum, & exitum juxt • vota; & tun • primo Rex sensit se falsis deceptionibus circumventum, & Baronum suorum fidelitate, ubique lic • t ignoranter suffultum; and then the King first found he was circumvented with false reports of the Barons disloyalty, who so willingly restored his Castles to him, when those storms were blown over; though he made but ill use of it, & took occasion thence openly to recede from his Oath; whereupon they reseised these Castles for their safety. About Midsommer the Barons drawing near to London, sent a Letter to the Mayor and Aldermen requiring to know of them, Whether they would observe and maintain the Statutes made at Oxford; or not? or aide and assist su • h persons as intended the breach of the same? and sent unto them a Copy of the said Acts; with a proviso, that if there were any of them, that should seem to be hurtful to the Realm or Commonwealth of the same, that they then by discreet persons of the land should be altered and amended: Which Copy the Mayor bare unto the King then at the Tower of London with the Queen and other great persons. Then the King intending to know the mind of the City, asked the Mayor, What he thought of those Acts? who abashed with that question, besought the King, That he might commune with his Brethr • n the Aldermen, and then he w • uld declare unto him both his and their opinions. But the King said, He would hear his advice without more Counsel. Then the Mayor boldly said, That before times, he with his Brethren and commonalty of the City, by his commandment were sworn to maintain all Acts made to the honor of God, to the faith of the King, and profit of the Realm; which Oath by his license and most gracious favor they intended to observe and keep. And moreover, to avoid all occasions that might grow of grudge and variance between his Grace and the Barons in the City, they would avoid all aliens and strangers out of it. (as they soon after did) if his Grace were so contented. With▪ which Answer the King seemed to be pleased, so that the Mayor with his favor departed, and he and the Citizens sent answer to the Barons, that they condescended to those acts, binding themselves thereunto under the public Seal of London, their Liberties always upholded and saved. Then the Barons entered the City, and shortly after the King with his Queen and other of his Counsaile, returned to Westminster.
Anno 1264. (the 48. of Henry the third) the King made his peace with the Barons then in Arms, upon these terms: That ALL THE CASTLES OF THE KING, throughout England, should be delivered TO THE KEEPING OF THE BARONS: the Provisions of Oxford be inviolably observed; and all Strangers by • certain time avoided the kingdom, except such as by a general consent, should be held faithful and profitable for the same: Whereupon the Barons took possession of most of the Castles by agreement, or violence where they found resistance, as they did in many places. And by the CONSENT of THE KING and BARONS, Sir Hugh le Spenser was made Chief Justice and keeper of the Tower. This done at London; the Barons departed to Windsor to see the guiding of that Castle, where they put out those aliens, whom Sir Edward the Kings Son had before put in, and put other Officers in their places; spoiling them of such goods as they had. Who complaining thereof to the King, he put them off for that season. After which they re-seised Dover Castle, and made Richard de Gray, a valiant and faithful man, Constable of it; who searching all passengers that came thither, very strictly, found great store of Treasure, which was to be secretly conveyed to the Poictovines, which he seised, and it was employed by the Barons appointment, upon the profitable uses of the Realm. The year following, the Commons of London chose Thomas Fitz-Thomas for their Mayor, and without consent of the Aldermen, sware him at the Guild-hall, without presenting him the next day to the King or Barons of the Exchequer. For which the King was grievously discontented; and being advertised that the Citizens took part with the Barons, caused his Son Edward to take the Castle of Winsor by a train; to which the King and Lord's of his party repaired. And the other Lord's and Knights with great Forces drew towards London; but by mediation of friends, there was a peace concluded, and the differences were referred to the French King (and his PARLIAMENT as Andrew Favine records out of Rishanger) to end. Who giving express sentence that all the Acts of Oxenford, should from thenceforth be utterly forborne and annulled:
The Barons discontented with this partial sentence, departed into the Marches of Wales; where raising Forces, they seised on many Towns and Castles of the Kings, and Prince Edward going against them, was sore distressed and almost taken. Hereupon to end these differences, a new Parliament was appointed at Oxford; which took no effect, Because when the King had yielded the Statutes of Oxford should stand, the Queen was as utterly against it; whose opposition in this point being known to the Londoners, the baser sort of people were so enraged, that she being to shoot the Bridge from the Tower, towards Winsor, they with darts, stones, and villanous words, forced her to return. After which, the Lord's sending a Letter to the King, to beseech him not to believe the ill reports of some evil Counselors about him, touching their loyalty and honest intentions; were answered with two Letters of defiance. Upon which ensued the bloody battle of Lewis in Sussex, in which the King and his Son, with 25. Barons and Baronets, were taken prisoners, & twenty thousand of the Commons slain. Richard King of Romans, the Kings Brother was likewise taken prisoner in this Battle, who a little before coming over into England with some Forces to aid his Brother, the Barons hearing thereof caused all the Ships and Gallies of the Cinqueports and other places to meet together armed to resist him by Sea, and sent horse and foot to withstand him by Land if he arrived: Which Richard having intelligence of, disbanded his Forces; and sent word to the Barons, that he would take an Oath to observe the Articles and Statutes made at Oxenford: whereupon he was permitted to land at Dover with a small Traine, whither King Henry went to me • him. But the Barons would not suffer this King, nor any of his Traine to enter into Dover Castle, because he had not taken his Oath to observe the foresaid Statutes; nor yet the King of England to go into it (for fear of surprisal) because it was the principal Bulwark of England; (the Barons then having both it and all the Cinqueports in their Custody to secure the kingdom from danger) Neither would they permit King Richard to go on towards London, till he had taken the Oath forementioned. After this battle all the prisoners were sent to several prisons, except the two Kings and Prince Edward, whom the Barons brought with them to London; where a new Grant was made by the King, that the said Statutes sho • ld stand in strength: and if any were thought unreasonable, they to be amended by four Noblemen of the Realm: and if they could not agree, then the Earl of Angiou, and Duke of Burgoin to be Judges of the matter: And this to be firmly holden and obeyed by both the Kings; who granted that both their Sons and Heirs should remain as Prisoners, and Hostages with the Barons, till all things were finished according to this agreement. Upon which a Peace was proclaimed in London between the King and his Barons. Then it was agreed by the King, that for his more surety and the weal of the Land, the Earl of Leycester should be resient in his Court; Upon which agreement, many of the Prisoners were set at large. In the mean while, before the battle of Lewis, the Queen and King of Romans, had sent over-sea for Soldiers, to aid the King against the Barons, which now were come in great number unto Dover, and there hovered on the Sea to have landed. Whereof the Barons hearing, they sent the King of Romans as Prisoner to Ba • khamsted, until the said Almaines were returned, and caused King Henry with a great power to ride to Dover, and force the said Host of strangers to return unto their Countries. After which by the counsel of the Lord's, a Parliament was agreed and held at Westminster, wherein a general Pardon was granted to all Lord's and their adherents, for any matter of displeasure done to the King or his Son Prince Edward before that day; which to uphold, the King and he took a solemn Oath before the Lord's; and it was further agreed, That the Prince should reside in the Kings Court, and not depart thence without license of the King and of certain Barons. Then were many instruments and bonds made by the King and Prince, for the performance of sundry Covenants between the King and Barons; which shortly after took small effect, and begat new wars; this Kings fresh breaches of Oaths, and promises, procuring him always new insurrections and forced Parliaments, which the Barons constrained him to call and hold, against his will. How the Lord's and Parliament oft seised upon the Castles, Forts, Ammunition in King Edward the second, and Richard the seconds Reignes, when differences grew between them, I have already in part remembered, and you may read the residue in the Histories of their lives. In the 33. year of King Henry the sixth his Reign, the valiant Earl of Warwick, was made Captain of Calais by the Parliament; a place of great honor and trust in those days; by virtue whereof, all the warlike affairs and business, rested principally in the Earl of Warwick: After which the Queen (an ambitious stirring woman) to break the peace newly made and ratified by oath, between the King, Lord's, and Duke of York, (created Lord Protector by the Parliament) caused a fray to be made on the Earl men, which produced a war and bloody battle, wherein the Earl gained the field.
Whereupon the King displeased with the Earl, by his Letters Patents, gra • ted the Captainship of Caleyes to John Duke of Summerset; who going over to Caleyes, in the 38. year of King Henry, to take possession of his place; shown his Patent to the Earl, who refused to resign his place, answering, that he was put into it by the Parliament, and so could not be outed of it but by Parliament; and kept the Duke forth of the Town; who being thus expelled from his office, after some skirmishes with the Earls Garrison, (wherein the Duke had the worst) he sent over to the King and Queen for aid, in defense of this quarrel; whereupon they provided 400. warlike persons to pass the Seas for his aid, and ships to transport them: who lying at Sandwich for a wind; the Earl of Warwick being therewith acquainted, sent John Dingham a valiant Esquire, with a small number of men, but a multitude of courageous hearts to Sandwich; who suddenly entered the same, took the Lord Rivers and his Son (who commanded those Soldiers) in their beds, pillaged some houses and ships, and besides this, took the principal ships of the Kings Navy then lying at the Port well furnished with ordnance and artillery (through the favor of the Mariners, who favored the Earl most) and brought the royal ships loaden with booty and prisoners to Caleyes; With these ships the Earl after passed to the Duke of York into Ireland, and afterwards into England, where the Duke of York in full Parliament laid claim to the Crown, which his Son after obtained, deposing King Henry, as having no lawful Title thereunto. I recite not this Story to justify all particulars of it, but only to prove, That the Parliament in those times, had the conferring of Captains places of greatest trust, who had the command of the Militia; and that, as this Earl in policy only, for his own safety, seised on the Kings royal ships, and Ammunition, in which he had no right; so by the same reason, the Parliament may dispose of such places of Military trust in these times of danger, and of the Navy and Ammunition of the kingdom, in which they have a real interest, for the kingdoms safety and their own. A Sheriff, Justice, Constable, and other Officers, by the Common and Statute Law of the Land, may and ought to disarm and seise any man's weapons whatsoever, and imprison his person for a time, when by act, or apparent intention only, he shall but disturb the peace, or make any Fray, Rout, or Riot, to the annoyance of the people, till the tumult and danger be past, and the peace secured. Much more then may the highest Sovereign Court of Parliament, seise the Forts, Arms, Navy, Ammunition of the Realm, (in which they have real interest) and secure them for a season, to preserve the whole kingdoms Peace, and prevent a civil War, without any injury to his Majesty, till all fears of war and danger be removed Not to trouble you long with foreign histories of this Nature; in the Roman state the chief power of making war or peace, of ordering of the Militia and disposing of the custody of Castles, Forts, Ammunition was in the Senate and people, not the King or Emperor; as it is in Germany, and most foreign States and kingdoms, at this day; without any diminution to those Kings and Princes just prerogatives. It is the determination of the prime Politician Aristotle (seconded by John Mariana and others) that in lawful kingdoms the chief strength & power of the Militia ought to reside in the kingdoms hands; not Kings, who ought to have only such a moderate power and guard of men, as may suffice to suppress riots, and maintain the Authority of the Laws; but not so great a force as may master all his kingdom, lest he become a tyrant, and his Subjects slaves. In the kingdom of Aragon in Spain (as I read in Hieronymus Blanca) there is a notable fundamental ancient Law, (made about the year of Christ 842. by their Suprarbiense Forum, now commonly styled, Iustitia Arrogoniae during the Interregnum, to preserve their Countries Liberties, to keep their Kings power within due bounds of royalty, and prevent a tyranny, with divers other Laws of this nature, which their Kings solemnly swear to observe, before they are crowned) the words of which law are these, The King shall take heed that he neither undertake war, nor conclude peace, nor make truce, nor handle anything of great moment, but by the advise and consent of the Elders: to wit, the Iustitia Arragoniae, the standing Parliament of that kingdom, which hath power over and above the King. And of later days (as the same Author writes) their Rici-homines, (or selected Peers appointed by that kingdom, not the King) have all the charges and offices both of war and peace lying on their necks, and the command of the Militia of the kingdom; which they have power by their Laws to raise, even against their King himself, in case he invade their Laws or Liberties; as he there manifests at large. So in Hungary, the great Palatine of Hungary, the greatest officer of that kingdom, and the Kings Lieutenant General, who commands the Militia of that Realm, is chosen by the Parliament and Estates of that country, not the King. It was provided by the Laws of the Aetolians, that nothing should be entreated of CONCERNING PEACE OR WARRE, but in their Panaetolio, or great general Council of state: in which all Ambassadors were heard and answered; as they were likewise in the Roman Senate. And Charles the fifth of France, having a purpose to drive all the Englishmen out of France and Aquitain, assembled a general assembly of the estates in a Parliament at Paris, by their advise and wisdom to amend what by himself had not been wisely done or considered of, and so undertook that war with the counsel and good liking of the Nobility and people whose help he was to use therein: which war being in and by that Council decreed, prospered in his hand; and took good success as Bodin notes; because nothing giveth greater credit and authority to any public undertakings of a Prince and people in any State or Commonwealth, then to have them pass and ratified by public advise and consent.
