The Sovereign Power of Parliaments and Kingdoms
After this in a Parliament at London, Anno 1260. they consulted about the electing of new Justices, and of the Chancellor and Treasurer of England for the following year, (these places being made annul by the former Parliament:) in pursuance whereof, Hugh Bigod his year expiring, Hugh Spenser was by the Lord's and Parliament appointed to be his successor, and made Lord Chief Justice, and likewise Keeper of the Tower of London, by the consent of the King and Barons; and by authority of this Parliament, the Abbot of Burgh, succeeded John de Crakedale in the Treasurership, and the Great Seal of England was by them committed to the custody of Richard then Bishop of Eli. The very next year 1261. the Barons, with the consent of the selected Peers, discharged Hugh Spenser of his chief Iusticeship, when his year was expired, and substituted Sir Philip Basset in his room; In which year the King appointed Justices of Eyre through England, without the Lord's, contrary to the Provisions of the Parliament at Oxford: they coming to Hereford to keep a Sessions there, and summoning the County to appear before them on Hockeday; divers chief men of those parts, who sided with the Barons assembled together, and strictly commanded those Judges not to presume to si • , against the Ordinances of Oxford, neither would any other of the people answer them in anything: whereupon acquainting the King with this opposition, they departed thence without doing ought: and the King making this year new Sherifes in every Couunty, displacing those the Barons had made; the inhabitants of each County hereupon marfully repulsed them, and would not obey, nor regard, nor answer them in anything; whereat the King was much vezed in mind: and upon a seeming show of reconciliation to the Barons, going to Dover and Rochester Castles (committed to the Barons custody for the Kingdoms safety) they permitted him to enter peaceably into them without any resistance: Upon which, minding to break his former oaths for the keeping of the Oxford Articles, he first seizeth upon these and other Castles, and then coming to Winchester Castle where he had free entrance permitted him by the Barons (who suspected no ill dealing, he took it into his own custody; whether he called to him the Chief Justice and Chancellor, not long before made that year, by the Barons; commanding them to deliver up the Seal and Justices Roles unto him; who answered, that they could by no means do it, without the Barons consent and pleasure concurring with the Kings, with which answer the King being moved, presently without consulting with the Baronage, made Walter Merton Chancellor, and the Lord Philip Basset Chief Justice to him and the Kingdom; removing those the Barons had appointed from those and other places. Which the Barons hearing of, considering that this was contrary to them and their provisions, and fearing least if the King should thus presume, he would utterly subvert the Statutes of Oxford, thereupon they posted to the King, guarded with Arms and power, and charged him with the breach of his Oath; forcing him at last to come to an agreement with them; which the King soon violating; the Barons and he raised great Forces, met and fought a bloody battle at Louis in Sussex; where after the loss of 20000. men, the King and his Son Prince Edward, with sundry Lord's of his party were taken and brought Prisoners to London: where all the Prelates, Earls, and Barons, meeting in Parliament ( Anno 1265 as Matthew Westminster computes it) made new Ordinances for the Government of the Realm; appointing among other things, that two Earls, and one Bishop elected by the Commons should choose 9. other Persons, of which three should still assist the King; and by th • Counsel of those three and the other nine, all things should be ordered, as well in the Kings House as in the Kingdom, and that the King should have no power at all to do anything without their Counsel and assent, or at least without the advice of three of them. To which Articles the King ( by reason of menaces to him, to elect another King ) and Prince Edward (for fear of perpetual Imprisonment if they consented not) were enforced to assent; all the Bishops, Earls and Barons consenting to them, and setting their Seals to the Instrument wherein these Articles were contained. After which the Earl of Leicester and his two Sons, being three of the twelve, divided all the Kings Castles and strong holds between them, and bestowed all the chief Offices in the Kings House, upon his Capitall enemies; which indiscrete, disloyal carriage of theirs, much offended not only the King and Prince, but the Earl of Gloucester and other of the Barons; so that they fell off from the Earl to the King and Prince, and in a battle at Eusham slew the Earl, and most of his Partisans; after which victory the King calling a Parliament at Winchester, utterly repealed and vacated those former Ordinances: which had they only demanded the Nomination of great Officers, Counselors and Judges to the King, and not entrenched so far upon his Prerogative, as to wrest all his Royal power out of his hands, not only over his Kingdom, but household too; I doubt not but they had been willingly condescended to by the King and Prince as reasonable, and not have occasioned such bloody wars to repeal them by force.
In K. Edward the second his Reign, the Lord's and Commons by an Ordinance of Parliament, having banished out of Court and Kingdom Pier; Gaveston, his vi • ious favourite, and pernicious grand Counselor) in a Parliament held at Warwick, nominated and constituted Hugh Spenser the Son, to be the Kings Chamberlain; and in that Parliament further enacted; that certain Prelates and other Grandees of the Realm should remain near the King by turns, at set seasons of the Yeare, to counsel the King better, without whom no great business ought to be done: challenging (writes Speed) by sundry Ordinances mad • by them in Parliament, not only a power to reform the Kings House and Council, and TO PLACE AND DISPLACE ALL GREAT OFFICERS AT THEIR PLEASVRE, but even a joint interest in the Regiment of the Kingdom. After which the Spensers engrossing the sole Regiment of the King and Kingdom to themselves, and excluding those Lord's from the King, appointed by the Parliament to advise him, not suffering the King so much as to speak with them but in their presence; they were for this and other offenses banished the Land by Act of Parliament. This King towards the end of his reign, after the Queens arrival with her Army, obscuring himself and not appearing; by advise and consent of the Lord's, the Duke of Aquitaine was made High Keeper of England, and they, as to the Custos of the same, did swear him fealty; and by them Robert Baldocke Lord Chancellor was removed, the Bishop of Norwich made Chancellor of the Realm, and the Bishop of Winchester Lord Treasurer, without the Kings assent.
In the 15 Yeare of K. Edward the 3 d . chap. 3, 4. there was this excellent Law enacted. Because the points of the great Charter be blemished in divers manners, and less well holden then they ought to be, to the great peril and slander of the King, and damage of the people; especially in as much as Clerks, Peers of the Land, and other freemen be arrested and imprisoned, and outed of their goods and Cattels, which were not appealed nor indighted, nor suite of the party against them, affirmed; It is accorded and assented that henceforth such things shall not be done. And if any Minister of the Kings, or other person of what condition he be, do or come against any part of the great Charter, or other Statutes, or the Laws of the Land, he shall answer to the Parliament, as well as the suite of the King, as at the suite of the party, where no remedy nor punishment was ordained before this time, as far forth WHERE IT WAS DONE BY COMMISSION OF THE KING, as of his own Authority; notwithstanding the Ordinance made before this time at Northampton, which by assent of the King, the Prelates, Earls, and Barons, and the Commonalty of the Land, in this present Parliament is repealed, and utterly disanulled. And that the Chancellor, Treasurer, Barons and Chancellor of the Exchequer, the Justices of the one Bench and of the other, Justices assigned in the County, Steward and Chamberlain of the Kings house, Keeper of the Privy Seal, Treasurer of the Wardrobe, Controuler, and they that be chief deputed to abide nigh the Kings Son Duke of Cornewall, shall be now sworn in this Parliament, and so from henceforth at all times that they shall be put in Office, to keep and maintain the Privileges and Franchises of holy Church, and the points of the great Charter, and the Charter of the Forest, and all other Statutes, without breaking any point. Item, It is assented, that if ANY THE OFFICERS AFORESAID, or chief Clerke to the Common Bench, or the Kings Bench, by death or other cause be out of his Office; that our Sovereign Lord the King BY THE ACCORD OF HIS GREAT MEN which shall be found most nighest in the County, which he shall take towards him, and by good Council which he shall have about him, shall put another convenient into the said Office, which shall be sworn after the form aforesaid. And that in every Parliament at the third day of the same Parliament, the King shall take to his hands the Offices of all the Ministers aforesaid; and so shall they abide 4 or 5 days, except the Offices of Justices of the one place and the other, Justices assigned, Barons of the Exchequer; so always that they and all other Ministers be put to answer to every complaint. And if default be • ound in any of the said Ministers by complaint or other manner, and of that be attainted in the Parliament, he shall be punished by judgment of his Peers out of his Office, and other convenient set in his place. And upon the same, our said Sovereign Lord the King shall do to be pronounced to make execution without delay, according to the Judgment of the said Peers in the Parliament. Loe here an express Act of Parliament ordained and established by King Edward the third, by assent of the Prelates, Earls, Barons, and other great men, and of all the Commonalty of the Realm, which this King did give and grant for him and his heirs, firmly to be kept and holden forever; that all great Officers, Barons, Judges and Justices of the Kingdom, and chief attendants about the King and Prince, should not only take the fore-mentioned Oath, but be elected always by the accord of the great Men, and good Council near and about the King, out of Parliament, and by the Peers in Parliament, and the King bound to make execution according to their Judgment. This Law (as I conceive) was never legally repealed by Parliament, but only by this Kings Proclamation, by the ill advice and forced consents of some few Lord's and Counselors about him; upon pretence, that he never freely assented to it, but by dissimulation only to obtain his own ends, that Parliament, which else would have miscarried and broken up in discontent had not this Law been granted in manner aforesaid. Which consideration makes me confident, that the Parliament being so eager to obtain this Law, would never so soon yield wholly to repeal it, and so for ought I know it stands yet in force, to justify the present Parliaments claim in this particular. In 2 E. 3. c. 8. 14 E. 3. c. 5. 18 E. 3. Stat. 3. 20 E. 3. c. 1, 2, 3. divers notable Oaths are prescribed to Judges, Justices and other Officers, and that they shall not delay nor forbear to do right for the Kings great or little Seal, or any letters from him or any other, but go forth to do the Law, notwithstanding them: In the Yeare 1375. the 50 of Edward the 3 d . his reign, a Parliament, (commonly called the good Parliament by our Historians) being assembled, the King required a Subsidy by reason of his wars; to which the Commons answered; that they could no longer bear such charges, considering the manifold most grievous burdens they had from time to time borne before: and that they knew full well, that the King was rich enough to defend him and his Land, if his Land and the Treasure were well guided and governed; but it had been long evil ruled by evil Officers, so that the Land could not be plenteous neither with Merchandize, chaffer, nor riches. By reason whereof, and of their importunate charges the Commonalty was generally impoverished Moreover, the Commons complained upon divers Officers that were the causers of this mis-order, whereof the Lord Latimer, (then Lord Chamberlain) was principal, and Dame Alice Piers the Kings Concubine, (who would usually in most impudent manner come in person into all Courts of Justice, and sitting by the Judges and Doctors, persuade or dissuade them to judge against the Law for her own advantage, on that side for which she was engaged; to the great scandal and dishonor of the King, both in his own and other Realms:) and Sir Richard Scurry Knight, by whose Councils and sinister means the King was mis-guided, and the government of the Land disordered. Wherefore they prayed by the mouth of their Speaker, Sir Piers de la Mare, that the said persons with others, might be removed from the King, and others to be set in authority about his person, as should serve for his honor and for the weal of his Realm. Which request of the Commons: by means of the Noble Prince Edward was accepted; so that the said persons, with the Duke of Lancaster and others, were removed from the King; and other Lord's by advise of the said Prince, and other wise Lord's of the Realm; & PER PARLIAMENTVM PRAEDICTVM writes Walsingham, were put in their places, such as the Prince and Peers thought fittest. Moreover in this Parliament, at the Petition of the Commons it was ordained, That certain Bishops, Earls and other Lord's should from thence forth govern both the King and Kingdom ( the King being then in his dotage unable to govern himself or the Kingdom ) because the king was grown old and wanted such Governors. This passage is thus expressed in the Parliament Roll of 50. E. 3. numb. 10. Also the Commons considering the mischiefs of the Land, shown to the King and Lord's of the Parliament; that it shall be for the honor of the King and profit of all the Realm, which is now grieved in divers manners by many adversities, as well by the wars of France, Spain, Ireland, Guyon and Bretaigne, and else-where, as likewise by the Officers who have been accustomed to be about the King, who are not sufficient at all without other assistance for so great a government; wherefore they pray that the Council of our Lord the King, be enforced (or made up) of the Lord's of the Land, Prelates and others to the number of 10. or 12. (which the King shall please) to remain continually with the King, in such manner that no great business shall pass or be there decreed without all their assents and advice; and that other lesser businesses shall be ordered by the assent of 6, or 4. of them at least, according as the case shall require; so that at least 6. or 4. of such Counselors shall be continually resident to council the King. And our Lord the King, consid • ring the said request to be honorable and very profitable to him, and to all his Realm, hath thereto assented: provided always that the Chancellor, Treasurer, or Keeper of the Privy seal, and all other Officers of the King, may execute and dispatch the businesses belonging to their Offices, without the presence of the said Counselors, the which the King hath assigned, &c. But this Ordinance lasted scarce three months, for after the Commons had granted a Subsidy of four pence the pole, of all above fourteen years old, except Beggars: Prince Edward dying, and the Parliament determining, these removed ill-officers got into the Court, and their offices again; and by the instance and power of Alice Piers, the Speaker, De la Mare was adjudged to perpetual prison in Nottingham Castle, (an Act without example in former times, and which did no good in this) where he remained prisoner two years space, though his friends very oft petitioned for his liberty: and John a Gaunt Duke of Lancaster ( made Regent of the Realm, because of the Kings irrecoverable infirmity) summoning a Parliament the year following, repealed the Statutes made in this good Parliament, to the Subjects great discontent, who were earnest suitors to the Duke for De la Mare his enlargement and legal trial; which being denied, the Londoners upon this and other discontents took arms, assaulted the Duke, spoiled his house at the Savoy, and hung up his arms reversed, in sign of Treason in all the chief streets of London. But in the first year of Richard the second, in a Parliament at London, Peter De la Mare and almost all the Knights (which plaid their parts so well in the good Parliament for the increase of their Country, and benefit of the Realm) resuming their Petitions, caused Alice Piers ( who contemning the Act of Parliament, and the oaths wherewith she had bound herself, presumed to enter the Kings Court, to persuade and impetrate from him whatsoever she pleased) to be banished, and all her movables and immovables to be confiscated to the King, notwithstanding she had corrupted with money, divers of the Lord's and Lawyers of England, to speak not only privately, but publicly in her behalf.
