AN ARGVMENT IN MAINTENANCE OF THE MILITIA, Setled by ORDINANCE of PARLIAMENT.
THe generall Queſtion is but ſhortly this; Whether the Militia, as it is now ſetled by both the Houſes of Parliament, be warrantable by Law, or not?
The Caſe, with the Circumſtances, upon which this generall Queſtion is ſtated, depends upon theſe two Quaeres:
- 1. Whether the King by his Prerogative hath the ſole and onely power of ordering and diſpoſing of the Militia of his Kingdome or not? Admitting that he hath: then the next and maine ſcruple is:
- 2. Whether both the Houſes of Parliament, in time of imminent danger, (the King refuſing to ſettle the Militia for the defence and ſecuritie of his people) may by an Ordinance of Parliament, without his Majeſties conſent, ſettle the Militia, and put the Kingdome into a poſture of defence or not?
1. For the firſt point, I conceive very clearly, that the King by his Prerogative, warrantable by the Lawes of the Land, performing the truſt repoſed in him, hath the onely power of diſpoſing of the Militia of this Kingdome; and therefore I ſhall not debate this, ſo much out of ſcruple or doubt, as to give ſatisfaction to the unlearned; and I ſhall prove it in reaſon thus: The King is Caput Reipublicae, & pater patriae, that is, the head of the Common-wealth, and Father of his Countrey;2 and hath this great truſt committed to him by God, and his people, of governing of them in peace and happineſſe, by maintaining and defending of their Religion, Lawes, and Liberties; which, that he may be the more obliged to doe, he taketh a ſolemne Oath at his Coronation, that he will doe and performe this, according to the truſt repoſed in him; the due execution whereof, being of ſo high conſequence to this Kingdome, and of ſo great difficultie to himſelfe, and therefore not to be executed without great care, circumſpection, and trouble; the Lawes and Conſtitutions of this Realme, hath in favour and ayde of his Majeſtie (who is intended alwayes to be imployed and negotiated Cirea ardua regni, about the high things of the Kingdome) allowed unto him, many prerogatives, priviledges, and exemptions, above all his Subjects. Among which, I take this in our Caſe to be one; for as our Religion, Lawes, and Liberties, are committed in truſt to the King, ſo are our lives alſo: which he is bound to defend aſwell by the materall ſword, if occaſion be, as by the ſword of Juſtice, and therefore as it is well knowne, all proſecutions by way of Indictment againſt any man, for the taking away of the life of another, are at the ſuite of the King, and the King onely can pardon the offence, and no other. For he alone hath the charge of the lives of his Subjects committed to him, and this is ſuch an inſeperable truſt, that the King cannot grant this over to another, as it is reſolved in 20. H. 7. where it is ſaid,••. H. 7. fo. 8. a. That a grant of power to pardon Felons, by the King to another, is not good, for that it is a prerogative annexed to the Crowne, and cannot be ſevered: But here it is not to be underſtood that no prerogative of the King can be ſevered from the Crowne, for ſome may, as I ſhall afterwards ſhew, and that by grant of the King too: but that this among others, is ſuch a prerogative as cannot be ſevered, and the reaſon of this, is, as I conceive, for that the life of a man is of ſo high and puiſſant nature, that none leſſe then God, or the King, ought to have intereſt and power in; and though the Common-wealth looſe a member, it is the King onely who looſeth a Subject, and therefore the killing of a man, is ſaid in the Indictment to be againſt his Crowne and dignitie, and not againſt the Common-wealth; for though mediately it be an offence againſt the Common-wealth too: yet it is a more neare and immediate offence againſt the King: for that he is intruſted with the lives of his Subjects.
Now as the King is bound to defend his Subjects by the Law, ſo in like manner he is bound to defend and protect them by the Sword, if occaſion be, as I have ſaid before, from all danger, both of forraigne and domeſticke enemies. And therefore, as there is a Leigeance, that is, a faithfull and true obedience of the Subject due to his Soveraigne, as it is interpreted in the 7. Rep. Calvines caſe:•Rep. Calvins••ſe. So there is a protection due from3 the Soveraigne to the Subject; for he ought not onely regere, to rule, but alſo Protegere ſubditos ſuos, to protect his Subjects. So as betweene the Soveraigne and Subject, there is Duplex & reciprocum ligamen, that is, a double and reciprocall bond; Quia ſicut ſubditus regi tenetur, ad obedientiam, ita Rex ſubdito tenetur ad protectionem, for as the Subject is bound to obey the King, ſo the King is bound to protect his Subject; and therefore in 20. H. 7. it is holden, that there is a Liege or Leigeance betweene the King and the Subject:20. H. 7. 8. and Forteſcue cap. 13. ſaith, Rex ad tutelam legis, corporum & bonorum erectus est, that is, he is erected King, to defend the Law, the bodies, and goods of his Subjects: and in the Acts of Parliament of 10. R. 2. 11. R. 2. and 14. H. 8. &c. Subjects are called Leige people. 10. R. 2. ca. •…11. R. 2. ca. •…14. H. 8. ca. •…And in the Acts of Parliament of 34. H. 8. and 35. H. 8. &c. the King is called the Liege Lord of his Subjects;34. H. 8. ca. •…35. H. 8. ca. •… and with this agreeth Maſter Skene in his Booke de expoſitione verborum, that Leigeance is the mutuall bond & obligation betwixt the King and his Subjects, by which Subjects are called his leige Subjects, for that they are bound to obey and ſerve him: and he is called their Leige Lord, for that he ought to maintaine and defend them: Wherefore it is truely ſaid, that Protectio trahit ſubjectionem, & ſubjectio protectionem, Protection draweth ſubjection, and ſubjection protection.
By all which it is manifeſt, as alſo by the Oath of the King, taken at his Coronation, lately publiſhed by the Parliament, that the King is bound to protect the lives & liberties of his Subjects, ſo long as the Subject is obedient to the King; for protection and leigeance are relatives, and have a neceſſary and reciprocall dependance the one upon the other: and this is the reaſon that we ſay that a man outlawed, is out of the protection of the King; ſo that heretofore a man outlawed was ſaid to have Caput Lupinum, that is, a Wolfes head: ſo that any man might then have killed him, as Fleta ſaith,Fleta. lib. •…cap. 27. and other old Books: becauſe that by his diſobedience to the King, he had deprived himſelfe of the benefit of the regall and legall protection. I doe not ſay, that if the King withdraw his regall protection from his Subjects, that his Subjects may withhold their obedience from their Soveraigne: yet I am certaine, that the Books before cited imply as much. Beſides, reaſon will arme every man thus farre, as to conclude, that the cauſe and ground of his obedience, is his Soveraignes protection, and therefore if his Soveraigne withdraw the one, he may deny the other. Againe, denying to protect his Subjects, is a plaine refuſall to be ruled by Law, and this, as Bracton ſaith, makes him a Tyrant no King, and my obedience is due to him, as a King, not as a Tyrant. But I paſſe this over, as a matter of ſo great conſequence at this time, conſidering the bad principles of many men, that I had rather offend in withholding of my judgement, then in publiſhing of it.
4But yet more fully, that the King is bound to protect his Subjects, F. N. B. is expreſſe. F. N. B. fo. 232.Nota, ſaith the Booke, that the King is bound of right by the Lawes, to defend his Subjects, and their goods and chattels, lands and tenements, and therefore by the Law; every lawfull Subject is taken to be within the protection of the King, and if he be put out of protection for his offence, then every man may doe with him as with an enemy of the King: Here note, that the Subject cannot looſe his protection due to him by his Soveraigne, but by his owne default.
And in F. N. B. fol. 113. a. it is there ſaid,•. N. B. fo. •13. a. that the King ought of right to ſave and defend his Realme, as well againſt the Sea, as againſt enemies, that it be not ſurrounded or waſted: and to provide remedy for it; and alſo to provide that his Subjects have their paſſage throughout the Realme by all high wayes in ſafeguard. And this is warranted by the Commiſſion of Sewers, which is directed by the King to Commiſſioners, to inquire of, &c. and to heare and determine all faults and breaches of Walls, Ditches, &c. Sea-bankes, &c. in the beginning of which Commiſſion, the fractions of the Walls, or Sea-bankes, is cited, and in the body of it, the King ſaith, Nos pro eo quod ratione dignitatis noſtrae regiae ad providendum ſalvationi regni nostri circumquaque ſumus aſtrcti, volentes in ha•parte congruum & feſtinum remedium adhiberi, aſſignavimus vos,〈◊〉. Here the King himſelfe ſaith expreſſely, in this Commiſſion, that he is every way bound, by reaſon of his royall function, and Kingly•ffice, Providere ſalvationi regni ſui, that is, to provide ſafety for his Kingdome. And is the Law thus, that the King is bound to protect and defend his Subjects, Permare, per terras? By the Sea, from all Pyrates and Robbers, as alſo from the invaſions of forraigne enemies: and by the Land, from any domeſticke dangers, either by inbred rebellions, or civill Commotions? Why then the Concluſion that I raiſe upon theſe premiſſes, is but this; That it is conſonant and agreeable to all reaſon, that the King executing of the truſt repoſed in him, ſhould not be denied the means, by which he may reſpond that great confidence placed in him, by his owne care and fidelitie: and God forbid, that we ſhould requir•the due execution of this great function, of his Majeſties part, and yet that we ſhould withdraw from him the meanes, by which he ſhould perfor•e it; for if ſo, to be a King, would be ſarre worſe, then an Aegyptian ſervitude.
Wherefore I conceive that it ſtands with all the juſtice and equity in the world, that the King (who hath ſo great a charge upon him, that greater cannot be, by which, he, as Vicarius Dei, that is, Gods Vicar, as Bracton ſpeaketh, is obliged to defend the perſons and property of his Subjects) ſhould have all the Caſtles, Forts and ſtrong holds, and all the Ports and Havens at his rule and diſpoſition, and that generally5 he ſhould have the ordering of the Militia throughout the Realm: ſo that by this means he may be inabled to diſcharge that great truſt that is committed to him (without which he cannot be) and at the laſt to render a juſt account to God, of his Stewardſhip.
And this certainly Bracton li. 2. de acquirendo rerum dominio, intends, when he ſaith,Bract. l. 2. c. 2 that the King, Habet ea quae ſunt pacis, ut populus ſibi traditus, in pace ſileat & quieſcat, &c. that is, he hath thoſe things, which belong to peace, that he may govern his people committed to his charge in peace and quietneſſe. For as the King hath ordinariam juriſdictionem, that is, ordinary juriſdiction, as Bracton ſaith before, and this to govern his Subjects according to Law and right: ſo, Habet ea quae pacis ſunt; that is, not onely the Law to maintain peace among his Subjects: but alſo, Ea quae belli ſunt, all thoſe things, which conduce to the protecting and defending of his Subjects from any forrein invaſion, or domeſticke danger, or otherwiſe he could not poſſibly maintain peace according to the ſaying of Bracton, and as by his Oath he is bound.
The King by the Law hath this Prerogative allowed unto him, that he onely may proclaime warre, and he onely can eſtabliſh peace among his people, as the 7. Rep. is:7. Rep. fo. 25. why then I argue thus, It is a greater prerogative to have power to proclaim warre: then it is, to have the onely means to maintain it: and therefore it is not to be conceived, that the Law, that would allow the King the greater power, would deny him the leſſe. For, Qui majora concedit, minora non denegabit: He that granteth the greater, will not deny the leſſe. Again, to allow the King power to proclaime warre, and to deny him the means to maintain warre, were abſurd, and the Law will not admit of any abſurditie. Wherefore I conceive, for theſe reaſons alſo, that the King by the Law, hath likewiſe this prerogative of the ſole ordering and diſpoſing of the Militia of the Kingdom.
Now to conclude this point, I ſhall paralell this caſe, to one caſe onely in the Law, and that is to Mittons caſe in the 4. Rep. where the caſe is thus:4. Rep. fo. 3•…Mittons caſ• Queen Elizabeth by her Letters Patents under the great Seal, granted the Office of the Clerk of the County Court, of the County of Somerſet, to Mitton, with all Fees, &c. for terme of his life: and after the Queen conſtituted Arthur Hopton Eſquire, Sheriffe of the ſame County, who interrupted Mitton, claiming this Office, as incident to his Office of Sheriffe, and upon this he appointed a Clerk himſelf of the County Court; and here the ſole queſtion was, whether this grant by the Queen, were good, or not? And it was adjudged upon ſolemne debate, that it was not, and the principall reaſon given wherefore the grant was nought, was, becauſe that great inconveniences might follow to Sheriffes, who are great and ancient Officers and Miniſters of Juſtice,6 if ſuch grants ſhould be of validity, for that there is great truſt repoſed in them, for which they are reſponſible, as it is there ſaid: whereupon it is concluded, that Law, and reaſon requires, that Sheriffes who are publick Officers and Miniſters of juſtice, and who have an office of ſo great eminencie, confidence, perill and charge, that they ought to have all rights appertaining to their office. And in this caſe there is cited another caſe, to this purpoſe, Mich. 39. & 40. of the Queen reſolved by all the Judges of England, as my Lord Coke ſaith, that the grants of the cuſtodies of Goales, of the Counties, either by King H. 8. or afterwards, were utterly void: and the like reaſon is given in this caſe, as in Mittons caſe: for that cuſtodies of Goales belong to the office of Sheriffe, who being immediate Officer to the Courts of the King, muſt anſwer for eſcapes, and ſhall be ſubject to amerciaments, if he hath not the body in Court upon proceſſe to him directed, &c. and therefore it is reaſon, that he ſhould put in ſuch keepers of the ſaid Goals; for whom he ſhould anſwer, according to the purvieu of the Act of 14. E. 3. •4. E. 3. c. 10.For otherwiſe againſt the rule of reaſon and equitie, Alius offendet, alius plectitur: that is, one man ſhould offend, another ſhould be puniſhed. Now if the Law be thus, in theſe caſes, that you ſhall not take away theſe offices from the Sheriffe, who is an Officer of truſt, and onely chargeable for any miſdemeanor, in the executing of the ſame; for that by this means, you ſhould diſable him to execute his Office, according to the confidence repoſed in him, and yet ſhould puniſh him for the not doing of his duty; which ſhould be againſt all reaſon: à fortiori, I ſay in this caſe, you ſhall not deny the King, who hath the greateſt Office of truſt, and charge, that can be, the means and way to perform this truſt, and to undergo this charge, which cannot be otherwiſe done, then by allowing of the King this prerogative (ſo long as he doth perform the truſt that runs along with it) of having the ſole diſpoſing and ordering of the Militia of his Kingdom.