Yea the great Constable of France, who hath the government of the Kings Sword, the Army, and Militia of France, was anciently chosen by the great Council of the three Estates & Parliament of that kingdom; as is manifest by their election of Arthur Duke of Britain to that office, Anno 1324. before which, Anno 1253. they elected the * Earl of Leycester a valiant Soldier and experienced wise man, to be the grand Seneschall of France, ad consulendum regno desolato, & multum desperato, quia strenuus fuit & fidelis; which office he refused, lest he should seem a Traytour to Henry the third of England, under whom he had been governor of Gascoigne, which place he gave over for want of pay. In brief, the late examples of the Protestant Princes in Germany, France, Bohemia, the Low countries, and of our brethren in Scotland within four years last, who seised all the Kings Forts, Ports, Arms, Ammunition, Revenues in Scotland, and some Towns in England to preserve their Laws, Liberties, Religion, Estates, and Country from destruction, by common consent, (without any Ordinance of both Houses in their Parliament) will both excuse, and justify all the Acts of this nature, done by express Ordinances of this Parliament; which being the Sovereign highest power in the Realm, entrusted with the kingdoms safety; may put the Ports, Forts, Navy, Ammunition (which the King himself cannot manage in person, but by substitutes) into such under Officers hands, as shall both preserve and rightly employ them for the King and kingdoms safety, and elect the Commanders of the Militia according to the express letter of King Edward the Confessors Laws (which our Kings at their Coronations were still sworn to maintain) wherewith I shall in a manner conclude, the Legal part of the Subjects right to elect the Commanders of the Militia, both by Sea and Land. Erant & aliae potestates & dignitates per provincias & patrias universas & per singulos Comitatus totius regni constitute, qui Heretochii apud Anglos vocabantur; Scilicet, Barones, Nobiles, & insignes, sapientes & fideles, & animosi; Latin vero dicebantur Ductores exercitus; apud Gallos, Capitales Constabularii, vel Mar • scha • li Exercitus. Illi vero ordinabant acies densissimas in praeliis, & a • as constituebant, prout decuit, & prout iis melius visum fuit, ad Honorem Coronae, ET AD UTILITATEM REGNI. Isti vero viri ELIGEBANTUR PER COMMUNE CONCILIUM PRO COMMUNI UTILITATE REGNI, PER PROVINCIAS ET PATRIAS UNIVERSAS, ET PER SINGULOS COMITATUS (so as the King had the choice of them in no Province or Country, but the Parliament and people only) in pleno Folcmote. SICUT ET VICECOMITES PROVINCIARUM ET COMITATWM ELEGI DEBENT. Ita quod in quolibet Comitatu sit unus Heretoch PER ELECTIO NEM ELECTUS ad conducendum exercitum Comitatus sui, juxta praeceptum Domini Regis, ad honorem Coronae, & UTILITATEM REGNI praedicti, semper cum opus adfuerit in Regno. Item qui fugiet a Domino vel socio suo pro timiditate Belli vel Mortis in conductione Heretochii sui IN EXPEDITIONE NAVALI, VEL TERRESTRI (by which it is evident these popular Heretochs commanded the Militia of the Realm both by Sea and Land, and might execute Martial Law in times of war) perdat omne quod suum est, & suam ipsius vitam, & manus mittat Dominus ad terram quam ei antea dederat. Et qui in bello ante Dominum suum ceciderit, sit hoc in terra, sit alibi, sint ei relevationes condonatae; & habeant Haeredes ejus pecuniam & terramejus sine aliqua diminutione, & recte dividant inter se. An unanswerable evidence for the kingdoms and Parliaments interest in the Militia, enough to satisfy all men. To which I shall only add that observation of the learned Antiquary Sir Henry Spelman in his Glossarium; Title Dux, and Heretochius; (where he cites this Law of King Edward ) That the Heretoch was Magister Militiae, Constabularius, Mariscallus, DVCTOR EXERCITVS, SIVE NAVALIS, SIVE TERRESTRIS; called in Saxon Heretoga: ab Here, Exercitus, & Togen, Ducere. Eligebantur in pleno Folcmote, hoc est, non in illo sub initio ea • endarum Maii, at in alio sub capite Calendarum Octobris. Aderant tune ipsi Heretochii, & QUAE VOLUERE, IMPERABANT EXEQUENDA; consvlto tamen PROCERUM COETU, ET JUDICIO TOTIUS FOLCMOTI APPROBANTE. Then he subjoins POPULARIS ISTA HERETOCHIORUM SEU DUCUM ELECTIO, nostris Saxonibus cum Germanis aliis COMMUNIS FUIT: Vt in Boiorum ll. videas, Tit. 2. cap. 1. S. 1. Siquis contra Ducem suum, quent Rex ordinavit, in Provincia illa AUT POPULUS SIBI ELEGERIT DUCEM, de morte Ducis consiliatus fuerit, in Ducis sit potestate, &c. Hue videtur pertinere quod apud Greg. Turon. legas l. 8. Sect. 18. Wintro Dux à Pagensibus suis depulsus Ducatu caruit, &c. sed posteà pacato populo Ducatum recepit: Eigebantur enim interdum Provinciarum Duces AB IPSO POPULO. In the Roman State, the Senate, and sometimes the people alone, without their advise, had power to appoint Lieutenants and Governors of Provinces; whence the Senate commanded those Governors of Provinces whom the Emperor Maximinus had made to be displaced, and others to be substituted in their rooms, which was accordingly executed: yea the Senate had power to dispose of the common Treasure, and public reventue, one of the greatest points of Soveraingty. And so we read in Scripture, Judges 11. 5. to 12. That when the children of Ammon made war against Israel, the Elders of Gilead went to fetch Jephthah out of the land of Tob. And they said unto Jephthah, Come and be our Captain, that we may fight with the Children of Ammon, &c. Then Jephthah went with the Elders of Gilead, and THE PEOPLE MADE HIM HEAD and CAPTAINE OVER THEM: the Princes and people, even under Kings themselves. having the chief disposing power of the Militia and denouncing war, as is evident by Josh. 22. 11. to 32. Judges 20. and 21. throughout 1 Sam. 14. 38. to 46. c. 29. 1. to 11. 2 Sam. 18. 2, 3, 4. c. 19. 1. to 9. Prov. 20. 18. c. 24. 6. compared together.
And for a close of all, lest any should object, that no late direct precedent can be produced to prove the office of the Lord Admiral, and custody of the Seas disposed by Parliament, I shall conclude with one punctual precedent of many. In 24. H. 6. prima Pars Pat. ma. 16. The King grants to John Duke of Exeter, the OFFICE OF ADMIRALL OF ENGLAND, IRELAND and AQUITAIN, with this subscription, Per breve de privato sigillo, AVCTORITATE PARLIAMENTI, the former Patent of this office made jointly to him and his son by the King alone, in the 14. year of his reign, being surrendered in the Parliament of 24. and a new one granted them by its direction and authority. Yea most of the Admiralls Patents (which anciently were not universal for all England, but several for such and such parts only, and commonly but annual or triennuall at most) as Sir Henry Spelman observes in his Glossary, in the word Admirallus, where you have an exact Calendar of all the Admiralls names, with the dates of their several Patents and Commissions, are DE AVISAMENTO ET ASSENSU CONSILII; which is almost as usually taken for the Kings great Counsel, the Parliament, as for his privy Counsel. And if our Kings have constantly disposed of this Office by the advise or assent of their privy Counsel, there is more reason and equity they should do it by the advise of their great Counsel, of which his privy Counsel are but a part, and by whom they have frequently been elected, as I shall plentifully manifest in the next objection.
Now, whereas some pretend, that the Parliaments seising and detaining of the Kings Castles, Ports, Ships, Arms and Ammunition is High Treason, within the Statute of 25 Ed. 3. c. 3. and a levying of war against the King.
I answer, first; that the Parliament was never within the meaning, nor letter of that, or any other Act concerning Treasons, as I have formerly proved; the rather because the King is a member of it, and so should commit Treason against himself, which were absurd.
Secondly, because both Houses are of greater authority then the King, (a member of them as they make one Court) & so cannot commit Treason against the less.
Thirdly, the Parliament is a mere Corporation and Court of justice, and so not capable of the guilt of Treason: A Judge, Major, or particular persons of a Corporation may be culpable of high Treason, as private men, but not a Court of justice, or Corporation.
Fourthly, by the very Statutes of 25 E. 3. and of 11 R. 2. c. 3. 21 R. 2. c. 12. 1 H. 4. c. 10. 21. R. 2. c. 3. the Parliament is the sole Judge of all new Treasons, not within the very letter of that act; and if any other case supposed Treason, not there specified, happens before any Justices, the Justice shall tarry without any going to judgment of the Treason, till the cause be shown and declared before the King and his Parliament, whether it ought to be judged Treason. And if the Parliament be the sole Judge of all Treasons, it cannot be guilty of Treason, for then it should be both Judge and Delinquent; and if so, no doubt it would ever acquit it self of such a crime as High Treason, and never give judgment against it self. And no Judge or person else can arraign or judge it, or the members of it, because it is the highest sovereign Court, over which no other person or Court whatsoever hath any the least jurisdiction: So that if it were capable of the guilt of Treason, yet it could not be arraigned or judged for it, having no superior or adequate Tribunal to arraign it.
Fifthly, admit it might be guilty of High Treason in other cases, yet it cannot be so in this. For having a joint interest with the King in the premises in the Kingdoms right, (the sole propriator of them) it cannot doubtless be guilty of treachery, much less of High Treason for taking the custody and possession only of that which is their own; especially when they both seise and detain it for its own proper use, the Kingdoms security and defense; without any malicious or traytorous intention against King or kingdom.
Secondly, I answer, that the seising or detaining of these from the King are no Treason, or levying of War within this Law, as is most evident by the Statutes of 6. Ed. 6. c. 11. which expressly distinguisheth, the seising and detaining of the Kings Forts, Ammunition, Ships, from the levying war against the King in his Realm, and by an express new clause, enacts this seising and detayning to be High Treason from that time, because it was no Treason within 25. Ed. 3. before, which if it had been in truth, this new clause had been superfluous; which law of King Edward being repealed by primo Mariae, Rastal Treason, 20. this offense then ceased to be Treason: whereupon by a special act of Parliament in 14 Eliz. c. 1. it was made High Treason again, (which had been needless, if it had been a levying of war, or Treason within 25. Ed. 3. before.) And that with this proviso, this Act to endure during the Queens Majesty's life that now is, ONLY; and so by this Parliaments resolution, it is no Treason since her death, within 25 Ed. 3 for then this proviso had been idle and repugnant too. And therefore being now no High Treason in any person, cannot without much calumny and injury be reputed Treason in both the Houses of Parliament, uncapable of High Treason, as the premises demonstrate.
In brief, he that seised and detained the Forts and Ships of the kingdom, when it was Treason, was not a bare Traitor against the Kings person or Crown only, but against the King and his Realm too, like those Traitors, mentioned in the several statutes of 11 R. 2. c. 4. and 21 R. 2. c. 2. 4. He shall be judged and have execution as a TRAITOR and ENEMY OF THE KING and TO THE REALME: and in 28 H. 8. c. 7. HIGH TRAITORS TO THE REALME, As the Gunpouder Traitors were to the Parliament and Realm in them, being the representative Body of the Realm: the Parliament then being the Realm representatively and authoritatively too, and so the party against whom this Treason is principally to be committed, cannot be a Traitor to it self, by the words or intendment of any expired Act which made such a seisure or detainer Treason. And therefore those Lawyers, who pronounce this Parliaments seising and detaining of the Ports, Forts, Navy, Arms, or Ammunition of the Realm to keep them out of worser hands, for the Kings and kingdoms right use and safety, to be High Treason declare themselves Greater Malignants then Artists in their own profession.