In the 1. year of Richard the 2 d , William Courtney Bishop of London▪ Edmond Mortymer Earl of March, and many others of whom the Common-people had the best opinion, being good, wise, and famous men, were by public consent appointed Counselors and Regents to the King, being but young: and this year Henry Piercie Earl of Northumberland resigning his Marshalls rod, John de Arundel, was made Marshall in his place. In the third year of Richard the second in a Parliament at London the Commons petitioned, that one of the Barons, who knew how to answer Foreigners wisely, and might be mature in manners, potent in works, tractable and discreet, to be the kings protector. Electus est Ergo, COMMVNI SENTENTIA, &c. Hereupon Thomas Beauchamp Earl of Warwick, WAS ELECTED BY COMMON CONSENT IN PARLIAMENT, Lord Protector, that he migh con • inually abide with the King, and recei • e an honorab • e anuall stipend out of the Kings Exchequer for his pains: and those Bishops, Earls, Barons, and Judges assigned to be the Kings Counsel and Guardians the year before, were upon the Commons petition this Parliament removed, because they spent much of the Kings Treasure, & nullum, a • t modicum fructum protulerunt. In this Parliament Sir Richard Scrope, resigned his Office of Lord Chancellor, and Simon de Sudbu • y, Archbishop of Canterbury (contrary to his degree and dignity, as many then cried out) was substituted in his place. In a Parliament at London in the fifth year of King Richard the second, Sir Richard Sc • ope was again made Chancellor, PETENTIBVS HOC MAGNATIBVS ET COMMVNIBVS, at the REQVEST OF THE LORD'S AND COMMONS, as being a man who for his eminent knowledge and inflexible justice, had not his peer in England, and Hugh Segrave Knight, was then likewise made lord Treasurer. Sed quid juvant 〈◊〉 Parliamentorum, &c. (writes Walsi • gham of the Acts of this Parliament, and Speed out of him.) But to what purpose are Acts of Parliament, when after they are past, they take no manner of effect, for the king with his Privy Counsel was wont to change and abolish all things, which by the Commons and Nobility had been agreed upon in former Parliaments? For the very next year the king deposed Scrope from his Chauncellourship, and took the Seal into his own hands, •• aling divers Grants, and Writings with it as he pleased, and at last delivered the S • ale to Richard Braybrooke, which Walsingha • thus relates. Lord Richard Scrope Knight, qui PER REGNI COMMVNIT ATEM, ET ASSENSVM DOMINORVM ELECTVM IN REGNI CANCELLARIVM, was in those days put from his Office of Chancellor, which he had laudably, and prudently administered. The cause of his removal was, his peremptory resistance of the Kings Will, who desired to impoverish himself, to exalt strangers. For certain Knights and Esquires of inferior rank, being the kings servants, begged of the king certain lands, and the demeasnes of such as died, during such time as by the custom of the Kingdom, they ought to remain in the Kings hands. The King being a child, without delay granted their requests, and sending them to the Chancellor, commanded him to grant them such Charters under the great S • ale, as they desired: But the Chancellor, who ardently desired the benefit of the Realm, and the Kings profit, plainly denied their requests; alleging that King was much indebted, and that he had need retain such casualties to himself to help discharge his debts. That those who knew in what debts the king was obliged, were not faithful to the King, whiles they minded more their own avarice than the kings profit, preferring their private gain before the public necessities. Wherefore they should desist from such requests, and be content with the Kings former gifts, which were sufficient for them. And that they should know for certain, that he would neither make nor seal any such Charters of •• nfirmation to them, of such donations of the king, who was not yet of full age, 〈◊〉 he should herea ••• r receive ill thanks from him. Whereupon these Petitioners returning from the Chancellor, inform the king; that the Chauncellors mind was obstinate, and that he would do nothing at his Command, but rather contemn his Royal m • ndate; that the King ought with due severity, speedily to curb such an unbrideled disobedience, or else it would quickly come to pass, that the kings honor would grow contemptible among his Subjects, and his command be of no value. The King therefore who understood as a child, more regarding the false machinations of detractors, then the faithful allegations of his Chancellor, in a spirit of fury sends some to demand his seal of him, and to bring it to himself. And when the king had sent again and again by solemn messengers, that he should send the seal to him; the Chancellor answered thus; I am ready to resign the Seal, not to you, but to him who gave it me to keep, neither shall there be a middle bearer between me and him, but I will restore it to his hands, who committed it to mine own hands not to others. And so going to the king; Here delivered the seal, promising that he would (as he had hitherto) be faithful to the king; yet denied that he would hereafter be an Officer under him. And then the king receiving the Seal did for many days what he listed, unt • ll Master Robert Braibrooke Bishop of London had undertaken the Office of Chancellor. When not only the Nobility of the kingdom, but the Commonalty likewise heard, that the king contrary to the Custom of the Kingdom had captiously deposed the Chancellor, whom All the Nobility of the Kingdom with the suffrage of all the Commons had chosen, they were exceedingly moved with indignation. Yet no man durst speak openly of the matter, by reason of the malice of those about the king, and the irrational youth of the king himself: and so the benefits of the king and kingdom were trodden underfoot by the countenance of the kings indiscretion, and the malice of those inhabiting with him. In the ninth year of king Rich • rd the second Michael d • la P • le Earl of Suffolk for gross abuses, bribery, and Treason, was put from his Chauncellourship, fined 20000. marks to the king and condemned to die: Haec autem omn • a quanquam sum regi placuisse d • buerant maxim displicebant, adeo fideb • t infideli, adeo coiuit nebulonem. Insomuch that the King and his familiars plotted to murder the Knights of the Parliament who most opposed the subsidy he demanded, and the said Michael, together with the Duke of Gloucester at a supper in London to which they should be invited, thinking by this means to obtain their wills: But the Duke and they having timely notice thereof, and Richard Exton then Major of Londo • , freely telling the king when he was called to assent to this villainy, that he would never give his consent to the death of such innocents (though Sir Nicholas Bramber Major th • year before had thereto assented) this wickedness was p • ev • nted: and being made public to all the inhabitants in the City and parts adjoining; from thenceforth the hatred of such counsellors, and love of the Duke and sores • yd knights increased among all men. And the Duke and Knights with greater constancy and courage opposed De la Pole; and after many delays, the king full • ore against his will, WAS COMPELLED to give a commission of Oye • & terminer to the Duke of Glocest • r, and • i • hard Earl of Arundell, to hear and determine the businesses and complaints against De la Pole, and all others which the Knights of the Parliament had accused, who gave judgment of death against them; and Thomas Arundell Bishop of Eli, was m • de Chancellor by the Parliament, in De la Poles place, and the Bishop of Durham removed from his Lord Treasurership, with which he was much enamoted, (taking much p • ines and being at great cost to procure it) and 〈◊〉 Gilbert Bishop of Herefo • d (qui plus li • gua quam fide vigebat) was su • roga • ed in 〈…〉 But this Parliament ending, the king immediately received De la Pole, (whom Walsingham stiles, P • rfidiae promptuarium, senti • a avaritiae, aur • ga proditionis, archa malitiae, odii seminator, mendacii fabric tor, susurro nequiss • mus, dolo p • aestantiss mus, artificiosus detractor, pat • iae del • to • , consiliarius nequam, merito perfi us, euomens spiritum in terra p • regrina ) together with the Duke of Ireland, and Alexander N • vell Archbishop of York, into his Court and favor, who labored night and day to incense the King against the Lord's, and to annul the Acts of this Parliament; by which means the Kings hatred towards his Nobles and natural faithful people increased every day more and more; these ill Counselors whispering unto him, that he should not be a king in effect, but on • lie, in sh • dow, and that he should enjoy nothing of his own, if the Lord's shou • d keep t • eir received power. The King therefore believing them, from thenceforth suspected all the Nobles, and suffered these ill Counselors and their confederates to w • st his revenues and oppress • his people. Whereupon the next year following, a Parliament being summoned, the Lord's and Commons by reason of great and horrible mischiefs, and perils which had happened to the King and the Realm aforetime, by reason of evil Counselors and governance about the Kings person by the foresaid Archbishop of York, Robert de Vere Duke of Ireland, De la Pole, Robert Trisil • an Lord Chief Justice of England, Sir Nicholas Brambre and other their adherents, who wasted demished and destroyed the goods, treasure and substance of the Crown, oppres • sed the people daily with importable charges, neglecting the execution of the good Laws and Customs of the Realm, so that no full right nor justice was done, &c. whereby the king and all his Realm were very nigh to have been wholly undone and destroyed; for these causes, and the eschewing of such like perils and mischeiefes to the King and Realm for time to come, displaced and removed these ill Counselors; and at their request, a new Chancellor, Treasurer, and Privy seal were ordained in Parliament, even such as were held good, sufficient and lawful to the honor and profit of the King and his Rea • me. And by advise and assent o • the Lord's and Commons in Parliament in aid of good governance of the Realm, for the due executi us of good Laws, and the relief of the Kings and his people's • tates in time to come, a special C • mmission under the great Seal of England (confirm • d by the Statute of 10. R. 2. c. 1.) was granted to both Archbishops, the Dukes of York and Gloucester (the Kings Vncl • s) th • Bishops of Worcester and Exetor, the Abbot of Waltham, the Earl of Arundle, the Lord Cobham, and others, to be of the Kings GREAT & CONTINVALL COVNSELL for one year then next following; to survey and examine with his said Chancellor, Treasur • r, and Keeper • f the Privy •• ale, as well the estate and government of his house, as of all his Courts and places, as of all his Realm, and of all his Officers and Ministers of whatsoever estate as well within the house as without to inquire and take information, of all rents, revenues, profits due to him in any man • er within the Realm or without, and of all manner of gifts, gran • s aliena • ions or confirmations made by him of any Land, Tenements, Rents, Anuities Profi • s, Revenues, Wards, Marriages, (and infinite other particulars specified in the Act) and of all kind of oppressions, offenses and damages whatsoev • r don • to t • e King or his people; and them finally to hear and determine. And that no man should council the king to repeal this Commission (though it took no effect) under pain of forfaiting all his goods and imprisonment during the kings pleasure.
No sooner was this Parliament dissolved, but this unhappy seduced King, by the instigation and advise of his former ill Counselors; endeavors to nullify this Commission as derogatory to his royal power, and sending for his Judges and Council at Law to Not • ingham Castle, caused them to sub • cribe to sundry Articles tending to the Total subversion of Parliaments; causing the Duke of Gloc • ster and other Lord's who procured this Commission to be indighted of high Treason, to which Indictments the Judges being over-awed with fear, set their hands and seals; for which illegal proceedings destructive to Parliaments, by 11. R. 2. c. 1 to 7. these ill pernicious Counselors and Judges were attainted and condemned of High Treason, put from their Offices, their Lands confiscated, many of them executed, the residue banished, and above 20. other Knights, Gentlemen, and Clergy men who mis-counseled the King, imprisoned, condemned and banished the Court, as the Statutes at large in 11. & 21. R. 2. and our Historian • in those years more copiously manifest.
In 12. R. 2. c. 2. There was this notable Law enacted (which Sir Edward Cook affirms, is worthy to be writ in Letters of gold, and worthier to be put in due execution. For the Universal wealth of all the Realm, it is enacted; that the Chancellor, Treasurer, Keeper of the Privy Seal, Steward of the Kings house, the Kings Chamberlain, Clarke of the Rolls, the Justices of the one Bench and other, Barons of the Exchequor, and all other that shall be called to ordain, name, or make Justices of peace (which whether the Lord Keeper alone can make or unmake without consent of all these, or put out of Commission without just cause and conviction, now commonly practiced; is a considerable Question upon this and other statutes:) Sheriffs, Escheators, Customers, Controllers, OR ANY OTHER OFFICER or Minister of the King, shall be firmly sworn, that they shall not ordain, name or make Justices of peace, Sheriff, Escheator, Customer, Controller or other Officer or Minister of the King, for any gift or brocage, favor or affection; nor that none which pu • sueth by him, or by other privily or apertly to be in any manner Office, shall be put in the same Office, or in any other. But that they make ALL SVCH OFFICERS and Ministers OF THE BEST & MOST LAWFVLL MEN & SVFFICIENT to their estimation and knowledge. Which most excellent Law (with others of like nature) still in force, were it duly executed, there would not be so many corrupt Officers of all these sorts in the kingdom, as now swarm in every place. From which Act I shall only make these 2. Inferences. First, that if so great a care ought to be had in the choice of these under-Officers; then certainly far more of the grand Officers and Judges of the kingdom. Secondly, that if it be no disparagement to the Kings honor, or prerogative for these gre • t Officers of the Realm to ordain, name, and make Justices of peace, Sheriffs, and other under Officers of the King, wi • hout the kings privity, as oft times they do; then by the same or greater reason, it can be no diminotion of his honor or prerogative Royal, for the Parliament, (which is best able to judge of men's abilities and honesties) to have power only to nominate or recommend to the King, such as they know to be the best, most lawful and sufficient men, for the highest state Offices and places of Judicature, when they becomevoyd.
Not to trouble you with anymore Presidents in this Kings Rain, recorded in Story; I shall close them up with one or two more upon record. In the Parliament of 3. R. 2. The C • ancellor having declared the causes of Summons, and among others, the great st • aights the King was in for want of money; so that he had at that time nothing in his Treasury, but was grea • lie indebted &c. He p • ayed the Parliament • o advise, how, and after what manner he m • ght be relieved, not only for his own safety, but for the safety of them all, and of the R • alme. To which the Commons after they were advised of the • r said Charge returned this Answer to the King in Parliament by their▪ Speaker, in name of the whole Commons. That the said Commons are of opinion, that if their Liege Sovereign had been well and 〈◊〉 governed in his Expences, spent 〈◊〉 the Realm and elsewhere, he now had had no need of their aid, by charging the 〈…〉 , whom they imagined to be now more poor and indigent, then ever they were before▪ Wherefore they pray, That the Prelates, and other Lord's of the Kings continual Council, who have a long time travelled in the said affairs, BE VTTERLY DISCHARGED, to their great ease, and in disc • arge of the King from their custodies; and that No such Counselors should be retained about • he King, in rega • d that our Lord the King is now of good discretion, and • f a goodly Stature, having respect to his Age, which is now near the age of his noble Grandfather, at the time of his Coronation; who had no other Counselors at the beginning of his reign, but ONELY the Five accustomed Principal Officers of HIS REALME. They further pray, that In this Parliament these Five Principal Officers may be Elected and Chosen out of the most Sufficient Men within the Realm, who may be tractable, and who may best know, and execute their Offices; that is to say, The Chancellor, Treasurer, Keeper of the Privy Seal, Chief Chamberlain, and Steward of the Kings House; and that these so chosen, (of whose Names and persons the Commons will be asc • rtained this Parliament) for their greater comfort and aide to execute the business of the King, shall have it therein declared, that they Shall not be Removed before the next Parliament, unl • sse it be by reason of Death, Sickness, or other necessary cause. And they likewise pray for remedy of default • f the sa • d Government, if there be any on that party, that a sufficient and general Commission may be made, the best that may be devised, to certain Prelates, Lord's, and others, of the most sufficient, lawful, and wise men of the Realm, of England, diligently to Survey and examine in all the Courts and places of the King, as well within his own house as elsewhere, the estate of the said House, and all expenses and receipts whatsoever made by any of the Ministers, or any Officers of th • Realm, and of oth • r his Seignori • s and Lands, as well on this side, as • eyond the S • as, from the Kings Coron • tion till this pr • s • nt; so th • t if there be a • y default be found by the said Examination in any m • nner, by negligence of Officers, or oth • rwise; • he said Commissioners shall certify them to our L • r • the King, to have them amended and corrected, to the end • that our Lo • d the King may be honourably governed within his Realm, as b • longe • h to a King to be governed, and may be able with his own r • veneues to support the charge of his Expences, and to defend the Realm on every part, and defray the other charges above named. Which Petition and Commission the King accordingly granted.
In the Parliament of 13. R 2. An. 1389. John • Duke of Lancaster, By ASSENT of all the Estates of Parliament, was created Duke of Aquitaine, for his life, by King Richard his Nephew; the words of whose Patent (Printed at large in Master Seldens Titles of Honor) run thus. De ASSENSU Praelatorum, Ducum Mag •• tum & alio • um Pro • erum, & Communitatis Regni nostri Angliae, in instanti Parliamento nostro apud West monasterium conv • cato existentiu • ; te • praedelectissimum Patrium no strumin DVCEM AQVITANIAE, cum Titu • o, Stilo, ac nomin • & honor eidem debitis praefi • im •• , ac inde praesentiali er per • ppositio 〈◊〉 Cappae 〈◊〉 capi • i, ac traditionem Virgae aureae i • vestimus, &c. toto tempo • e vi • ae tuae possid • ndum &c. Giving him power thereby, To Coine what Gold and Silver Money he pleased, Nobili a • d • • tiam personas ignobiles, Senescallos, Iudices, Capita • cos, Consules, 〈…〉 , Proc • ratores, Recep • ores, & quoscunque Officiarios, alios creandi, 〈…〉 & ponendi, in singulis locis Ducatus praedicti, & quand • opus erit, inflitutos & 〈…〉 Officiarios autedictos amovendi, & loco amotorum alios subrogandi, &c. Here • 〈…〉 the Title, ho •• ur of a Duke, and Dukedom in France, given by the 〈◊〉 of England, as King of France, by assent and authority of a Parliament in 〈…〉 Captains, and all other Officers, within that Dukedom.
In the Parliament Rolls of 1. H. 4. num. 106. The Commons Petitioned the King, that for the safety of himself, as likewise for the safety of all his Realm • , and of his Lieges, BY ADVISE OF HIS SAGE COVNSELL, h • e would ordain SVRE (or trusty) and SVFFICIENT CAPTAINES and GARDIANS OF HIS CASTLES and FORTRESSES as well in Engla • d as in Wales, to prevent all perils. ( The very Petition in effect that this Parliament tendered to his Majesty touching the Militia,) To which the King readily gave this answer, Le Roy le voet. The King wills it.
In the same Rol. Num. 97. The Commons likewise petitioned; That the Lord's Spiritual and Temporal shall not be received in time to come, for to excuse them; to say; That they durst not to do, nor speak the Law, nor what they thought for DOVBT of death, or that they are not free of themselves, because they are more bound under PAINE OF TREASON to keep their Oath, then to fear death or any fo • feiture. To which the King gave this answer. The King holds all his Lord's and Justices for good, sufficient and loyal; and that they will not give him other Counsel or Advise, but such as shall be Honest, Just, and Profitable for him, and the Realm. And if any will complain of them in special, for the time to come, of the contrary; the King will reform and amend it. Whereupon we find they did afterwards complain accordingly, and got new Privy Counselors, chosen and approved in Parliament, in the 11 th Yeare of this Kings Rain, as we shall see anon.
And in the same Parliament, Num. 108. I find this memorable Record to prove the King inferior to, and not above his Laws to alter or infringe them. Item, Whereas at the request of Richard, la • e King of England, in a Parliament held at Winchester, the Commons of the said Parliam • nt granted to him, that he should be in as good liberty, as his Progenitors before him were; by which grant the said King woul • say; that he might turn (or change) the Laws at his pleasure, and caused them to be changed AGAINST HIS OATH; as is openly known in divers cases: And now in this present Parliament, the Commons thereof of their good assent and free will, confid • ng in the Nobility, high discretion, and gracious government of the King our Lord, have granted to him, That they will He should be in as great Royal Liberty as his noble Progenitors were before him; Whereupon our said Lord, of his Royal grace, AND TENDER CONSCIENCE, hath granted in full Parliament; That it is not at all his intent nor will, to change the Laws, Statutes, nor good usag • s, nor to to take other advantage by the said grant; but for to keep the Ancient Laws and Statutes ordained and used in the time of his Noble Progenitors, AND TO DOE RIGHT TO ALL PEOPLE IN MERCY AND TRUTH, ACCORDING TO HIS OATH: which he thus ratified with his Royal assent. Le Roy le voet. By which Record it is evident: First, that the Kings Royal Authority, and Prerogative is derived to him, and may be enlarged or abridged by the Commons, and Houses of Parliament, as they see just cause. Secondly, that King Richard the second, and Henry the fourth, took and received the free use and Liberty of their Prerogatives, from the grant of the Commons in Parliament; and that they were very subject to abuse this free grant of their Subjects to their oppression and prejudice. Thirdly, That the King by his Prerogative when it is most free by his Subjects grant in Parliament; hath yet no right nor power by virtue thereof to change or alter any Law or Statute; or to do any thing at all against Law, or the Subjects Rights and Privileges, enjoyed in the Raign •• of ancient Kings: Therefore no power at all to deprive the Parliament it self, of this their ancient undubitable oft-enjoyed Right and Privilege, to elect Lord Chancellors, Treasurers, Privy Seals, Chief Justices, Privy Counselors, Lord Lieutenants of Counties, Captains of Castles and Fortresses, Sheriffs, and other public Officers, when they see just cause to make use of this their right and interest for their own and the Kingdoms safety, as now they do; and have as much reason to do, as any their Predecessors had in any age, When they behold so many Papists, Malignants up in Arms, both in England and Ireland, to ruin Parliaments, Religion, Laws, Liberties, and make both them and their Posterities mere slaves and vassals to Forraigne and Domesticke Enemies.