And without queſtion Bracton when he ſaith, that the King hath Gladium materiale, that is, the materiall ſword, can intend nothing elſe by this, but Gladium belli, which is the Militia, and gladium by a Synecdoche, may well comprehend and be ſet pro omnibus rebus milititaribus, that is, for all things military; And it is uſuall in holy Writ, when God threatens the heavy judgement of warre upon any Nation, to do it under the notion and expreſſion of a ſword, by this intending, Bellum, that is, warre, with all its ſad effects. Wherefore I conclude this point, that the King hath this prerogative allowed unto him by the Law: for theſe preceding reaſons. 1. For that it were inconvenient for the King, who by the Law is bound to protect and defend his ſubjects, if he ſhould not have this power. 2. For that the Law hath given unto7 him a greater prerogatiue, and therefore will not deny him the leſſe: and thirdly and laſtly, for that it would be abſurd, that the King ſhould have power to proclaime warre, but not to maintain it.
Second part.For the ſecond queſtion, which is, as I conceive, much more difficult, then the former, and which is the great doubt and dilemma of the time, which is but thus: whether the two Houſes of Parliament, the Kingdom being in imminent danger, and the King refuſing to put it into a poſture of defence, may by their Ordinance, without the conſent of the King, ſettle the Militia, and put the Kingdom into a poſture of defence, or not?
And I do conceive, under favour, in ſome clearneſſe, that they may, and that in ſo doing, they have done no more then what is warrantable by the Law. And this I ground in the firſt place upon the imminent danger, and extreame neceſſity, that the kingdom is in: and therefore though it ſhould be admitted, that they could not do it, at another time, yet I conceive that by reaſon of the neceſſity, it is warranted by the Law for them to do it at this time.
It is a rule in our Law, firſt cited in Bracton,Bract. fo. 247 a. and remembred in the 10. Rep.10. Rep. fo. 61. a. that illud quod alias licitum non eſt, neceſſitas facit licitum, & neceſſitas inducit privilegium, quod jure privatur. In time of neceſſitie, illegall acts, are made legall: and things utterly againſt Law, juſtifiable; Upon this rule I might multiply caſes, but becauſe I do not affect, via trita obambulare, to go in the common road, therefore I ſhall onely put ſome of the moſt materiall caſes, which I find to this purpoſe, and the others I ſhall omit.
In Pl. Com. it is ſaid,Pl. Com. fo. 13. b. that when Laws or Statutes are made, yet there are ſome things, which are excepted, and forſepriſed out of the proviſion of them, by the Law of reaſon, though that they are not expreſſed by words. As breaking of a priſon is Felony in a priſoner himſelf by the Statute De frangentibus priſonam: yet if the priſon be burnt, and they which are in, break the priſon for ſalvation of their lives, this ſhall be excuſed by the Law of reaſon, and yet the words of the Statute are againſt it.
And 14. H. 7. Jurors who were ſworn upon the iſſue,14. H. 7. fo. 29 and by the Law ought not to depart, untill they are agreed of their Verdict, for fear of a great tempeſt departed, and ſevered themſelves: and it was there held that they ſhould not be amerced, and that their verdict afterwards was good. And this was thus holden (ſaith the book) for the neceſſity of the chance; but otherwiſe they ſhould have been grievouſly puniſhed. So by the Law, for the ſalvation of my own life, I may kill another. And as the Law makes that lawfull, in caſe of neceſſity, which otherwiſe would not be lawfull, when it concerns any mans private:8 ſo à fortiori, when it concerneth the Common-weal, and therefore as the book is in 29. H. 8. Dyer,29. H. 8 Dyer. fo. 36. b. 8. E•4. 23. Br Cuſtome 45. a man may juſtifie the making of Bulwarks, in another mans ſoyl, without licence; and the razing of a houſe which burns, for ſafeguard of the houſes of the neighbours. So it is if the Sheriffe purſue a Felon to a houſe, and for to have the Felon, he breaketh the doore of the houſe, this is juſtifiable. So in 13. H. 8.13. H. 8. 16. •. E. 4. 35 b. the inhabitants of a Citie in time of warre, if they conceive that the Suburbs may endanger the taking thereof, may lawfully burn or deſtroy the ſuburbs, for the Towns or Cities preſervation, and the common ſafetie. And in theſe caſes, neceſſity, and the good of the republick, maketh that lawfull, which otherwiſe would not be lawfull.
It is a certain rule, that all Laws ought to receive an equitable and favourable conſtruction, according as opportunitie and the neceſſity of the caſe, adminiſters occaſion: for, Summum jus, eſt ſumma injuria: that is, over-ſtrict obſervance of the Law, may ſometimes be unlawfull. And à fortiori, they ſhall receive ſuch a conſtruction, where it concerns the Common-wealth: and accordingly the Judges in all ages, as they ought, ſo they have alwayes made ſuch interpretation and declaration of the Laws, that the Common-wealth ſhould not be prejudiced. And this is the reaſon of theſe caſes, which have been often adjudged, that if a man bind himſelf, that he will not exerciſe his trade, or that he will not manure his land, or that he will not marry, that the Obligation in theſe caſes is void, for that it is againſt the weal publike.
And this is the reaſon alſo, that hath made the Judges alwayes to adjudge all the Grants of the King, of Monopolies, or Impoſitions upon the Subject, without Act of Parliament, to be againſt the Law, for that they were againſt the good of the Common-wealth, and libertie of the Subject. •…. H. 3. ca. 29.And this is grounded upon Magna Charta, which ſaith, Quod nullus libor, homo, &c. that no free-man ſhall be taken and impriſoned, or be diſſeiſed of his Free-hold or liberties, but by lawfull judgement of his Peers, or by the Law of the land.
And if the Law be ſuch, that the King by ſuch grants, which are againſt Law, and the weal publick, cannot take away my free-hold or livelihood from me, but that ſuch grants ſhall rather be adjudged to be void, (againſt the opinion of Bracton who ſaith,Bract. fo. 34. •…. b. 2. De chartis Regiis & factis regum, non debent, nec poſſunt justiciarii, nec privatae perſonae diſturbare: that is, of the Kings Charters, and his deeds, neither Juſtices, nor private perſons, may, or ought to diſpute: which clearly is againſt the known and eſtabliſhed Law at this day) why then certainly, it will follow, that if the King, either by action, or omiſſion, go about to endanger the weal publick, and endeavour the deſtruction of it, which ex conſequenti, muſt of neceſſity bring ruine to every individuall perſon of it:9 that in ſuch caſe, thoſe who are intruſted with the common good, (as the Parliament at this time is) may by all meanes poſſible, indeavour the preſervation of it: but I doe not here intend by violent oppoſing or depoſing of his ſacred Majeſtie, of which I ſhall ſpeake a word afterwards, but by ſetling of the Kingdome, into ſuch a ſtate and condition, as our ſage Parliament hath now done, that it may be able to defend his ſacred Perſon, and it ſelfe, againſt any forraigne or domeſticke ſurpriſe or invaſion.
It is a true Rule, that Intereſt Reipublicae, ne ſua re, quis malè utabur, a man (contrary to the opinion of the vulgar) may not doe with his propertie as he pleaſeth; for that the Common-wealth hath an intereſt peramount the propertie of any private man, and there is no Subject, but that, either more or leſſe, according to his Talent, or place, that God hath put him in, either in Church, or State, is intruſted with the common good: and therefore if he doth contrary to his truſt, uſe his Talent or place, againſt that end for which it was given unto him, he is puniſhable by the Law for it.
And therefore if a man will deſtroy his woods, caſt his money into the Sea, burne his Corn upon the Land, or in his Barnes, or the like, cleerely by the Law he is puniſhable for it: and agreeing with this Trin. 4o Jac. many were indicted of a Riot in the Starre-chamber, for putting in of their Beaſts into Corne, claiming their Common there, and in this caſe, the Lord Chancellor ſaid, that though they had good title to the Common, yet that they ſhould be here puniſhed, for that they had deſtroyed the Corne, which is againſt the weale publique.
And without queſtion, the rigour of all Lawes, ought to receive ſuch qualification, and equitable conſtruction, that the Common-wealth doe not ſuffer or be indamaged. The Law was made to ſupport the common good, and therefore that Law is againſt Law, that is againſt the common good. Nemo ſibi naſcitur, no man was borne for himſelfe; all men both Rulers and people, were borne to this end, to contribute, and conferre ſome good to the Republique: and therefore Qui ſibi ſolum vivit, he that lives to himſelfe onely, doth not live to that end, for which he was created, much leſſe he, which makes conſtruction of the Law againſt that end, for that were to deſtroy both Law, and government, which every man was borne to defend.
It is a Rule in the Law, that Judges ought alwayes to make ſuch conſtruction of the Deeds of men, and of their Grants, Ʋt res magis valeat, quàm pereat, that is, that they ſhould rather take effect, then periſh: ſo I ſay, it may well be taken for a Rule, that the Judges ſhould not ſo conſtrue the Law, that the Law ſhould deſtroy it ſelfe, which will neceſſarily follow in the deſtruction of the Common-wealth; but that they10 ſhould ſo interpret it, Ʋ•reſpublica magis valeat & floreat, quàm p•reat & deſtruatur, that the Common-wealth ſhould rather flouriſh, then periſh, and be deſtroyed.
I agree, that in the caſe in queſtion, by the ſtrict Rule and Law of Prerogative, the governing and diſpoſing of the Militia of the Kingdome is onely in the King, and that he onely may proclaime warre, and he alone eſtabliſh peace amongſt his people: yet we ought not ſo t•conſtrue this Law, that it is ſo in the King, that it cannot be ſevered from him, and that no other can intermeddle with it, without the conſent of the King though that it be for the Weale publique, and for the ſecuring of the Kingdome, being in imminent danger, the King refuſing to ſettle it, as in right he ought, upon the prayer of his people, repreſented in the defires of the Parliament. For to make ſuch a conſtruction were utterly to confound, and deſtroy, both Law, & Common wealth, as I have ſaid before, and therefore ought not to be admitted.
The King hath this Prerogative allowed him by the Law, that he ſhall not be bound by any Statute, except that he be expreſſely named in the Statute, yet it is reſolved in the 5. Rep.•Rep. fo. 14. b. that all Statutes, which are made to ſuppreſſe wrong, to take away fraud, or to prevent the decay of Religion, ſhall binde the King, though he be not named in them; for, ſaith the Booke, Religion, Juſtice, and Truth, are the ſure Supporters of the Crownes and Diadems of Kings. So I ſay in this caſe, the King by his Prerogative (as I have ſaid before) ought to have the ſole diſpoſing of the Militia: But if in imminent danger, he refuſe to ſettle this for the ſafetie of himſelfe, and his Kingdome, according to the truſt repoſed in him, his Prerogative ought then to give way for the ſecuring of his Crowne, that thoſe who are intruſted with the Weale publique, as the Parliament is, may ſettle this for the defence of the King, and Kingdome, according, as in truth, they are bound, as I ſhall afterwards ſhew.
It is a Rule in our Law, That the King can doe no wrong; and with this accords Bracton,••acton fo. 107. Nihil aliud poteſt Rex in terris, cum ſit Dei miniſter & vicarius, niſi id ſolum, quod de jure poteſt, nec quod principi placet, legis habet vigorem, the King can doe nothing upon earth, ſeeing that he is Gods miniſter and Vicar, but that onely which of right he ought to doe, neither ought the Kings will, to have the force and vigour of a Law. Here note, that the will of the King, ought to ſubſcribe to the Law; and not the Law to the will of the King.
And in Pl. Com. 1. Rep. & 5. Rep. it is ſaid,••. Com. fo. 246.•Rep. fo. 44. b. •Rep. fo. 55. b. That the King cannot doe a wrong, neither will his Prerogative be any warrant to him to doe injurie to another: and if the King cannot injure one ſingle perſon, without queſtion, he cannot injure all the Common-wealth, which he ſhould doe in11 this caſe, if both the Houſes of Parliament, in this time of imminent danger, the King refuſing to joyn with them, ſhould not have this power of ſetling the Militia, in defence of the Kingdome, without his conſent.