But somebody (say Malignants and Royalists) must be trusted with the Militia, Ports, Navy, Arms, Ammunition; and who so fit to be confided in as the King himself, and those whom he shall appoint? Especially since he and his own substitutes, have formerly been entrusted with them by the kingdom; and we have now so many deep Protestations, yea public printed Asseverations and Promises from his Majesty, to maintain the Protestant Religion, our Laws, Liberties, Properties, Parliaments, with their just Privileges; and shall we not believe and trust his Majesty after so many royal assurances, seconded with many Acts of grace for the public safety already passed by him in this Parliament? especially the Acts against Shipmoney, and all other unlawful Taxes; with the Bills for the continuance of this, and calling of a Trienniall Parliament, when this shall be determined? Shall we yet be diffident of his Majesty's sincerity after so many Protestations, Promises, Imprecations; so many Pledges of his gracious affection to his people, and some public acknowledgements of his former misgovernment and invasions on his Subjects Liberties? If all these Warrants will not content the Parliament, and persuade them to resign up all the premises they have seised into his Majesty's hand, to purchase the kingdoms much desired necessary Peace, and put a period to our destructive war (in which there is naught but certain ruin) what other security can his Majesty give or they expect?
To answer this plausible allegation, I shall without prejudice to other men's judgments, crave liberty to discharge my own and others thoughts in this particular, in which if I chance to err (out of overmuch zeal to my countries safety) I shall upon the first discovery profess a recantation; though for the present,
I shall reduce the sum of the answer to these two heads;First, that as the state of things now stands, it will be (as many wise men conceive) not only inconvenient, but dangerous, to resign up the Militia, Forts, Ports, Navy, Ammunition of the kingdom into his Majesty's sole disposing power, and those hands which himself alone shall appoint and confide in, till things be thoroughly reformed and settled both here and in Ireland, and the Popish prevailing party in both kingdoms (now strongly up in arms) totally suppressed and secured.
Secondly, That till this be effected, it is more reasonable and safe, both for King and kingdom, that these should remain in the Parliaments hands, then in the Kings alone.
For the first, there are these three general reasons, commonly alleged by many understanding men, equally affected to either party, and by most who are cordially inclined to the Parliament, why they deem it not only inconvenient, but perilous, to intrust the premises wholly with the King, and those of his appointment, as our condition now stands.
First, a more then probable long-since resolved design in his Majesty's evil Counselors, to make him an absolute Sovereign Monarch, and his Subjects as mere vassals, as those of France; which design hath been carried on with an high hand from the beginning of his Reign till this present, as the Parliament in sundry Declarations prove, yea divers Lord's and Members of both Houses, though now with his Majesty, in their Parliamentary Speeches, have openly professed; which they thus demonstrate.
First, by his Majesty's several attempts against the Privileges, Power, and very being of Parliaments; manifested by the proceedings against Sir John Eliot, Mr. Hollice, Mr. Strode, Mr. Long, and others, after the Parliament in 3. Caroli; and the Lord Say, Mr. Crew, with others after the last Parliament before this: By his Majesty's sad ominous breaking off in discontent, all Parliaments in his Reign (unparalleled in any age or kingdom) till this present; which though perpetuated by a special Act, as long as Both Houses please, hath yet long since been attempted to be dissolved like the former, by his Majesty's accusation, and personal coming into the Commons House with an extraordinary Guard of armed men attending him, to demand five principal members of it, to be delivered up to his hands as Traitors, in an unpatterned manner. By his willful departure from, and refusal to return unto the Parliament, though oft petitioned and solicited to return; which is so much the more observed and complained of, because his Majesty (if not his Royal Consort and the Prince too) was constantly present in person every day this Parliament (for sundry weeks together) at the arraignment of the Earl of Strafford for high Treason, in a private manner, when by Law he ought not to be personally present in a public; to countenance and encourage a capital Oppressor, and Trayterous Delinquent against all his three kingdoms, contrary to both Houses approbation; And yet now peremptorily denieth to be present with or near his Parliament, to countenance and assist it for the preservation of his kingdoms against such Traitors, Rebels, conspirators, who have contrived and attempted their utter desolation, in pursuance of his foreplotted designs; By his commanding divers Lord's and Commons to desert the Houses, and attend his Person without the Houses consent, detaining them still when the Houses have sent for them: and protecting those who refused to return, against the common justice of the Parliament: by casting divers gross aspersions on it, and naming it, A faction of Malignant, ambitious spirits, no Parliament at all, &c. By raising an Army of Delinquents, Malignants, Papists, Forainers, to conquer and suppress the Parliament, and deprive it of its Liberties; By proclaiming divers active Members of it, (specially employed by Both Houses, for the defense of their several Counties) Traitors, only for executing the Houses commands, without any Indictment, Evidence, Conviction, against all Law, Justice, and the Privileges of Parliament: By commanding, detaining the Lord Keeper of the Great Seal, (the Speaker of the Lord's House) and some Judges from the House and City: By plundering divers Parliament men's houses, imprisoning their persons without Bail, Maineprise, or Redemption, and laying intolerable taxations on their estates: By Declaring both Houses Traitors, if not in positive, yet at least in equivalent words, and by necessary consequence: By divers unparalleled violations of the Parliaments Privileges by extrajudiciall Declarations out of Parliament, penned by Malignants in his Majesty's name, and avowed by him, published of purpose to oppose, annul, reverse the solemn legal Resolutions, Declarations, and Votes of both Houses in sundry cases, and by name that against the Commission of Array: And finally by the manifold invectives in several his Majesty's Declarations, and Proclamations against the Parliaments Votes, Proceedings, Members; seconded with express commands, and invitations to the People, to Contemne its authority, and disobey all its Orders made without his personal consent; which is indeed naught else, but to nullify Parliaments, to make them altogether contemptible, ridiculous, and trample them under feet; and hath wrought a strong malignity, disobedience, if not disaffection, in many people to Parliaments, to the end they may never desire or enjoy them hereafter, notwithstanding the Act for trienniall Parliaments, when this is once dissolved. All these unparalleled, apparent high attempts against the very honor, essence, of this, and all other future Parliaments, (transcending both for quantity and quality all the violations of Parliaments Privileges, in all his Majesty's Predecessors Reignes, since England was a kingdom, summed up in one;) together with the late Oxford Propositions for an Accommodation; wherein the Houses final Resolutions, Declaring what is Law, are called illegal, and required to be reversed; the power of imprisoning and fining men denied, and prostituted to the censures, Writs, and Examinations of inferior Courts, by way of Habeas Corpus; the just expulsions of their own Members denied them; all high Violations and denials of the known privileges of Parliament, contrary to his Majesty's many former, and late Printed Protestations, and those Acts newly passed concerning Parliaments, (which will never recover their pristine dignity, honor, power, privileges, if this should miscarry;) induce the most intelligent to opine, that his Majesty, long since weary of the yoke of all Parliaments, (the only Remora to his absolute intended Monarchy) and repenting of the Act for continuing this, since he hath gained his ends for which it was summoned, (more out of absolute necessity then love to Parliaments) to wit, peace with the Scots, for the present, by an Accommodation, wrought by this Parliament, & purchased with his Subjects money, when as he saw no hopes of repelling them hence by force; & the paying of his then raised Army against them by the Parliaments free supply: is now resolved (in prosecution of his pristine Counsels) by force or policy to dissolve this Parliament in discontent, as he hath done all former, and that with such advantages of a general ill opinion of Parliaments in the ignorant mis-informed vulgar on the one hand, and of a prevailing conquering power on his part on the other hand, as shall either utterly extinguish the hopes and Bill of summoning any future trienniall Parliamentary Assemblies, or at least so emasculate the vigor, and eclipse the power of them, if called; that they shall neither have courage, nor might, nor means to resist his foresaid grand design, if he can now either by force or policy resume the Militia, Forts, Navy, Ammunition into his absolute dispose; the only present obstacle (now his forces are so great) to gain a complete long-expected conquest over his people's Liberties, Laws, Estates, and all Parliaments Privileges, if not beings too. And if our Parliaments (the only Bulwarks to protect our Laws, Liberties, Estates, Lives, Religion, Peace, Kingdom, against the devastations of oppressing, lawless Princes, and Officers) be once conquered, or weakened in the least degree, we can expect no other issue, but that Tyranny, slavery, popery, shall be ere long entailed upon us and our Heirs Souls and bodies forever.
Secondly, By his Majesty's frequent imposing of many unlawful Taxes and Impositions on his Subjects, contrary to his Coronation Oath, the ancient Laws of the Realm, yea his own late Statutes, Declarations, Vowes, Promises; which design hath been carried on with a strong hand all his Reign till now; and at this present, with a far higher hand then ever: which they exemplify by the Loanes with other Taxes, Impositions, Grievances, complained of in the Petition of Right, in the third year of his Reign; which Act when first passed, with this his Majesty's solemn Oration and Protestation Printed with it; I do here declare, That these things which have been done, whereby men had some cause to suspect the Liberty of the Subject to be trenched upon, shall not hereafter be drawn into example for your prejudice: And in time to come (IN THE WORD OF A KING) you shall not have the like cause to complain: (backed with his Royal Declaration to all his Subjects at the breach of that Parliament to like purpose) made most men think, they should never be grieved with illegal Taxes more; though the very annexing and Printing of his Majesty's two Answers, & this Speech when he passed the Petition, at the end thereof (with the Scope and matter of this Speech and other then concurring circumstances) made the wisest men suspect, it was only a bait to catch the Temporalties and Clergies (five a piece) extraordinary great Subsidies, then aimed at, (a greater aid then was ever before granted at once to any of his Majesty's Predecessors) and a policy then seemingly to content, but subsequently to delude the over-credulous impoliticke Vulgar; the verity whereof was at that instant much confirmed, by his Majesty's claiming (even in his very speech when he passed the Petition of Right) Tunnage and Poundage as a mere right, and his taking it as a just duty without grant by Parliament, from his coming to the Crown till then and since; by his extraordinary strange commission granted under the great Seal to divers Lord's and others for the laying of an intolerable illegal excise, on all the Subjects throughout England and Ireland, seconded with the Commission to Dalbere and others, for the raising and importing of German Horse, and the billeting of Irish foot in sundry places of England to join with those horse, to set on this excise, even at that very instant, when this Petition of Right was debated and passed; the breaking up of that Parliament as soon as these Subsidies were granted, and the unpatterned inundation of all kind of unjust Taxes as soon as ever that Parliament was dissolved; as fines for Knighthood, New-buildings, Inclosures, exacted Fees, (not to redress, but authorize them by compositions to get money) Ship-money, Monopolies of Tobacco, Sope, Bricks, Pins, and a world of other particulars upon which annual rents were reserved: Forest-bounds, and offenses prosecuted with all Rigour; Impositions upon Coale, Bear, Salt, Wines, Tobacco, and all kind of Merchandise; Lieutenants rates, and wages, Coat and Conduct money, excessive high Fines in Starchamber, High Commission and other Courts, with sundry other Particulars complained off with open mouth in this and the preceding Parliament by most of the members of both Houses, and divers now present with his Majesty; who notwithstanding the many public complaints against these oppressions, the Acts this very Session passed against them, and sundry duplicated deep Asseverations to maintain the Subjects Property, Liberty, and govern only according to Law; hath, and still daily doth in a far higher degree then ever (through the ill advise of Malignant Counselors) proceed to afflict and ruin his people in this very particular of Property and Taxes, by weekly or monthly assessements and contributions imposed on sundry Towns and Counties where his Forces now lie, exceeding many men's racked incomes; his seising of their Ammunition, Arms, Horses, Carts, Goods, Provisions, Houses, Lands, (yea husbandmens Teemes and Horses of their Ploughes, privileged from distresses by Law, & by most Nations though enemies, in times of war from spoil or plunder,) so as they cannot till their ground, which must needs breed a famine: and stripping many thousands of his people in Brainford, Marleborough, Cicester, Bromingham, & other places (utterly sacked and ruined by his Cavaliers) of all their lively hoods, and estates, to their very naked skins; and carrying away those poor Subjects in triumph like Enemies and Traitors, who dare offer to defend their goods, houses, estates, or make any the least resistance, ( though the Laws, Common and Statute, allow them in such cases, not only to resist, but kill all those who shall assault their houses, or persons to spoil them of their goods) or protect them or their Liberties, Lives, Properties, against his Army of thievish murthering Cavaliers. And which aggravates all the rest, his Majesty hath sent out such a Commission of Array to be executed in every County, as pulls up liberty and property by the roots; which, though both Houses by a special printed Declaration, have proved to be illegal, contrary to the fundamental Laws of the Realm, the Petition of Right, and some express Acts passed this present Session; yet his Majesty hath caused such an Answer to be published in his name to the first Declaration, as good Law, which frustrates all Acts whatsoever made in this or former Parliaments for the Subjects Liberty, Property; and lays down such grounds, which will not only justify, but revive all former pressures and grievances whatsoever, as warranted by Law. All which considered, together with the frequent endeavors formerly and of late to raise and keep an Army on foot among us to enslave us, and raise what taxes shall be arbitrarily imposed without a Parliament on the Realm by force of Arms, according to the late use of France, begun by Strafford in Ireland, and now set on foot in divers countries of England, makes wise moderate men fear, that if the Militia, Forts and Navy be yielded up unto the King before the Subjects Property, and these violations of it in the highest degree (so that none at this day can truly say that anything he enjoys, no not his Lands or Life are his own) be better settled, all property will be forever lost, and Turkish Subjects as free as English, in common probability.