In the 11. year of King Henry the 4 th . Rot. Parl. num • . 14. Art c. 1. The Commons in Parliament petitioned this King: First, That it would please the King to ordain and assign in this Parliament, the most valiant, sage, and discretest Lord's Spiritual and Temporal, of His Realm, TO BE OF HIS COVNSELL, in aide and supportation of the Good and substantial Government, and for the weal of the King, and of the Realm; and the said Lord's of the Counsel, and the Justices of the King should be openly sworn in that present Parliament, to acquit themselves well and loyally in their counsels and actions, for the weal of the King, and of the Realm in all points, without doing favor to any manner of person for affection or affinity. And that it would please our Lord the King in presence of all the Estates in Parliament, to command the said Lord's and Justices upon the Faith and Allegiance they owe unto him, to do full Justice and equal right to everyone without delay, as well as they may, without (or notwithstanding) any command, or charge of any person to the contrary. To which the King gave this answer, Le Roy le Voet After which the second day of May, the Commons came before the King and Lord's in Parliament, and there prayed, to have connusance of the names of the Lord's which shall be of the Kings continual Counsel, to execute the good Constitutions and Ordinances made that Parliament. To which the King answered, that some of the Lord's he had chosen and nominated to be of his said Counsel had excused themselves, for divers reasonable causes, for which he held them well excused; and as to the other Lord's, whom he had ordained to be of his said Counsel; Their Names were these: Mounsier the Prince, the Bishop of W • nchester, the Bishop of Duresme, the Bishop of Bath, the Earl of Arund •• , the Earl of Westmorland, and the Lord Burnell. And here upon the Prince in his own name, and of the other forementioned Lord's, prayed to be excused, in case they could not find sufficient to support their necessary charges; And that notwithstanstanding any charge by them accepted in this Parliament, that they may be discharged in the end of the Parliament, in case nothing shall be granted to support their foresaid charges. And because the said Prince should not be sworn, by reason of the highness and excellency of his Honorable Person, the other Lord's and Officers were sworn, and swore upon the condition aforesaid, to go • erne and acquit themselves in their counsel well and faithfully, according to the tenor of the first Article delivered among others by the said Commons; and likewise the Justices of the one Bench and other, were sworn, and took an Oath to keep the Laws, and do Justice and equal right, according to the purport of the said first Article. And on the 9. of May, being the last day of the Parliament; The Commons came before the King and the Lord's, and then the Spea • er, in the name of the said commons, prayed the King, to have full conusance of the names of the Lord's of his Counsel; and because the Lord's who were named before to be of the said Counsel had taken their Oaths upon certain conditions as aforesaid, that the same Lord's of the Counsel should now be newly charged and sworn without condition. And hereupon the Prince prayed the King, as well for himself, as for the other Lord's of the Counsel; that forasmuch as the Bishop of Durham, and Earl of Westmorland, who are ordained to be of the same Counsel, cannot continually attent therein, as well for divers causes as are very likely to happen in the Marches of Scotland, as for the enforcement of the said Marches, that it would please the King to design other Lord's to be of the same Counsel, with the Lord's before assigned. And hereupon the King IN FVLL PARLIAMENT assigned the Bishop of Saint David's, and the Earl of Warwick to be of his said Counsel, with the other forenamed Lord's, and that they should be charged in like manner as the other Lord's without any condition.
A notable President; where all the Kings Privy Counsel are nominated and elected by him in full Parliament; and their names particularly declared to the Commons before they are sworn, to the end that they might except against them, if there were just cause; who in their Petition and Articles to the King, express in general, what persons the King should make choice of for his Counselors, and Judges, and what Oaths they should take in Parliament before they were admitted to their places. Which was as much or more, as this Parliament ever desired, and the King may now with as much Honor and Justice grant, without any diminution of his Prerogative, as this Magnanimous, Victorious King Henry did then, without the least denial or delay. In the fi • t Yeare of King Henry the fifth, This King undertaking a war with France, by Advise and consent of his Parliament; as honorable to the King, and profitable to the Kingdom; to • which war they liberally contributed: John Duke of Bedford was in and by that Parliament made GOVERNOVR AND REGENT OF THE REALME, AND HEAD OF THE COMMON-WEALTH; Which Office he should enjoy as long as the King was making War on the French Nation; the Summons of which Parliament issued out by this Duke in the Kings Name. See H. 1. c. 1.
In the Patent Rolls of 24. Hen. 6. 1 • . pars mem. 16. The King grants to John Duke of Exceter, the Office of Admiral of England, Ireland, and Aqultain, which Grant is thus subscribed, Per breve de privato Sigillo; AVCTORITATE PARLIAMENTI; So that he enjoyed that Office by apointment and Authority of the Parliament; which was no set standing Office; nor place of great Honor in former ages, when there were many Admiralls in England, designed to several Quarters, and those for the most part annual, or but of short continuance, not for life, as Sir Henry Spelman, shows at large in his Glossarie: Title Admirallus, to whom I refer the Reader, and Title Heretoc • us; which Heretochs (elected by the people) had the command of the Militia of the Realm, by Sea and Land; and this word Heretoch in Saxon, signifying properly a General, Captain, or Leader; as you may see there, and in Master Selden • , Titles of Honor, Pag. 605. 606. And sometimes, though more rarely, an Earl, Count, or Nobleman, Earlederman, or Prince, Hengist and Horsa being called Heretogan, in a Saxon Annall.
In the 1. year of King Henry 6. (being but 9. months old when the Crown descended) the Parliament summoned by his Father Henry the 5. (as Walsingham writes) was continued; in which By ASSENT OF ALL THE STATES, Humphrey Duke of Gloucester, WAS ELECTED AND ORDAINED DEFNDER AND PROTECTOR OF ENGLAND in the absence of his elder Brother the Duke of Bedford; and all the Offices and Benefices of the Realm were committed to his disposal. In this Parliament (a strange sight never before seen in England) this infant king, sitting in his Queen mothers lap, passed in Majestick manner to Westminster, and there took state among all his Lord's, before he could tell what English meant, to exercise the place of Sovereign direction in open Parliament then assembled, to establish the Crown upon him. In the Parliament Rolls of the 1. year of this King, I find many notable passages pertinent to the present Theme, of which (for their rarity) I shall give you the larger account. Numb. 1. There is a Commission in this Infant Kings name directed to his Uncle Humfrey Duke of Gloucester, to summon and hold this Parliament in the Kings name and stead, and commanding all the Members of it, to attend the said Duke therein: Which Commission being first read; the Archbishop of Canterbury taking this Theame; The Princes of the People are assembled with God; declares 4. causes for which this Parliament was principally summoned. 1. For the good governance of the person of the most excellent Prince the King. 2. For the good conservation of the peace, and the due execution and accomplishment of the Laws of the land. 3. For the good and safe defense of the Realm against enemies. 4. To provide honorable and discreet persons of every estate, for the good governance of the Realm, according to Jethro his Counsel given to Moses, &c. Which Speech ended, Numb. 7. 8, 9, 10, 11. The receivers of all sorts of Petitions to the Parliament are designed, and the Speaker of the House of Commons presented and accepted. Numb. 12. The Lord's and Commons authorize, consent to, and confirm the Commission made to the Duke in the Infant Kings Name, to summon and hold this Parliament, (so that they authorize and confirm that very power by which they sat:) With other Commissions made under the great Seal to Justices, Sheriffs, Escheators, and other officers, for the necessary execution of Justice. Numb. 13. and 14. The Bishop of Durham, late Chancellor of England to Henry the 5. deceased; and the Bishop of London Chancellor of the Duchy of Normandy, severally show, that upon King Henry the 5. his decease they delivered up their several Seals, after their homage and fealty first made, to King Henry 6. in the presence of divers honorable persons, (whom they name particularly) desiring the Lord's to attest their surrender of the said Seals at the time and place specified, which they did; and thereupon they pray, that a special act and entry thereof may be made in the Parliament Rolls for their indemnity; which is granted and entered accordingly.
Numb. 15. It was enacted and provided by the said Lord Commissioner, Lord's and Commons; that in as much as the Inheritance of the Kingdoms and crowns of France, England, and Ireland, were now lawfully descended to the King, which title was not expressed in the Inscriptions of the Kings Seals, whereby great peril might accrue to the King, if the said inscriptions were not reformed according to his Title of Inheritance, that therefore in all the Kings Seals, as well in England as in Ireland, Guyen, and Wales, this new style should be engraven, Henricus Dei Gratia, Rex Franciae & Angliae, & Dominus Hiberniae, according to the effect of his inheritances; blotting out of them whatever was before in them superfluous or contrary to the said style; and that command should be given to all the keepers of the said Seals of the King to reform them without delay, according to the form and effect of the new Seal aforesaid.
Numb. 16, Duke Humfrey the Kings Commissary, and the other spiritual and temporal Lord's being sat in Parliament, certain Knights sent by the Speaker and whole House of Commons came before them, and in the name and behalf of the said Commonalty requested the said Duke, that by the advise of the said Spiritual and Temporal Lord's, for the good government of the Realm of England, he would be pleased to certify the said Commons, to their greater consolation, what persons it would please the King to cause to be ordained for the Offices of Chancellor and Treasure of England, and Keeper of his Privy Seal: Upon which request so made, due consideration being had, and full advise taken; and the sufficiency of those persons considered, which deceased King Henry the Kings Father now had in his descretion assigned to those Offices as fitting enough: the King following his Fathers example and advise, by the assent of the said Lord Duke his Commissary, and of all and everyone of the Lord's spiritual and temporal, hath nominated and ordained anew, the Reverend Father, Thomas Bishop of Durham to the Office of his Chancellor of England, William Kinwolma • sh Clerk to the Office of Treasurer of England, and Mr. John Stafford to the Office of the Keeper of the Privy Seal. And hereupon the King our Lord willeth By THE ASSENT AND ADVISE aforesaid, that 〈◊〉 well to the said Chancellor of England, as to the said Treasurer of England, and to the said Keeper of his Privy Seal for the exercise of the said Offices, several letters patents should be made in this form: Hen • icus Dei gratia Rex Angliae & Franciae & Dominus H • berniae, omnibus ad quos presents lite • ae pervenerint 〈◊〉 . Sciatis quod De AVISAMENTO ET ASSENSV TOTIVS CONSILII NOSTRI IN PRAESENTI PARLIAMENTO NOSTRO EXISTENTES, constituimus venerabilem patrem Thomam Episcopum Dunelmensem, CANCELLARIVM nostrum ANGLIAE; dant • s & concedentes DE AVISAMENTO ET ASSENSV PRAEDICTIS eidem Cancellario nostro, omnes & omnimodas auctoritatem & potestatem adomnia ea & fingula quae ad officium cancellarii Angliae, de jure sive consuetudine pertinent, seu quovis tempore pertinere consueverunt, &c. The like Patents verbatim, are in the same role (mutatis mutandis) made to the said Treasurer of England and Keeper of the Privy Seal. After which, the said Duke, by advice and assent of the Lord's spiritual and temporal sent the Archbishop of Canterbury, the Bishops of Winchester and Wor • ester, the Duke of Excester, the Earl of Warwick, the Lord's of Ferrers and Talbot, to the Commons, then being in the Commons House, and notified to the Commonalty by the said Lord's, these Officers to be nominated and ordained to the foresaid offices in form aforesaid. Upon which notice so given THE SAID COMMONS WERE WEL CONTENTED with the nomination and ordination of the foresaid Officers so made, rendering many thanks for this cause to our Lord the King, and all the said Lord's, as was reported by the said Lord's in the behalf of the Commons in the said Parliament.
Numb. 17. The liberties, Annuities and Offices granted by King Henry the 5. and his Ancestors to Soldiers in foreign parts, are confirmed by Parliament, and their grants ordered to be sealed with the Kings new Seals without paying any Fine.
Numb. 18. Henry the 5. his last Will and the legacies therein given, are confirmed by the Kings Letters Patents, with the assent of the Lord's and Commons in Parliament.
Numb. 19. A subsidy is granted to be employed for the defense of the Realm of England, to which end the Lord Protectour promiseth it shall be diligently employed.
Numb. 22. and 23. The King by assent of all the Lord's spiritual. and temporal, wills and grants, that his dear Uncle the Duke of Gloucester shall have and enjoy the Office of the Chamberlain of England, and of the Constableship of the Castle of Gloucester from the death of the Kings father, so long as it shall please the King, with all the fees, profits and wages thereunto belonging, in the same manner as they were granted to him by his Father.
Numb. 24. The 27. day of this Parliament, the tender age of the King being considered, that he could not personally attend in these days the defense and protection of his Kingdom of England, and the English Church; the same King fully confident of the circumspection and industry of his most dear Vncles, John Duke of Bedford, and Humfrey Duke of Gloucester, By ASSENT AND ADVICE OF THE LORD'S as well Spiritual as Temporal, and LIKEWISE OF THE COMMONS in this present parliament, hath ordained and constituted his said Uncle Duke of Bedford, now being in foreign parts PROTECTOR and DEFENDER OF HIS KINGDOME, and of the Church of England, and PRINCIPALL COVNSELLOR of our Lord the King; and that he shall both be and called Protector and Defender of the Kingdom, and the Principal Counselor of the King himself after he shall come into England, and repair into the Kings presence; from thenceforth, as long as he shall stay in the Kingdom; and it shall please the King. And further, our Lord the King BY THE FORES AID ASSENT and ADVICE, hath ordained and appointed in the absence of his said Uncle the Duke of Bedford, his foresaid Uncle the Duke of Gloucester now being in the Realm of England, PROTECTOR of his said Realm and Church of England, and PRINCIPALL COVNSELLOR of our said Lord the King; and that the said Duke shall be, and be called PROTECTOR and DEFENDOR OF THE SAID REALM AND CHURCH OF ENGLAND, and that letters patents of the Lord the King shall be made in this form following: Henrious Dei gracia, &c. Scitatis quod in adeotenera aetate constituti sumus, quod circa Protectionem & Defensionem Regni nostri Angliae & Ecclesiae Anglicanae personaliter attendere non possumus in presenti: Nos de circumspectione & industria charissime avunculi nostri Johannes Ducis Bedfordiae, plenam fiduciam reportantes, DE ASSENSV ET AVISAMENTO TAM DOMINORVM QVAM DE ASSENSV COMMVNIT ATIS DICTI REGNI ANGLIAE IN INSTANTI PARLIAMENTO existentium, ordinavimus & constituimus ipsum avuneulum nostrum, dicti regni nostri Angliae & Ecclesiae Anglicanae PROTECTOREM ET DEFENSOREM, AC CONSILIARIVM NOSTRVM PRINCIPALEM; & quod ipse dicti Regni nostri Angliae & Ecclesiae Anglicanae Protector & Defensor, ac principalis consiliarius noster sit, & nominetur, in & juxta vim formam & effectum cujusdam articuli IN DICTO PARLIAMENTO die datus pr • sentium habiti ET CONCORDATI: Proviso semper, quod praefatus Avunculus noster, nullum habeat aut gerat vigore praesentium potestatem, nec sicut praefatur nominotur, nisi pro tempore quo praesens hic in regno nostro Angliae fuerit, & PROVT IN PRAEDICTO ACTO CONTINETVR. Quodque carissimus Avnculus noster Dux Glocestriae, nobis in agendis dicti Regni negotiis post ipsum Avunculnm no strum Ducem Bedfordiae PRINCIPALIS CONSILIARIVS EXISTAT ET NOMINETVR, quotiens & quando praefatum Avunculum nostrum Ducem Bedfordiae infra Regnum mostrum Angliae mor aricontingat. Confidentes insuper ad plenum de circumspectione & industria praedicti Avunculi nostri Ducis Glocestriae DE ASSENSV ET AVISAMENTO PRAEDICTIS, ordinavimus & constituimus ipsum Avunculum nostrum Ducem Glocestriae, dicto Regno nostro, Angliae jam praesentem, dicti Regni nostri Angliae & Ecclesiae, Anglicanae PROTECTOREM ET DEFENSOREM, necnon CONSILIARIVM NOSTRVM PRICIPALEM, quociens & quando dictum avunculum nostrum Ducem Bedfordiae, extra Regnum nostrum Angliae morari & abesse centingat. Et quod ipse avunculus noster Dux Glocestriae Protector & Defensor Regni nostri Angliae, & Ecclesiae Anglicanae, & Principalis Consiliarius noster SIT ET NOMINETVR IVXTA VIM FORMAM & EFFECTVM ARTICVLI PRAEDICTI. Proviso semper, quod praefatus avuneulus & Dux Glocest nullum gerat aut habeat vigore praesentium potestatem, vel ut praefertur nominetur, nisi pro tempore quo praesens hic in Regno nostro Angliae fuerit in absentia dicti avunculi nostri Ducis Bedford. & prout in predictio articulo continetur. Damus autem universis & singulis Archiepiscopis, Episcopis, Abbatibus, Prioribus, Ducibus, Comitibus, Baronibus, Militibus, & omnibus aliis fidelibus nostris dicti Regni nostri Angliae quorum interest, tenore praesentium firmiter in mandatis, quod tam praefato avunculo nostro Duci Bedford • quociens & quand • protectionem & defensionem hujusmodi sic habuerit & occupaverit, quam praefato avunculo nostro Duci Glocestriae, quociens & quando ipse consimiles Protectionem & Defensionem habuerit & occupaverit in premissis faciendis, pareant obediant & intendant prout decet. In cujus reitestimonium &c. which Act and Commission thus made, and the tenor of them being recited before the said Duke of Gloster, and spiritual and temporal Lord's; the said Duke having deliberated thereupon, undertook, at the request of the said Lord's, the burden and exercise of his occupation, to the honor of God, and profit of the King and Kingdom. Protesting notwithstanding, that this his assumption or consent in this part should not any ways prejudice his foresaid Brother, but that his said Brother at his pleasure might assume his burden of this kind, and deliberate and advise himself.
Numb. 25. It is ordered by this Parliament, what under Offices and Benifices the Lord's Protectors should confer, and in what manner. Numb. 26. After the Lord's and Commons in Parliament had settled and ordained the Protectors in form aforesaid, AT THE REQVEST OF THE SAID COMMONS, there were, BY ADVISE AND ASSENT OF ALL THE LORD'S certain persons of estate, as well spiritual as temporal, NAMED AND ELECTED TO COUNSELL AND ASSIST THE GOVERNANCE; whose names written in a small scedule, and read openly, were these; the Duke of Gloucester, the Archbishop of Canterbury, the Bishops of London, Winchester, Norwich, Worcester; the Duke of Excester, the Earls of March, Warwick, Marshall, Northumberland, Westmorland; the Lord Fitz-hugh, Mr. H • gh Crumbwell, Mr. Walter Hungerford, Mr. John Tiptof • , Mr. Walter Beauchamp. Numb. 25. These persons thus NAMED and CHOSEN COVNSELLORS and ASSISTANTS, after this nomination and election, condescended to take such assistance to the governme • t in manner and form contained in a paper scedule written in English, with their names thereto, containing five special articles, delivered in Parliament by the said persons chosen Counselors assistants, of which scedule this is the tenure.
The Lord's abovesaid, been condescended to take it upon them, in manner and form that sueth: First, for as much as execution of Law and keeping of peace start much in Justice of peace, Sheriffs and Escheators, the profits of the King, and revenues of the Realm, been yearly increased, and augmented by Customers, Controllers, prisers, seachers, and all such other Offices; therefore the same Lordswoll and desireth, that such Officers, and all other be made, by advise and denomination of the said Lord's, saved always and reserved to my Lord's of Bedford and of Gloucester, all that longeth unto them, by a special Act, made in Parliament; and to the Bishop of Winchester that he hath granted him by our sovereign, Lord that last was, and by authority of Parliament confirmed.
Numb. 29. Item, that all manner Wards, Mariages, Farms, and other casualties that longeth to the Crown, when they fall, be letten, sold, and disposed by the said Lord's of the Counsel; and that indifferently at dearest, without favor, or any manner partiality or fraud.