I agree with Bracton,Bracton fo. 5•… that the King, Parem non habet in regno, nec ſuperiorem, He hath no equall, nor ſuperiour in his Kingdome; but that is to be underſtood, that there is no man above or equall with his Majeſtie; for he ſaith afterwards;Bracton fo. 3•… Rex non debet eſſe ſub homine, ſed ſub Deo, & ſub lege, that the King ought not to be under man, but under God, and under the Law: and after fo. 34. a, he ſaith, Rex habet ſuperiorem, Deum, ſcilicet, item legem, per quam factus eſt Rex, item Curiam ſuam, viz. Comites Barones, &c. the King hath a ſuperiour, to wit, God, in like manner, the Law, which made him King, and alſo his Court, to wit, the Earles, Barons, &c. which cannot be underſtood of any other, then the high Court of Parliament. And in the places before cited, he ſaith, Quod non est Rex, ubi dominatur voluntas, non Lex, He is not King, when his will rules, not the Law. Then if it be thus, as Bracton ſaith, that the Law, and the two Houſes of Parliament, are above the King: and that the King is as no King, when he doth not ſubmit to the Law, (which will of neceſſitie follow, for that the ſame Law, which made him King, injoynes and obliges him alſo to defend his people committed to his charge; and without doubt, the one as juſt as the other, and if he refuſe to protect his people, which is a diſpiſing, and a depreſſing of that Law which gave him this Soveraigntie: certainly, the Law will not defend him in this his tyranny) I conceive, that in this caſe, the Law will in its own defence, and in default of the King, who ought to have maintained the Law, inable the two Houſes of Parliament, to put the Kingdome into a poſture of warre, in defence of the King, his Lawes and Subjects.
But now the great Queſtion is, What, and where is the ground of our feares, and jealouſies, and where is the imminent danger; for, many ſay, that they cannot ſee it, and then it not being viſible, and obvious to every eye: a Queſtion as great in ſhew as the former, ariſes upon this, Who is, or may be the proper Judge of this imminent danger. To the firſt, I anſwer, that our feare, and the imminent danger pretended, is no Phantaſme or Chimerâ, as ſome would have it, but it is a reall and viſible cauſe of feare, Et talis metus qui cadere poteſt in virum conſtantem, ſuch a feare, as may befall a conſtant man, as my Lord Cooke deſcribeth a feare,Inſtit. fo. 253. that may poſſeſſe a generous and ſettled ſpirit. And that it is thus, I appeale to the conſcience of any wiſe & indifferent man, whether that the Commune incendium, the common fire, or calamitie in our neighbour Nation of Ireland, clothed with theſe three circumſtances, as I ſhall ſet it12 forth, will not cauſe, and juſtly too, a wiſe man to feare, and doubt, what the event will be.
As firſt, that they are our Neighbours, and when my Neighbours houſe is on fire: will any man adjudge this to be a phantaſme or an effeminate feare in me, to provide for the ſecuring of my perſon and eſtate, from periſhing in the common ruine?
Secondly, It is Religion, that theſe cruell, barbarous, and unheard of Tyrants, make for a ground of their horrid Rebellion: and what ſtronger ingagement can there be, then this, for to incourage and ſpurre men forward, in any deſperate deſigne? Eſpecially, thoſe of the Popiſh faction, who may have a pardon before-hand, for the act they ſhall commit, be it never ſo deſperate: And doe we not thinke, that this will be a ſtrong incitement to men, who conceive themſelves tyed in conſcience to undertake that which they doe, to wade through any miſery, for the accompliſhment of their deſired end, knowing before-hand, that they have a pardon for the moſt horrid act or attempt that they can doe, conducing to the perfecting of the ſame? And then as this obligeth all Nations beſides, of the Popiſh partie, ought not we to thinke, and beleeve, that ſuch an opportunitie, muſt of neceſſitie, ſtimulate them forward, to be ayding and aſſiſting to ſuch a deſigne, which will infallibly at the laſt, merit either Heaven or Hell? I am confident (and it ſtands with all reaſon that it ſhould be ſo, for that they have not for a long time, prayſed be God, had the like opportunitie) that the Pope, with all his adherents, are now plotting, and contriving, with their holy Father the Devill, to operate the ruine of the Proteſtant Religion: and ſhall this ingage them to fight againſt God, under a pretence of being on his ſide? And ſhall it not invite us, who fight for God, and his truth, which we have ſo long time, happily & peaceably through Gods goodneſſe enjoyed, to prepare our ſelves, and all that we have, for the deſence of the ſame? To conclude this, we who have the greateſt part of the world our enemies, may juſtly feare, that they are now plotting and contriving that for England, that is already acted in Ireland. And let us not ſay, that they are at enmitie one with another, and therefore, are not at leiſure, to harme us: for we may be ſure, that they will ſhake hands, to doe us a miſchiefe: according to that in holy Writ, of Pilate and Herod, who though they were utter enemies one to another, yet they were made friends, to combine againſt Chriſt. •…uke 23. 12.
Thirdly, and laſtly, who is able to ſay, that either he, or his children, ſhall live to ſee an end of that bloudy perſecution and rebellion, and what the ſucceſſe of it will be? True it is, that God hath hitherto gone forth with our Armies, and hath in an exceeding meaſure, and above all expectation, bleſſed their endeavours, and crowned their actions with13 a happie ſucceſſe, God be praiſed for it, but yet who knoweth, whether they ſhall ever be able to root out this rebellious Tribe? I ſpeak not this out of any diffidence of Gods continued favour and goodneſſe towards us, or to make others miſtruſt; but onely to demonſtrate, that there is a juſt cauſe of feare; for who can divine what the event of warre will be: Exitus belli incertus, that is, the iſſue of warre is uncertain. Beſides (and which brings me to my ſecond ground of our juſt and dreadfull feares) if the diſtractions of this Kingdome continue, which God defend, what ayde can they expect from us, who are like to be ſurrounded with the like miſery: ſo that their neceſſitie, may cutt them ſhort of their hopes, and by this much adde to our feares.
Secōndly, having ſhewed our juſt cauſe of fear, which riſeth ab extra, from our deplorable brethren, and neighbours; now I ſhall ſhew, our cauſe of fear, that ariſeth ab intra: from the unhappy diſtractions, which are riſen amongſt our ſelves. Who is it, that doth not ſee, the ſad diviſions and generall ſidings throughout the Realm? which hath grown upon this unhappy diviſion of the King and Parliament; which when it will be reconciled, God knoweth. And if this (which adds much to our miſerie) had not happened, we could not before have been ſecure, without a juſt cauſe of fear: for what divelliſh plots, and fearfull deſignes, have been diſcovered through Gods mercy, and the vigilant eye of the Parliament; tending to the deſtruction of our beſt birth-right and inheritance, the priviledges and freedome of Parliaments? Without the continuance of which, that which is neareſt and deareſt unto thee, whether it be thy Religion, life, or liberty: what ever it be, that thou moſt bleſſeſt thy ſelf withall, will then depend upon the Arbitrary will of thy Soveraign; ſo that thou mayeſt not then, ſtile ought that God hath given thee, thy own: which heavy judgement I beſeech God to divert from this ſinfull Land and Nation; for we may truly acknowledge, that it were juſt upon us, that we who have ſo much abuſed Gods bleſſings, ſhould now be deprived of them: and that we, who have ſo much abuſed the freedome of conſcience, of our laws, lives, liberties, and eſtates, ſhould now be ſubjected to a perpetuall ſlavery. Now to conclude this likewiſe, divide the Kingdom into foure parts, and I am confident, that the Papiſt. Newter, and Cavalier (I might adde likewiſe the domineering proud Clergy, who would fain reduce all things to their late condition) who lie perdue, and wait for an opportunitie, for to bring a ſpeedie deſtruction upon this Common-wealth, will make two parts, I think I might, without any imputation, or prejudice to judgement, ſay three parts of the foure, and now put all theſe things together, and I beleeve, that no indifferent underſtanding man, but will be forced to confeſſe, that there was, and ſtill is, a juſt cauſe of fear, and of14 putting of the Kingdom, into a poſture of warre. And then the imminent danger being pregnant, and demonſtrable to all the world: the laſt queſtion is taken away.
But admitting that it were not proſpicuous, and viſible to all, then the queſtion is, who is the proper Judge of this imminent danger, and I conceive plainly, under favour, that the Parliament ought to be, and no other: and my firſt reaſon is grounded upon the rule of Law, viz. that the Parliament can do no wrong, which is warranted by the 9. Rep. the 6. Rep.•. Rep. 106. b. •07. a. •. Rep. 27. b. •…. a. and many other books. And in Pl. Com. it is ſaid,Pl. Com. fo. 398 that the Parliament is a Court of thrice great honour and juſtice, of which none ought to imagine a diſhonourable thing. And this I conceive to be grounded upon the Writ of Summons to Parliament, which wils, that the elections ſhould be De gravioribus & diſcretioribus viris, &c. of the moſt grave and diſcreet men. And Forteſcue ſpeaking of the Parliament, ſaith,Forteſ. ca. 18. We ought neceſſarily to think, that the Statutes of this Realm are made with great wiſdom and prudence, Dum non unius aut centum ſolum conſultorum virorum, ſed plus quam trecentorum electorum hominum, quali numero olim Senatus Romanorum regebatur, ipſa ſunt edita. For that they are not made by one, or an hundred onely of ſage judicious men, but by more then three hundred of choſen men: by ſuch a number, as in times paſt, the Senate of Rome was uſed to be ruled.
Object. But here it will be objected, that this Ordinance is not ſetled by Parliament, for that the King and many of his Nobles, were not there, nor never conſented to it; and therefore that we ought not to eſteeme, or account, ſome few Sciſmaticall and factious perſons (who ſeek their own ends, and not the common good) to be the Parliament: and therefore you miſtake in giving of them the Style of the Parliament.
Anſw. A ſtrange, unheard of, and illegall objection, a pretty trick and wilde to mask illegall ſlanders, under illegall objections. It is a wonder to hear ſuch ſtrange, and as unparalelld, as unwarrantable, invectives, againſt the Parliament, which are publiſhed in the Kings name, and under his protection, and patronage: while in the mean time, the King (whoſe diſtance of place, or affection, cannot divide from his Parliament, as I ſhall afterwards ſhew) ſuffers in thoſe very obloquies, and diſhonourable detractions, which are coyned for his honorable Aſſembly of Parliament.
For, as all our books agree, the Parliament is as one body: and the chief or head of this body, is the King: and with this agreeth, Dyer, fo. 60. a. who ſaith,•yer fo. 60. 2. that the Eſtate of Parliament conſiſts of three parts: viz. of the King, as the chief Head; and of the Lords, the chief and principall Members of the Body; and of the Commons, Knights, Citizens, and Burgeſſes, the inferiour Members: and theſe make the body of the15 Parliament. Now if it be thus, that the King, Lords and Commons make but one body, and that the King is the Head of this body, as in truth the Law is: then it will thus in reaſon follow, that no more then you can divide the head from the naturall body, and yet preſerve the body alive, can you divide the King from the Parliament, and yet have the Parliament continue, as in truth it doth: and I hope that there is none ſo void of reaſon, as to think, that the Kings dividing of himſelf from his Parliament, (for the caſe is utterly miſtaken, to ſay that the Parliament, ſevers the King from them) ſhall deſtroy his Parliament, though I ſuppoſe, that many, who dare not bring their actions to the teſte, would have it ſo.
Now if it be ſo, that, notwithſtanding this unhappy diviſion, the Parliament doth vertually, and actually continue, (which, God defend it ſhould be otherwiſe, for then Parliament, and no Parliament would be all one) then, of neceſſity, it muſt follow, that the King, who is the head of this great body, is not divided in Law, though he be in diſtance, for if ſo it muſt needs be, that the body would be deſtroyed, for that a Body (as I have ſaid before) cannot ſubſiſt without a Head. And it muſt likewiſe follow, that they uſurp no honour or power to themſelves, more then by the Law is due, to ſtile themſelves the Parliament. And therefore whatſoever imputations, or diſhonourable invectives (things too common in the mouthes of many, who have not common reaſon, much leſſe Law, to diſcover a truth) are impoſed and caſt upon the two Houſes of Parliament, reflect upon the honour of the King, and are a great ſtain and blemiſh to it.
Then if it be thus, that the Parliament, in judgement of Law, can do no wrong, and that no diſhonorable thing ought to be imagined of them; certainly, they are the moſt proper Judges of this imminent danger. But to this it will be objected that the King likewiſe, in judgement of Law, can do no wrong, and therefore he notwithſtanding this reaſon, may be as proper a Judge of the imminent danger, as any one, and upon this ground his judgement ought rather to be received then the judgement of any, yea of the Parliament it ſelf; & he tels us, that there is no imminent danger, what then meanes this great contention about the Militia? To this I anſwer, that it is true, the rule of Law likewiſe is, That the King can doe no wrong; but the reaſon of this is, for that it is preſumed, that what the King doth, he doth upon the advice, & ſeducement of evill Counſellors, who with a ſpetious ſhew, pretend nothing more then the good of the Common-wealth; whereas, in truth, they intend nothing leſſe. And hath it not been frequent, for Kings, ſeduced by wicked and malignant Counſellors, to do thoſe things which have been a diſhonour to themſelves, and a great gravamen and prejudice to16 the publique: and if ſo, my concluſion is, that I would as willing a man ſhould doe me injury, upon his owne principles, as by the advice of others; for though happily the wrong may not be ſo great, as to himſelfe, yet the damage is all one to me. But now on the other ſide, who can tell, or what Story is able to relate, that ever a Parliament did doe that thing, that was prejudiciall to the Common-wealth? Why then if this poſition hold true, That Kings ſeduced, may injure the Common-wealth, but that Parliaments cannot: I conclude, notwithſtanding this objection, that the Parliament, for this reaſon, are the moſt proper Judges of this imminent danger.
Againe, they are the moſt proper Judges of an imminent danger, who in probabilitie may have the beſt cogniſance, and information of it: but the Parliament (which is the repreſentative body of the whole Realme, and the eyes of all the Kingdome) muſt of neceſſitie have the beſt cogniſance and information of any imminent and approaching danger: Ergo, they are the beſt and moſt competent Judges of it.