Thirdly, the constant design against the Liberty of the Subjects person (the better to invade the property of his goods) prosecuted all his Majesty's time, and more then ever since the Petition of Right and this Parliament. The which is evidenced, by infinite illegal commitments of men for not paying the Lone, Knight-money, Ship-money, with sundry other unlawful Taxes, without baile or mainprise; of sundry members of both Houses during this, and after former Parliaments ended, for things done in and triable only by Parliament; by the exorbitant censures in the Star-Chamber and High Commission, and judging free men against Law, to close imprisonments; And that (which now grieves the very Souls of all English Spirits, who have any remainders of common humanity, in them, and would rend an heart of adamant) not only by the strict close hard imprisonments of divers persons at York and elsewhere, for executing the Militia, refusing the Array, or contribution Taxes, but by the more then barbarous, yea beastly cruelty of his Majesty's Cavaliers in chaining together in Ropes sundry Prisoners taken at Brainford, Marleborough and Cicester, (as the true printed Relations of these places sacking testify) like a company of Turkish Gally-slaves, (though some of them were Gentlem • n of worth and quality, others Ministers, others aged, sickly, and many who never bore arms in these present wars) and leading them chained (almost naked, and barefoot) through deep filthy ways in the cold winter season to Oxford in triumph (to his Majesty's great dishonor, and his Subjects grief,) denying them, not only meat and drink, but even water it self (the commonest Element) to quench their thirst, and keeping off, yea beating any such at Cicester, and Oxford, who offered to bring them any sustenance, though but a drop of water to cool their tongues: (O more then Turkish Barbarousnesse, that one man, one Christian, one English Subject even in, or near the presence of his Sovereign, should thus ill entreat another, without any punishment or check, much more with approbation!) After which they have been shut up in prisons and dungeons lying on the cold ground, stones or boards without beds, straw, fire or any the least refreshment; allowed only a poor pittance of Adams Ale, and scarce a penny bread a day to support their lives, though their friends would provide it for them; in which sad condition many of them are still detained close prisoners without bail, mainprise, exchange, redemption, divers of them being dead of Famine and ill unaccustomed usage: Others have been murdered without mercy, and their Carcasses left unburied for the fowls to prey on; others maimed and left weltering in their blood without any relief; others forced to live exiles from their habitations; and all for this new point of High Treason; that they stood upon their guard, to defend the property of their persons, goods, houses, possessions, from the robbery and plunder of theeving Cavaliers ( borne only for the public mischief of the Reame) who now live by the Countries spoil and robbery, and must not be resisted. If this proceeding be the so oft protested preservation, the vowed defense of the Subjects Liberties, Properties, Lives, the preserving of them in perfect and entire peace and safety according to his Majesty's Coronation oath, the governing of them according to the Law, even whiles the Parliament sits, and hath such Forces in the field, the possession of the Ports, Navy, and other premises in their hands (which if the King should die without heir devolve wholly into the kingdoms hands and possession, not to his Executors, as to the true proprietors of them, a strong unanswerable argument, they are not now the Kings but kingdoms in point of right and interest;) we cannot (say many men) but suspect the like and worse usages when these are all surrendered into his Majesty's power, and that he with his ill Counselors (who had lately such a bloody treacherous design against Bristol during the Treaty of Peace, and now plainly profess, that they never intended the Premises should be put into such persons hands as the Parliament and kingdom might confide in, but themselves alone;) will then as much over-awe the present and all future Parliaments, as they do now the country people where they quarter; and handle many active worthy members of both Houses (particularly proclaimed rebels by the King without conviction, who hath not so violently proceeded against any of the Irish Rebels in this kind, as he hath done against the houses of Parliament, and the chief well deserving members of it) as rigorously, if not far worse, as any now imprisoned by them; notwithstanding that true rule of Seneca: Remissius imperanti melius paretur. Et non minus Principi turpia sunt multa supplicia, quam Medico multa funera.
Their second general reason is, an ancient • ore plo • te • con • ederacie between the Popish and Prelatical Party in the Kingdom to change Religion, and re-establish Pop • ry. Which design hath been vigorously prosecuted long before his Majesty's • aigne, but more effectually since his marriage with one of that Religion; who in regard of her nearness to, and continual presence with him heretofore, and activity to assist him now against his Parliament, hath such a merit • rious interest in his affections, if not powerful influence upon his will and Councils, as may induce his Majesty (as well as King Solomon) to grant, at least a speedy public long-expected toleration and free use of the Romish Religion (if not a suppression of the Protestant faith) throughout the Realm, if all the premises be put into his Majesty's unlimited power. And that which backs this more then conjectural fear, is: First, the large visible progress made in this design before this Parliament, as not only the Houses joint Declarations, but divers Malignant Members declanatory Orations, (now with the King) testify, together with our Prelates manifold Popish Innovations in Doctrines, Ceremonies, Ecclesiastical proceedings; the Popes Nuncioes Residence near, and free access to Court; our Agents residence at Rome; the Cell of Capuchins, Chapels erected for Mass, the infinite swarms of Seminary Priests and Jusuites everywhere, with freedom and impunity, the suspension of the Laws against them and Popish Recusants; the late persecutions and suppressions of all godly Preaching Ministers and most zealous Protestants, with other particulars clearly demonstrate. Secondly, the present general Rebellion and bloody proceedings of the Papists in Ireland, to extirpate the Protestant Religion there; and the many prevailing Plots of the Irish Rebels party here, to delay, seize, or frustrate all aid and opposition against them from hence: with his Majesty's late Commissions to Papists and Protestants, and some who have been in actual Rebellion to treat and conclude a peace with these Rebells, contrary to the very Act he passed this Parliament for Ireland's relief. Thirdly, his Majesty's late letter to the Council in Ireland to exclude the Parliaments agents and members there from all their Councils and meetings; and if reports be credible, his Majesty's Commissions lately issued to most notorious convicted Papists in Wales, Lancashire, the North and other parts, to arm themselves and raise forces under their Comm • nds (who are now in several bodies in the field) and his inte • tai • ing of divers Popists and Irish Rebells in his Army to fight against the Parliament, contrary to the express Laws of the Realm; his own frequent Proclamations and Protestations, • o entertain • o Papists near h • m and to defend the Protestant Religion: Which added to the intercepting of the Parliaments provisions for the relief of the Protestants in Ireland, the entertaining of some of the Commanders sent to Ireland by the Parliament ag • inst the Reb • lls, if not sending for some of them out of Ireland from that Service to war against the Parliament; with the passes under his Majesty's hand for the tra • s • orting of some Popish Commanders (since joined wi • h the Irish R • bells) into Ireland; make many jealous heads suspect, the common vaunt, of the Irish Rebells, that they have express Commissions both from the Ki • g a • d Queen to warrant the • r • roceedings th • re, and that they fight but for them against the Parli • m • nt, Pu •• tanes, and Parliament-D • gs (the Language of the Cavaleeres too, learned from them) are not only possible, but probable; and that th • re is a general design on foot (towards which the Papists in foreign parts; through the Priests and Queens Negotiations, have made large contributions) by the Popish Armies now raised in both Kingdoms, to s • t up Popery in its perfection everywhere, and extirpate the Prote •• ant Religion in all o • r Kingdoms, which nothing but an absolute conquest of these blood-thirsty. Papists ca • in probability prevent, they being already grown so insolent, as to say Mass openly in all the Northern parts and Army, and in Reading, in affront of God and our Religion: If therefore the premises should now be wholly surrendered to his Majesty, it is much to be feared, that the Popish party (now most powerful) would in recompense of their meritorious service and assistance in these wars, at leastwise challenge, if not gain, the chief command of the Ports, Navy, Ammunition; the rather, because the Lord Herbert (a most notorious Papist) both before and since this Parliament, enjoyed the sole charge and custody of all the Military Engines and Ammunition royal at Foxes Hall, designed for the Kings chiefest Magazine; and then farewell Religion, Laws, Liberties; our Souls and bodies must become either Slaves or Martyr • s.
Their third general ground, is the constant practice of most of our Kings (as John Henry the 3 d . Edward, and Richard the 2 d , with others) who after wars and differences with their Parliaments, Lord's, Commons, upon accommodations made between them, as soon as ever they got possession of their Castles, Ships, Ammunition, seised by their Subjects, brake all vows, oaths, covenants made unto them, oppressing them more then ever; enlarging their own prerogatives, and diminishing the Subjects Liberties, (yea taking away many of their lives against Law, Oaths, Promises, Pardons,) on purpose to enthrall them; which still occasioned new Commotions, as the premised Histories and others plentifully inform us. And that the King (considering all his fore-mentioned proceedings, and pertinacious adhearing to his former evil Counselors and their Councils) should degenerate from his predecessors Policies, in case the premises be yielded wholly to him, before our Liberties and Religion be better settled, and the just causes of our fears experimentally remov • d, i • hardly credible.
But against these 3. General reasons, his Majesty's many late solemn Protestations, and those Acts which he hath passed this Parliament, are objected, as sufficient security against all future fears: To which they answer.
First, that if his Maj • sties Coronation Oath, to preserve his Peoples Liberties and Laws of the Land inviolable, have been no sufficient security to his Subjects hitherto, ag • inst all the fore-mentioned grievances and illegal pressures: his verbal Protestations and Promises are like to prove worse assurance: If solemn Oaths be most apparently violated, what trust can there be to unswore words?
Secondly, our Kings in former times (as I have plentifully proved and infinite examples more declare) seldom or never kept either Oaths or Promises made to their Subjects; but have broken oath after oath, agreement upon agreement, with all verbal legal ties; reputing them only lawful policies to over-reach their people, and effect their own designs with greater advantage to themselves, and prejudice to their Subjects. And shall we dream of a new world, only in this dissembling age; when Kingcraft is improved to the utmost?
Thirdly, we had his Majesty's solemn Protestation, in the Word of a King, in th • 3 d year of his Rain, backed with Two Printed Declara •• ons then, to all his Loving Subjects, to maintain the Pet • tion of Right, their Laws, Liberties, Properties, Religion in purity and perfection without the l • ast violation, or any connivance a • , or back- •• iding to Popery: And what good warrants or securities these since proved to the Subjects to pr • se • ve them from several inundations of oppressions▪ Tax • s, grievances, Innov ••• ons and relapses to Popery▪ (which have flowed in upon them ever since as if these 〈◊〉 b • ene • o banks to keep them out, but sluices only to let them in the faster) the premises manifest, and we a • l experimentally feel this day. And are the new Promises and Protestations (think you) better then the old? or those made this Parliament more obligatory to the King, or his evil Counselors, then those made the two last Parliaments, infringed in an high degree (even to the imprisoning, the searching of Peers, of Commons Pockets, and studies against the Privileges of Parliament) within few hours after they were published in Print? Are not the Subjects daily taxed, imprisoned, plundered, murdered; the Privileges of Parliament daily infringed, many ways? Protestants dis-armed, Papists armed, foreign forces introduced, Irish Rebels privately countenanced, the greatest acts of hostility and cruelty exercised whiles treaties of peace are pretended? the best Justices removed in all Counties, ill affected persons set up in their places; illegal Commissions of Array executed, justified, the best Protestant Ministers, people most robbed, pillaged, murdered, banished every where; Sheriffs illegally made, Subjects (even at Oxford where the king resides) more inhumanely handled under his Majesty's view, than Gally-slaves in Turki • ; and scarce one Declaration or Promise observed so much as the very day they are published? notwithstanding so many multiplications of them in Print; that people may the better take notice how they are broken, if they be observant? And shall the Parliament then take, these so notoriously oft violated, never yet observed Protestations, for our Kingdoms only substantial security, to put all into his Majesty's hands forthwith, before they see some real performances and change of Councils? Certainly if they be so much over-seen, they are like to be so far from mending our present condition, that they shall but make it worse, yea and betray themselves, with all that trust them, both for the present and posterity.