Numb. 30. Item, that if anything should be enact done by Counsel, that six o • four at the least, without Officers, of the said Counsel be present; and in all great matters that shall pass by Counsel, that all be present, or else the more party. And if it be such matter as the King hath be accustomed to be counseled of, that then the said Lord's proceed not therein without the advice of my • ord of Bedford, or of Gloucester.
Numb. 31. Item, for as much as the two Chamberlaines of the Exchequer be ordained of old time to control the receipts and payments in any manner wise maed; the Lordys desireth, that the Treasurer of England being for the time, and either of the Chamberlaines have a key of that that should come into the recepit, and that they be sworn to fore my Lord of Gloucester, and all the Lord's of the Counsel; that for no friendship they shall make no man privy, but the Lord's of the Counsel, what the King hath in his Treasorie.
Numb. 32. Item, that the Clark of the Counsel be charged and sworn to truly enact and write daily the names of all the Loras that shall be present from time to time, to see what, how, and by whom anything passeth.
Numb. 33. And after that all the Lord's aforesaid had read before them the said Articles in Parliament, and had well considered of them, and fully assented and accorded to them; the scedule of paper, by certain of the Honorable Lord's of Parliament on behalf of the King and all the Lord's in Parliament, was sent and delivered to the Commons to be ascertained of their intent: whereupon after the said Commons had advised, the said Lord's repeated in the said Parliament, that the Commons thanked all the Lord's, and that THEY WERE WELL CONTENTED with all there contained in the said scedule, WITH THIS, that to the first of the said Articles there should be added one clause of purveiu, which the said Lord's repeated on the behalf of the said Commons, who delivered it to them in Parliament in one parchment scedule written in French, the tenor whereof ensueth.
Provided always that the Lord's, and other persons, and Officers, which have estate, and authority, some of inheritance, some for term of life, and otherwise, to make and institute, by virtue of their offices, deputy Officers, and Ministers which appertain to them to make of right; and as annexed to them, and to their offices of ancient time accustomed and used; shall not be restrained nor prejudiced, of that which appertains to them by color of this Ordinance or appointment. To which parchment scedule, and the contents thereof, read before the Lord's in Parliament, the said Lord's well agreed and fully consented.
Numb. 44. The Queen Mothers dower formerly agreed, appointed, and sworn to buy all the three estates in Parliament in 9. H. 5. was now again, upon her Petition, confirmed and settled by this Parliament, after her husbands decease. And Numb. 41. Pet. 2. The Commons petitioned, that it might then be enacted, that no man nor woman should thenceforth be compelled, nor bound to answer before the Counsel or Chancery of the King, nor elsewhere, at the suit or complaint of any person for any matter; for which remedy by way of Action was provided by the Common law; and that no privy Seal, nor subpoena should issue thence, before a Bill were first there exhibited, and also fully allowed by two Judges of the one Bench and other, that the complainant for matters and grievances in the said Bill could have no action, nor remedy at all by the common law, &c. A good Law to prevent the Arbitrary proceedings of these Courts, which are now too frequent in subverting of the Common law. Lo here in this Parliament, we have a Lord Protector, Chancellor, Treasurer, Keeper of the privy Seal, Chamberlain, Privy Counselors, Constables of Castles, and most other Officers of the King elected by Parliament; yea, a Commission for calling and holding this Parliament, confirmed by this Parliament when met; the Kings own public feales altered and new made; a new style conferred on the King, a Kings last Will, and a Queens Dower, when fallen, confirmed by the Parliament, and the privy Council, Court of Request, and Chancery limited by it, without any dimininution of the Kings prerogative royal: what injury or disparagement then can it be to his Majesty's royalties, to have his great Officers, Counsellers, and Judges, thus nominated and regulated in and by Parliament at this present? surely none at all.
In the Parliament Rolls of 4. H. 6. num. 8. I find a Commission granted to John Earl of Bedford, under the great Seal (which was read in Parliament) to supply the Kings place, and power in this Parliament, and to do all that the King himself, either might or ought to do therein; because the King ( by reason of his minority ) could not there personally attend to do it. Numb. 10. The Commons by a Petition, lamentably complained of the great discords and divisions between certain great Lord's, and privy Counselors of the Kingdom; and more especially, between the Duke of Gloucester Lord Protector, and the Bishop of Winchester Lord Chanceilor, by which divers inconveniences might happen to the Realm, if not speedily accommodated: desiring the Duke of Bedford, and other Lord's to accord them; Upon which the Lord took a solemn Oath to reconcile them, and made an accord between them; which you may read at large in Hall, Holinshed, and other our Historians▪ and in the Parliament Rolls, Numb, 12. 13. On the 13. day of March, Numb. 14. The Bishop of Winchester, Lord Chancellor of England, for certain causes declared before the Lord's in Parliament, instantly desired to be discharged of his Office, which causes they considering of and allowing, he was by the Lord's discharged from his said Office: and the same day in like manner the Bishop of Bathe, Treasurer of England, requested to be freed from his Office, which was that day done accordingly. Numb. 14. On the eighteenth day of March, John Bishop of Bathe and Wells, late Treasurer of England, by virtue of a privy seal directed to him, brought the Kings great golden seal, sealed up in a leather Bagge, into the Parliament, and really delivered it to the Earl of Bedford, the Kings Commissary; who receiving it of the said Bishop, caused it to be taken out of the Bagge, and to be seen of all, and then to be put into the Bagge again; who sealing the Bagge with his signet, he delivered it to be kept, to the Bishop of London, then CHANCELLOR OF ENGLAND, BY ADVICE and ASSENT of the Lord's spiritual and temporal, in that Parliament. Numb. 18. The King by the advise of the Lord's spiritual and temporal, and by the assent of the Commons in Parliament, makes an exchange of Louis de Bu • bon, Earl of Vandosme taken prisoner at the battle of Agencourt, for the Earl of Huntingdon, taken prisoner by the French; releasing the said Earl Vandosme of his Ransom, and Oath. Numb. 19. The Duke of Bedford, Constable of the Castle of Berwicke, petitioned, that the King, BY AVTHORITY OF PARLIAMENT (in regard of his absence from that charge, by reason of his continual employments in the Kings service in France, and elsewhere) might license him, to make a Lieutenant under him to guard that Castle safely: Upon which Petition, the Lord's spiritual and temporal granted him power to make a s • fficient Lieutenant, such as the Kings Counsel should allow of; so as the said Lieutenant should find such reasonable sureties for the safe keeping of the said Castle, as the Kings counsel should approve. And in this Parliament, BY ASSENT OF THE THREE ESTATES OF ENGLAND, Richard Beauchamp Earl of Warwick was ordained to be Governor of the young King, in like manner as the Noble Duke of Exceter was before appointed and designed; to execute which charge he was sent for out of France the year following. In the three and thirtieth year of this Kings reign Richard Duke of York was made Protector of the Realm, the Earl of Salisbury was appointed to be Chancellor, and had the great seal delivered to him; and the Earl of Warwick was elected to the Captainship of Calais, and the territories of the same, in and BY THE PARLIAMENT: by which the Rule and Regiment of the whole Realm consisted only in the heads, and orders of the Duke, and Chancellor; and all the warlike affairs and business rested principally in the Earl of Warwick. From which Offices the Duke and Earl of Salisbury being after displaced, by • mulation, envy and jealousy of the Dukes of Somerset Buckingham and the Queen, a bloody civil war thereupon enfued: after which Anno 39. H. 6. this Duke, by a solemn award made in Parliament between Henry the sixth and him, was again made PROTECTOR AND REGENT OF THE KINGDOM. By the Statutes of 25. H. 8. c. 22. 28. H. 8. c. 7. and 35. H. 8. c. 1. it is evident, that the power and Right of nominating a Protector and Regent, during the Kings minority, belongs to the Parliament and Kingdom; which by these Acts authorized Henry the eighth, by his last Will in writing, or Commission under hi • seal, to nominate a Lord Protector, in case he died, during the 〈◊〉 of his heir to the Crown; and the Duke of Somerset was made Lord Protector of the King and Realm, during King Edward the sixth his nonage, BY PARLIAMENT; And not to trouble you with anymore examples of this kind, Mr. Lambard in his Archaion, p. 135. Cowell in his Interpreter, title Parliament, Sir Henry Spelman in his Glossarium, tit. Cancellarius ( out of Matthew Westminster, An. 1260. 1265.) Francis Thin, and Holinshed, vol. 3. col. 1073. to 1080. 1275. to 1286. and Sir Edward Cook in his Institutes on Magna Charta, f. 174, 175. 558. 559. 566. acknowledge and manifest, That the Lord Chancellor, Treasurer, Privy Seal, Lord chief Justice, Privy Counselors, Heretochs, Sheriffs, with other Officers of the Kingdom of England, and Constables of Castles, were usually elected by the Parliament, to whom OF ANCIENT RIGHT THEIR ELECTION BELONGED: who being commonly styled, Lord Chancellor, Treasurer, and chief Justice, &c. OF ENGLAND, not of the King, were of right elected by the representative Body of the Realm of England, to whom they were accountable for their misdemeanors. Seeing then it is most apparent by the premises, that the Parliaments of England have so frequently challenged and enjoyed this right and power of electing, nominating, recommending, approving all public Officers of the Kingdom in most former ages, when they saw just cause; and never denuded themselves wholly of this their interest by any negative Act of Parliament that can be produced: I humbly conceive, it can be no offense at all in them (considering our present dangers, and the manifold mischiefs of the Kingdom hath of late years sustained by evil Counselors, Chancellors, Treasurers, • udges, Sheriffs, with other corrupt public Officers) to make but a modest claim (by way of petition) of this their undoubted ancient right, nor any dishonor for his Majesty, nor disparagement to his Royal Prerogative, to condescend to their request herein, it being both an honor, and benefit to the King to be furnished with such faithful Counselors, Officers, Judges, who shall cordially promote the public good, maintain the Laws, and subjects Liberties, and do equal justice unto all his people, according to their oaths and duties; unfaithful and corrupt officers being dangerous, and dishonorable, as well to the King as Kingdom, as all now see and feel by woeful experience. In few words; If the Chancellors, Judges, and other Officers power to nominate three persons to be Sheriff in every County annually (of which his Majesty by law is bound to prick on, • lse the election is void, as all the Judges of England long since resolved) and their authority to appoint Justices of the Peace, Escheators, with other under Officers in each shire, be no impeachment at all of the Kings prerogative, as none ever reputed it; or if both Houses ancient privilege, to make public Bills for the public weal, without the Kings appointment, and when they have voted them for laws, to tender them to the King for his royal assent, be no diminution to his Sovereignty: then by the self-same reason, the Parliaments nomination, or recommendation of Counselors, State-officers, and Judges, to his Majesty, with a liberty to disallow of them if there be just cause assigned, can be no encroachment on, nor injury at all to his Majesty's Royalties; it being all one in effect, to recommend new Laws to the King for his royal assent, when there is need, as to nominate meet Officers Counselors, Judges, to him, to see these Laws put in due execution when enacted. So that upon the whole matter, the final result will be; That the Parliaments claim of this their ancient right, is no just ground at all on his Majesty's part, to sever himself from his Parliament, or to be offended with them, much less to raise or continue a bloody war against them.
That the King hath no absolute Negative voice in the passing of Bills of Common Right and Justice, for the public good.
THe fourth great Objection or Complaint of the King, Malignants, Royalists against the Parliament is; That they deny the King a negative Voice in Parliament; affirming in some Declarations; That the King by his Coronation Oath and duty, is bound to give his royal assent to such public Bills of Right and Justice, as both houses have voted necessary for the common wealth, or safety of the Realm, and ought not to reject them: Which is (say they) an absolute denial of his royal Prerogative, not ever questioned or doubted of in former ages.
To this I answer first in general. That in most proceedings and transactions of Parliament the King hath no casting, nor absolute negative voice at all; as namely in reversing erroneous Iudgments given in inferior Courts; damning illegal Patents, Monopolies, Impositions, Exactions, redressing, removing all public grievances or particular wrongs complained of; censuring or judging Delinquents of all sorts; punishing the Members of either house for offenses against the Houses; declaring what is Law in cases of difficulty referred to the Parliament ( of which there are sundry presidents.) In these, and such like particulars, the King hath no swaying negative voice at all, but the houses may proceed and give Judgment, not only without the Kings personal presence or assent) as the highest Court of Justice, but even against his personal Negative vote or dissassent, in case he be present, as infinite examples of present and former times experimentally manifest beyond all contradiction. Nay, not only the Parliament, but Kings Bench, Common Pleas, Chancery, and every inferior Court of Justice whatsoever, hath such a Privilege by the Common law and statutes of the Realm, that the King himself hath uo negative voice at all so much as to stay, or delay for the smalest moment by his great or privy seal any legal proceedings in it, much less to countermand, control, or reverse by word of mouth or proclamation, any resolution or judgment of the Judges given in it: If then the King hath no absolute Negative overruling voice in any of his inferior Courts; doubtless he hath none in the supre • mest greatest Court of all▪ the Parliament; which otherwise should be of less authority, and in far worse condition then every petty sessions, or Court Baron in the Kingdom.
The sole question then in debate must be; Whether the King hath any absolute Negative over-ruling voice in the passing of public or private Bills?
For resolving which doubt, we must thus distinguish: That public or private Bills are of two sorts. First, Bills only of mere grace and favor; not of common right: such are all general pardons, Bills of naturalization, indenization, confirmation, or concession of new Franchises, and Privileges to Corporations, or private persons, and the like; in all which the King, no doubt, hath an absolute negative voice to pass or not to pass them; because they are acts of mere grace (which delights to be ever free and arbitrary,) because the king by his oath and duty, is no way obliged to assent thereto; neither can any subjects of justice or right require them at his hands, it being in the Kingsfree power, to dispence his favors freely when and where he pleaseth, and contrary to the very nature of free grace, to be either merited or constrained. Secondly Bills of common right and justice, which the King by duty and oath is bound to administer to his whole kingdom in general, and every subject whatsoever in particular without denial or delay: Such are all Bills for the preservation of the public peace and safety of the kingdom; the Liberties, Properties, and Privileges of the Subject: the prevention, removal, or punishment of all public or private grievances, mischiefs, wrongs, offenses, frauds in persons or callings; the redress of the defects or inconveniences of the Common Law; the advancing or regulating of all sorts of Trades; the speedy or better execution of Justice, the Reformation of Religion, and Ecclesiastical abuses, with sundry other Laws, enacted in every Parliament, as occasion and necessity require. In all such Bills as these, which the whole state in parliament shall hold expedient or necessary to be passed, I conceive it very clear, that the king hath no absolute negative voice at all, but is bound in point of office, duty, Oath, Law, Justice, conscience, to give his royal assent unto them when they have passed both houses, unless he can render such substantial reasons against the passing of them, as shall satisfy both Hou • e • . This being the only point in controversy, my reasons against the Kings absolute over-swaying negative Voice to such kind of Bills as these, are:
First, because being Bills of common right and Justice to the Subjects, the denial of the Royal assent unto them is directly contrary to the Law of God, which commandeth kings to be just, to do judgment and justice to all their Subjects, especially to the oppressed, and not to deny them any just request for their relief, protection or welfare.
Secondly, because it is point-blank against the very letter of Magna Charta (the ancient fundamental Law of the Realm, confirmed in at least 60. Parliaments) ch. 29. WE SHALL DENY, WE SHALL DEFERRE (both in the future tense) TO NO MAN (much less to the whole Parliament and Kingdom, in denying or def • rring to pass such necessary public Bills) IVSTICE OR RIGHT, A Law which in terminis takes clean away the Kings p • etended absolute negative Voice to these Bills we now dispute of.
Thirdly, Because such a disasse • t • ng Voice to Bills of this nature, is inconsisent with the very office, duty of the king, and the end for which he was instituted: to wit, equal and speedy administration of common right, justice, and assent to all good Laws for protection, safety, ease, and benefit of his Subjects.
Fourthly, Because it is repugnant to the very Letter and meaning of the kings Coronation Oath solemnly made to all his Subjects; TO GRANT, FVLFILL, and Defend ALL RIGHTFVLL LAWES which THE COMMONS OF THE REALME SHALL CHVSE, AND TO STRENGTHEN AND MAINTAINE THEM after his power. Which Clause of the Oath (as I formerly manifested at large, and the Lord's and Commons in their Remonstrance of May 26. and Nov. 2. prove most fully) extends only, or most principally to the kings Royal assent to such new rightful and necessary Laws as the Lord's and Commons in Parliament, (not the king himself) shall make choice of. This is infallibly evident, not only by the practice of most of our kings in all former Parliaments, (especially in king Edward the 1, 2, 3, 4. Rich. 2. Hen. 4, 5▪ and 6. reigns), whereof the first Act commonly in every Parliament was, the confirmation of Magna Charta, the Charter of the Forest, and all other former unrepealed Laws; and then follow sundry new Act • which the Lord's and Commons made choice of as there was occasion, and our Kings assented to, (confessing they were bound to do it by their Coronation oath and duty, as I shall manifest presently:) but likewise by the words of the Coronation oaths of our ancienter Kings, already cited in the first part of this Discourse; and of our Kings oaths of latter times: the Coronation Oaths of King Edward the 2. and 3. remaining of Record in French, are in the future tense. Sire, grantes vous a tenir et garder LES LEYS et les Coustumes DROITVRELES les quiels LA COMMVNANTE de vostre Royaume AVRESLV, & les defenderer et assorcer • r all honeur de Di • u a vostre poare?
The close Roll of An. 1. R. 2. M▪ 44. recites this clause of the Oath which King Rich took in these words; Et etiam de tuendo & custodiendo IVST AS LEGES & consuetudines ecclesiae, ac de faciendo per ipsum Dominum Regem, ease esse protegendas & ad honorem Dei CORROBOR AND AS quas WLGVS IVSTE ET RATIONABILITER ELEGERIT juxta vires ejusdem Domini Regis, in the future tense. And Rot. Parliament, 1. H. 4. p. 17. expresseth the clause in King Henry his Oath thus: Concedis IVSTAS LEGES & consuetudines esse tenendas, & promittis per te ease esse protegendas & ad honorem Dei CORROBORANDAS QV AS WL GVS ELEGERIT secundum vires tuas. Respondebit; Concedo & Promitto.