Laſt of all, the Parliament are the moſt proper Judges of an imminent danger; for that they are thoſe, whom the Common-wealth hath intruſted with its future happineſſe, they are our Judges, thoſe whoſe judgement we have bound our ſelves by our owne free Election, to ſtand to, and therefore we cannot now recede from it, or ſee with other eyes then they ſee; if they ſay, that they ſee an imminent and approaching danger, we ought not to ſay, that there is no ſuch matter; and if they ſay, that the Militia is well and legally ſettled, we cannot, nor ought not to ſay, that it is againſt the Law; for that our judgement is bound up in, and ſuperſeded by theirs. But to this it will be ſaid, that this were a kinde of implicite faith, or if I may ſo ſpeake, a kinde of Hereſie in Law; for a man to be tide to ſubſcribe to other mens judgements, and to beleeve that whatſoever they doe, is lawfull: To this I anſwer ſhortly, that there is a great difference, between a ſubſcription of compulſion, and a ſubſcription of conſent; for volenti non fit injuria, that is, he that cōſents to the doing of a thing, is not injured by the thing done. Againe, the Parliament would not have us to pinne our faith upon their judgements, to beleeve without reaſon; for, as it is well knowne, they have publiſhed the juſtice and integritie of their cauſe, to the whole world, and have left their proceedings to the judgement and determination of every private conſcience; ſo that cleerely this objection holds not.
Then if the judgement of Parliament, be our judgement; what elſe doe they then oppoſe their own judgement, who dare oppoſe the judgement of Parliament, which is folly? and what elſe doe they but preferre their proper and private judgement, before the judgement of the whole Parliament?17 which is an extreame inſolency; for that they repreſent the whole Kingdome: and are the moſt worthy part of it, and for that, we have, as I have ſaid before, bound our ſelves by our owne conſent and election, to ſtand to their judgement and determination. Wherefore, for all theſe preceding reaſons, I conclude this point, that admitting the imminent danger were not perſpicuous and manifeſt to every eye, that the Parliament as they are the moſt proper Judges, ſo they ought to be the onely Judges of it, and no other perſon whatſoever.
Now for the Objection, that many of the Lords and Commons, did never conſent to the Ordinance of Parliament, for that they were with his Majeſtie, and that therefore this ſhould make their determination invalid, and ineffectuall: This is a more ſtrange objection then the other, for that it is againſt the rule of Law, that any man ſhould take advantage of his owne wrong; and it is cleare, that after the Parliament is once begunne, their perſonall attendance is ſo neceſſary, and of ſuch importance to the Parliament, that they ought not by the Law, for any buſineſſe whatſoever, to be abſent, and ſo is Dyer. Dyer. fo. 6•…And by the Stat. of 6. H. 8. it is enacted,6. H. 8. ca. •… that no Knight, Citizen, or Burges, abſent himſelfe, without licence of the Speaker and Commons, under the paine of the loſſe of their wages. And in 3. E. 2. Fitz: Corone 61. cited in Crompton Jur.3. E. 2. Fit•…Corone 6•…Crompt. Iu•…Courts. fo. •… the Biſhop of Winton was arraigned in the Kings Bench, for that he came to the Parliament, and departed without licence. Why then is it ſo, that their withdrawing of themſelves, is a crime in them? Shall they then take advantage of this offence and neglect of theirs, of the Weale publique; for the good of which, they were called and aſſembled together, to aviſe? certainly not. Beſides, if this objection might hold, who is it that doth not ſee, what the inconvenience might be, Et argumentum ab inconvenienti eſt bonum in lege, an argument drawne from inconvenience, is good in Law. For by this invention, the concluſions and determinations of thoſe who are preſent, intending the Weale publique, (as in dutie they are bound) ſhould be all fruſtrated, and annihilated, by the abſence of thoſe, who voluntarily and againſt Law, withdraw themſelves; which would be deſtructive to all Parliaments.
For poſito that all the Lords or all the Commons, ſhould voluntarily and out of an indiſpoſedneſſe to the common good, withdraw themſelves, and utterly refuſe to performe that truſt, which is repoſed in them, of counſelling and conſenting to ſuch Lawes, which might eſtabliſh peace, and a ſettled condition in Church and State: will any man thinke, that if in this time of diſſertion of the Lords or Commons, there be an apparent & imminent danger, threatning ruine to the Common-wealth, if it be not in an opportune and ſeaſonable time prevented, that in this caſe, it lies not in the power of the King and Lords, or of the18 King & Commons onely, as the caſe is, by way of Ordinance, to ſettle the Kingdom in ſuch a ſtate and temper, as may prevent any approaching miſery? Without queſtion it doth, or otherwiſe this concluſion (as I have ſaid before) would be deſtructive to all Parliaments.
I agree, that an Act of Parliament cannot be made, by which a new Law ſhould be enacted, that ſhould be obligatory to the Subject for ever, (I meane untill it were repealed by another Act) but by the conſent of the King, Lords, and Commons; and with this accords the Books, 4. H. 7•H. 7. 18. there an Act was made by the King and Lords, but nothing was ſpoken of the Commons; and by all the Judges, this is no act of Parliament. 7 H. 7. •H. 7 14.No Statute except that the Lords and Commons aſſent to it. And 11. H. 7.•…H. 7. 27. it is no act of Parliament, except it be made by the King Lords, and Commons. By this it is manifeſt, that all the three Eſtates ought to joyne in the making of an act of Parliament: and this is ſo cleare, that I need not cite any other authoritie in proofe of it, for ou•Books are plentifull in this point. Onely I ſhall remember one remarkable caſe, which I finde in our Law, to prove that the Books which ſay, That an Act of Parliament cannot be made, without the conſent of the Lords, that this ought to be intended of the Lords Temporall onely, and not of the Lords Spirituall: and therefore it is reſolved by the Judges in 7. H. 8. Keilway.•H. 8. Keil••y. fo. 184. b. that the King may well hold his Parliament, by him, his Temporall Lords & Commons, without the Spirituall Lords: ſo that by this it was manifeſt, that they were not eſſentially neceſſary to a Parliament; for that the King might have holden a Parliament without them: and therefore it is not now ſo much to be wondred at, that they are totally excluded by Act of Parliament.
But now on the other ſide, I conceive as clearely, under favour, that if the King do utterly forſake them, and decline their advice and counſell, to which he ought to adhere during Parliament, that in ſuch caſe they may (as I have ſaid before) make ſuch Ordinances, without him, for the ſecuring of the Kingdome, in caſe of exigency and extremitie, as ſhall be obligatory to all the Realme, pending Parliament: for otherwiſe, they ſhould have the name of a Parliament onely, & not the power and vertue of it.
But now it may be objected, that the King by his Prerogative, may call a Parliament when he pleaſeth, and alſo adjourne and diſſolve it when he pleaſeth: and that the power given by the Writ of Summons, of the Lords to Parliament, is onely ad tractandum & conſulendum, &c. and therefore it will be concluded, that by the ſame power the King may command his Counſellors whither he pleaſeth. To this I anſwer, and agree, that the King may call or diſſolve a Parliament when he pleaſeth, and ſo totally toll their power; but yet under favour, pending19 Parliament, unadjourned, the King can neither retarde their proceedings, nor take away their perſons: and that I ſhall prove thus: the King, as fons Justitiae, the fountaine of Juſtice, from whom all Judiciary power is derived, may likewiſe make, whom he pleaſeth, to be a Judge, to diſpence the Lawes in juſtice and equitie unto his people; but will it therefore follow, that when he hath made ſuch and ſuch to be his Judges, that he may either retarde their proceedings, or countermand their judgements, under favour, nothing leſſe. Againe, as I have ſhewed before, they are puniſhable by the Law, for withdrawing of themſelves: and it were hard, that the King ſhould have power to command me that act, which being done, ſubjects me to a ſevere puniſhment. Now for that part of the objection, that they are but his Counſellors, and not his Judges: to that I ſhall give, as I hope, a full and ſatisfactory anſwer afterwards.
And now I ſhall conclude this firſt ground or reaſon, with another anſwer to the objection, againſt the imminent danger, and this I ground upon the words in the Kings Writ, by which he ſummons the Lords to Parliament; in the body of which Writ he ſaith, Mandamus quod conſideratis dictorum negotiorum arduitate & periculis imminentibus, ceſſante excuſatione quacunque, dictis die & loco perſonalitèr interſitis nobiſcum, &c. that is, we command you, that conſidering the greatneſſe of the buſineſſe, and the imminent dangers, laying afide all excuſe, you be perſonally with us, the ſaid day and place, &c. Here the King by his Writ ſaith expreſſely, that at the time of the calling of this Parliament, there was an imminent danger; and as now it ſhould be diſhonourable for the King to contradict himſelfe, ſo I doe not conceive, that he ſhall be received to deny that extrajudicially, which he hath confeſſed by his Writ judicially.
But to this it will be ſaid, that the Writ, Eſt breve formatum, that is, it is a formed Writ, or a Writ of courſe, and that there is no other, and that from this there is no varying; ſo that be the occaſion of calling of the Parliament, what it will, the ſame form ought to be pu•ſued, and no other; and therefore it is no concluding reaſon, that there is an imminent danger, becauſe the Writ ſaith ſo. To this I anſwer, that we ought not to preſume, that the King will ſpeak any thing in a judiciall way, as here he doth, which ſhould be vain and ſuperfluous; beſides, if you conſider the time in which this Parliament was called, when that the Scottiſh Army was in England, and at which time ſuch diſtractions, and rumours of warres, did I ſay rumours of warres? I might have ſaid Warre it ſelf; was amongſt us: when that the extreme inſolencie and pride of the Clergie; together with the darkneſſe of ſuperſtition and Popery, had almoſt overwhelmed this Nation with imminent deſtruction20 and miſery: the fear of which doth yet cloud the face of the poore Commonalty, I ſay, theſe things conſidered, we may juſtly conclude, that the King, at that time, ſpake as he intended, and therefore certainly now, he ſhall not be received to contradict it. Wherefore I conclude this firſt reaſon, that by reaſon of the imminent danger which threatens the Common-wealth, the King refuſing to ſettle the Militia, the Parliament may well do it.
Secondly, I hold that the Parliament may do it; for that the King by his refuſall hath made a breach of that truſt that is committed to him, by God, and his people, that there is a truſt committed to him, and that the greateſt alſo, that any one under God can have, I have in part demonſtrated it before; for I have ſhewn how that he is bound by the Law to defend and protect his people, their lives, liberties, and eſtates, from any forrein or domeſtick danger; and ſaith Forteſcue, ca. 13. cited before,•••teſc. ca. 13. Rex ad tutelem legis, corporum, & bonorum, erectus eſt: he is erected King, for this purpoſe, and intent, to defend the Law, the bodies and goods of his Subjects. And he ſaith himſelf (as I have likewiſe ſhewed before) in the Commiſſion directed to Commiſſioners of Sewers, that by reaſon of his royall dignity, Aſtrictus eſt ad providendum ſalvationi regni ſui; He is bound to ſecure his kingdom. And this he is bound to do by the Law, and Juſtice: for he ought to rule according to Law, and for this purpoſe he is intruſted with the Law alſo: and therefore in 8. H. 7. it is ſaid,〈…〉7. fo. 1. 2. that the King is conſervator of the Law, the which is the Common-weal. As if it had been ſaid, the Common-weal, depends upon the Kings well keeping, and obſerving, of the Law. And in many places of Bracton, amongſt which, this is one: fo. 55. b. he ſaith,•••ct. fo. 55. b. Sciendum quod ipſe Dominus Rex, ordinariam habet juriſdictionem, & dignitatem, & poteſtatem, ſuper omnes, qui in regno ſuo ſunt, habet enim omnia jura in manu ſua quae ad Coronam, & laicam pertinent poteſtatem, & materialem gladium, qui pertinet ad regni gubernaculum, habet etiam iustitiam & iudicium, quae ſunt iuriſdictiones, ut ex iuriſdictione ſua, ſicut Dei Miniſter, tribuat unicuique quod ſuum fuerit: that is, we muſt know, that the King hath ordinary juriſdiction, and dignitie, and power, above all which are in his kingdom; for he hath all the Laws in his hand, which do pertain to the Crown, and lay power; and the materiall ſword, which belongeth to the government of his kingdom; he hath alſo juſtice, and judgement, which are juriſdictions, that by his juriſdiction, as Gods Miniſter, he may give to every one, that which is his own. Here you may ſee, that the King is intruſted, with the Laws, and Juſtice, as alſo with the materiall Sword, to this end, that he may defend his people committed to his charge, as well by force, if occaſion be, as by righteous judgement. And to this alſo he is bound by his Oath, as I have21 ſaid before, which I find in Bracton, fo. 107.Bract. fo. 107 a. ca. 9. by which he ſweareth that In omnibus iudiciis aequitatem praecipiet, &c. ut per Justitiam ſuam firma gaudent pace univerſi: that is, that he will uſe equitie in all his judgements, that all, men may injoy a firm peace, by his juſtice. And there he further ſaith, that ad hoc creatus eſt & electus, ut iuſtitiam faciat univerſis, &c. & quod iuſtè iudicaverit, ſuſtineat, & defendet, &c. He is created, and elected King, for this purpoſe, and intent, to do juſtice to all men, and that he ſhould judge juſtly, ſuſtain and defend them. And with this accords 6. H. 7. where it is ſaid,6. H. 7. 16. that the King is bound for to do right to parties. And as he ought to rule according to Law, ſo he himſelf, ought to be governed by the Law, as I have ſhewed before. And as Bracton ſaith,Bract. fo. 5. b. fol. 5. b. Ipſe autem Rex, non debet eſſe ſub homine, ſed ſub Deo, & ſub Lege, quia L•x facit Legem: The King ought not to be under man, but under God, and the Law. Now I conceive that it is manifeſt, that the King is intruſted with the Laws, lives, liberties, and eſtates of his Subjects, all which he of right ought to defend in peace and tranquillity, as he alſo by his Oath is bound; and therefore Bracton ſaith,Bract. fo. 55. • Eſt Corona Regis facere iuſtitiam, & iudicium, & tenere pacem, ſine quibus corona conſiſtere non poteſt nec tenere: It is the Crown of the King to do juſtice, and judgement, and to maintain peace; without which, his Crown cannot ſtand and continue: as if he had ſaid, it is ſo eſſentiall to the King to do juſtice and judgement; and to maintain peace, that you deſtroy the Crown, if you take away theſe.