But we have very good Laws assented to by his Majesty this Parliament; for our security too. True! but are they not spiders Webbs, and already undermined in action or intention? Do they secure us in any kind for the present, and will they do it for the future? will time (think you) make them binding to the King, if they oblige him not, as soon as made? Did the Petition of Right 3 • Caroli, (a most inviolable security as most then dreamed) secure the Subjects in the least degree against any public wrong, so long as for one months space? Was it not turned into a kind of wrong as soon as made, and ever since? Nay, were there not only sundry actions don, but Iudgments too in the very greatest Courts of Justice, given against it, yea against the very letter and unquestionable meaning of Magna Charta, and other fundamental Laws, by corrupted, or over awed timorous Judges? yea, are not most good Acts made this Session for the Subjects benefit, and all the Subjects Liberties at one stroke quite hewn down and undermined by a pretence of Law it self, in his Majesty's * Answer to both the Houses Declaration, concerning the Commission of Array? Quid verba a • diam, fact • cùnv • deam? The meanest Latin • Scholar knows, that verba dare, signifies properly to deceive; and Subjects have been oft deceived, even with Acts of Parliament. Now that all may see how invalid assurances Laws are to secure the Subjects Liberties, though ratified with never so many confirmations, oaths, s • ales; I shall give you • . or 3. ancient presidents. The first is that of King John, who Anno 1214. confirmed Magna Charta, the Charter of the Forest, and other Liberties with his hand, s • ale, oath, proclamations, the Popes B • ll, solemn excommunications against the infringer • of it, denounced by all the Bishops in his presence; by appointing 25. Ba • ons, who by oath were to see and force him, and all others to observe it, by seising on • is Castles, Lands, goods; and by resigning the custody of his 4. chief Castles to • he dispose of 25. Lord's; whom all other Lord's and Commons were bound to assist; yet in less than on half years, space, these strongest obligations are all cancelled, these Gordians cut in sunder with the sword of war, and the Su • j • cts reduced to greater Vassellage than ever, as the premises evidence. So King Henry the 3 d by oath sundry times successively ratified these Charters, & the Subjects Liberties in Parliament, which they oft dearly purchased with great Subsid • es. And An. 1237, this King to gain a Subsidy of his Subjects, in a Parliament then assembled at London; deny • that he ever intended to revoke the great Charter, and other Liberties, or labored with the Pope to d • e it, with which the Barons truly charged him; and that if any such thing had been casually suggested to him, he did utterly n • ll and revoke it: and because he seemed not altogether free from the sentence of excommunication, which Ste • en the Arch-bishop, with all the other Bishops of England had denounced against all the infringers of the great Charter, which he through ill Council had in part infringed; he commanded them all in public, to renew the said sentence against all contradictors of the said Charter, so that if he himself, through any conceived rancor, had not peradventure observed it, he might more grievously relapse into the said denounced sentence. By which means, and speech, he wonderfully reconciled to him the hearts of all that heard of these things, and suddenly causeth the Earls Warren, and Ferrers, and John Fitz-Ieffry, by the Parliaments appointment, to be sworn his Counselors; giving them this Oath; That by no means, neither for rewards, nor any other cause, they should swerve from • he way of truth, but should give good and wholesome Council both to the King and Kingdom. Whereupon they freely gave the King the 30 th part of all their movable goods, except their gold, silver, horses and arms, to be spent on the good of the Republic, with this condition often annexed; that the King should le • ve the Council of Aliens, and only use the advise of his natural Subjects: Which Subsidy was ord • red, to be collected by 4 knights, and one clerk in every County, and there laid up in some religious house or Castle, that if the King should receede from his promise and condition, everyone might faithfully receive back his own again. But no sooner was the Parliament ended, but the King breaks all his promises; shows more favor to, and is more ruled by strangers then ever before; levies the subsidy in a stricter and far other manner then was prescribed, and bestows most of it on strangers to be transported; marrieth his sister. Eleanor to Sim • n Monfort, (a new come French Exile, of mean fortunes) su • ru • eque naturalium hominum consiliis factus est extran • us & suis b • nevolis, Regnoque ac R • publicae u • ilibus factus est cervicosus, ita quod per eorum consilium parum aut nihil de nego • iis Regni tractaret aut operare • ur. Which courses, with other, so incensed the Nobility, and generally all the subjects, as put them into a new commotion; which made him enter into new Articles and promises ratified with seals and Oaths, yet still infringed as soon as made. After this in the 37. year of his Rain he ratified them in the most solemn and religious manner as Religion and State could ever devise to do. The King with all the great Nobility of England, all the Bishops and chief Prelates in their Pontificalibus, with burning Tapers in their hands assemble to hear the terrible sentence of Excommunication, and at the lighting of those candles, the King having one of them in his hand, gives it to a Prelate there by, saying: It becomes 〈◊〉 me being no Priest, to hold this Candle, but my bea •• shall be a greater testimony; and withal laid his hand spread upon his breast, the whole time the sentence was read, in this form. We Boniface Arch-bishop of Canterbury, &c. by the Authority of Go • Almigh • y, and of t • e Son, and of the Holy Ghost, and of all Apostle, M • rtyrs, Confessors, Virgins, and all t • e Saints of God (many of them there specially named) do 〈…〉 and separate 〈…〉 Church of God, all those who from henceforth, wittingly and willingly shall deprive or spoil the Church of her right: likewise all those, who by any art or cunning shall rashly violate, diminish, or alt • r privily or openly or by 〈◊〉 deed, or council, shall rashly come against all o • any of the ancient Liberties o •• pprov • d customs of the Realm, and especially the Liberty, and free Customs which are contained in the Charters of the Common Liberties of England, and of the Forest, granted by o • r Lord the King of England, to t • e Arch-Bishops, Bishops, Prelates, Earls, Barons, Knights and F • ee Tenants of England; likewise all them who shall make, or observe when made, any statutes, or introduce or keep when introduced, any customs against them or any of them, together with the writers, Counselors, and executioners of such statutes, and those who shall presume to judge accord • ng to them. Insempeternall memory whereof, we have thought meet to set our seals. And then throwing down all their Candles, which lay smoking on the ground, every one cried out; So let everyone who incurres this sentence be extinct in hell. Then the B • l • s ringing cut, the King himself solemnly swore and protested with a loud voice, with his hand upon his breast: As God me h • lpe, I will faithfully and inviolably keep these things, as I am a Man, a Christian, a Knight, a KING CROWNED & ANO INTED. Which done, Robert Bishop of Lincoln fore-thinking, that the King would violate the foresaid Charters, presently caused the like excommunication to be made in all his innumerable Parish Churches; which sentence would make men's ears to tingle, and their hearts not a little to tremble. Never were Laws amongst men (except those holy Commandments from the Mount) established with more majesty of Ceremony, to make them reverend and respected then were these: they wanted but • hunder and lightning from heaven, (which if prayers would have procured, they would likewise have had) to make the sentence ghastly, and hideous to the infringer • • ereof. The greatest security that could be given, was an oath, and that solemnly taken; the only chain on earth, besides love, to tie the conscience of man and human Society together; which should it not hold us, all the frame and government must needs fall quite asunder. Who would have once imagined, that a man, a Christian, a Knight, a King, after such a public oath and excommunication, would ever have violated his faith, especially to his loyal Subjects? yet loe almost a miracle (though over-common among our Kings,) the very next words in my Historian after this Oath and Excommunication, are these; The Parliament being thus dissolved, the King PRESENTLY using ill Counsel, studied how to infringe all the premises; these whisperers of Satan telling him; that he need not care though he incurred this sentence, for the Pop • for one or two hundred pounds will absolve him, who out of the fullness of his power can loose and bind whatsoever he pleaseth, &c. which the Pope soon after did; and the King returned to his former oppressive courses, more violently than before. Well then might the royal Prophet give us this divine caution, O put not you • trust in Princes: Surely men of high degree are a lie; to be laid in the balance they are altogether lighter th • n vainty, both in their oaths and promises. Hence* Isable Countess of Arundle, a well spoken Lady, receiving a repulse from this Kings hands about a Ward, whereto she conceived she had right, the King giving her a harsh answer, and turning from her, said thus to his face: O my Lord King, why turn you away your face from justice, that we can obtain no right in your Court! You are constituted in the midst between God and us, but you neither govern yourself nor us discreetely, as you ought. You shamefully vex both the Church and Nobles of the Kingdom by all ways you may, which they have not only felt in present but often heretofore. The King fired 〈◊〉 so free a speech, with a scornful angry countenance, and loud voice answered: What, my Lady Countess, have the Lord's of England, because you have tongue at will, made you a Charter, and hired you to be their Orator and Advocate? Whereunto she replied: Not so my Lord, they have not made any Charter to me; but that Charter which your Father made, and which yourself have oft confirmed, swearing to keep the same inviolably and constantly, and often extorting money, upon promise, that the liberties therein contained should be faithfully observed, you have not kept, but without regard to honor or conscience broken; Therefore are you found to be a manifest violater of your faith and Oath. Where are the liberties of England, so often fairly engrossed? so often granted? so often bought? I, though a woman, and with me all the natural and loyal people of the land, appeal you to the Tribunal of that high Judge above, and heaven and earth shall be our witness, that you have most unjustly dealt with us, and the Lord God of revenge, avenge and right us. The King distrubed at these words asked her; If she expected not to obtain her suite upon favor, seeing she was his kinswoman? Whereunto she answered. How shall I hope for grace, when you deny me right? Therefore I appeal before the face of Christ against those Counselors also of yours, who gaping only after their own gain, have bewitched and infatuated you. I wish none had cause at this very season to make the like appeals. As boldly, though in fewer words, is he reproved by the Master of the Hospital of Jerusalem, in Clarken-well, who coming to complain of an injury committed against their Charter, the King told him; The Prelates, and especially the Templets and Hospitalers, had so many Liberties and Charters, that their riches made them proud, and their pride mad; and that those things which were unadvisedly granted, were with much discretion to be revoked; alleging, that the Pope had 〈◊〉 recalled his own grants, with the clause, Non obstante; and why should not he cashiere those Charters inconsiderately granted by him, and his Predecessors? What say your Sir? (said the Prior) God forbid so ill a word should proceed out of your mouth: so long as you observe justice you may be a King, as soon as you violate the same, you shall cease to be a King. To which the King inconsiderately replied. O what means this! you Englishmen, will you cast me down from the Kingdom as you did my Father, and kill me being praecipitated? I could instance in diverse like violations of Mag • a Charta and other good Laws immediately after their making and ratification with solemnest Oaths and excommunications, both in King E • ward the 1. and 2. and Richard the seconds reigns, which because elsewhere lightly touched I shall pretermit; concluding only with one president more, in one of our best and justest Princes reigns, King Edward the third, in whose reign even then when by special Acts, there was not only a trieniall Parliament but an annual to be held; and sometimes 4. or 5. Parliamentsheld every year, and Magna Charta usually first confirmed by a new Law in everyone of them, yet we shall find not only frequent complaints of the breaches of it, but many new Laws one after another, enacted, to prevent and punish the violations of it; and yet all to little purpose, as those Acts declare, and our late, yea present times attest: and which is very observable; when King Edward the 3 d in the first Parliament, in the 15. year of his Rain, had ordained and established divers good Statutes, which he willed and granted FOR HIM & HIS HEIRES that they should be FIRMELY KEPT & HOLDEN FOR EVER, for the ratification of Magna Charta, and better observing other good Laws: and enacted, That the Chancellor, Treasurer, Barons of the Exchequor, Judges, and all other great Officers of the Kingdom should then for the present in Parliament, and forever after take a solemn Oath before their admission to their Offices, to keep and maintain the points of the great Charter, and the Charter of the Forest, and all other Statutes, without breaking any one point; No sooner was that Parliament dissolved, but the very same year, he publicly revoked those Statutes: pretending, That they were contrary to the Laws and Customs of the Realm, and to his Prerogatives and Rights Royal, all which he by his Oath was bound to m • inta • ne; Wherefore willing providently to revoke such things, which he so improvidently had done. Because (saith he, mark the dissimulation of Princes even in Parliaments) We nev • r realy consented to the making of such Statutes, but as then it beloved Vs, WEE DISSEMBLED IN THE PREMISES: by Protestations of r • vocations if indeed they should proceed to secure the Dangers, which By the Denying of the same we feared to come, for as much as the said Parliament otherwise had been without any exp • dition, in discord dissolved, and so our earnest busi • sse had likely be • e, which God pr • ohibit i • ruin. And the said pretensed Statute, we promised then to be sealed; But sithence the Statute did not of our own free will proceed, it seemed to the Ea •• s, Barons, and other wise men, with wh • m we have treated thereupon, 〈…〉 should be void, and ought not to have the Name nor Strength of a Statute: And therefo • e by their Counsel and Ass • n • We have Decreed the said Statute to be void, and the same in as much as it proceeded of deed, we have brought to be anulled. And the same we do only to the conservation and redintegration of the Rights of our Crown, as w • be bound, and not that 〈◊〉 should in any wise aggravate or oppress our Subjects whom we desire to rule by lenity and gentleness. And thus his S • ablishing of these Law • , for Him and his Heirs, firmly to be holden and kept forever, was turned into an estate at will, determined as soon as granted. By which pretence of Dissimulation, of a consent to Acts, yet no free, but sained only to accomplish his own ends, and of preserving and redintegrating the Rights of the Crown; how easily may any King, (and how oft have many Kings, actually, though not Legally) invallid and • ullifie all Acts they have passed for the Subjects benefit, as soon as they are made by Parliaments? What weak assurances then are Laws alone, to bind Princes hands, or secure Subjects Liberties, let all wise men judge.