In the Book of Clarencieux Hanley, who lived in King Henry the 8. his reig • e, this clause of the Oath (which this king is said to take at his Coronation) is thus • endred in English: Will you GRANT, FVLFILL, defend ALL RIGHTFVLL LAWES and Customs, the which THE COMMONS OF YOVR REALME SHALL CHVSE (in the future, and where but in the Parliament House when and where they meet together to make good Laws?) and shall strengthen and maintain to the worship of God, after your power▪ The King shall answer, I grant and behe • e. But that which puts this past all doubt, is the Coronation Oath of K. Edward the 6. thus altered by the Lord Protectour and Kings Council in words, but not sense; Do you grant to make NO NEW LAWES, but such as SHALL BE to the honor and glory of God, and to the good of the Common-wealth, and that the same SHALL BEE MADE BY CONSENT OF YOVR PEOPLE, AS HATH BEEN ACCVSTOMED? Where this clause of the Oath, refers wholly and only to future new LAWES, to be chosen and made by the Peoples consent, not to Laws formerly enacted. And certainly it must do s • , else there would be much Tautology in this short solemn Oath, unsuitable to the grave wisdom and judgment of an whole Kingdom to prescribe and continue for so many ages, and for our Kings in discretion to take: For the first clause of the Oath both in the Latin, French, and English Copy • of ancient and present times, is this, Sir will you grant and keep, and by your oath confirm to the people of England; THE LAWES AND CVSTOMES GRANTED TO THEM BY ANCIENT KINGS OF ENGLAND, rightful men, and devout to God; and namely the Laws and Customs, and Franchises granted to the Clergy and to the people by the glorious King Edward, to your power? Which clause relating to all Laws and Customs granted by form • Kings to the people; if this latter clause should be in the pretertense too, HATH CHOSEN (as the King and his mistaken Counsel object) it would be a mere Su • plusage, or Battology, yea the same insubstance with the first part of the oath, and ou • Kings should be only bound by their oaths to observe their Ancestors Laws, not their own as they now argue, (the reason perchance why the Petition of Right, and our other new Laws are so ill observed) which is ridiculous to imagine. And whereas they object, that the word CVSTOMS joined to laws in the last clause, cannot be meant of such Customs as the people shall choose after the Oath made, because all Customs are, and must be time out of mind. The Answer is very easy; For Customs here are not taken strictly for ancient usages time out of mind; but for Statutes, Franchises, just Liberties, or Taxes for the Kingdoms defense, chosen & freely granted by the Commons or people, and to be confirmed by the King in Parliament; as appears by the first clause of the oath, the laws & customs granted to them by the ancient Kings of England. And by Bracton himself, who expounds this clause of the oath to relate to future Laws, newly made by our Kings after their Coronations, in this observable passage. Hujusmodi vero leges Anglicanae & CONSVETVDINES, regum authoritate jubent quandoque, quando{que} vetant, & quandoque vindicant, & puniunt transgressores; quas quidem cum FVERINT APPROBATAE CONSENSV VTENTIVM ET SACRAMENTO REGVM CONFIRMATAE, mutari non poterunt nec destrui, SINE COMMVNI CONSENSV EORVM OMNIVM, quorum CONSILIO ET CONSENSV FVERVNT PROMVLGATAE. Now no Customs properly so called, can commence by way of grant, especially of the King alone; but only by the people and common usage for a good space of time (as the Customs of Gavelkinde, Burrough English, and such like, never granted nor commenced by Charter or Act of Parliament, did;) and if the King by Charter or Act of Parliament, should grant a new Custom, before it were a Custom in this sense, it would be utterly void in law, because there was no such custom then in being, and no gran • or act can make or create a custom or prescription that had no former being. Therefore Custom in this oath, coupled with just and reasonable, must needs be meant only of such just and reasonable statutes, liberties, privilidges, immunities, aides, taxes, or services for the subjects ease and benefit, and the public service, as they upon emergent occasions shall make choice of in Parliament; of whose justness and reasonableness not the King alone, but the grand Council of the Kingdom (assembled in the Parliament, to this very end, to judge of, make, and assent to just and profitable Laws) are and ought to be the proper Judges, as I have elsewhere manifested; and the very words of the oath, QVAS WLGVS ELIGERIT, to which justas leges & consuetudines relates, resolve beyond contradiction. And King David and Achish both were of this opinion, 1 Chron. 13. 1. to 6. 2 Sam. 18▪ 2, 3, 4. 1 Sam. 29. 2. to 11. and King Hezekiah too 2 Chron. 30. 1. to 7. 23. yea God himself, and Saunel too: 1 Sam. 8. 4 to the end.
Fifthly, Because it is directly contrary to the preambles and recitals of sundry Acts of Parliament in most of our Kings reigns comprising the two last reasons. To instance in some few of many: the ancient statutes of Marlbridge begin thus. The year of grace 1267. for the better estate of the Realm of England, and for the more speedy ministration of Justice, AS BELONGETH TO THE OFFICE OF A KING, the more discreet men of the Realm being called together, as well of the higher as of the lower estate: It was provided, agreed, and ordained, that whereas the Realm of lat • had been disquieted with manifold troubles and distractions, for reformation whereof statutes and laws BE RIGHT NECESSARY, whereby the peace and tranquility of the people may be conserved, wherein the King intending to devise convenient remedy, hath made these Acts underwritten. The statutes of 3 Edw. 1. have this Prologue. These be the Acts of King Edward, &c. at his first Parliament general after his Coronation. Because our Sovereign Lord the King hath great zeal in desire to redress the state of the Realm in such things AS REQVIRED AMENDMENT for the common profit of the holy Church, and of the Realm &c. the King hath ordained and established these Acts underwritten, which he intendeth TO BE NECESSARY AND PROFITABLE unto the whole Realm. And cap. 17. in the Marches of Wales, and elsewhere, where the Kings Writs be not currant, the King which is chief and sovereign Lord there, SHALL DOE RIGHT THERE unto such as will complain. And cap. 48. The King hath ordained these things unto the honor of God, and holy Church, and for the commonwealth, and for the remedy of such as be grieved; and for as much as it is great charity (which is oft times put for Justice, as here) TO DOE RIGHT VNTO ALL MEN AT ALL TIMES WHEN NEED SHALL BE, by assent of all &c. it was provided. The statute of Gloucester in the 6. year of King Edw. 1. is thus prefaced. For the great mischiefs and disinherisons that the people of the Realm of England have heretofore suffered, throught default of the law that failed in divers cases within the said Realm; our sovereign Lord the King for the amendment of the land; for the relief of his people, and to eschew much mischiefs, damages and dis-inherisons, hath provided established these Acts underwritten, willing and commanding that from henceforth they be firmly kept within this Realm. The Statutes of Westminster, 2. in his 13. year begin thus: Whereas of late our sovereign Lord the King, &c. calling his Counsel at Gloucester, and considering that divers of this Realm were disherited, by reason that in many cases, where remedy should have been had, there was none provided by him nor his Predecessors, ordained certain statutes, right necessary and profitable for his Realm, whereby the people of England and Ireland have obtained more speedy Justice in their oppressions then they had before, and certain cases (wherein the law failed) did remain undetermined, and some remained to be enacted that were for the reformation of the oppressions of the people; our sovereign Lord the King in his Parliament holden &c. the 13) ear of his reign at Westm. caused many oppressions of the people, and defaults of the laws, for the accomplishment of the said statutes of Glocest to be rehearsed, and thereupon did provide certain Acts here following. The s • atute of Quo Warranto, An. 1278. (the 6. year of this King, made at Glocest.) hath this exordium. The King himself providing for the wealth of his Realm, and the morefull administration of Justice, AS TO THE OFFICE OF A KING BELONGETH; the more discreet men of the Realm, as well of high as of low degree being called thither, it was provided &c. The sta • . of York 12 E. 2 hath this Prologue. Forasmuch as people of the Realm of England and Ireland have heretofore suffered many times great mischiefs, damage and disherison by reason that in divers cases where the law failed, no remedy was purveyed &c. our sovereign Lord the King desiring THAT RIGHT BE DONE TO HIS PEOPLE at his Parl. holden at York &c. hath made these Acts & statutes here following, the which he willeth to be straitly observed in his said Realm. In 9. Ed. 3. in a Parliament held at York. the Commons desired the King in the said Parliament by their Petition, that for the profit and commodity of his Prelates, Earls, Barons, and Commons of his Realm, it may please him, WITHOUT FVRTHER DELAY, upon the said grievances and outrages to provide remedy: our sovereign L. the K. desiring the profit of his people by the assent of his Prelates &c. upon the said things disclosed to him, & found true, to the great hurt of the said Prelates &c. and oppression of his Commons, hath ordained and established &c. In 10. E. 3. stat. 1. there is this introduction. Because our Sovereign Lord the King Edw. 3. WHICH SOVERAIGNLY DESIRETH the maintenance of his peace and safeguard of his people, hath perceived at the complaint of the Prelates, Earls, Barons, and also at the showing of the Knights of the shires, and the Commons in their Petition put in his Parliament &c. divers oppressions and grievances done to his people, &c. COVETING to obvent the malice of such felons, and to see a covenable remedy, hath ordained, &c. for the quietness and peace of his people, that the articles underneath written be kept and maintained in all points 14. E. 3. stat. 1. To the honor of God, &c. the King for peace and quietness of his people, as well great as small, doth grant and establish the things underwritten. The like we have in 15. E. 3. stat. 1. and in this kings Proclamation for revoking it, there is this passage; We considering, how BY THE BOND OF OUR OATH WE BE BOUND TO THE OBSERVANCE AND DEFENCE OF THE LAWES AND CVSTOMES OF THE REALME, &c. So in 20. E 3. Because that by divers complaints made to us, we perceived that the law of the land which WEE BY OUR OATH BE BOUND TO MAINTAINE is the less well kept, and the execution of the same disturbed many times, &c. WE GREATLY MOVED OF CONSCIENCE IN THIS MATTER, and for this cause desiring as much for the pleasure of God and ease and quietness of our Subjects, AS TO SAVE OUR CONSCIENCE AND TO KEEPE OUR SAID OATH, by the assent of the great men and other wise men of our Counsel, we have ordained these things following 23. E. c. 8. That in no wise ye omit the same, as ye love us and the Commonwealth of this Realm. 25. E. 3. stat. 2. Because that statutes made and ordained before this time have not been holden and kept as they ought to be, the King willing to provide quietness and common profit of his people, by the assent, &c. hath ordained and established these things under-written. The passage in the statute of Provisors, 25. E. 3. Parliam. 6. is notable. Whereupon the said Commons have prayed our Sovereign Lord the King, that SITH THE RIGHT OF THE CROWNE OF ENGLAND, AND THE LAW OF THE SAID REALME IS SVCH, that upon the mischiefs and damages which happeneth to his Realm, HE OVGHT AND IS BOVNDEN OF THE ACCORD OF HIS SAID PEOPLE IN PARLIAMENT THEREOF TO MAKE REMEDY, AND THE LAW OF VOIDING THE MISCHIEFES and damages which thereof cometh, that it may please him thereupon to ordain remedy. Our Sovereign Lord the King seeing the mischiefs and damages before named, and having regard to the statute made in the time of his Grandfather, and to the cause contained in the same; which statute always holdeth his force, and was never defeated, nor annulled in any point; and by so much AS HE IS BOVNDEN BY HIS OATH TO DOE THE SAME TO BE KEPT AS THE LAW OF THIS REALME though that by sufferance and negligence it hath been attempted to the contrary; also having regard to the grievous complaints made to him by his people in divers his Parliaments holden heretofore, willing to ordain remedy for the great damage and mischiefs which have happened, and daily do happen to the Church of England by the said cause; By assent of the great men and Commonalty of the said Realm, to the honor of God and profit of the said Church of England, and of all his Realm, hath ordered and established▪ &c. 28. E. 3: The King for the common profit of him and his people, &c. hath ordained. 36. E. 3. To the honor and pleasure of God, and the amendment of the outrageous grievances and oppressions done to the people, and in relief of their estate, King Edward, &c. grant • d for him and his Heirs forever these Articles underwritten. 1. R. 2. To the honor of God and reverence of holy Church, for to nourish peace, unity, and concord, in all the parts within our Realm of England, which we do much desire; We have ordained, &c. 3. R. 2. For the honor of God, and of holy Church, and for the common profit of the Realm of England, our Sovereign Lord the king hath ordained, &c. for the quietness of his said people, the Statutes and Ordinances following, &c. cap. 2. (with 2. H. 4. c. 1.) Our sovereign Lord the king greatly desiring the tranquility and quietness of his people, willeth and straitly commandeth, that the peace within his Realm of England be surely observed & kept, so that all his lawful subjects may from henceforth safely and peaceably go, come, and dwell after the Law and usage of the Realm, and that Justice and right be indifferently ministered to every of his said subjects, as well to the poor as to the rich in his Courts. 1. H. 4. Henry by the Grace of God, &c. to the honor of God and reverence of holy Church for to nourish peace, unity & concord of all parties within the Realm of England, and for the relief and recovery of the said Realm, which now late hath been mischievously put to great ruin, mischief and desolation, of the assent, &c. hath made and established, &c. 6. H. 4. c. 1. For the grievous complaints made to our Sovereign Lord the king by his Commons of the Parliament of the horrible mischiefs and damnable custom which is introduced of new, &c. Our sovereign Lord the King to the honor of God, as well to eschew the damage of this Realm, as the perils of their souls which are to be advanced to any Archbishoprics or Bishoprics, &c. hath ordained. Divers such recitalls are frequent in most of our statutes in all Kings reigns, viz. 37. E. 3. c. 2, 3, 4, 5. 3. R. 2. c. 3. 5. R. 2. Stat. 1. 2. 6. R. 2. Stat. 1. 7. R. 2. 8. R. 2. (For the common profit of the said Realm, and especially for the good and just government and due execution of the common Law, it is ordained, &c.) 10. R. 2. Prologue & c. 1. 11. R. 2. c. 1. 12. R. 2. 13. R. 2. Prologue & c. 3, 5, 6. 14. R. 2. 21. R. 2. 1. H. 4. & 5. c. 7. 1. H. 6. 8. H. 6. Prologue & c. 25. 10. H. 6. c. 3. 12. H. 6. c. 12. 39. H. 6. Prologue 1. R. 3. c. 2. 6. 8. 3. H. 7. c. 5, 6. 11. H. 7. c. 18. But I shall conclude with some more punctual ones. 18. E. 3. stat. c. 1, 2. To nourish, love, peace and concord between holy Church and the Realm and to appease and cease the great hurt and perils & impertable losses and grievances that have been done and happened in times past, and shall happen hereafter, if the thing from henceforth be suffered to pass, &c. for which causes, and dispensing whereof, the ancient laws, usages, customs, and franchises of the Realm, have been, and be greatly appaired, blemished, and confounded, the Crown of the king minished, and his person falsely defrauded the treasure and riches of his Realm carried away, the inhabitants and subjects of the Realm impovirished, troubled, &c. the King at his Parliament, &c. having regard to the quietness of his people, which he chiefly desireth to sustain in tranquility and peac • , to govern according to the Laws, Vsages, and Franchises of this Land, as HE IS BOUND BY HIS OATH MADE AT HIS CORONATION; following the ways of his Progenitors, which for their time made certain good Ordinances and provisions against the said grievances, &c. by the assent, &c. hath approved, accepted, and confirmed. &c. 2. R. 2. c. 7. Because the King hath perceived, as well by many complaints made to him, as by the perfect knowledge of the thing, &c. the King desiring sovereignly the peace and quietness of his Realm, and his good Laws and Customs of the same, and the Rights of his Crown to be maintained and kept in all points; and the offenders duly to be chastised and punished, AS HE IS SWORN AT HIS CORONATION, by the assent of all the Lord's &c. hath defended &c. And moreover it is ordained and established &c. 3 R. 2. Rot. Parl. Num. 38. & 40. The Commons desiring a grant of new power to Justices of Peace, to inquire into extortions; the Bishops conceiving it might extend to them, made their protestation against this new grant; yet protested, that if it were restrained only to what was law already, they would condescend to it, but not if it gave any new or further power. The King answers, that notwithstanding their protestation, or any words con • eined therein, he would not forbear to pass this new grant, and that BY HIS OATH AT HIS CORONATION HE WAS OBLIGED TO DO IT. And 6 H. 6. c. 5. We, for as much as by reason of our Regality, WE BE BOVNDEN TO THE SAFEGVARD OF OUR REALM round about, willing in this behalf convenient hasty remedy to be adhibite, have assigned, &c. By these, with infinite such like recitalls in our ancient and late statutes in the Kings own Proclamations, Commissions, yea and in writs of law ( wherein we find these expressions; Nos qui singulis de regno nostro in EXHIBITIONE IVSTITIAE SVMVS DEBITORES; plaenam & celerem justitiam exhiberi facias. Nos volentes quoscunque legios nostros in curiis nostris &c. justitiam sibi &c. nullatenus differri. Ad justitiam inde reddendam cum omni celeritate procedatis Nos oppressiones, duritias, damna excessus, & gravamina praedictae nolentes relinquere impunita; volent esque SALVATIONI & QVIETI POPVLI NOSTRI hac parte PROSPICERE VT TENEMVR; eidm celeris justitiae complementum, & debitum & festinum iustitiae complementum fieri facies, Nos huiusmodi praeindicio precavere volentes, prout ASTRINGIMVR IVRAMENTI VINGVLO. Quia • iudicia in curia nostra cito reddita in suis roboribus manuteneri volumus & defendi prout AD HOC IVRAMENTI VINCVLO ASTRINGIMVR & TENEMVR. &c, It is most apparent, that the Kings of England both by their oath, duty, and common right, even in point of justice and conscience, are bound to assent to all public Acts as are really neces • ary for the peace, safety, ease, weal, benefit, prevention of mischiefs and redress of grievances of all, or any of their subjects, without any tergiversation, or unnecessary delays, when they are passed and tendered to them by both Houses, and that in such acts as these they have no absolute Negative voice at all, but ought to give their speedy, free, and full consents thereto, unless they can give satisfactory reasons to the contrary.
Sixthly, All our ancient Kings of England, (as the premises, with all public useful statutes enacted in their reign▪ evidence) have always usually given their free and full consents in Parliament to such public acts as these, without denial or protraction, conceiving they were bound by oath and duty so to do; and if they ever denied their royal assents to any Petitions or Bills of the Lord's and Commons of this nature, they always gave such good reasons for it as satisfied both Howses: witness their answers to infinite Petitions yet extant among the Parliament records. Therefore the King now is as much obliged thereto as they.