Now I ſhall prove, that the King hath made a breach of this great truſt committed to him, foure wayes. Firſt, by denying of his Protection to his people. Secondly, by not ſupporting of the Laws, and the Priviledges of Parliament. Thirdly, by not endeavouring to maintain peace amongſt his people. And fourthly and laſtly, by denying of Juſtice; and in all theſe particulars I ſhall prove, that the King hath broken the truſt committed to him.
And firſt, he hath broken the truſt committed to him by denying of his protection, and this he hath done three wayes. 1. By denying of his legall protection, that is, in not protecting of his people according to Law: and this he hath done, by denying to ſettle the Militia, by the adviſe of his great Counſell, according to Law: by whom onely, during Parliament, he ought to be adviſed, for during the continuance of this great Counſell, all inferiour Counſels ought to ceaſe: and therfore the Counſell of others neither can, nor ought to countermand theirs: but of this I ſhall ſpeak more fully afterwards. 2. The King hath denied his Royall protection to his people, in taking up of Arms againſt his Parliament, who is the repreſentative Body of the whole Kingdom: and this is the moſt ſtrong refuſall of his protection, of all22 others, for by this he doth not refuſe onely to protect them, but he goes about to deſtroy them, whom, by the Law, and his Oath, he is bound to preſerve and defend. And thirdly and laſtly, he hath denied his royall protection to his people in this, that in time of imminent danger to the Kingdom, he hath denied to ſettle the Militia; and he that denies the means, denies the end. For it is a rule with us in our Law, that Qui tollit medium, tollit quoque finem: He that takes away the means, takes away the end. And it is all one in effect, to deny a thing, as to deny the means per quod pervenitur ad illud: by which you may come to the thing. Now it is clear, that the ſole means, under God, to defend this kingdom, in time of imminent danger, from its enemies, either forrain or domeſtick, is, by ſettling of the Militia, and by putting of the Forts, and Magazine of the kingdom, into faithfull and true hands, ſuch as may be confided in, being a matter of ſo great conſequence, and of ſo high importance to the whole Common-weal. Now the King refuſing to do this, doth he not in effect, deny his protection to his people? for denying of the means, it is all one as if he had denied the end: ſo that I conceive, for theſe reaſons, the King hath denied to protect his people, as by the Law he is bound, and therefore hath made a breach of the truſt that is repoſed in him.
Secondly, I conceive, that the King hath broken this great truſt, in not ſupporting of the Laws, and the priviledges of Parliament; that he hath not maintained the Law appeareth plainly, by that, that I have ſaid before, for that he hath refuſed to be ruled by it, as he ought: for though that he is not ſub homine, under man; yet he is ſub Lege, under the Law, as I have ſhewed before, and therefore ought to be governed by it. And what is this but a refuſing to be ruled by Law, when he refuſeth upon the prayer of his Parliament to ſettle the Militia for the defence of his Kingdom, and people, according to Law? And that the King hath broken the Priviledges of Parliament, what more plain? I might inſtance in many things, but I ſhall inſtance in onely one or two: And here I appeal to all the world, whether his withdrawing of himſelf from his Parliament; and not onely ſo, but his endeavouring, by his many detractions and imputations laid upon his Parliament, to withdraw all the hearts of his people from them likewiſe: and, which is yet worſe, his ſupporting and maintaining of ſuch men, and keeping of them from juſtice and their condigne puniſhment, who are Delinquents in a high nature, againſt his Parliament: I ſay, that I appeal to all the world, whether theſe be not great breaches of the Priviledges of Parliament? and what greater breach of the priviledges of Parliament can there be? then to protect and defend them, without any colour of Law, or juſtice, who indeavour nothing, but the ruine of Parliament, and in23 this, of our Laws, lives, and liberties: ſo I conceive, that this alſo is a breach of that great truſt which is repoſed in his Majeſtie, by God, his people, and the Laws of the Land.
Thirdly, I conceive that the King hath infringed this great truſt, by not indeavouring to maintaine peace: and this two wayes, by his commiſſion, and omiſſion; by his commiſſion, in taking up of Armes againſt his people, as I have ſaid before, and then by his omiſſion, and not onely ſo, but by an abſolute refuſall, in this time of imminent danger, to ſettle the Kingdome in a poſture of defence, the ſole meanes, under God, as I have ſaid, to maintaine peace and tranquillitie amongſt us: and this i•againſt his Oath alſo, which the King himſelfe was pleaſed of late to publiſh to his people: which I finde likewiſe expreſſely in Bracton,Bract. fo. 107. that the King firſt ſweareth, Se eſſe praecepturum, & pro viribus opem impenſurum ut Eccleſiae Dei & omni populo Chriſtiano, vera pax, omni ſuo tempore, obſervetur, that is, that he will indeavour to the utmoſt of his power, that true peace may be kept & obſerved, to the Church of God, and to all Chriſtian people, all his dayes.
Fourthly, and laſtly, I conceive that the King hath broken his truſt, by denying of juſtice: and this he hath done two wayes; ſirſt, by denying to ſurrender up Delinquents to the Juſtice of the Law: and ſecondly, by denying to ſettle the Militia, by and according to the adviſe of his great Counſell the Parliament. Now that the King is obliged to doe Juſtice, it is without queſtion, for his very Oath (as I have ſhewed before) ties him expreſſely to it, and ſo is 6. H. 7. cited before, and Bracton, fo. 107. a. where he ſaith,Bracton fo. 10•… that Ad hoe creatus eſt & electus ut juſtitiam faciat univerſis, &c. He is created and elected King, for this purpoſe and intent, that he may doe juſtice to all men. And what greater act of Juſtice can there be, then for the King to defend his people in peace? or what greater act of Juſtice can there be, then for the King, at the requeſt of his people, repreſented by the body of Parliament, to enact ſuch Lawes, which conduce to the maintaining of peace? Certainly none. And this Bracton ſeemeth to intimate,Bracton. fo. 10•… Sinon eſſet qui juſtitiam faceret, pax de facili poteſt exterminari, &c. If there were not one who would doe Juſtice, peace might eaſily be extirminated. Here note, that he doth not ſay, that our lives, Lawes, Liberties, or Eſtates, for want of Juſtice might eaſily be extirminated; but our peace, by this, as it were, concentering all Juſtice in this act of maintaining peace: and without queſtion, all our happineſſe, under God, conſiſts in the ſupporting and maintaining of peace: for, take that away, and all things fall to utter ruine and deſtruction. And certainly, if it be thus, that the greateſt act of Juſtice in the King that can be, conſiſts in maintaining of peace, and in granting of ſuch Lawes, which conduce unto this end, without queſtion24 the denying of this by the King, muſt needs be the greateſt act of injuſtice in the King that can be, and by conſequence, a breach of that truſt, that is repoſed in his Majeſtie. And therefore I doe conceive, that at the leaſt in this, the King can have no negative voyce: and I doe not conceive, that the King can have any negative voyce in Parliament, in other things; for if the King, by his Oath, and the Law of the Land, be obliged to doe Juſtice, (as in truth he is) and if it be as great an act of Juſtice in the King, as can be, not onely juſtly to diſpence the Lawes in eſſe, in being, to his people; but alſo to grant ſuch new Lawes unto them as conduce to the well governing of them, in peace and happineſſe. Why then certainly it muſt of neceſſitie follow, that the King can have no negative voyce; but is bound under this heavie ſinne, of the breach of his Oath, and the Lawes of the Land, to grant ſuch Lawes as are requeſted of him by his people.
But here it may be objected, that the King had this Prerogative by the Law, that he might have called a Parliament when he pleaſed, and there was no poſitive Law to the contrary, before this Parliament, in which the King hath deveſted himſelfe of this power; and if before at the requeſt of his people, he had not been pleaſed to grant them a Parliament, why, this in effect, was a denier of Juſtice, for that the King denied the meanes by which it might be obteined, and yet this was lawfull for him to doe; therefore it will be concluded, that by the ſame reaſon he may have a negative voyce in Parliament. And Cromp. Jur. of Courts ſaith expreſſely,Cro. Iur. fo. 7. b. that when the King doth aſſent to a Bill, then he writes upon the Bill, L' Roy veult, that is, the King will have it ſo; and if he doth not aſſent, then it is indorſed L'Roy adviſera, that the King will adviſe; here it doth appeare how the King hath a negative voyce allowed him by the Law. To this I anſwer, and agree, theſe Prerogatives de facto to be in the King, but whether in truth, they be ſuch as are compatible, and may ſtand with the Oath and Juſtice of the King: this may be queſtionable, and under favour, I conceive that they cannot; for that, as I have ſhewed, his Oath and the Lawes of the Land, ties his Majeſtie to doe Juſtice to his people, and the granting of new Laws unto them, upon their requeſt, is an Act of Juſtice, and therefore he cannot denie them without breach of his Oath, and the Lawes of the Land; and by conſequence, theſe prerogatives are not compatible, with the Oath and Juſtice of the King; and though peradventure the Law may diſpence with it ſelfe, yet it cannot with the Oath of the King. Wherefore I conceive, notwithſtanding this objection, that the King can have no negative voyce: but of this onely by the way.
And is it thus, that the King hath made a breach of that truſt repoſed in him, by God and his people? as in truth, I have cleered it unto you:25 then none ſo proper to ſupply this defect, in his Majeſtie, by the diſpoſing of the Militia, for the defence and protection of the King & Kingdome, as the Parliament, who are at this time entruſted, under God, not onely with our eſſe, with our being, but with our bene eſſe, with our well-being alſo.
But here it may be objected, that the King derives his Crowne and regall power from God, and that therefore he is reſponſible to God alone for his actions, and not to man: To this I anſwer, that it is a moſt ſtrange Epiſcopall and illegall objection; for what is this but the attributing of a power to the King above Law? and the giving of him ſuch a prerogative that ſhould not be ſubject to thoſe Conſtitutions, which his predeceſſors before him had been, and though it ſhould be admitted, that as all power is derived originally from God, ſo eſpecially this; yet it doth not follow, that it was therefore conferred by an extraordinary and immediate hand of God, as it was upon Saul and David,1 Sam. 9. & 24. yet they likewiſe were confirmed and approved by the people, as you may reade in holy Writ. Beſides, Saul and David, lived not under any Municipall or poſitive Conſtitutions of men, which they were bound to maintaine and obſerve, as the King of England doth, and therefore it muſt needs be, that their power muſt be more abſolute, which was not circumſcribed within the bounds and limits of any humane Lawes. But now the Kings of England having ſubjected themſelves to the Law of the Land, and received their Crownes with that truſt and tacite condition, of defending of the Lawes, lives, and liberties of their Subjects: the Law were idle and vaine, if there ſhould be none that ſhould have this power, for the breach of this truſt by his Majeſtie, to interpoſe for the ſecuring of him, his Lawes, and people. And if this divine prerogative, which the Biſhops doe ſo buzze into the Kings eares, ſhould be admitted, I would faine know what difference would be made, betwixt an abſolute Monarke, and the King of England: and cleerely this was never reputed for other, nor can be (the Crowne being ſubject to the Law as well as the people) then a mixt Monarchy: but I ſhall conclude this, that they who ſo much defend and exalt this divine prerogative, would in the concluſion (if they might have their way) upon the ſame ground, advance the Miter above the Crowne. God open the Kings eyes, that he may ſee and acknowledge himſelfe ſubject to the Lawes, and may rule his people accordingly: and grant that he may deteſt ſuch advice, as dangerous to the State, and the ſuggeſters of it, as Peſts and Traytors to the ſame.
But it may be againe objected, that this was a conquered Nation, & therefore by the Law of Conqueſt, the Conquerour might have made what alterations in the Law, or State, he pleaſed; but he retaining the26 Law, and ſubjecting himſelfe to it (who might have advanced himſelfe above it) will it therefore follow, that in ſo doing, he hath ſubjected himſelfe to his people likewiſe? if he tranſgreſſe it, Deum habet ultorem, God will revenge it, but it was never his intent to give his people that power.
To this I anſwer, that retaining of the Law, and ſubjecting of himſelfe unto it, he is bound by it, and all his Succeſſours after him; and it were in vaine (as I have touched it before) to eſtabliſh a Law, and to give none power to put it in execution: Wherefore I conceive, that that Law that bindes the King, will for the breach of the ſame, authoriſe his Parliament, though not to inflict any penalty upon his ſacred perſon, God forbid, yet to provide for the ſecuring of him and his Kingdome; for otherwiſe (as the ſad conſequence of it would make it good) it would be, in effect, but as a dead Letter.
But now further it may be objected; Shall they have ſuch an arbitrary way of power, as this is, to doe any thing by way of Ordinance, without the King? If this may be ſuffered, they may Metamorphiſe and change the Law, into what ſhape they pleaſe, or which beſt agrees with their humours: ſo that if they order, that land ſhall from henceforth diſcend to the youngeſt ſonne, contrary to the courſe of common Law, (as I thinke the caſe was put) if this ordinance ſhould binde the Subject, he ſhould here at once be deprived of a double birth-right and inheritance, viz. of his land as heire, and of the Law as a Subject; which would be very hard and unreaſonable.