If then the ignorant vulgar will be deceived with these specious fruitless Protestations, and the bare grant only of some good Laws (already highly violated) with • out any apparent intention to observe them; yet most presume the great Counsel of the Kingdom (which in so many printed Declarations hath informed the Subiec •• of the premises, to make them cautious, and vigilant against all such circumventions) will not be so easily over-reached, and find better assurances before they trust too 〈◊〉 ▪
Fourthly, admit (say some) His Majesty's Protestations and Promises upon t •• hoped accommodation should be real, (w ch the sending abroad of his Forces, West, South, North, at this very instant of Treating makes most doubt,) yet the sway of ill Counselors about him, more prevalent with, more trusted by him, at this present then his grandest Counsel, the Parliament: the Potencie of the Queen, the great merits of her Grace & Papists (who will not be more modest with the King, then they are with God himself, in challenging rewards ex debito, for service done unto him) 〈…〉 of divers Malignants about the King, who will challenge all places of trust from his Majesty, as just reward for their faithful service; as they did in Henry the 〈◊〉 this reign, when Matthew Paris complained, and the whole Kingdom • with him in this manner, Iudicia 〈◊〉 injustis leges exlegibus, 〈…〉 &c. Who when they have all power and offices shared among them, will be apt to meditate and act revenge on the primest of their Parliamentary Opposites, to oppress and fleece the Subjects to repair their losses, their expenses in this war, or their poor decayed fortunes. All these with other such like probable subsequent considerations, may justly plead the inconvenience, and great danger to Parliament and Kingdom, to make an absolute present surrender of the Militia, Forts, Navy, ammunition into such untrusty hands, as are likely to turn them all against them, and to prove mischievous, if not pernicious, unto both, for the premised reasons; Pestifera vis est valere ad n • cendum; especially if it be in Malignant hands. And here, to avoid all misinterpretations of this impartial discourse, I seriously protest; that as I heartily desire and constantly endeavor a speedy, safe, cordial union between King, Parliament, People; so have I most unwillingly been necessitated to repeat the premised objections, much feared designs, and experimental contradictions between many late Protestations and actions, (frequent in Parliamentary Declarations, new printed Pamphlets, and most men's mouths;) not out of any disloyal seditious intention (as some will maliciously mis-conster it) to stain his Majesty's Reputation with his people, and make the breach between them incurable, that they may never trust one another more; but only faithfully to demonstrate to his Highness and all about him, the great disservice and impoliticke pernicious advise of those ill Counselors, who have most unhappily engaged him in such pernicious projects and frequent repugnances of works and words, as have given both Parliament and people, a more then colorable, if not just occasion to distrust his Majesty's gracious words and promises for the present, till they shall visibly discern them, more punctually observed, and realized for the future; and made them so unhappy on the one hand, that now they dare not trust his Majesty so far forth as they desire, out of a provident care of their own future security; and His Highness so unfortunate on the other hand, as to grow jealous of their Loyalties, because they will not conside in his Royal Faith and Protestations, so far as he expects, out of a care to preserve his own Kingly Honor. In this unhappy diffidence (occasioned only by His Majesty's cvill Counsel) between King and Kingdom, a real future renouncing of all forenamed suspected designs, and actual performance of all Regal promises, will be the only means to cure all Ielousies, banish all fears, remove all diffidences; and beget an assured trust, firm peace, and lasting unity between King and Subjects, to their mutual inexpressible felicity; which I shall daily imprecate the God of Peace, speedily to accomplish. But to return to the matter in hand.
Secondly, It is conceived by many indifferent men, to be far more reasonable and safe both for King and Kingdom (as things now stand) that the Mili • ia, Ports, &c. till our fears and jealousies be quite removed, should remain in the Parliaments hands, then in the Kings alone: which they thus demonstrate.
First, Because all these are the Kingdoms in right, property, use; not the Kings; Who being but the Kingdoms Royal public Servant, may with Honor and better reason deliver up the Custody of them to the representative Body of the Kingdom for a reason, then detain them from them, when they require it. Secondly, Because the Parliament is the Superior Sovereign power, the King but the Ministerial; and it is more rational and just, that the inferior should condescend to the greater Power, the Ministerial to those he serves, then they to him. Thirdly, Many men of Honor and fidelity are more to be trusted and credited, then any one man whatsoever, because not so mutable, so sub • ect to seduction, corruption, error, or self-ends as one, or very few. This is the true reason, there are many Judges in all Courts of Justice; most select Members in the highest Court of all, the Parliament, (as there was in the Roman Senate, in Foraigne Parliaments, in National and General Councils; because Courts of greatest trust and power) many being more trusty and juditious then one, or a few; Whence Solom • n doubles this resolution, In the multude of Counselors there is safety; yea, two (saith he) are better then one, in point of trust; whence wise men of great estates make many 〈◊〉 , or Executors, and seldom do cofide in one alone, The Parliament therefore being many, and the King but one, are most to be confided in by the Kingdom. Fourthly, Kings have frequently broke their Faith and Trust with their Parliaments and Kingdoms; Parliaments seldom or never violated their trust to King or Kingdom; therefore its more just, less dangerous for King and Kingdom to trust the Parliament, then the King.
Fifthly, The Parliament is elective, consisting for the most part of the principal men in every County, City, Burrough, in whom the people who elected them, most confide; The King successive, not Elective. Therefore not so much confided in by the Kingdom, as the Parliament. Sixthly, The Parliament being the great Counsel both of King and Kingdom, consisting of the ablest men of all Counties; is better able to judge and make choice of fit persons to manage and keep the premises for the public safety, then the King alone, without their advise. Seventhly, The Parliament heretofore hath elected the greatest Officers of the Kingdom, (yea the King himself, when the Title to the Crown hath been doubtful, the inheritance and descent whereof hath in all or most Princes reigns, been constantly guided and settled by the Parliament, as I have formerly proved) because it most concerns the weal or woe; the peace & safety of the Realm to have trusty Officers; Therefore by the self-same reason they should for the present appoint all Officers for the custody and ordering of the Premises. Eighthly, The Kings trusting the Parliament with these things for a convenient time, will be the only means to remove the people's fears, prevent their dangers, quiet their minds, beget a perfect unity and amity between King, Parliament, Subject, and prevent all future differences: whereas the present resigning of them to his Majesty's trust and power, will but augment their jealousies, fears, dangers, discontents; and neither pacify former differences, nor prevent future, but rather perpetuate and beget them; especially if any notorious Papists, Malignants (the likeliest men to be employed under his Majesty) be trusted with any of the premises, which will endanger both Liberties and Religion; of which there will be no fear at all, if the Parliament and such as they shall nominate be the only Trustees. In fine, If neither King nor Parliament dare trust one the other alone with the premises, and it is neither Royal, nor Honorable as many believe for the King to trust the Parliament now alone, with these, who in their Declarations never desired, but professed the contrary, that the chiefest command of the Militia when indifferent Officers were appointed, should still reside in his Majesty, in as ample manner as before; there is no other equal, honorable, just, impartial, probable way left to secure or accord both parties in this particular, but only to commit the premises for a convenient time, to the custody of such trusty persons, nominated by the Parliament to the King, or by the King to the Parliament, as both sides jointly shall allow of, and by a special Bill to prescribe them such an Oath, as shall oblige them, to keep and employ them only for the joint use of King, Kingdom, and Parliament, by the joint direction of King and Parliament, and not by the single warrant or command of either of them, whiles this Parliament continues; Under pain of High Treason, both against the King and Kingdom.
I shall close up this objection with the words of Seneca, Securitas securitate mutua paciscenda est: Errat enim si quis existimet tutum esse Regem, vbi nihil a reg • tutum est. Vnum est inexpugnabile munimentum, Amor Ciuium; which the King shall then be sure of, when he takes up this resolution; Non rempublicam suam esse, sed se Reipublicae: and shall really trust the Kingdom and Parliament as much, as far forth, as he expects or desires they should trust him.
The Parliaments Right to Elect Privy Counselors, Great Officers, and Judges.
T He third grand Complaint of the King and Royalists, against this Parliament is: That they take upon them a power to recommend and nominate to the King his Privy Counselors, Judges, with other great Officers of State; demanding, that none of them may hereafter (especially during Parliaments) be ordained by his Majesty, but by their Nomination or advice. A great affront, an intolerable encroachment on the Prerogative Royal, as is pretended.
The loud clamour against the Parliament, if seriously examined, will speedily vanish into nothing. For; first, it is already cleared, ( and Fortescue so resolves) That Kings themselves (the highest Officers and Justiciaries in their Kingdoms) were both created and elected at first, by the free general votes of their people; from whom alone they received all their Royal Authority, having still no other, nor greater lawful power then they conferred on them, (only for the defense of their Laws, Persons, Liberties, Estates and the Republics welfare:) which they may regulate, augment, or diminish, for the Common good as they see just cause. Therefore doubtless the people who thus created and elected their Kings at first, did likewise constitute, and elect all public Counselors, Officers, Judges, Ministers of the State, giving both being and bounds to their several Offices and Jurisdictions by public Laws; which is most apparent not only in the Roman, Lacedaemonian and other Kingdoms, but our own too, by infinite Acts of Parliament creating, regulating and limiting the power, Charters, Patents, Graunts, and proceedings not only of our Kings, but of their Counselors, Chancellous, Treasurers Keepers of the Great Seal and privy Seal, high Stewards, Admiralls, Marshalls, Masters of the Horse, Presidents of the Marches, and of York, Masters and other Officers of the Court of Wards Judges, and Justices of all Courts, all kinds, Sherifs; Coroners, Customers, Searchers, Escheators, and all other Temporal or Ecclesiastical public Officers: the right of whose elections remaining originally in the Kingdom, and Parliament representing it, was never yet irrevocably or totally transferred by them to the King, by any public acts that I have seen: and therefore when they see just cause, they may make use of this their primitive inherent right of Election, without any real encroachment on the Kings Prerogative.
Secondly, I have already proved, that the Heretochs, Lieutenants General, and [ 2] Sherifs, (as likewise the Conservators of the Peace) in every County through the Realm, were anciently elected only by the Parliament and People; not the King, (though they had the custody, power, Command of the whole Countey,) without any impeachment to the Prerogative Royal; why then may not these other public Officers of the Estate be thus nominated and chosen by the Parliament likewise, without any just exception or offense?