Seventhly, If the King in point of law, should have an absolute negative voice in denying his assent to public Bills of mere right, and justice; then he should have power by law to deny justice and right, and to do wrong and injustice to his people; a prerogative which neither God himself, nor any lawful Monarch ever yet challenged; but renounced with greatest detestation. I read in Plutarch that when a flatterer said to king Antigonus, that all things were honest and just to Kings, he answered: only indeed to Kings of Barbarians, but to us honest things are to be accounted for honest, only just things for just: And that Acrotatus gave the like answer to his parents, when they pressed him to do an unjust thing: Quo • iam vult is me optima ag • re, optimū aute •• est cum privato, tum multo etiā magis Principiid quod est justum, agam qu • • ultis, quae viro dicitis detrectabo. Yea our law expressly denies the king any such unjust prerogative, by these unquestionable maxims: the King neither can, nor ought by law to do any wrong, seeing he is God's Vicar, and the fountain of Justice. Et hocsolum Rex NON POTEST FACERE quod NON POTEST INIVSTE AGERE: which our law-books make no defect of power, but one of the highest branches of the Kings Prerogative: for confirmation whereof, I shall only cite one notable Record, 7. H. 4. Rot. Parl. Num. 59. The Commons complained, that by the favor of Ordinaries, divers incumbents were outed of their benefices by superinstitutions upon presentations of the King, contrary to the statute in that case provided; and were denied a Scire faci • s, without a special license or command of the King first obtained, to the great offense of God, and against reason and law BECAUSE SVCH AN ACT CANNOT BE ANY PREROGATIVE AT AL IN OUR LORD THE KING, WHICH IS DEROGATIVE TO THE EXECVTION OF RIGHT AND IVSTICE. Wherefore they petitioned the King, that he would be pleased to grant and command the Chancellor, to deliver a writ of Scire facias to every of his Leiges who are outed of their benefices or possessions by the foresaid title of the King, and that thenceforth the Chancellors shall be bound to deliver by authority of their Offices this Writ of Scire facias at the suit of the parties: and further, to do right to the parties, without suing to the King, and without other warrant from him. To which the King gives this answer. The King wills, that the said statute be firmly held and keep; and farther willeth and granteth, that if he presents to any benefice which shall be full of any Incumbext, that the Presentee of the King shall not be received by the Ordinary to such a benefice, until the King hath recovered his presentment by process of Law in his own Court: and if any Presentee of the King be otherwise received, and the Incumbent outed without due Processe, as aforesaid, the said Incumbent may commence his suit within one year after the Induction of the Kings Presentee, or later. And further, the King wills that no ratification granted for the Incumbent, after that the King hath presented and taken his suit, shall be allowed pending the plea, nor after the judgment given for the King; but that such judgment shall be fully executed, as reason demands. L • e here the Commons and Parliament affirm, and the King himself subscribes thereto: That the King neither hath, nor yet can have any Prerogative at all, which is derogative, or any impediment at all in the execution of Right and Justice; and disclaim a negative voice, or power, in him, in granting a scire facias to particular Incumbents, unduly outed of their Living by a pretended prerogative power, against Reason and Law. Therefore à fortiori, the King, by his prerogative, neither hath, nor can have any absolute Negative voice at all to hinder the passing of public Bills presented to him by both Houses, for the due execution of right and justice, and the weal, peace, or safety of the whole Kingdom. That speech of King Zed • kia • to his Princes (though in a bad case) is an undoubted verity here: Behold he is in your hands; FOR THE KING IS NOT HE THAT CAN DOE ANY THING AGAINST YOU: and likewise of King David to his people: 2 Sam. 18. 3. 4. WHAT SEEMETH TO YOU BEST I WILL DO. In one word, as it is no impotency in God, but a part of his own divine prerogative; that he cannot possibly lie, that he cannot deny himself, that he is immutable and changeth not, that he cannot do injustice: And as it was the Apostles highest privilege. 2 • or. 13. 8. We can do nothing against the truth, but for the truth. So it is no note of impotency but of highest Sovereignty in our Kings, that in all Bills of public Right and Common Justice, they have no Negative voice or power at all to withstand or deny their passing; for then they should have a prerogative to deny common Right and Justice, and so to do public injustice, which God himself (whose vicegerents they are) is uncapable of, and never derived to them. I will close this reason with that memorable speech of that great heathen Emperor Julius Caesar, which he sometimes used at Rome in the Council-house; Touching all other affairs that are to be taken in hand for your sake, I am both your Consul, and your Dictator; but as touching any wrong to be done to any man, I am as a private man without office.
Eighthly, Our Kings have ever claimed this as an absolute duty from their subjects in Parliament, to grant them such speedy, free, and competent ayds, subsidies, customs for the necessary defense of themselves, and the Kingdom, and support of their royal estates, as the urgency of their public wars, and affairs required; and the subjects (though they have sometimes denied subsidies to their Princes upon reasonable causes, and excuses alleged by them, expressed in our Historians ) yet have always held it their BOUNDEN DUTY to grant such ayds in Parliament, when (and sometimes before) they have been required, and have really done it without refusal, when they saw just cause to grant them; as all the old and new Acts for the grant of Customs, Subsidies, Dismes, Quindismes, Tonnage and Poundage, Polemoney, with other such aides in all our Kings-Reignes, abundantly evidence. Therefore the King (who is as much obliged by oath and duty to aid his subjects, and provide for their common protection, weal, peace, ease, as they are to provide for His, and the Kingdoms safety) is by like reason as much obliged in duty not to deny them such public Acts; as they are not to deny him such public aides.
Ninthly, Kingdoms and Commonweales were existent before Kings, for there must be a Kingdom, and society of men to govern (as Aristotle, Cicero, Polibius, Augustine, Fortescue, and all other Politicians accord) before there could be a King elected by them for to govern them: And those Kingdoms and societies of men had (for the most part) some common laws of their own free choice by which they were governed, before they had Kings; which laws they swore their Kings to observe before they would crown or admit them to the government; and likewise gave them a further oath, to pass and confirm all such subsequent laws as they should make choice of for their public benefit and protection; as is evident by the Coronation oaths of all our own (yea of most other Christian, and some Pagan Kings ) continuing to this very day; and these words in the Kings oath QUAS VULGUS ELEGERIT (which intimates the choice of Laws to be wholly and fully in the people's free elections) prove beyond Contradiction: Yea those ancient law-givers Solon, 〈◊〉 Li •• rgu • , Numa, with others, who took pains to compile Laws for several Kingdoms and Republics, did only recommend them to the people, whose voluntary a •• ent unto them made them binding; Which laws they either altered or repealed as they saw cause. Besides, during Interrognums in sorraigne elective Kingdoms, the Estates in Parliament have power to make new binding Laws, repeal and alter old, as they did in Aragon after Sanchius his decease) before they elected a new King (whom they swore to observe the Laws then made, before they would admit him) without any Kings assent at all, who yet give their royal assent to Laws made in their reigns: And in our own and other successive Kingdoms during the Kings infancy, dotage, absence, the Kingdoms and Parliaments have an absolute power (as I have already manifested) to create Regents or Lord-Protectors • to execute royal authority and give royal assents to public acts in the Kings name and steads, without their actual personal assents; which laws being necessary for the Subject, shall be as firm and obligatory to King and Kingdom, as those to which they actually assent: Yea, if Kings chance to die without any heir, the Kingdom in such a case may assemble of themselves, and make binding necessary laws without a King, and alter the very frame of government, by public consent. Therefore the royal assent to just, necessary, public Bills, is in truth but a formal Ceremony or complement (much like a Kings Coronation) without which he may be, and is a lawful King, ) bestowed by the people upon Kings for their greater honor, with this limitation, that they must not deny it when they of right require it to any just or necessary law; not simply to make, but declare & confirm a law already made and passed by both houses (much like a Tenants attornment to the grant of a Reversion ) And therefore Kings may neither in law, nor conscience deny it when it is necessarily demanded to any just public Bills, unless they can show good reason to the contrary, so far as to satisfy their people why such laws should not pass.
Tenthly, Our very laws in many cases deny the King an absolute negative voice or power, even in matters of Prerogative, because they are contrary to his oath, and mischievous to the Republic. This appears most clearly in matters of Pardons, the Statutes of 2 E. 3. c. 2. 14 E. 3. c. 15. 13 R. 2. c. 1. 16 R. 2. c. 6. enact. That Charters of pardon shall not be granted for man slaughters, Roberies, Fellonies, and other Trespass, but ONLY WHERE THE KING MAY DOE IT BY HIS OATH; (that is to say, where a man slayeth another in his own defense, or by misadventure,) or in case, where he may do it KEEPING AND SAVING THE OATH OF HIS CROWNE. Soe the King cannot pardon nor release the repairing of a Bridge or Highway, or any such like public charges, or any public Nusances or offenses against paenall Laws pro bono publico, because it is contrary to the trust and confidence reposed in him for the public good, because the republike hath an interest herein: and the pardoning of them would be mischievous for the common good: In like manner the King cannot deny, delay, nor defer Justice, nor stay the Judges from doing present right and justice to any of his Subjects by his Letters under his great or privy seal, because it is contrary to his oath and duty: Neither can he by his absolute Prerogative, impose any the least • axe or imposition on his subjects without their common consent in Parliament; nor yet authorize any other to kill, beat, wound, imprison any man's person, or take away his goods, without due process of law; Yea the very laws and custom of the Realm deny the King any absolute negative voice even in the Parliament House in reversing erroneous Iudgments, Charters, Patents, declaring what is law in difficult cases, or in proceedings and sentences against Delinquents, or in any one particular whatsoever which concerns the administration of right or common Justice. Therefore by the selfsame reason, the very law denies him any such negative voice in refusing his royal assent to Bills of common right and Justice; And as both Houses do always over-rule the King, not He both Houses in the one; so, by parity and congruity of reason, they ought to oversway him in the other, there being the same reason in both cases, and the one no greater an • ntrenchment upon his Prerogative than the other.
Eleventhly, This is infallibly proved by the usual form of our Kings answers to such Bills as they assent not to, Le Roy so it a visera, The King will be advised, or take further consideration: which is no absolute denial, but a craving of longer time to advise upon them, and thereupon to assent to them if he can see no just cause to the contrary, or else to give satisfactory reasons why he cannot assent: Which answer were not proper, nor formal, had the King an absolute negative voice to reject Bills, without rendering a sufficient satisfactory reason of his refusal of them.
Twelfthly, public Bills for the Subjects common good, are formed for the most part, by the Lord's and Commons themselves, who in truth (as I have elsewhere proved) are the chief Law-makers, & who (as Aristotle defines) know better what is good and necessary for their own benefit, then the King, their public Minister for their good; Itaque majorum rerum potestas jure populo tribuitur, is Aristotle's resolution. Therefore in passing such Bills, there is greater • eason, that both Houses should over-rule the King, then the King them. It is usual in all inferior Counsels of State, Law, Wa • ie, of the Kings own choice, for the Counsel to over-rule the King in matters of State, Law, War, unless the king can give better reasons against, than they do for their conclusive advise: and kings in such cases do usually submit to their Counsels determinations, without contradiction: of which we have sundry presidents, not only in profane, but Sacred story. Physicians in points of Physic, Lawyers of Law, Divines of Divinity, Soldiers of War, Pilots of Nav • gation, and so all Artists in their several Arts, not only instruct, but over-sway their princes, without final contradiction: This being a known received M • xime in Law; Vnicuique in sua art peritest credendum: And shall not then the Grand Counsel of the Realm in all public State-affairs, and Bills of Consequence, mu • h more over-rule the king, then his privy Counsel? Especially since in the Statutes of 1. H. 4. c. 6. 4. H. 4. c. 1. it is enacted to the end that the King may not be deceived in his Grants and Gifts, annual or in fee, or in any offices by him to be made, given, or granted, HE WIL by the assent of the Lord's spiritual and temporal, and at the request of the Commons BE COVNSELLED BY THE WISE MEN OF HIS COVNSEL IN THINGS TOVCHING THE ESTATE OF HIM AND HIS REALME; and that he will make no such gifts nor grants, saving to such persons as the same deserveth, and as best shall seem to the King AND HIS COVNSELL. And since it is THE DESIRE OF ALL THE ESTATES OF THE REALM, that nothing should be so demanded of the King, he wills that all those that make any such demand contrary to this statute, shall be punished by advise of him and his Counsel, and that • ee that maketh such demand, shall never have the thing so demanded. A Law now meet to be put in execution.
Thirteenthly, If the king should have an absolute Negative Voice, in refusing such public Bills as are necessary and expedient for the common good and safety of his people, It would rest in the mere power and pleasure of a willful or misadvised king, seduced by evil Counselors, to deprive the kingdom of the principal use, benefit, and privilidges of Parliament, the making of good and wholesome laws, for the good government of the Realm▪ the removal or prevention of emergent grievances or dangers, and execution of public Justice on Delinquents▪ to the great peril, prejudice, if not ruin of the Realm. And our Annual or Trienniall Parliaments should serve then to no other purpose, but to supply the king with subsidies, or keep the Wool. sacks & Benches from growing mouldy, whilst the Lord's and Commons sat upon them, rather-like so many Cyphers without a • igu • e, then a Court of Parliament; if the Laws of the Realm were in the Kings hand or breast alone, as Richard the 2. sometimes said they were, (an Article objected against him at his deposing) contrary to that approved resolution of Aristotle; whatsoever se • ms good to the major part of the Governors of the Common-wealth that is established for a law, which holds good in the Kingdom of Aragon at this day; where the King in making public Laws hath no absolute negative Voice, nor yet in summoning of Parliaments, which are constantly held at their set times every year or two at furthest, whether the king will or not.
Fourteenthly, God himself ( the King of kings and Lord of Lord ) held this a principal part of his sovereign divine prerogative; to give his people from heaven (when they needed and required it) right Iudgments, and Laws of truth, good statutes & Commandments for their good and welfare: Neh. 9. 14. Exod. c. 19. and 20. and 21. Deut. 4. 8. to 41. and chap. 5. throughout: Neither doth, will, or can he deny any Just or necessary suite, prayer or petition that his poor servants and creatures (though but dust and ashes) jointly, or severally put up unto him: but most willingly grants without the least denial, or unnecessary delay, what ever good and needful things they require at his hands. And can or dare kings then claim a greater, an higher prerogative over their kingdoms, & subject • , then God himself, the King of kings, doth overh is creatures? or arrogate to themselves an absolute Negative voice, where God himself (whose servants and vicegerents only kings are ) neither hath nor will have any, but utterly disclaims it? God forbid, that any such arrogant thought should ever enter into the hearts of any Christian kings, who being in truth but servants to, not absolute Lord's over their kingdoms, in whom the sovereign legislative power and authority resides, must, and ought by the Laws of God and man, rather condescend to their parliaments and kingdoms just requests, in assenting to necessary wholesome just Laws, then their parliaments and kingdoms quietly submit to their unjust disassents unto them to the public prejudice, as is clear by 2. Sam. 8. 4. to the end. Act. 13. 36.
Finally, our Ancestors were so far from believing, that our kings havean absolute negative voice, in such Bills as these, that they have not only constrained our kings by threats, yea force of Arms, to summon and continue Parliaments, but likewise compelled them to give their Royal Assents to Magna Charta, Charta de Foresta, Confirmatio Chartarum, Articuli super Chartas, with sundry other public statutes of Right and Justice for the common good and subjects safety, and to ratify them with their hands, seals Oaths, Proclamations, the Bishops solemn excommunications, yea and the Popes leaden Bulls, against their will and liking, as I have plentifully manifested in the former part: Which forced assents have been held good in Law, to bind these kings and their successors, with this distinction, where the Laws to which this assent was forced are convenient, necessary, or essential for the kingdoms welfare, the subjects just Liberty, and such as the king by duty and oath is bound to assent to: there, if they compel the king to give his assent in case of willful denial the assent is binding, and shall not be avoided by Duresse, because the King doth no more then he is obliged by Law, Oath, and Duty to condescend to: Upon which ground, a Tenant enforced to attorne to a grant of a reversion by imprisonment, upon a Quid juris clamat, shall never avoid this attornm • nt by Duresse; nor an Obligation made by one taken in execution for payment of a just debt; nor the just judgment of a Judge given by menaces, shall not be avoided: This is clear by Magna Charta, and other Laws gotten at first by Duresse and Menaces from our Kings, and yet firm and binding when even thus assented to, because just and necessary; as King Henry 3. An▪ 12 22. confessed; Who when the Barons demanded of him the confirmation of the great Charter, and their Liberties according to his Oath upon the conclusion of the peace with Lewis; William Brewer, one of the Kings Counsel answering, that the Liberties they demanded must not be observed, because they were violently extorted, and words hereupon growing between the Barons and him, and the Arch-bishop of Canterbury kindling at it; the young King prudently closed up the whole strife with this speech; All of us have sworn to these • iberties, and that which we have sworn, ALL OF US ARE BOUND TO OBSERVE. But where the Acts to which the assent is gained, are unjust or illegal, such to which the King was not bound by Oath or duty to consent, but merely out of necessity to avoid imminent danger of death, or other mischief, and where the whole Parliament was enforced as well as the King; there the acts may be avoided by Duresse, as is evident by the Statutes of 11. and 21. of R. 2. c. 12. by the Statute of 31 H. 6. c. 1, (which makes void all the Petitions granted by this King in a former Parliament the 29. of his Reign, and all indictments made by Duresse, through the Rebellion, Tyranny, and Menaces of Jack Cade and his rebellious rout of Traitors ) and by 39. H. 6. c. 1. 15. E. 3. stat. 2. and 17. E. 4. c. 7. Yet these enforced unjust Bills, being public Acts, done in a legal form, are not merely void, but good in Law till they be repealed, and nullified by a subsequent Parliament; (as is evident by the next forecited Statutes;) even as a Marriage, Bond, or deed made by Duresse or Menace, are good in Law, and not merely void, but voidable only upon a Plea and Trial. And if subsequent Parliaments refuse to repeal these forced Laws, and to declare the Royal assent thereto by coertion, void or illegal, the King cannot avoid them by Duresse (because his Royal assent is a judicial Act in open Parliament, which his oath and duty obliged him to give, and the Laws are rather the Parliaments Act which was not forced, then his own,) but they remain in full vigor as if he had freely assented to them; which is most evident by the Statutes made in 10. and 11. R. 2. which though extorted from the King by Duresse, against the will and liberty of the King, and right of his Crown, as is pretended and declared in the Statute of 21. R. 2. c. 12. yet they continued in full strength for ten years space or more, (during which time there were no less then 8. Parliaments held under this King) because these Parliaments refused to reverse them upon this pretext of Duresse; and the Parliament of 1 H. 4, c, 2, 3, 4. received and confirmed them.