For that part of the objection, of their arbitrary way of proceeding, I ſhall in part here anſwer it; but more fully afterwards: for the objection, that they cannot doe it by way of Ordinance, without the King: To this I anſwer, that in caſe of imminent danger (as now) the Kingdome muſt needs periſh, if they ſhould not have this power, for they have no other way to ayde the Kingdome in time of imminent danger, by ſetling the Militia of it, but by way of Act, or Ordinance, and if the King refuſe, by their advice, to ſettle it, by way of act (as in truth he doth now) then we muſt of neceſſitie, allow a power in the Parliament, Ne pereat regnum, leaſt that the Kingdome periſh, by way of Ordinance to ſettle the Militia, for the defence of the ſame; for otherwiſe, the King ſhould have power, when he pleaſeth, to deſtroy his Kingdome, and the people ſhould be left naked of any abilitie, to preſerve and defend themſelves; which were very unreaſonable, and unnaturall; for nature it ſelfe, hath not onely eſtabliſhed it as a Law, that all creatures may defend themſelves from unnaturall violence, but hath armed them accordingly.
And now I ſhall prove, that as the Parliament are the moſt proper27 and onely power, to provide for the ſecuring of the Kingdom: and a•they have no other way to do it: ſo they are obliged to take this way: and this they are tied to by their Oaths of Allegiance, Supremacy, and their late Proteſtation; for by theſe they have all ſworn, vowed, and proteſted, to defend the King, his royall perſon, and eſtate, and to be true and faithfull to him; now it is impoſſible for them to defend the King, and to be true and faithfull to him, if they, in time of imminent danger, do not indeavour, as much as in them lieth, to defend his kingdom; for there is ſuch a reciprocall and dependent relation, betwixt the King and his Kingdom, that the one cannot ſubſiſt without the other: for if they permit the kingdom to be deſtroyed, the King muſt of neceſſitie be ruined alſo. If the Maſter die, the relation of a ſervant muſt needs ceaſe: for that relatives cannot ſubſiſt, the one, without the other. And if the kingdom fail, the King and Scepter muſt needs fall to the ground. And this is, in part, the reaſon of that pollity of Law, in the 7. Rep. Calvins caſe,7. Rep. 12. Calvins C. that the King is a body politick, leſt there ſhould be an interregnum; for that a body politique never dieth.
Why then is it ſo, that they are bound by their Oaths to defend the kingdom, as well as the King? as in truth they are, for that the King cannot ſubſiſt without the kingdom; then the conſequence muſt of neceſſity be, that the Parliament, in this time of imminent danger, hath well done in ſettling of the Militia, for the defence and welfare of the King and kingdom: and that in ſo doing, they have not onely not done more then what they might do, but they have done no more then what they were bound to do, and this under the heavie ſinne of perjurie.
But here it may be objected, that this is a corrupting and dividing of the Text; for that the Oath of Supremacy doth not onely bind us to be true, and faithfull to the King, but alſo to defend, all Juriſdictions, Priviledges, preheminences, and authorities, granted, or belonging to his Highneſſe, &c. And the having of the ſole diſpoſing of the Militia is one of the priviledges of the Crown, and appertaining to his Highneſſe: and therefore we are bound likewiſe, by this Oath, to defend this priviledge of the Kings, againſt any who ſhall endeavour the taking it away from his Majeſtie.
To this I anſwer, and agree, that the King (as I have ſhewed before) hath this priviledge and prerogative given unto him, and with him intruſted by the Law for the good of the Common-wealth: but I never heard that he had it allowed him, for the deſtruction of the ſame. Again, I agree that the Oath of Supremacy obligeth every man to defend the priviledges and preheminences of the King: but I do not conceive, or beleeve, that this ought to be ſo conſtrued, that any man28 by the Oath of Supremacy, is bound to defend the priviledges of the King, againſt the weal publick: for if the weal publick, and priviledges of the King, ſtand in competition, without queſtion the publick intereſt and welfare ought to be preferred. And therefore if the King do not imploy and uſe his priviledges according to the truſt repoſed in him, but rather contrary to it: certainly this doth diſoblige every man from that tie and ingagement in this particular, with which he was bound by the Oath of Supremacy. For ſo to conſtrue the Oath, that I ſhould defend the pr•viledges of the King, though it be in deſtruction of the common-wealth: were to make the Oath the moſt hard and unreaſonable tye in the world: whereas, every Oath, amongſt other qualifications, ought eſpecially to have theſe two: viz. that it be explicite, I mean, without implications, or etcetera's: and reaſonable; and it would be very unreaſonable for a man to ſwear to ſuch a thing as would be his own deſtruction: but à fortiori, where it would be the deſtruction of the Common-wealth. And as it is ſaid, Pereat unus, ne pereant omnes; let one periſh, that all may not periſh: So I ſay, Pereant privilegia Regis ne pereat Regnum: it were much better, that the priviledges of the King ſhould totally ceaſe, or at the leaſt, be ſuſpended for a time, then that the kingdom ſhould be indangered.
But now I ſhall demand of any man an anſwer to this queſtion: whether doth moſt ſtand for and defend the priviledges of the King: either he that endeavoureth to the utmoſt of his power to defend and ſupport the Common-weal, in imminent danger: or he that indeavoureth the deſtruction and ruine of the ſame: this is the very difference, between the Parliament and the Malignant party: the Parliament uſe all means poſſible to defend the King and kingdom from ruine; and the malignant party uſe all their skill to make both for ever miſerable; This queſtion is in it ſelf pregnant of an anſwer: and the very putting of the caſe, is a ſolution of the queſtion: For, no doubt, every wiſe and ingenious man muſt needs conclude within himſelf, that they moſt defend the priviledges of the King, who moſt indeavour the ſafetie of the King and kingdom, and that is the Parliament: ſo that this Objection fails in th•very foundation of it.
And now having anſwered that part of the Objection, that we ought not to defend the priviledges of the King againſt the Common-weal: and having likewiſe ſhewed, that he moſt indeavours the defence of the priviledges of the King, who ſeeks moſt the good and proſperitie of the Common-weal. I ſhall now anſwer the latter part of the Objection, that there is none that goeth about the taking away of the priviledges of the King: but onely to imploy them in defect of the King, according to the truſt repoſed in his Majeſtie. For as I have ſhewed before29 the King is tied to protect his Subjects from any forrain invaſion, or domeſtick danger: and now the King refuſing to do this, by putting of the kingdom into a poſture of defence; the Parliament, according to the truſt repoſed in them, have, in defect of the King, and in his right, aſſumed to themſelves this great charge, of ſettling of the Militia, for the ſecuritie of the King, and people. And here I ſhall bid malice it ſelf ſpeak, whether it hath been imployed to any other end or purpoſe, then that for which it hath been alwayes pretended: viz. for the defence of the King and kingdom? or whether the Magazine (which is pretended to be taken from the King) wheras in truth it is imployed by the King, and for the ſafetie of him, and his kingdom (as I ſhall afterwards ſhew) hath been converted to any private property: or otherwiſe diſpoſed of, then for the common good? and if ſo, certainly here is no deveſting of the pretended property of the King: but that it ſtill remaineth in ſtatu qu•prius: in the ſame ſtate that it was at the firſt. But if it ſhould be admitted, that this priviledge of the King is at this time taken from him: I conceive that it may be ſo, as this caſe is: For, as I have ſaid before, it were better that the King ſhould looſe his priviledge, then that the kingdom ſhould periſh. I agree the rule of Law, that the King, regularly, cannot grant over his Prerogative; and with this accords 4. Rep. 7. Rep. 14. H. 4. 2. H. 7. 20. H. 7.4. Rep. 73. 2. 7. Rep. 25. b. 14. H. 4. 9. 2. H. 7. fo. 13. 20. H. 7. fo. 8. and many other books: except in ſome ſpeciall caſes, as in the 2. Rep. and the 5. Rep.2. Rep. fo. 44. a. 5. Rep. fo. 56. b and the difference upon the books may be this, where the Prerogative is meerly perſonall, and where not: where it is meerly perſonall, there it is not grantable; but where it is not meerly perſonall, there it is: Now in our caſe I do conceive, and ſhall agree, that the ordering of the Militia of the kingdom, is a prerogative, ſo meerly perſonall in the King, that it cannot be granted over to another. But it doth not therefore follow, that it can by no means be ſevered; eſpecially, as in this caſe, when it ſo much concerneth the good of the Common-weal. Wherefore, I conceive clearly, that the King cannot grant this prerogative over to another, for that he onely is intruſted with it for the weal publick: and as we well know, parties intruſted, cannot grant their truſt over: for that a truſt is meerly perſonall, and therefore not ſeverable. And the King can no more grant over his prerogative of protection, or power of ordering of the Militia, to another, then he can diſpoſe of his Crown, or royall dignitie, to another: and that he cannot do, for King John ſurrendred his Crown to the Pope, and this was adjudged to be void, for that it was given to him by God, and the Law, in truſt, for the well governing of his people. Rot. Parl. An. 40. E. 3. Nu. 8.And therefore by his own act, or grant, cannot be ſevered from him: For an office of truſt, by the Law, is not grantable over. But on the other ſide, we ſee, how that Crowns of Kings have been taken from them, by30 the people, as in caſe of R. 2. and others: I do not ſpeak this in juſtification of the depoſing of Princes, God forbid that I ſhould, their perſons are ſacred: for that they are Gods anointed, and his Vicegerents, or Vicarii Dei, that is, Gods Vicars, as Bracton ſtiles them: againſt whom, God hath laid an inhibition, that we uſe not any violence, Touch not mine anointed: and therefore for my part, I conceive, that that damned opinion of the Spencers, in the reign of E. 2. that if the King did not demean himſelf, by reaſon in the right of his Crown, that his Lieges were bound by oath to remove the King: and that if the King could not be reformed by ſuit of Law, that it ought to be done per aſpertee, I ſay that, I conceive that this was juſtly damned, as in truth it was afterwards by two Acts of Parliament; the one in the Reign of E. 2. called Exilium Hugonis de Spencer: and the other in 1. E. 3. ca. 1. Stat. E. 2. cal•ed exilium Hugonis de Spencer. 1. E. •…. ca. 1.
But now, though that the King cannot grant this Prerogative over, as I have ſaid before yet, under favour, I conceive cleerly, that it li•th in the power of the Parliament, for the prefervation of the Kingdom, in caſe of imminent danger, as now, to ſettle the Militia in hands to be confided in; for, as I have ſaid before, the prerogative of the King muſt give way to the weal publique, and not the weal publique to the Prerogative of the King. For if the Prerogative of the King ought not to be advanced to the prejudice and wrong of the intereſt of any private man, as I have ſhewed before, much leſſe, to the wrong and injurie of the re-publique. And with this difference ought Bracton to be underſtood, who ſaith,Bract. fo. 55. b. that, Ea quae juriſdictionis ſunt, & pacis, & ea quae ſunt justitiae & paci annexa, ad nullum pertinent, niſi ad Coronam & dignitatem Regiam, nec à Corona ſeperari poterunt, cum faciunt ipſam Coronam. Thoſe things that belong to juriſdiction and peace, or are annexed to them, appertain to none, but the Crown, and Royall Dignity, neither can they be ſevered from it, for that they make the Crown it ſelf. Now as I have ſhewed before, theſe words of Bracton, Ea quae pacis ſunt, &c. thoſe things that belong to peace, muſt neceſſarily intend Ea quae bel••ſunt, thoſe things that belong to warre alſo, for that it is impoſſible for the King, Abſquerebus Militaribus, that is, without the Militia, to defend his people in peace and ſafety; And for that, that he ſaith, that this cannot be ſevered from the Crown: this ought to be underſtood, by his own act onely: and not that it cannot be ſevered from him, though in his own default, by his Parliament. For, to make ſuch a conſtruction, were to make a Law, deſtructive to that, for which it was principally, and in the firſt place, made to preſerve; and that is the Common-wealth. And the like conſtruction and explanation of his words, Bracton maketh afterwards, for he ſaith, Ad perſonas, vel ten•mēta transferri non poterunt, nec à privata perſona poſſid•ri: they cannot be31 transferred to perſons, or Tenements, nor be poſſeſſed of a private perſon; which cannot be otherwiſe intended, then of the grant of the King, for transferre, that is, to transferre, is no other then concedere, that is, to grant. And I agree with Bracton in this, that the King cannot grant over this prerogative: but this poſition, doth no way conclude againſt the power of the Parliament, as our caſe is.