Thirdly, All Coroners, Majors, Sherifs, Baylifs, Aldermen, Recorders of London, York, Bristol, and generally of all Cities, Towns and Burroughs throughout the Kingdom (which have the chief Government of these Corporations) Verderers of the Forest, Constables and other Officers, have ever anciently, and are still at this day elected only by the People, not the King: Yea all Arch-bishops, Bishops, Abbots, Priors, with other Ecclesiastical Officers, (who were formerly Peers and Members of the Parliament, and Rulers in the Church,) were anciently chosen, not by the King himself, but only by the Clergy and people, as sundry Presidents and Statutes manifest, and the Conge de'sliers at this day for the Election of new Bishops, more then intimate: and all this without the least violation of the Kings Prerogative: why then may not the Parliament nominate all those public Officers to the King by Parallell Reason, without Ecclipsing his Prerogative?
Fourthly, The Knights, Citizens, and Burgesses of the Kings and Kingdoms greatest Court and Council, the Parliament, (the supremest Counselors and Judges of all others, to whom all other Courts, Counselors, Officers, Judges, are responsible for their actions, Judgments, advice; ) have always of right been, and yet are elected only by the Free-holders and Commons of the Realm: yea all the members of the Lord's house, though summoned thither by the Kings Writ, and not elected; sit there of right (not of grace, or the Kings free choice) by the fundamental Laws and Constitutions of the Realm; neither can the King by his absolute Prerogative, elect any members of the Commons House, or exclude any member of it, or Peer of the Vpper House (who by virtue of his Peerage ought to sit there) without the Houses consents: for then, if he might elect, or exclude one, he might likewise choose and seclude more, yea most of them, by like reason, at his pleasure; and so subvert the subjects Privileges, and by a Packed Parliament impose what Laws or Taxes he would on his people, to their slavery and ruin. Which freedom of the subjects Election, and all Lord's Summons is so essential and necessary to Parliaments, that the Parliaments of 21 R. 2. at Westminster, and of 38 H. 6. at Coventry, were by the Parliaments of 1 H. 4. c. 3, 4. N • . 21, 22. and 39 H. 6. c. 1. adjudged and declared to be void and no Parliaments at all, but unlawful, yea devilish Assemblies, and Ordinances, for this very Reason; because in the first of them the Knights were not duly elected by the Commons according to Law and custom, but by the Kings pleasure; and the Lord's only of the Kings party, (contrary to right and reason) summoned to it: (by means whereof, Will, therein ruled for reason, men alive were condemned without examination; men dead and put in execution by privy murder, were adjudged openly to die, others banished without answer, an Earl arraigned, not suffered to plead his pardon, &c. ) and because the latter of them by divers seditious evil-disposed persons about the King, was unduly summoned, only to destroy some of the Great Nobles, faithful and Lawfull Lord's, and other faithful liege people of the Realm out of hatred and malice, which the said seditious persons of long time had against them: and a great part of the Knights of divers Counties of the Realm, and many Burgesses and Citizens for divers Burroughs and Cities appearing in the some, were Named, returned and accepted, some of them without due and free Election, some of them without any Election by means and labor of the said seditious persons, against the course of the Laws, and Liberties of the Commons of the Realm, whereby many great Jeopardies, Enormities, and Inconveniences, well-nigh to the ruin, decay, and subversion of the Realm, ensued. If then the grand Counselors and Judges of this highest Court, are and ought to be elected only by the Commons, not the King, because they are to consult, and make Laws for the Kingdoms welfare, safety, government, in which the Realm is more concerned then the King; and Bishops, Abbots and Priors likewise, whiles members of the Lord's House of Parliament, were chosen by the Clergy, People, Commons, not the King: by semblable, or better reason, the whole State in Parliament when they see just cause, may claim the nomination of all public Officers of the Kingdom, (being as much or more the Kingdoms Officers 〈◊〉 the Kings, and as responsible to the Parliament as to the King, for their misdemeanors in their places) without any diminution of the Kings Prerogative.
Fifthly, the Parliament consisting of the most Honorable, Wise, Grave, and discree test persons of all parts of the Kingdom, are best able clearly and impartially to Judge, who are the fittest, ablest, faithfullest, most deserving men to manage all these public Offices for the Kings, the Kingdoms honor and advantage, better then either the King himself, his Cabinet-Counsel, or any unconsiderable Privadoes, Courtiers, Favorites; (who now usually recommend men to these places more for their own private ends and interests, then the Kings or Kingdoms benefit;) therefore it is but just & equitable that they should have the principal nomination and recommendation of them to the King, rather then any others whomsoever; & that the King should rather confide herein to their unbiased Judgments, then to his most powerful trustiest Minions; who would out the Parliament of this just privilege, that they might unjustly engross it to themselves; and none might mount to any places of public trust, but by their dear-purchased private Recommendations; the cause of so many unworthy, untrusty, corrupt public Officers and Judges of late times, who have (as much as in them lay) endeavored to enslave both us and our posterities by public illegal Resolutions against their Oaths and Consciences.
Sixthly, Though our Kings have usually enjoyed the choice of Judges and State Officers, especially out of Parliament time; yet this hath been rather by the Parliaments and people's permissions, then concessions, and perchance by usurpation, as appears by Sherifes and Lieutenants of Counties Elections, now claimed by the King, though anciently the Subjects right, as I have proved. And if so, a Title gained only by Connivance or Usurpation, can be no good plea in Barre against the Parliaments Interest, when there is cause to claim it: however; the Kings best Title to elect these public Officers, is only by an ancient trust reposed in his Predecessors and him, by the Parliament and Kingdom, with this tacit condition in Law (which Littleton himself resolves is annexed to all Officers of trust whatsoever,) that he shall well and lawfully discharge this trust, in electing such Counselors, Officers, and Judges as shall be faithful to the Republic and promote the subjects good and safety. If then the King at any time shall break or pervert this trust, by electing such great Counselors, Officers, and Judges as shall willingly betray his Subjects Liberties, Proprieties, subvert all Laws, foment and prosecute many desperate oppressing Projects to ruin or enthrall the Kingdom, undermine Religion, and the like (as many such have been advanced of late years;) no doubt the Parliament in such cases as these, may justly regulate, or resume that trust so far into their own hands, as to recommend able, faithful persons to these public places for the future, without any injury to the Kings Authority. It was a strange opinion of Hugh Spensers (great favorites to King Edward the second) which they put into a Bill in writing, That homage and the Oath of Allegianc • is more by reason of the Crown, then by reason of the Person of the King, and is more bound to the Crown, then to the Person; which appears, because that before the descent of the Crown, no Allegiance is due to the Person. Therefore put case the King, will not discharge his trust well, according to reason in right of his Crown, his Subjects are bound by the Oath made to the Crown, to reform the King and State of the Crown, because else they could not perform their Oath. Now it may (say they) be demanded, how the King ought to be reformed? By 〈◊〉 of Law, or by 〈◊〉 ? By suite at Law, a man can have no redress at all, for a man can have no Judge, but these who are of the Kings party▪ In which case, if the will of the King be not according to reason, he shall have nothing but • rrour maintained and con •• med. Therefore it behooveth for saving the Oath, when the King will not redress a thing, and remove what is evil for the Common people, and prejudicial to the Crown, that the thing ought to be reformed by force, because the King is bound by his Oath to govern his Lieges and people, and his Lieges are bound to govern in aide of him, and in default of him. Whereupon, these Spensers, of their own private Authority, took upon them by Vsurpation the sole government both of King and Kingdom, suffering none of the Peers of the Realm, or the Kings good Counselors, appointed by the State, to come near him to give him good counsel, not permitting the King so much as to speak to them but in their presence. But let this their opinion and private unlawful practice, be what it will; yet no doubt it is lawful for the whole State in Parliament, to take course, that this part of the Kings Royal trust (the choosing of good public Counselors, Officers, Judges, which much concerns the Republic) be faithfully discharged, by recommending such persons of quality, integrity, and ability to all public places of trust and judicature, as both King and Kingdom may confide in; which will be so far from depressing, that it will infinitely advance both the Kings Honor, Justice, profit, and the Kingdoms too.
Seventhly, It is undeniable, that the Counselors, Judges and Officers of the Kingdom, are as well the Kingdoms Counselors, Officers and Judges, as the Kings, yea more the Kingdoms than the Kings, because the King is but for the Kingdoms service and benefit. This is evident by the Statute of 14 E. 3. c. 5. which enacts; that as well the Chancellor, Treasurer, Keeper of the Privy Seal, the Justices of the one Bench and of the other, the Chancellor and Barons of the Exchequer, as Justices assigned, and all they that do meddle in the said places under them, shall make an Oath, well and lawfully to SERVE the King and HIS PEOPLE, in THEIR OFFICES: which Oath was afterward enlarged by 15 E. 3. c. 3. 18 E. 3. Stat. 3. 20 E. 3. c. 1, 2, 3. 1 Rich. 2. c. 2. swearing and enjoining them: To do even Law, and execution of right to all the Subjects rich and poor, without having respect to any person, &c. And if any of them do, or come against any point of the great Charter, or other Statutes or the Laws of the Land by the Statute of 15 E. 3 c. 3. he shall answer to the Parliament, as well at the Kings suite, as at the suite of the party. Seeing then they are as well the Kingdoms Counselors, Officers, Judges, as the Kings, and accountable, responsible for their misdemeanors in their places, as well to the Parliament and Kingdom as to the King, great reason is there, that the Parliament, Kingdom (especially when they see just cause) should have a voice in their elections, as well as the King. The rather, because when our Kings have been negligent in punishing evil Counselors, Officers, Judges, our Parliaments out of their care of the public good, have in most Kings reigns, both justly questioned, arraigned, displaced, and sometimes adjudged to death the Kings greatest Counselors, Officers and Judges for their misdemeanors: witness the displacing and banishing of William Longcham Bishop of Eli, Lord Chancellor, chief Justice, and Regent of the Realm in Richard the 1. his Reign; Of Sir Thomas Wayland chief Justice of the Common pleas, attainted of Felony, and banished for bribery by the Parliament. 18 Ed. 1. the several banishments of Piers Gaveston and the • Spensers (the Kings greatest favorites, Officers, Counselors) for seducing, miscounselling King Edward the second, oppressing the Subjects, and wasting the Kings revenues; the removal and condemnation of Sir William Thorpe, Chief Justice of the Kings Bench, for Bribery, 25. E. 3. The fining and displacing of Michael de 〈◊〉 Pole Lord, Chancellor, Alexander Nevell, and divers other great Officers, and Privy Counselors, with the condemning, executing, and banishing of Tresilian 〈◊〉 , and other Judges, in 10, & 11 Rich 2. by Parliament, for ill Council, and giving their opinions at Nottingham against Law. Of Empson, Dudley, and that grand Cardinal Wolsey, Lord Chancellor, and the Kings chiefest Favorite and Counselor, in Henry the eight his Reign: Of the Duke of Sommerset, Lord Protector, and his Brother, Lord Admiral, for supposed Treasons in Edward the 6 th . his Reign: Of Sir Francis Bacon Lord Keeper, and Cranfield Lord Treasurer, in King James his latter days; with infinite other presidents of former and latter ages; and one more remarkable then all the rest: In the Yeare 1371. (the 45. of King Edward the third his Reign) and somewhat before, the Prelates and Clergy-men had engrossed most of the Temporal Offices into their hands; Simon Langham Arch-bishop of Canterbury, being Lord Chancellor of England, John Bishop of Bath, Lord Treasurer, William Wickam Archdeacon of Lincoln, Keeper of the Privy Seal, David Wolley Master of the Rolls, John Troy Treasurer of Ireland, Robert Caldwell Clerke of the Kings Household, William Bugbrig, general Receiver of the Duchy of Lancaster, William Ashby Chancellor of the Exchequer, John Newneham and William de Mulso Chamberlaines of the Exchequer, and keepers of the Kings Treasury and Jewels; John Roxceby Clerke and Comptroller of the Kings works and Buildings, Roger Barnburgh, and 7 Priests more, Clerks of the Kings Chancery, Richard Chesterfield the Kings under-Treasurer, Thomas Brantingham Treasurer of Guives, Merke and Calis; All these Clergy-men (who abounded with pluralities of rich Spiritual Livings, though they Monopolized all these temporal Offices:) in the Parliament of 45 Edward the 3 d . by a Petition and complaint of the Lord's, were displaced at once from these Offices (no ways suitable with their functions) and Lay-men substituted in their places: And a like president I find about 3 Hen. 3 d . where the Clergy Lord Chancellor, Treasurer, with other Officers were removed, upon a Petition against them, and their Offices committed to Temporal-men, whom they better beseemed. If then the Parliament in all Ages hath thus displaced and Censured the greatest Counselors, State-Officers, Judges for their misdemeanors, ill Counsel, insufficiency, and unfitness for these places, (contrary to that twice condemned false opinion, of the over-awed Judges at Nottingham in 11 R: 2. That the Lord's and Commons might not without the Kings will impeach the Kings Officers and Justices upon their Offences in Parliament, and he that did contrary was to be punished as a Traitour; ) and that upon this very ground, that they are the Kingdoms Counselors, Officers and Justices, as well as the Kings, and so responsible to the Parliament and Kingdom for their faults. I see no cause why they may not by like reason and authority, nominate and place better Officers, Counselors, Judges in their steeds, or recommend such to the King, when and where they see just cause.