From all which premises, I humbly conceive, I may infallibly conclude, That the King in passing the fore-mentioned kind of Bills, of Common Right and Justice for the Kingdoms, and the Subjects weal and safety, hath no absolute negative voyee, but must and ought of common right and Justice, by virtue of his Royalloath and duty, to give his ready and free assent unto them without any tergiversati • n. And so the Parliament in their Declarations to this purpose, hath no ways invaded nor injured his Majesty's just Prerogative royal in this particular.
Nor yet those members in it eclipsed his royal grace, who have upon occasion given affirmed, the Petition of Right, the Bills for Trieniall Parliaments (which before by Law were to be annual at least;) the continuance of this Parliament without adjournment, for the Kingdoms necessary preservation; the acts against Shipmoney, Forest-Bounds &c. (illegal new invented grievances, and oppressions not heard of in former Kings Reigns) and the Statutes for the suppression of the Star-Chamber, High Commission, Knighthood, and Bishops votes, (lately grown intolerable grivances and mischiefs to the Realm; Especially since his Majesty's Reign;) to be no acts of most transcendent Grace, such as never any Prince before vouchsafed to his people, as they are daily cried up in Press and Pulpet; but Bills of mere Common Right and Justice, which the King by his Royal Office, Oath, Duty, in Law and Conscience ought to assent unto, and could not without apparent injustice deny to pass, when both Houses urged him thereunto; the rather because the unhappy fractions of all Parliaments, and Grievances of these Natures under his Majesty's own Reign and Government, occasioned by his evil Counselors, were the sole grounds and just occasions of enacting these necessary Laws for the Subjects future security; if the sword now drawn to suppress the Parliament, and cut these Gordians (or rather Cobwebs, as Diogenes once termed Laws) a sunder, deprive them not of their benefit, before they scarce enjoy it.
I should now here proceed, to manifest the Parliaments taking up of defensive Arms against his Majesty's Malignant Army of professed Papists, Delinquents, and pillaging murthering Cavaliers, (whose grand design is only to set up Popery and an absolute tyrannical Government over our consciences, bodies, estates) in defense of their own persons, privileges, the Subjects Laws, Liberties, Properties, and our Protestant established Religion (devoted by Papists to eternal ruin, as we have cause to fear) to be just, lawful, and no treason nor rebellion at all against the King, neither in point of Law nor conscience; And that the Parliaments assessing of men towards the maintenance of this necessary defensive war, by an Ordinance of both Houses only without the Kings assent, (now willfully absent from, and in arms against his Parliament and People) with their distraining and imprisoning of such as refuse to pay it; and their confinement and securing of dangerous Malignants, to be justifiable by Law and ancient presidents; with other particulars, not yet so fully discussed by any, as is desired. But this part being already grown somewhat large, and having lingered much longer at the Press then I expected; I have thought it more convenient, to reserve the remainder for a future Treatise by it self, then to hinder the state of the present benefit, which it may receive by this, through God's blessing, ere the other can • ee completed; which I hope will fully un-blindfold the hood-winked world, and either satisfy the consciences, or stop the mouths of all who are not willfully malicious against the Truth and Parliaments proceedings; and the Sovereign Power of Parliaments and Kingdoms, over their Kings themselves; which I shall more copiously manifest in the Appendix.
THE THIRD PART OF THE SOVERAIGNE POWER OF PARLIAMENTS and KINGDOMES. Wherein the Parliaments present Necessary Defensive War against the Kings offensive Malignant, Popish forces; and Subjects taking up Defensive Arms against their Sovereigns, and their Armies in some Cases, is copiously manifested, to be Just, Lawfull, both in point of Law and Conscience; and neither Treason nor Rebellion in either; by inpregnable Reasons and Authorities of all kinds. Together With a Satisfactory Answer to all Objections, from Law, Scripture, Fathers, Reason, hitherto alleged by Dr. Ferne, or any other late opposite Pamphleters, whose gross Mistakes in true Stating of the present Controversy, in sundry points of Divinity, Antiquity, History, with their absurd irrational Logic and Theology, are here more fully discovered, refuted, than hitherto they have been by any: Besides other particulars of great concernment. By WILLIAM PRYNNE, Utter-Barrister, of Lincolns Inn.
2 Sam. 10. 12.
Be of good courage, and let us play the men for our People, and for the City of our God, and the Lord do what seemeth him good.
Esther 9. 1, 2. 5, 10.
In the day that the enemies of the Jews hoped to have power over them, the Jews gathered themselves together into their Cities, throughout all the Provinces of King Ahasuerus, to lay hand on those that sought their lives, and no man could withstand them; for the fear of them fell upon all people. Thus the Jews smote all their enemies with the stroke of the sword, and slaughter and destruction; and did what they would with those that hated them; but on the spoil laid they not their hand.
It is this eighth day of May, 1643. Ordered by the Committee of the House of Commons in Parliament for Printing, that this Book, Intituled, The third Part of the Sovereign Power of Parliaments and Kingdoms, be Printed by Michael Sparke, senior.
John White.
Printed at London for Michael Sparke, Senior. 1643.
TO HIS EVER-HONOVRED, NOBLE, KINDE FRIENDS, THE Right Honorable Lord Ferdinando Fairfax, the Right Worshipful, Sir William Waller, and Sir William Bruerton, Knights, Commanders in Chief, of the Parliaments Forces, in several Counties.
Deservedly Renowned Worthies,
Y OUR Incomparable Valour, Zeal, Activity, Industry for the preservation of Your Dearest Country, Religion, Laws, Liberties, and the very being of Parliaments, all now endangered by an unnatural generation of Popish and Malignant Vipers, lately risen up in Arms against them in diverse parts of this Realm; and those many miraculous Victories with which God hath been lately pleased to Crown your cordial endeavors, to promote his glory and the Public safety, as they have justly demerited some grateful general Acknowledgements from the whole Representative Body of the State; so they may in some sort challenge a private gratulatory Retribution from Me, who have formerly had the happiness to participate in your Christian Affections, and now reap much Consolation by your Heroic Actions.
Having therefore seasonably finished this Third part, Of the Sovereign Power of Parliaments and Kingdoms; copiously Vindicating, the Lawfulnesse, Iustnesse of the Parliaments present Necessary Defensive War (in which you have had the Honor to be employed, not only as Chief, but which is more, as most successful Commanders, in your several Countries,) in point both of Law and Conscience; and fully wiping off those black Aspersions, of TREASON and REBELLION, which the opposite party (really guilty of these crimes against both King and Kingdom, as I have elsewhere manifested, and here lightly touched) have out of Malice, Ignorance, or both conjoined, most injuriously cast upon your Loyall, honorable proceedings, which rejoice the souls of all true Philopa • ers, who cordially affect their Country or Religion; I could not, without much ingratitude, yea injustice, have published it to the world, but under the Patronage of your ever-honored res • lendent names, who have so valorously, so successfully pleaded this Cause already in the Field, that it needs the less assistance from the Press.
My many inevitable interruptions and straits of time in its contexture, which may happily detract something from its perfection; shall I hope, derogate nothing from your Honorable, Friendly acceptation; whom I have thus conjoined in the Dedication; because the Parliament hath united you in their present Warlike employments, and God himself jointly honored you with success, even to admiration among the Good, indignation amidst Malignants, envy with the Malicious, and, I trust, to an active sedulous em • lation in all your Fellow Commanders, employed in other Quarters in the selfsame Cause.
Your present busy public, and mine own private Employments, prohibit me to expatiate; Wherefore earnestly beseeching the Glorious Lord of Hosts to be ever mightily present with your several Noble Persons, Forces, and to make you always eminently, active, Valorous, Victorious, as hitherto he hath done, till Peace and Truth, Tranquillity and Piety, by your several triumphant Proceedings, shall once more lovingly embrace and kiss each other in our divided unreformed, sinful Kingdom; And till the effect of these just wars You manage, shall be quietness and assurance to us and our Posterities after us forever; I humbly recommend your Persons, Proceedings to his protection who can secure you in and from all dangers of war, and rest,
Your Honors, Worships most affectionate Friend and Servant, WILLIAM PRYNNE.
To the Reader.
Christian Reader,
I Who have been always hitherto a Cordial Desirer, endeavourer of Peace, am here necessitated to present Thee with a Discourse of War; to justify The Lawfulnesse of the Parliaments present taking up of necessary Defensive Arms. Which neither their Ende • vours, nor my, with many others Prayers could (with any safety to our Privileges, Persons, Religion, Liberty, Realms, now forcibly invaded by his Majesty's Popish and Malignant Cavallieres ) hitherto prevent, or conjure down.
To plead the Justnesse of a War, of an unnatural Civil war, (the worst of any) of a War between the Head and Members, may seem not only a Paradox, but a Prodigie, in a Land heretofore blessed with an aged, uninterrupted Peace: And Lucans
It is a more than Barbarous Inhumanity for any person, not to put to his uttermost strength, speedily to close up the mortal wounds of his bleeding, dying Native Country; but to protract its cure, to enlarge, increase its deadly Ulcers, Stabs, Sores, and make a lasting trade of War, out of a sordid, sinful desire of Gaine, of Plunder, to raise a private fortune by the Republics ruins, (a sin, of which some perchance are guilty) is an unparalleled, most unnatural prodigious Impiety.
It was thought a great dishonor heretofore, for men of Honor and Estates, not to serve and defend their Country gratis, as our own Lawbooks & Histories plentifully manifest: and shall such Persons now turn sordid Mercenaries; stir neither hand nor foot without their Pay; and be more diligent to get their wages, than discharge their Service? God forbid.
It is Recorded of the Children of Gad and Reuben, after they had recovered their inheritance on this side Jordan, that they went all up armed before the Lord over Jordan, at their own free cost, until they had driven out all the enemies in it before them, subdued the Land, and settled their brethren of the other Tribes peaceably in it. And shall not Englishmen of Estates do the like for their Brethren now, in these times of need, when money (the sinews of War) is almost quite shrunk up, by reason of former Disbursements and want of Trade? We read, That the very Heathen Kings of Canaan when they came and fought in Taanach by the waters of Megiddo, against the Israelites, THEY TOOKE NO GAINE OF MONEY, for their pains: Such was their Noble generosity, which Deborah registers in her Song for their eternal Glory. And we hear of divers Lord's and Gentlemen in the Kings Army, which serve against their Country gratis; yea furnish out sundry Horse and Foot, of their proper cost; of few or none such there who receive any Pay. And shall these be more free, generous, active in serving, fighting against God, Religion, Laws, Liberties, Parliament and their Country; than those of like Ranke and quality on the Parliaments party are in warring for them? O let not such an ignoble, unchristian Report be ever once justly told in Gath, or published in the streets of Askelon, lest the daughters of the Philistines rejoice, lest the sons and daughters of the uncircumcised triumph.
I know there are some Heroicke Worthies in the Parliaments Armies, of whom I may truly sing with Deborah, My heart is toward the Governors of Israel, that offered themselves willingly among the people; and who like Zebulon and Naphtali, have freely jeoparded their lives unto the death, in the high places of the field. Blessed be their Endeavors, and their Names forever Honorable: I shall now only wish that others would imitate their laudable examples, that so our long-lingering wars, may be speedily and happily determined in a blessed, pure, pious, secure, honorable, lasting Peace. They are Tormentors, not Surgeons, Executioners, not true Soldiers, who desire, endeavor not speedily to close up and heal their dearest Countries bleeding, festering wounds; for which I have prepared this Treatise, as a Sovereign Balm, to incarne and cicatrize them, not ulcerate, or inflame them.
It was the Prophets Patheticke expostulation, The harvest is past, the Summer is ended, and we are not healed: Is there no balm in Gilead? Is there no Physician there? why then is not the health of the Daughter of my people recovered? It may be England's and Ireland's expostulation now: The Lord put it into the hearts of our great Physicians (the King, Parliament, and Grandees of both Armies) that they may now at last with bleeding, melting hearts and spirits, speedily pour forth such effectual healing Balms into these two dying Kingdoms deadly wounds, as may effectually cure and restore them to more perfect health and vigor than they ever formerly enjoyed, that so they may lose nothing but their putrid blood, their proud dead flesh, their filthy sanies and corrupt humors, by their unnatural stabs already received: Towards the advancement of which much desired cure, if these my undigested rude Collections (interrupted with sundry inevitable interloping Distractions, which may justly excuse their many defects) may add any contribution, or satisfy any seduced, or scrupulous Consciences touching this present War; I shall deem my labors highly recompensed; And so recommending them to God's blessing, and thy charitable acceptation, I shall detain thee with no further Prologue.
PROVING 1 st .
That the Parliaments present necessary Defensive War, is Just and Lawfull both in point of Law and Conscience, and no Treason nor Rebellion.
H Aving in the two former Parts of this Discourse dissipated four chief Complaints against the Parliaments proceedings; I come now in order (in point of time and sequel) to the 5 th Grand Objection of the King, Royalists, and Papists against the Parliament. To wit: That they have traitorously taken up Arms, and levied war against the King himself in his Kingdom; and would have taken away his life at Keinton battle, which is no less than Rebellion and High Treason, by the Statute of 25. E. 3. c. 2. with other obsolete Acts; and by the Common Law. Which Objection, though last in time, is yet of greatest weight and difficulty, now most cried up and insisted on, of all the rest, in many of his Majesty's late Proclamations, Declarations, and in Anti-Parliamentary Pamphlets.
To give a punctual Answer to this capital Complaint, not out of any desire to foment, but cease this most unnatural bloody war, which threatens utter desolation to us if proceeded in, or not determined with a just, honorable, secure, lasting peace; now lately rejected by his Majesty's party. I say,
First, that it is apparent to all the world, who are not willfully or maliciously blinded; [ 1] That this Majesty first began this war, not only by his endeavors to bring up the Northern Army to force the Parliament, confessed by the flight, l • tters, examinations of those who were chief Actors in it; but by raising sundry forces under color of a guard before the Parliament levied any.
Secondly, that the Parliament in raising their forces had no intention at all to offer [ 2] the least violence to his Majesty's person, Crown, dignity, nor to draw any English blood; but only to defend themselves and the Kingdom against his Majesty's Malignant invasive plundering Forces, to rescue his Majesty out of the hands, the power of those ill Counselors and Malignants who withdrew him from his Parliament, to bring him back with honor, peace, safety, to his great Council; (their General and Army Marching with a Petition to this purpose,) and to bring those Delinquents to condign punishment who most contemptuously deserted the Houses, contrary to Order, Law, the Privileges of Parliament, their own Protestation taken in both Houses, sheltering themselves, under the power of his Majesty's presence and Forces, from the justice of the Houses, and apprehension of their Officers, contrary to all presidents in former ages, in High affront of the privileges, honor, power of the Parliament, and Fundamental known Law of the Realm: Since which time, his Majesty having (contrary to his former Proclamations and frequent Printed solemn Declarations ) entertained, not only divers Irish Popish Rebels, but likewise English and Outlandish Papists in his Army, and given Commissions to sundry Arch-Popish Recusants, to A • me themselves, and raise Forces against the Parliament, and Kingdom, now in the field in all the Northern parts, Wales, and other places, (and that under the Popes own consecrated Banner as many report) in defiance of our Protestant Religion, (designed by the Popish Party both at home and abroad, to no less then utter extirpation in England, as well as in Ireland, if not in Scotland too, (as some of them openly profess;) the Parliament are hereupon necessitated to augment and recrute their forces; as for the precedent ends at first, so now more especially, for the necessary defense of the Protestant Religion established among us by law; against which they (and all others who are not willfully blinded) visibly discern a most apparent desperate conspiracy; which though not clearly perceived, but only justly suspected at first, doth now appear (all circumstances and agents considered) to be the very Embryo and primitive cause of this deplorable war; ag • inst which the Parliament and subjects are now more necessitated and engaged to defend themselves then ever, seeing they have by all possible means endeavored to prevent this war at first, and since to accommodate it, though in vain, upon just, reasonable, and honorable safe terms for King and Kingdom. The sole Question then in this case thus truly stated will be.
Whether his Majesty, having contrary to his Oath, Duty, the fundamental Laws of God and the Realm, raised an Army of Malignants, Papists, Foreigners; against his Parliament, Kingdom, People, to make an Offensive war upon them, to murder, rob, spoil, deprive them of their peace, liberties, properties, estates; to impose unlawful taxes by force upon them; protect Delinquents and evil Counselors against the Parliaments Justice, and violently to undermine our established Protestant Religion; the Common-wealth of England legally assembled in Parliament; and all Subjects in such cases, by Command and direction from both Houses of Parliament, may not lawfully and justly without any Treason or Rebellion, in point of Law and Conscience, take up defensive Arms to preserve the Privileges of Parliament, their Laws, lives, liberties, estates, properties, Religion, to bring Delinquents and ill Counselors to condign punishment, and rescue his seduced Majesty out of their hands and power, though he be personally present with them, to assist and countenance them in this unnatural destructive war?
And under correction (notwithstanding anything I ever yet heard or read to the contrary) I conceive affirmatively, that they may justly do it, both in point of Law and Conscience. I shall begin with Law, because in this unhappy controversy, it must direct the conscience.
First, I have already proved in Judgment of Law, the Parliament and Kingdom assembled in it, to be the Sovereign power, and of greater authority then the King, who is but their public Minister in point of civil Justice, and General in matters of war, as the Roman Kings and Emperors were, and other foreign Kings of old and at this day are. The Parliament then being the highest power, and having principal right and authority to denounce, conclude and proclaim war, (as I have manifested in the debate of the Militia, ) may not only lawfully resist, but oppugn, suppress all Forces raised against it, and the Kingdoms peace or welfare.