But here Mittons caſe in the fourth Rep.4. Rep. Mittons caſe. cited before to another purpoſe, may be objected againſt me, where it is reſolved, that the Queene could not take away the grant of the Office of the Clerke of the Countie Court from the Sheriffe: in which caſe, there is another caſe alſo cited to be adjudged by all the Judges of England, viz. that the grants of the cuſtodies of Goals of the Counties, by the King are voyde; and the reaſon that is given for both theſe Caſes, is, that the Sheriffe having theſe Offices appendent to his Office (as in truth they are) is by the Law reſponſible for all miſdemeanours done in thoſe Offices, and therefore it is againſt all reaſon, that the grant of them ſhould be taken from him; but that he ſhould have power, to put in ſuch into thoſe Offices, for whom he ſhould anſwer. Now the force of the objection ſtands thus; if theſe Offices cannot be ſevered from the Sheriffe, becauſe that by this he ſhould be diſabled to performe the truſt repoſed in him, and yet ſhould be reſponſible for all miſdemeanours done in thoſe offices, which would be very unreaſonable: à fortiori, you ſhall not take away this priviledge from the King, for by this he ſhould be diſabled, either to protect and defend his people, as by Law he is bound, or faithfully to diſcharge this great truſt repoſed in him, as God requireth. To which I anſwer, that there is a great and wide difference betwixt the caſes; for firſt, in the caſe of the Sheriffe, the depriving him of the grant of theſe Offices, concernes onely his private intereſt, & not the Common-weale; I meane, the Common-weale ſtands not in competition with the Sheriffes right, as in our caſe; and therefore in this, the difference is great. But, which makes the caſes much more to differ: in the caſe of the Sheriffe, there was no act or default in him, for which to deprive him of this benefit; and it is a rule in our Law, that Quod noſtrum eſt, ſine facto, ſive defectu noſtro, amitti, ſeu ad alium transferri, non poteſt; a man ſhall never be deveſted of his propertie, without his owne act, or default. But otherwiſe it is here in the caſe of the King, for, if there be no act, yet I am certaine, that there is a defect or default in the King, in refuſing, in this time of imminent danger, to put the Kingdome, according to the advice of his great Counſell, in a poſture of defence.
And it is no new thing, for a man to looſe his intereſt in his own default: Upon this I might multiplie caſes; but I will put onely one or two familiar and ordinary caſes in our Books. If I make an eſtate for32 life, or yeares, to another, without condition expreſſed, yet the Leſſee hath not the eſtate ſo abſolute in him, but that by a tacite condition in Law, running with every ſuch particular eſtate, he may, by his own default, looſe his eſtate; and therefore if he commit waſt, he ſubjects his eſtate to be evicted by the Leſſor; or if he aſſumeth to himſelfe, to grant a greater eſtate to another, then he himſelf hath, by this he forfeiteth his eſtate. But you will peradventure ſay, that this caſe doth not agree with the caſe in queſtion, for that the King hath an eſtate of inheritance in his Crowne, which goeth in ſucceſſion to his poſteritie, as well as the private intereſt of any Subject: This I agree, but under favour, he hath this committed to him in truſt; this tacite condition runneth along with it, that he uſe his regall power and authoritie, for the good of the publique; or if he doth not, that then his great Counſell for breach of this truſt, and non-performance of this tacite condition (though that they cannot meddle with his ſacred perſon, by dethroning of him, or deveſting of him of the regall Scepter) may provide for the ſecuring of him and his Kingdome.
Againe, it is cleare by the Law, that miſuſer or non-uſer of any Franchiſes, Priviledges, or Offices, is a forfeiture of them; but eſpecially of any publique Offices, which concerne the adminiſtration of Juſtice, or the Common-wealth: and with this agreeth 5. E. 4. 8. H. 4. 20. E. 4. and my Lord Cooke in his Comment upon Littleton:5. E. 4. 5. 8. H. 4. 18. 20. E. 4. 6. Inſtit. 233. a. and many other Books. Now it is as cleare, that to be a King, is an Office, though it be the greateſt Office that any one, under God, can have: and what Office ſo much concerneth the adminiſtration of Juſtice, and the good of the Common-wealth, as this doth? and therefore, though this great office, be no more forfeitable, then it is grantable by the King: for I conceive that to be regularly true in the Law, that that which is not grantable, is not forfeitable: yet, God forbid, that his great Counſell, for his miſuſer, or non-uſer of his Kingly function, ſhould not have power, for the breach of this tacite condition, to apply themſelves, by all lawfull meanes, for the ſecuring of him and his Kingdome.
I ſhall compare this caſe, to one caſe onely, lately adjudged, viz. Hill. 17. Car. in the Kings Bench, Langhams caſe,Hill. 17. Car. in Banco Regis Langhams caſe where the caſe was thus; Langham a Citizen and free-man of London, was elected Alderman of the Citie, and being called to take his Oath, refuſed, for which he was committed to priſon by the Court of Aldermen: upon which he prayed his Habeas corpus in the Kings Bench, and it was granted unto him: and upon the returne of the Writ, they did alledge, that they had this cuſtome, that if any man were elected Alderman of the Citie, and refuſed to take the Oath, that the Court of Aldermen had uſed, time out of minde, to impriſon the party ſo refuſing: and then they ſet forth, de33 facto, how that Langham being a Citizen and free-man of London, was duely elected Alderman, of ſuch a Ward; and that he being called to take the Oath, refuſed, and that therefore he was committed by the Court of Aldermen: and the queſtion here was, whether the cuſtome to impriſon the body of a free-man, were a good cuſtome, or not? and it was reſolved upon ſolemne debate, by all the Judges of the Kings Bench, that the cuſtome, as this caſe is, is a good cuſtome: and this is the difference that was taken by them, that a cuſtome generally for a Court of Record to impriſon the body of a freeman, is no good cuſtom, for that it is againſt the libertie of the Subject, and Magna Charta, by which it is enacted, Quod nullus liber homo capiatur, aut impriſonetur, &c. that is, that no free-man be taken or impriſoned;9. H. 3. ca•… but Per•legem terrae, &c. by the Law of the Land. But a cuſtome, as in this caſe, for to impriſon the body of a freeman, for refuſing to take an office upon him, which is for the ſupport of government, and without which government cannot ſubſiſt, which by conſequence, ſtrikes at the very eſſe, and foundation of the Common-wealth; for that it cannot ſtand without government: ſuch a cuſtome was reſolved to be a good cuſtome. Now I ſhall compare this caſe, with the caſe in queſtion: it is here reſolved, that a cuſtome for to impriſon the body of a freeman, for refuſing to do ſuch a thing, which by conſequence reflects upon the Common wealth, and may indanger it, that this is a good cuſtome: now thus ſtands the paralell: and as the rule of Law is, Ʋbi eadem ratio, ibi idem jus, where there is the ſame reaſon, there ought to be the ſame Law. Now the ſame Law, that defends the Kings prerogative from violation, or ſeperation from the Crown, doth as ſtrongly, Et eodem jure, by the ſame right, defend the liberty and freedome of every private mans perſon from impriſonment; for, though the intereſt and priviledge of the King, doe farre tranſcend any ſingular and private perſons, being compared with them, yet they ſtand in equipage, In equali jure, that is, in equall right, being compared with the Common-weale; and therefore aſwell the intereſt of the King, as of his Subject, Debent cedere Republicae, ought to give way to the Common-wealth: And yet we ſee, that as a mans perſon, for the good of the Common-wealth, ſhall be ſet at large, and free from impriſonment, as it is reſolved in 36. & 37. H. 8. Dyer. 36. & 37. •…Dyer. fo•…Trewynni•…Caſe. Where a man was elected a Burges of Parliament, and being in execution was let at large, by a Writ of priviledge, and adjudged that his inlargement was lawfull, and that the Sheriffe was by this excuſed: So on the other ſide, a freemans perſon, by a private cuſtome, contrary to Magna Charta, may for the good of the Common wealth be impriſoned: and without queſtion, the Subject may as juſtly demand of the Law, the freedome of his perſon from impriſonment, as the King, of his prerogative, from violation,34 or ſeparation; and yet no priviledge, no, not of the perſon it ſelfe, of a common perſon, ought to be preferred before the common good: and by the ſame reaſon, not any priviledge of the King; for, though the King be much greater, and much to be preferred, before many thouſands, of individuall or particular perſons; yet, without queſtion, the univerſe or Common-wealth, is to be preferred before the King, or any intereſt or priviledge whatſoever of his: ſo that, for all theſe reaſons, I conceive, that the prerogative of the King, may, as this caſe is, be ſevered from him: and therefore, that the Parliament (admitting that they have taken it from his Majeſty) have done no more then what is warrantable by the Law.
But now, if all that I have as yet ſaid, will not ſufficiently juſtifie the Parliament in their proceedings, concerning the Militia: I ſhall adde a third reaſon to prove, that what they have done, is lawfull: and that is this; what they declare to be Law, bindes the King, by an incluſive judgement, & then their judgemennt, being the judgement of the King, and their Votes and Declarations of the Law, including the royall aſſent and declaration: the King cannot afterwards by a ſubſequent Declaration countermand his own judgement, tacitly included in theirs: and by conſequence, the prerogative of the King ſuffers no violence; for Volenti non fit injuria, that is, a man that conſents to the doing of a thing, is not injured by the thing being done. Now that their Declarations of the Law, includes the King, and ſhall binde him, I ſhall preſently prove it: Firſt, it is cleare, that the Parliament conſiſting of the three eſtates: viz. of the King, Lords, and Commons, are a Court; and it is as cleare, that they are the greateſt and higheſt Court in England; in which, Juſtice is adminiſtred by the King, in thoſe Worthies, unto his people, in the moſt high and tranſcendent way that can be: for the King doth not appeare with that ſplendour and brightneſſe of Juſtice and integritie; neither is he ſo true and clearely repreſented to his people, in thoſe glorious rayes of his, in any Court of Juſtice whatſoever, as he is, in his thrice great and honourable Court of Parliament. Now that it is a Court, and that the greateſt Court in England, in the 9. Rep. Epist. ibidem,•…p. Epiſt〈◊〉 my Lord Cooke ſaith, that among other appellations, it is called by the name Magnae Curiae, &c. of the great Court. and in Pl. Com. fo. 388.〈…〉fo. 388. the Parliament is a Court of thrice great honour and juſtice, &c. and Bracton 34. a.〈◊〉fo. 34. a. Rex habet &c. Curiam ſuam, viz. Comites Barones, &c. the King hath his Court, to wit, Earles, Barons, &c. and Fleta lib. 2. ca. 2. 〈◊〉li. 2. ca. 2.Habet etiam Rex Curiam ſuam, in Conſilio ſuo, in Parliamentis ſuis, &c. the King hath his Court, in his Counſell, in his Parliaments, &c. and Crompton in his Juriſdiction of Courts,•…p. •ur. d' •…s. fo. 1. 2. begins with the deſcription of the high Court of Parliament, giving it the precedency35 in act, as well as in words: where he ſaith, that the ſaid Court, is, L'treſhaulte Court d' Engliterre, that is, the thrice high Court of England: in which, ſaith he, the Prince himſelfe ſits in perſon, &c. And I ſhall conclude this with Dyer, who ſaith,Dyer fo. •… that this Court of Parliament, is the higheſt C•u•t, and hath more priviledges then any other Court of the Realme, &c. And all this is made cleare, without further ſaying, by this, that no•ppeale lyeth from this Court; no reverſall of their judgement, but by the judgement of a ſubſequent Parliament.
Then this being admitted, that the Parliament is the greateſt Court in England, I ſhall argue thus: is the King by intendment of Law, preſent in all his other inferiour Courts? as in truth he is, as 21. H. 7. and 2 & 3. Eliz. Dyer.21. H. 7. f•2. & 3. Dyer fo. 1•… and many other books are: which certainly is the reaſon of the heavy judgement of theſe caſes, of killing of a Judge upon the Bench; that that is Treaſon: Or of drawing of a ſword to ſtrike a Juſtice ſitting in judgement: or of ſtriking of a Juror in the preſence of Juſtice, that theſe incurre the heavy judgement, of cutting off the right hand, perpetuall impriſonment, and the loſſe of lands, and goods, as the books are, of 22. E. 3. and F. Judgement, 174.22. E. 3. •…Fitz. Ju•…174. or of killing of a Meſſenger of the King, that goeth to execute his commandment, that this likewiſe is Treaſon, as the book is, in 22. Aſſ. 22. Aſſ. P•…I ſay, I conceive, that the reaſon of theſe caſes is, for that he that offers violence to his Miniſter, when he is doing the ſervice of his great Maſter the King: offers violence to the King himſelf, whoſe perſon he repreſents, and who by intendment of Law, is there preſent giving judgement: and he that ſtrikes another in the preſence of Juſtice, doth it as in the preſence of the King himſelf: for that what the Judge, or Miniſter of the King doth, in purſuance of the lawfull commands of the King, or in executing Juſtice, is the act or judgement of the King himſelf, according to that rule of Law, Qui per alium facit, per ſeipſum facere videtur: the act of a mans miniſter or ſervant, is the act of the Maſter himſelf. And this Bracton himſelf ſaith,Bract. fo. •… treating of juriſdiction, delegated by the King, to inferiour Judges, and withall ſhewing and directing of thoſe Judges Delegates, to execute righteous judgement, ſaith he, Tale judicium diligit honor Regis, cujus p•rſonam in judicio & judicando repreſentant. Such a judgement the honour of the King delights in, whoſe perſon, in judgement, they repreſent. Why then, I ſay, is it thus, that the King by intendment of Law, is preſent in all his other Courts; and that what they do, or judge, is the act or judgement of the King himſelf? then certainly it muſt of neceſſity follow, (as indeed the Law is) that their judgement cannot be counte manded by the King: for this were to put Caeſar againſt Caeſar, the King againſt himſelf, which cannot be; for that when a Judge hath once given his judgement, he cannot afterwards countermand this judgement.