Eighthly, John Bodin a grand Politician, truly determines and proves at large, That it is not the right of election of great Officers, which declareth the right of Sovereignty, because this oft is, and may be in the Subjects, but the Princes approbation, and confirmation of them when they are chosen, without which they have no power at all. It can then be no usurpation at all in the Parliament upon the Kings Prerogative, to nominate or elect his Counselors, great Officers, and Judges, or recommend meet persons to him (which is all they require) so long as they leave him a Power to approve and ratify them by Writs or special Patents, in case he cannot justly except against them; Of which power they never attempted to divest his Majesty, though he be no absolute, but only a politick King, as Fortescue demonstrates.
Ninthly, It hath been, and yet is usual in most Forraigne Kingdoms, for the Senate and people to elect their public Offi • ers and Magistrates, without any diminution to their Kings Prerogative. In the Roman State, the people and Senate not only constantly elected their Kings and Emperors, but all their other grand public Officers and Magistrates, (as Consuls, Tribunes, Dictators, Senators, Decemviri, and the like) were elected by the people; who prescribed them Laws, Oaths, and had power to question, to punish, remove and censure them when they offended. Solon and Aristotle, with other great Politicians, debating this Question; Whether the power of Electing and censuring the Magistrates, and chief Officers ought to resids in the people? Conclude offirmatively, That it is most necessary and convenient, this power should rest in the people; because else the people shall become both the servants and enemies of their Princes, if they have not this power; and because all the people together are more considerable, and better able to judge of the goodness and fitness of Magistrates for them, then any few select particular men, which are more apt to be seduced with by-end • , then a great multitude. Whence, among the Lacedemonians, and in most Kingdoms and Republics in Greece, the people had both the election, yea and correction of their Magistrates and chief State Officers, as they manifest. In the Kingdom of Aragon, in Spain, their ancient Suparbiense Forum, their Iustitia Aragoniae, and Rici homines, (who are their principal Magistrates, Great Counsel of State, and Privi • Counselors to their King both in War and Peace; having power over their Kings themselves, to examine and censure all their Actions, and remove them if there because;) with all their Members, Knights and Burgesses of their Parliaments; (held formerly once a ye • re, but now once every second year, by fixed Laws;) anciently were, and at this day are elected by the People and not the King. In the Germane Empire, the Electorship, Chancellourship, and all great Offices of State, are hereditary and successive, not chosen by the Emperor: and the greatest part of inferior Magistates, are elected in most Provinces and Cities by the people. In Polonia the Archbishop of Gnesne, is by inheritance always Chancellor of the Realm. In Hungary, the great Palatine, the chiefest Officer of that Kingdom, next to the King himself, who at home determineth and judgeth all differences between the King and Subjects, according to the Laws of that Realm (est enim apud Panonios in usu, Regem si quid contra Legem fecerit, legibus subijci) and during the interregnum, hath right to summon Parliaments, and general assemblies of the Estates; yea, the chief hand and power in electing a new King; and the Sovereign command in the Wars, Adeo ut sontes punire, been de re publica •• ritis praemia discernere, fundosque qui 20. vel 30. agricolarum capaces sunt juris haer • ditarij nomine confer possit, &c. (as Nicholaus Isthuanfus writes) is elected by the States and Parliament of Hun • ary, not the King. And in this manner Bethrius was elected Palatine in a full ass • mbly of the States, Senatus, Nobili • ti • s{que} consensu, Anno Dom. 1517. and the Vayvode put by. In Venice, the Senate and people choose all the great public Officers, not the Duke. In Poland (where the King is elective) by the Law of Sigismond Augustus, all the Magistrates of every Country were to be chosen, by the particular States of every Government, and so they are now. In Denmark, and Sweden, and Bohemia, the Kings themselves are Elective by the States and people, and most of their public Officers too. When Rome and Italy were under the Gothish Kings, they still elected their public Officers, as is evident by King Theodoricus Letter of approbation of their Election, in these words. Our consent, Reverend, Fathers, doth accompany your j • dgement. In Scotland, Anno 1295. the Scots in King John Bayliols Reign, considering his simplicity and unap • n • sse, elected them 12. Peers, after the manner of France: (to wit) 4. Bishops, 4. Earls, and 4. Lord's, by whose counsel the King ought to Governe the Realm, and by whose ordination all the affairs of the Kingdom should be directed; which was principally done in affront of King Edward the first, by whom this John was made King of Scotland, in some sort against the Scots good liking; some of them secretly murmuring against it. In France it self, where the King (as some think, and write, is an absolute Monarch,) the greatest public Officers anciently, have sometimes been Elected by the Three Estates of Parliament. Anno 1253. The States of France, Elected the Earl of Leycester their Grand Seneschall, and chief Counselor of State, to advise them, and their desolate estate, what to do. In the Yeare 1324. Arthur Duke of Britain was chosen Constable of France, by the voice of all the Peers, of the Great Counsel, and Parliament; and thereupon was admitted to that Grand Office. In the Yeare 1357. the 7 th . of King John of France, the Archbishop of Roan, Chancellor of France, Sir Simon de Bury, chief Counselor of the King, and of the Parliament, Sir Robert de Lorize, Chamberlain to the King, Sir Nicholas Brake, Master of the Kings Palace, Eguerrain, Burgess of Paris, and Under-Treasurer of France, John Priest, Sovereign-Master of the Money, and Master of the Accounts of the King, and John Chauneon, Treasurer of the Kings Wars, were all complained of by the Three Estates of France, assembled in Parliament, for misguiding the King and Realm, their goods confiscated to the King, themselves removed from these Offices, and others elected in their places by the States. In the Yeare 1408. by a Law made in the Parliament at Paris, it was decreed, That the Officers of the High Court of Parliament should be made by the Parliaments Election, and those then vacant were so; which Law was again revived by King Lewis the 11 th . in the Yeare 1465. And after him in the time of Charles the 8 th . not only the Presidents, the Kings Counselors and Advocates were made by election, but even the Kings Attorney General (the only man of all the body of the Court, that oweth not Oath but to King only) was chosen by the suffrages of the Court, in the Yeare, 1496. though their Letters of Provision and confirmation of their Election then were, and yet are always granted by the King. About the Yeare, 1380. the Earl of Flanders who had regal Jurisdiction, exacting new Customs and Taxes from his Subjects, contrary to their Liberties, they thereupon expelled him, with all his Family and Counselors out of their Country, And refused upon any terms to submit to his Governement, unless he would remove all his evil Counselors from him, and deliver them into their hands to be punished, Et recipere SOLVM VELIT CONSILIARIOS EX COMMVNIS WLGI DECRETO, and would receive such Counselors only as his people by common decree should assign him; which he was constrained, sore against his will to condescend too, ere they would restore him. Since then the Counselors, Magistrates, Judges, and Prime Officers of State in most other Kingdoms, have been thus elected by the people and Parliaments without any enchrochments upon their Kings just Regalities; Why our Parliament now may not claim and enjoy the like Privileges, without any impeachment of the Kings just Prerogative? transcends my understanding to conceive.
Finally, our own Parliaments in most Kings Reignes, have both claimed and enjoyed this power of Electing Privy Counselors, Chancellors, Treasurers, Judges, and other great Officers of State, and created some new Officers of far higher quality and power (to govern both King and Kingdom) then any the Parliament desires, 〈◊〉 are in truth fitting for them to create, unless in cases of absolute necessity, to prevent the Kingdoms utter ru • ne. To give you some few principal instances of many. In the Yeare 1214. the 16 Yeare of King John's reign, In a Parliament held at ••• ning-Meade, near Windsor; for the settling and securing of Magna Charta, and other the Subjects Laws and Liberties formerly granted by Henry the 1. it was agreed by King John, and Enacted, That there should be 25 Barons Chosen, such as the Lord's would, who should to their uttermost power cause the same to be held and observed. And that if either the King or his Iusticiar should transgress in any Article of the Laws, and the offenses shown, 4 Barons of the 25. should come to the King, or in his absence out of the Kingdom, to the chief Iusticiar, and declare the excess, requiring without delay, redress for the same; which if not made within 40. days after such declaration, those 4 Barons should refer the cause to the rest of the 25, who with the Commons of the Land, might distrain and enforce the King by all means they could (by seising upon his Castles, Lands, and Pessessions, or other goods; his Person excepted, and that of his Queen and C • ildren,) till amends be made according to their Arbitration. And that whosoever would should take their Oath for the execution hereof, and obey the Commandment of the 25. Barons herein without prohibition. And if any of them dissented, or could not assemble; The Major part, to have the same power of proceeding: Hereupon there are 25. Barons chosen to b • Conservators of Magna Charta, and the Subjects Privileges (whose Names you may read in Matthew Paris ) who by the Kings Consent, took an Oath upon their souls; that they would keep these Charters with all diligence, and Compel the King, if he should chance to repent (as he did soon after) to observe them: Which done: all the rest of the Lord's, then likewise took another Oath, to assist and obey the Commands of those five and twenty Barons. In the Yeare 1221. Hugh de Burgh, was made the Protector, or Guardian of the Realm by a Parliament, held at Oxford. In the Yeare 1222. I read in Matthew Paris, and others, that Ralph Nevill Bishop of Chichister, was made Keeper of the Great Seal, and Chancellor of England, by assent of the whole Kingdom (in Parliament, ) to wit, in such sort, Vt non deponeretur ab ejusdem sigilli. custodia, NISI TOTIVS REGNI ORDINANTE CONSENS • V & CONSILIO, That he should not be deposed from the custody of the said Seal, but BY THE ORDINANCE, CONSENT and COVNSELL OF THE WHOLE REALME. Loe here the greatest Officer of the Realm, not only elected, but confirmed by Parliament, so as not to be displaced but by the consent of the whole Realm, whose public Office • he was. Hereupon King Henry afterward, taking some distaste against Ralfe (because the Monks of Winchester elected him Bishop of that Sea against his good liking) took away the Seal from him, and delivered it to Geffery of the Temple, in the 22 • . Yeare of his Reign; but yet he held his Chancellors place still, and took the profits of it, during all his life; though he refused to take the Seal again, when the King offered to restore it him, the 23. of his Reign. Quod per Consilium praedicto Cancellario commissum fuit TOTIVS REGNI. After which he being restored to the Seal by the Parliament, An. 1236. this King removed Ralph the Steward of his Household, with certain other his Counselors, and great Officers of his House, from his Counsel, and their Offices; and he likewise most instantly required his Seal from this Bishop of Chichester his Chancellor, who executed his Office unblameably, being a Pillar of Truth in the Court, But the Chancellor refused to deliver it, seeing the violence of the King to exceed the bounds of Modesty; and said, That he could by 〈◊〉 means do it, Cum illud COMMVNI CONSILIO REGNI SVSCEPISSET, since he had received it by the common Counsel of the Kingdom; wherefore he could not resign it to any one WITHOUT THE COMMON COVNSELL OF THE REALME; to wit, the Parliament.
Anno Dom. 1237. King Henry the third sommoning a Parliament at London, because it seemed somewhat hard to sequester all his present Counsel from him suddenly, as reprobate, it was concluded, that the Earl Warran, William de Ferarijs, and John Fitz Geofrey should be added to his Privy Counsel; whom the King caused to swear, That by no means, neither through gifts, nor any other manner, they should deviate from the way of truth, but should give good and wholesome council both to the King himself and the Kingdom. Whereupon they granted him a Subsidy of the thirtieth part of their goods, upon condition; that from thenceforth, and ever after forsaking the Counsel of strangers and all unnatural ones (qui semper sui & non Regni amici esse consueverunt, & Regni bona distrahere, non adunare) he should adhere to the counsel of his faithful and natural subjects. Et sic soluto consilio non sine interiori murmuratione & multa concepta indignatione,