Secondly, the principal end of the Kingdoms, original erecting Parliaments, and investing them with supreme power at first, was, to defend not only with good Laws and Council, but when absolute necessity requires (as now it doth,) with open force of Arms; the Subjects Liberties, Persons, Estates, Religion, Laws, Lives, Rights, from the encroachments and violence of their Kings, and to keep Kings within due bounds of Law and Justice; the end of instituting the Senate and Ephori among the Lacaedemonians, the Senate and Dictators among the Romans, the F • rum Suprarbiense, and Iustitia Aragoniae among the Aragonians; of Parliaments, Dietts, and Assemblies of the estates in other foreign Kingdoms, and in Scotland, as I shall prove at large in its proper place. This is clear by the proceedings of all our Parliaments in former ages; Especially in King John's, Henry the third, Edward the 1. 2. 3. and Richard the seconds Raignes; by the latter Parliaments in King James his reign, yea of 3. Caroli, the last dissolved Parliament, and this now sitting, whose principal care and employment hath been to vindicate the Subjects Liberties, properties, laws, and Religion, from all illegal encroachments on them by the Crown and its ill Instruments: by the forecited resolutions of Bracton, Fleta, the Myrror of Justices, Vowell, Holinshed, the Council of Basel, and others, that the Parliament ought to restrain and bridle the king when he casts off the bridle of the Law, and invades the Subjects Liberties, especially with open force of Arms in an Hostile manner: and by the constant practice of our Ancestors and the Barons Wars, in maintenance of Magna Charta, with other good Laws and Privileges, confirmed by Parliament. If then the Parliament be entrusted by the Kingdom with this Superlative power, thus to protect the Subjects Liberties, properties, Laws, persons, Religion, &c. against the kings invasions on them by policy or violence: they should both betray their trust, yea the whole kingdom too, if they should not with open Force of Arms, (when Policy, Council, and Petitions will not do it) defend their own and the Subjects Liberties, persons, privileges, &c. against his Majesty's offensive Armies which invade them, intending to make the whole kingdom a present booty to their insaciable rapine, and a future vassal to his Majesty's absolute arbitrary power, by way of conquest.
I read in Bodin that the Roman Senate being no way able to restrain Caesar, took their refuge to that ancient Decree of the Senate, which was commonly made but in dangerous times of the Common-weal, Videant Consules & caeteri Magistratus ne quid detrimenti c • piat Respublica: Let the Consulls and other Magistrates foresee that the Common-weal take no harm. With which decree of the Senate, the Consulls being armed, suddenly raised their power, commanding Pompey to take up Arms and raise an Army against Caesar to oppose his violent proceedings by force who after his conquest of Pompey refusing to rise up to the Consulls, Pretors, and whole Senate, out of his pride, through his ill Counselors advise, and talking with them, as if they had been but private men, he so far offended both the Senate and people, that to free the Republic from his Tyranny, and preserve their hereditary Liberties, they conspired his death, and soon after murdered him in the Senate-house, where they gave him no less than 23. wounds. And Hieronimus Blanca assures us, that the Suprariense Forum, Iustitia Aragoniae, or States of Arag • n, (erected to withstand the tyranny and encroachments of their kings) may by the Laws of their Realm assemble together, and RESIST THEIR KING WITH FORCE OF ARMES, as oft as there shall be need to repulse his, or his Officers violence against the Laws; For when they erected this Court, they said,
Thirdly, Our own Parliaments, Prelates, Nobles, and Commons in all ages (especially in times of Popery) as well in Parliament, as out, have by open force of arms resisted, suppressed the oppressions, rapines, unjust violence, and armies of their Princes raised against them; Yea, encountered their Kings in open Battells, taken their persons Prisoners, and sometimes expelled, nay deposed them their Royal authority, when they became incorrigible open professed enemies to their kingdoms, their Subjects, seeking the ruin, slavery, and desolation of those, whom by Office, Duty, Oath, and common Justice, they were bound inviolably to protect in Liberty and peace, as the premised Histories of Achigallo, Emerian, Vortigern, Segebert, Osred, Ethelr • d, Bernard, Edwin, Ceolwulfe, King John, Henry the 3 d . Edward 1. and 2. Richard the 2, Henry the 6 th . (our British, Saxon, English Kings,) and other examples common in our own Annalls, plentifully manifest. Neither are their examples singular, but all Kingdoms generally throughout the world in all ages have done the like, when their Kings degenerated into Tyrants, of which there are infinite precedens in History: which actions all ages, all Kingdoms have always reputed lawful both in point of Policy, Law, Religion, as warranted by the very Laws of Nature, Reason, State, Nations, God; which instruct, not only particular persons, but whole Cities and Kingdoms for their own necessary defense, preservation, the supportation of human Society and Liberty, to protect themselves against all unlawful violence and Tyranny, even of their Kings themselves, or their Ministers, to whom neither the Laws of God, Nature, Man, nor any civil Nation, ever yet gave the least authority to Murder, Spoile, Oppresse, enslave their Subjects, or deprive them of their lawful Liberties or Estates; which resistance were it unlawful or unjust (as many ignorant Royalists and Parasites now • each) some few oppressing tyrannizing willful Princes, might without the least resistance, ruin, murder, enslave the whole world of men; overthrow all settled forms of civil government, extirpate Christian Religion, and destroy all human Society at their pleasures; all which had been effected, yea, all States and Kingdoms totally subverted long ago, by ambitious Tyrannizing lawless Princes, had not this Lawfull, Natural, Hereditary power of resisting and opposing their illegal violence (inherent in their Parliaments, States, Kingdoms) restrained and suppressed their exorbitances of this kind. Now that this necessary Defensive opposition and resistance against open Regal Hostile violence, which hath been ever held lawful, and frequently practiced in all Kingdoms, all ages heretofore, as just and necessary; should become suddenly unlawful to our Parliament, and Kingdom only, at this instant, seems very unreasonable unto me.
Fourthly, It is the express resolution of Arist • tle, Xenophon, Polibius, Pope Elutherius, (in his Epistle to our first Christian King, Lucius ) King Edward the Confessor in his established Laws, c. 17. the Council of Paris, Anno 829. and Isiod • r cited by it; John 〈◊〉 , I • hn Mariana, and generally of all foreign Divines and Politicians, Pagan or Christian; yea of Bracton, F •• ta, Fortescue, and King James himself; that a King governing in a settled Kingdom, ceaseth to be a King, and degenerates into a Tyrant, so soon as he leaves to rule by his Laws; much more, when he begins to invade his Subjects, Persons, Rights, Liberties to set up an Abitrary power; impose unlawful T • xes, raise Forces, and make War upon his Subjects, whom he should Protect, and rule in peace; to pillage, plund • r, • aste, and spoil his Kingdom; imprison, murder, and destroy his people in an hostile manner, to captivate them to his pleasure; the very highest degree of Tyranny, condemned and detested by God, and all good men. The whole State and Kingdom therefore in such cases as these, for their own just necessary preservation, may lawfully with force of Arms, when no other course can secure them, not only passively, but actively resist their Prince, in such his violent, exorbitant, tyrannical proceedings; without resisting any kingly, lawful royal Authority Vested in the Kings person for the Kingdoms preservation only, not destruction; because in, and as to these illegal oppressions, tyrannical actions, not warranted, but prohibited by the Laws of God, and the Realm, (to whom he is accountable, and by whom he is justly censurable for them ) he is no lawful King, nor Majestrate, but an unjust oppressing Tyrant, and a mere private man, who (as to these proceedings) hath quite denuded himself of his just Regal authority. So that all those wholesome Laws made by the whole State in Parliament, for the necessary preservation and defense of their Kings Royal Person, and lawful Sovereign power; the suppression of all Insurrections, Treasons, Conspiracies and open Wars against them, whiles they govern their people justly according to Law; (as all good Princes are obliged to do by oath and duty;) or the open violent resisting of their Lawfull authority and Commands; to which all Subjects both in point of Law and Conscience, ought cheerfully and readily to Submit; will yield no public Countenance, Encouragement, or Protection at all to Kings, in their irregall, tyrannical oppressions, or violent courses; especially when they turn professed public enemies to their people, proclaim open War against them, invade their Laws, Liberties, Goods, Houses, Persons, and exercise all acts of Hostilitie against them, as far forth as the most barbarous Forraigne Enemies would do: It being against all common sense and reason to conceive, that our Parliaments, Laws which strictly inhibit and punish the very smallest violations of the public peace, with all kinds of Oppressions, Robberies, Trespasses, Ba • t • ries, Assaults, Bloodsheds, Fraies, Murthers, Routs, Riots, Insurrections, Burglaries, Rapes, Plunderings, Force-able Entries, Invasions of the, Subjects Liberties or Properties, in all other persons, and greatest public Officers whatsoever (whose Delinquences are so much the more heinous, execrable and censurable, as their persons, honors, and places are more eminent) should so far countenance, justify, or patronize them only in the King, the Supreame fountain of Justice (ad tutelam Legis corporum & bonorum crectus, as Fortescue, and Sir Edward Cook resolve; Cujus Potestas Iuris est, & non Injuriae; & cum sit author Iuris, non debet inde injuriarum nasci occasio, unde Iura nasc • nt ur; as Bracton, and Fleta determine;) as not to permit the Subjects, under pain of Rebillion and high Treason, by force of Arms, upon express command and direction of the whole Kingdom in Parliament, so much as to defend their Persons, Goods, Estates, Houses, Wives, Children, Liberties, Lives, Religion, against the open violence of the King himself, or his Malignant plundering, murthering Papists, Caveleers: When as Kings of all others (as Bracton, Fortescue, and Mariana prove at large) both by Oath and Duty, ought to be more observant of, and obedient to the Laws of God and their Realms (which are no respectors of Persons) then the very meanest of their Subjects. That Precept then of Paul, Rom. 13. 1. 2. 3. Let every Soul be subject to the higher Powers, &c. And the Statute of 25. E. 3. c. 2. with other obsolete Acts, which declare it High Treason, to levy War against the King in his Realm, must needs be intended of, and qualified with these subsequent just limitations, suitable to their genuine sense and meaning; to wit, That as long, and so far forth, as Kings justly and uprightly do execute their just Royal power, conferred on them by God and their people, according to the Law of God, and their Realms, to the Protection, encouragement and praise of all their good Subjects, and the deserved punishment only of Malefactors; they must and ought to be cheerfully obeyed, and quietly submitted to, as God's own Ministers, without the least resistance, private or public; neither ought any private men upon any private injuries, of their own authority to raise up in Arms against them, seeing they are public Magistrates in whom all the Kingdom have an interest, without the general assent and authority of the whole State and Kingdom, or of both Houses of Parliment which represents it. But if Kings degenerate into Tyrants, and turn professed enemies to their Kingdoms, Parliaments, People, by making open War against them; by spoiling, murthering, imprisoning, maiming, sacking, destroying, or putting them out of their Protections, without any just or lawful grounds, endeavoring by force of Arms to subvert their Laws, Liberties, Religion, and expose them as a prey to their merciless blood-thirsty Soldiers; or bring in Forraigne Forces to conquer them, (our present case;) I dare confidently aver, it was never the thought nor intention of Paul, or the Holy Ghost, much less of our Nobles, Prelates, and Commons in Parliament, which enacted these Laws (who so oft took up Arms, as well offensive, as defensive, against our Kings, in such like cases heretofore) to inhibit Subjects, Kingdoms, Parliaments (especially, by direct Votes and Ordinances of both Houses) under pain of damnation, high Treason, or Rebellion, by defensive Arms to resist Kings themselves, or any of their Cavaliers: and if this question had been put to Paul, Peter, or any of those Parliaments, which enacted these objected Laws; Whether they ever meant by these Precepts or Statutes, totally to prohibit all Subjects, by general assent in Parliament, to take up such defensive Arms, or make any forceable resistance, against their Kings or their Armies, in such cases of extremity and necessity as these, under the foresaid penalties? I make little question, but they would have clearly resolved; that it was never so much as within the compass of their thoughts, much less their plain intention, to prohibit such a resistance, in this or such like cases, but only according to the precedent exposition of their words; and that they never imagined to establish in the world any Vnresistable Lawlesse Tyranny, or any such spoil or butchery of Kingdoms, of Subjects, execrable to God and man, in all persons, all ages, which have resisted them even unto blood; but rather totally to suppress them; There being scarce anymore pregnant Text, against the Tyranny, the boundless Prerogatives, the illegal proceedings of Kings, and Higher Powers in all the Scripture, th •• that of Romans 13. 1. to 7. if rightly scanned, as Pareus, and others o • it manifest. Therefore the Parliaments and people's present defensive War, and resistance against their seduced King, and his Malignant Popish Cavaliers, is no violation of any Law of God, of the Realm; but a just necessary War, which they have to the uttermost endeavored to prevent: and no Treason, no Rebellion at all within the meaning of any Law, or Statute, unless we should think our Parliaments so mad, as to declare it high Treason, or Rebellion, even for the Parliament and Kingdom itself, so much as to take up Arms for their own necessary preservation, to prevent their inevitable ruin, when they are openly assaulted by Royal armies; which none can ever presume they would do, being the very high way to their own, and the whole Kingdoms subversion.
Fifthly, admit the King should bring in Forraigne forces (French, Spanish, Danes, Dutch, or Irish) to destroy, or Conquer his Subjects, Parliament, Kingdom, (as some such forces are already landed, and more expected daily;) and should join himself personally with them in such a service, I think there is no Divine, Lawyer, or true hearted Englishman, so void of reason, or common understanding, as to affirm i • Treason, or Rebellion in point of Law, and a matter of Damnation in Conscien •• , or true Divinity, for the Parliaments, Subjects, Kingdom, to take up necessary defensive arms for their own preservation in such a case, even against the King himself, and his army of Aliens; but would rather deem it a just, honorable, necessary action; yea, a duty, for every English man to venture his life, and all his fortunes, for the defense of his own dearest Native Country, Posterity, Liberty, Religion; and no less then a glorious Martyrdom, to die manfully in the Field, in such a public quarrel: the very Heathens generally resolving; that Dulce & decorum est pro Patria mori: Et mortes pro Patria appetitae, Non solum gloriosae Rhetoribus, sed etiam beatae videri solent: In a case of this quallitie. Whence that noble Roman Camillus, professed to all the Romans in a public Oration; Patriae d • esse quoad vita suppetat, alijs turpe, Camillo etiam NEFAS EST. And is not there the selfsame equity, and reason, when the King shall raise an Army of Popish English, or Irish Rebels, Malignants, Delinquents, and bring in Foreigners (though yet in no great proporation) to effect the like design. If armed forceable resistance be no Treason, no Rebellion in Law or Conscience, in the first, it can be no such crime in our present case.
Sixty, I would demand of any Lawyer, or Divine: What is the true genuine reason; that the taking up of offensive arms against, or offering violence to the person, or life of the King, is High Treason, in point of Law and Divinity? Is it not only because, and as he is, the head and chief member of the Kingdom, which hath a Common interest in him; and because the Kingdom it self sustains a public prejudice and loss by this War against, and violence to his Person? Doubtless▪ every man must acknowledge this, to be the only reason; for if he were not such a public person, the levying War against, or murthering of him, could be no High Treason at all. And this is the reason, why the elsewhere cited Statutes of our Realm, together with our Historians, make levying of War, deposing, or killing the King by private persons, High Treason; not only against the King, but the REALME, and Kingdom to; Witness the Statutes of 5. R. 2. c. 6. 11. R. 2. c. 1. 3. 6. 17 R. 2. c. 8. 21. R. 2. c. 2. 4. 20. 3. H. 5. Parl. 2. c. 6. 28. H. 8. c. 7. 1. Mar. c. 6. 13. E • iz. c. 1. 3. Iaco. 1. 2. 3. 4. and the Act of Pacification this present Parliament, (declaring those persons of England and Scotland TRAITORS TO EITHER REALME, who shall take up Arms against either Realm, without common consent of Parliament) which Enact, The levying of War against the Kingdom and Parliament, invading of England or Ireland, treachery against the Parliament, repealing of certain Acts of Parliament, ill Counselling the King, coining false Money, and offering violence to the Kings person, to take away his Life, to be high Treason, not only against the King and his Crown, but THE REALME TO; and those who are guilty of such crimes, to be High Traitors and Enemies TO THE REALME, as well at to the King. Hence John of Gaunt, Duke of Lancaster, being accused in a Parliament held in 7. R. 2. by a Carm • lite Frier, of High Treason, for practicing suddenly to surprise the KING, and seize upon his Kingdom; the Duke denied it, as a thing incredible upon this very ground; If I should thus (said he) affect the Kingdom: Is it credible after your murder (which God forbid) that the Lord's of this Kingdom, could patiently endure me, Domini mei ET PATRIAE PRODITOREM, being a Traitor both of my LORD and COVNTREY? Hence in the same Parliament of 7. R. 2. John Walsh Esquire Captain of Cherburg in France, was accused by one of Navarre, DE PRODITIONE REGIS & REGNI, Of Treason against the King and Kingdom; for delivering up that Castle to the Enemies; And in the Parliament of 3. R. 2. Sir John Annesley Knight, accused Thomas Ketrington Esquire, of Treason against the King and Realm, for betraying and selling the Castle of Saint Savior within the Is • e of Constantine in France, to the French, for a great sum of money, when as he neither wanted Victuals, nor means to defend it: both which Accusations (being of Treasons beyond the Sea) were determined by Battle, and Duels fought to decide them. Hence the great Favorite, Pierce Gaveston, Tanquam Legum subversor, Hosti • Terrae Publicus, & Publicus Regni Proditor, capite truncatus est: and the two Spensers after him, were in Edward the second his Rain likewise banished, condemned, and executed, as Traitors to the King and Realm, ET REGNI PRODITORES for miscounselling and seducing the King, and moving him to make War upon his people: Hence both the Pierces, and the Archbishop of York, in their Articles against King Henry the fourth, accused him, as guilty of High Treason, and a Traitor both to the King, Realm and Kingdom of England, for Deposing and murthering Richard the second. And hence the Gunpouder Conspirators, were declared, adjudged, and executed as Traitors both to the KING & REALME, for atte • pting to blow up the Parliament House, when the King, Nobles, and Commons were therein assembled: If then the King shall become an open enemy to his Kingdom, and Subjects, to waste or ruin them; or shall seek to betray them to a Forraigne Enemy (which hath been held no less then Treason in a King to do, who by the express resolution of 28. H. 8. cap. 7. may become a Traitor to the REALME, and thereupon forfeit his very right and title • to the Crown; ) it can be no Treason nor Rebellion in Law or Theology, for the Parliament, Kingdom, Subjects, to take up arms against the King and his Forces, in such a case, when he shall willfully and mali • iously rent himself from, and set himself in direct opposition against his Kingdom; and by his own voluntary actions turn their common interest in him for their good and protection, into a public engagement against him, as a common Enemy, who seeks their general ruin. And if Kings may lawfully take up arms against their Subjects, as all Royalists plead, after they reject their lawful power, and become open Rebels or Traitors, because then as to this, they cease to be Subjects any longer, and so forfeit the benefit of their Royal protection: By the self-same reason (the bond and stipulation being mutual; Kings being their Subjects Liege Lord's, by Oath and Duty, as well as they their Liege people: ) When Kings turn open professed Foes to their Subjects in an Hostile Warrelike way, they presently both in Law and Conscience, cease to be their Kings de jure, as to this particular, and their Subjects allegiance thereby is as to this discharged, and suspended towards them, as appears by the Kings Coronation Oath, and the