36Again, is the King (as I have ſaid) by intendment of Law preſent in his inferiour Courts; and is their judgement his judgement, ſo that by this his Majeſtie is eſtopped and concluded by his own incluſive judgement, to countermand theirs. Then, I ſay, a fortiori, the King, though he diſunite himſelf from his Parliament, yet by intendment of Law, and virtually he is preſent in his high Court of Parliament: and therefore their judgement is his judgement: and what they declare to be Law, the King by an incluſive judgement declareth to be Law alſo. And if ſo, the concluſion muſt of neceſſity be, that the King can no more countermand their judgement, then he can the judgement of his Judges: for when Tranſit in rem judicatam, that is, when a thing is once adjudged, it can never after be repealed by the ſame judgement (as I have ſaid) for that were a way to make judgement upon judgement, and ſo ad inſinitum, & inſinitum in iure reprobatur: the Law deteſts infinites. And as the King himſelf, cannot repeal this judgement pronounced by his Parliament: ſo neither can he do it, by any other adviſe or judgement, power, or juriſdiction whatſoever, no not by the adviſe, though of all the Judges of England, for that there is no power or judgement whatſoever, but is inferiour to the judgement of the high Court of Parliament; which is plain, by that, that no appeal lieth from them: and then the rule of Law binds up and ſuperſedeth all inferiour judgements: In preſentia maioris, ceſſat poteſtas minoris. In the preſence of the great, the power of the leſſe ceaſeth. And therefore according to this rule, it is reſolved in 21. Aſſ.Aſſ. Pl. 1. that becauſe that the Kings Bench is Eier, and more then Eier: if a Commiſſion of Eier ſit in a County, and the Kings Bench cometh thither; the Eier ceaſeth. And this is the reaſon, that when it was enacted by the Statute of 28 E. 1.〈…〉1. ca. 5. that the Kings Bench ſhould follow the King, that the power of the Steward of the Kings Houſhold, to determine Pleas of the Crown, did ceaſe: and that in Terme time, when the Kings Bench ſits, in the ſame County, all Commiſſions ceaſe, as it is reſolved in the 10. Rep. and in the 9. Rep.•…Rep. fo. 73. •…Rep. fo. b. And this is the reaſon likewiſe, that when the Pope exerciſed juriſdiction here in England, whatſoever the Ordinary of any Dioceſſe might do, that the Pope, who challenged to himſelf ſupreme juriſdiction, over all Ordinaries, uſed to do within this Realm, as ſupreme Ordinary: and ſo he uſed to make Viſitations, corrections, diſpenſations, and tolerations, within every Dioceſſe of this Realm, as the Ordinaries uſed: ſo he uſed to make Appropriations, without the Biſhop: and this was held good, and was never contradicted by the Biſhop, who was accounted but the inferiour Ordinary. Upon this ground, as it is ſaid by Manwood Justice in Pl. Com. •…Com. fo. •…a.In preſentia maioris, ceſſat potestas minoris.
37So I ſay, in the caſe in queſtion, for that the high Court of Parliament, are the moſt ſupreme juriſdiction in England; what they declare to be Law, cannot be countermanded, by the judgement of any power or Counſell whatſoever: becauſe that in the preſence of the moſt ſupreme juriſdiction, the inferiour ceaſeth. I do not hereby intend, that the power of the Judges, in their ſeverall Courts, for the diſpenſation and execution of juſtice, ſhould ceaſe in the Terme, for that the Parliament is ſitting at the ſame time, And the reaſon is obvious, for that theſe Courts have their proper and diſtinct juriſdictions, from the Parliament; and therefore cannot be ſuperſeded by it. I intend by this onely that what the Parliament hath declared to be Law, cannot, as I have ſaid before, be countermanded by any other inferiour judgement whatſoever: for that where the powers exerciſe the ſame juriſdiction, they cannot both ſtand together, but the greater will caſhere and ſuſpend the leſſe: ſo I ſay in our caſe.
But here it may be objected, that the King is fons Justitiae, that is, the fountain of Juſtice; and that he onely, as Bracton ſaith,Bract. fo. 55. b. Ordinariam habet iuriſdictionem, & dignitatem & poteſtatem ſuper omnes qui in regno ſuo ſunt, habet enim omnia iura in manu ſua, &c. And a little after he ſaith, Ea quae iuriſdictionis ſunt, &c. & ea quae ſunt Justitie, &c. annexa, ad nullum pertinent, niſi ad Coronam & dignitatem Regiam: that is, thoſe things which appertain to juriſdiction, and juſtice, belong to no body, but the Crown, and royall dignity. And as all juſtice and juriſdiction is primarily and originally in the King, ſo they cannot be exerciſed by any other, except that they be firſt delegated to them by the King; And ſo ſaith Bracton a little after, Juriſdictiones, &c. non poſſunt à privata perſona poſſideri, nec uſus, nec executio iuris, niſi hoc datum fuorit ei deſuper: that is, no juriſdiction, nor execution of the Law, can be exerciſed by any private perſon, except that this power be firſt given unto him from the King. So Bracton treating of juriſdiction, ſaith;Bract. fo. 107. • Videndum, &c. quis primo & principaliter poſſit & debet iudicare: that is, let us ſee, who firſt, and principally, may, and ought to judge. And then he anſwereth, Sciendum, quod ipſe Rex, & non alius, ſi ſolus ad hoc ſufficere poſſit; eum ad hoc virtute ſacramenti teneatur aſtrictus: that is, we muſt know, that the King onely, and no other, if he alone may ſuffice: For that he is bound to do it, by vertue of his Oath. And after in the next Chapter ſpeaking of juriſdiction delegated, he ſaith,Bract fo. 108. a Si ipſe Dominus Rex ad ſingulas cauſas terminandas, non ſufficiat, ut levior ſit illi labor, &c. he may, ſaith he, Conſtituere Justiciarios, &c. quibus referantur tam quaeſtiones ſuper dubiis, quam quaerimoniae ſuper iniuriis, &c. that is, if the King alone cannot ſuffiſe to determine all cauſes, that his labour may be the more eaſie, he may conſtitute Juſtices, to whom, as well doubts in Law38 may be referred, as complaints, upon injuries. And in purſuance of this, the King, not poſſibly ſuffi•ing to exerciſe all juriſdiction himſelf, hath in all ages, delegated power and juriſdiction to a certain number of men; and hath conſtituted them Judges, and diſpenſers of the Law under his Majeſtie, and in his right an〈◊〉to his people.
Now all this being admitted, as in truth it cannot be denied, the force of the objection ſtands thus: is it ſo that no juriſdiction can be exerciſed by any, except that it be firſt delegated to them by the King, and that the King hath conſtituted certain perſons, to be his Judges of the Law? why then it lieth not in the power of the two Houſes of Parliament, to declare what is Law, and what not. Firſt, becauſe that they are not the proper Judges of it. And ſecondly, becauſe that they have no ſuch power given unto them by the King: for what power they have it is derived by their Writ, by which the King calleth them to Parliament: and this onely requireth their preſence, Super dictis negotiis tractaturis: and tractare is onely to treat of or debate the Law, not to declare, or give judgement what the Law is; Beſides, this word tractare is contained onely in the Writ by which the Lords are ſummoned to Parliament, and not in the Writ of the Commons, for by that they are called onely (as I remember the Writ is) ad faciendum & conſentiendum, to do, and agree; why then they have no ſuch power to intermeddle with the debating of the Law, much leſſe to declare what the Law is.
To which I anſwer: That the two Houſes of Parliament conjoyned (for I ſpeak not of the power of the Houſe of Commons diſtinct, and by it ſelf) may not onely declare what the Law is, but are the beſt and moſt proper Judges of it. Are not they the ne plus ultra; that the Subject hath for redreſſe in matter of Law? are not they (as common experience teacheth us) the ſupreme Seat of Judicature? and do not they exerciſe a ſuperintendent juriſdiction over all other Courts? and have not they power by a Writ of Error, brought before them, to reverſe Judgements erroniouſly given in other Courts? Without doubt they have; witneſſe that caſe of the Ship-money: which Judgement could not poſſibly have been reverſed, but by the Parliament; who upon debate, declared that Judgement to be againſt the Law; and how miſerable this Common-wealth had been: if they had not had this power, the lamentable ſucceſſe, of deveſting of the Subjects property, without his conſent, by that damnable judgement, contrary to all Law, would have in ſhort time, been manifeſted to the whole world. But to this it may be ſaid, that in theſe caſes, the Judges adviſe, who ſit as aſſiſtants in Parliament, is demanded: and that in ſuch caſe, the King, by his Judges, doth declare what the Law is. To this I anſwer, that becauſe the Parliament may demand the adviſe of the Judges, who ſit there to that intent, will39 it therefore follow that they are tied to it? or having demanded their adviſe: muſt the conſequence be, that they are bound to follow it? without queſtion nothing leſſe: for this were to tie my judgement to another mans principles, which ought not to be. And it were abſurd for to think, that the Parliament, who are the ſupreme ſeat of Judicature, ſhould be tied to ſubſcribe to the judgement of any inferiour power whatſoever. And now I ſhall put you one caſe: poſito, that all the Judges of England, aſſembled together in the Chequer Chamber to give judgement in a point of Law, ſhould all concurre in their judgements, and ſhould give judgement accordingly; and after in a Writ of Error brought in Parliament, this judgement ſhould be reverſed: doe not the Parliament onely, in this caſe, declare what the Law is? Without queſtion they doe; for, I ſuppoſe, that there is none ſo ſtupid, as to thinke, that the Judges advice or judgement ought or can be received in this caſe; for this were, upon the matter, to appeale à Caeſare, ad Caeſarem, and to reverſe that Judgement (though not by the ſame power) yet by the ſame adviſe that gave it: which, as I conceive, by the Law ought not to be.
But here peradventure it will be againe objected, that no Writ of error can be brought in Parliament, but that the King firſt ſignes to it:1. H. 7. 19:•… and this is a conſent by the King, & a giving of them power to proceed and declare what the Law is: but in our caſe there is no ſuch thing, for here is nothing judicially before them, by which to authoriſe them to give any ſuch judgement, and therefore they have no ſuch power to declare what the Law is, in this caſe; and if they doe, their proceeding is extrajudiciall and arbitrary.
To this I anſwer, that true it is, that they cannot, nor ought not to take notice of any thing which concerneth any private perſons, or their intereſt; neither can they, in any ſuch caſe, give Judgement, or declare what the Law is, except they have ſomething judicially pending before them, upon which to ground their judgement; but otherwiſe it is where it concerneth the Common-wealth, for there, I conceive, under favour, (eſpecially, as in this caſe, in time of imminent danger) they are not tied to any legall way of proceeding, but they may, and are bound, as well by their Oaths of Alleageance, Supremacy, and their late Proteſtation, as by their Writ, by which they are called to Parliament, to take notice of all things, which may be obnoxious and prejudicall to the Common-wealth: and to debate, determine, and declare the Law concerning them, though that they have nothing judicially before them; for if they ſhould, in this caſe, expect a complainant, the Commonwealth might periſh, before that they could yeeld any ayde or aſſiſtance, for the ſecuring of it. Now by their Oaths, they are bound to defend40 the King and Kingdome (as I have before ſaid) and by their Writ they have power and authoritie given them, De imminentibus periculis tractare: and tractare, doth not onely ſignifie to handle, treate of, or debate; but likewiſe it ſignifieth, as the learned obſerve, to order, to governe, to write of, or to deſcribe; and, without queſtion, theſe words have weight, ſence, and power enough in them, not onely to inable them to debate what the Law is, but alſo to declare what it is, after that it is debated: ſo that I conceive, by this it is cleare, that the Parliament doe not exerciſe, practiſe, or endeavour any arbitrary way of proceeding. And the difference (as I concelve) upon the whole matter, will be this; that the two Houſes of Parliament cannot (as I have ſhewed before) make a new Law, or alter the old Law, without the conſent of the King, and this by Act of Parliament; but they may declare what the Common Law is, and this ſhall be obliging to his Majeſtie; for otherwiſe, this great Court, which ſo farre tranſcends all others, in other things, ſhould be leſſe in power, in this particular, then any other; Which ought not to be conceived, or imagined.
Now this being Law, which I have delivered, as I conceive it is; from hence theſe Concluſions may neceſſarily, and by conſequence, be deduced; Firſt, that the declaration of the Law, to be otherwiſe by the Proclamation, or other Declaration of the King, doth not change the Law; for that it is a Rule in the Law, that the King can neither create a Law, nor alter the Law, by his Patent or Proclamation: And with this agreeth 49. Aſſ. 37. H. 8. Br. Patents 100. 11. H. 4. 10. H. 7. 5. Rep.49. Aſſ. Pl. 8. 37. H. 8. Br. Pat. 100. 11. H. 4. 37. 10. H. 7. 23. 5. Rep. fo. 55. and many other Books. Secondly, Hence a good argument may be deduced, to prove the Commiſſion of Array, at this time illegall; for that the King, with the advice of his great Counſell the Parliament, hath by a tacite and incluſive conſent (as I have made it good before) eſtabliſhed the Militia; why then clearely it lieth not in his Majeſties power, without their conſent, to countermand this by any other Commiſſion; for the Rule of Law is, that Eodem modo, quo, quid conſtetuitur, diſſolvitur, that is, every thing ought to be diſſolved by a matter of as high nature, as it was created: and that is the reaſon, that an Act of Parliament, cannot be repealed but by an Act of Parliament; for that no power or juriſdiction whatſoever, is ſo great as it ſelfe: and it is without queſtion, that the Kings power or authoritie, by it ſelfe, is not of ſo high and excellent a nature, as it is joyned with his Parliament: Wherefore I doe conceive, for this reaſon, that the Commiſſion of Array is abſolutely unlawfull, and therefore ought not to be ſubmitted unto. Thirdly, and laſtly, Hence may be concluded, that the Kings declaration of the Law, to be contrary to what the Parliament have declared the Law to be, is Coram non Judice; that is, by one that hath not juriſdiction of the cauſe. 41Firſt, Becauſe (as I have ſaid) that the King himſelfe cannot declare the Law to be contrary to their judgement, for that his Majeſties judgement is ſuperſeded, and bound up in theirs: and ſecondly, For that he cannot contradict their judgement, by any other advice or judgement, for that, that advice or judgement is inferiour to the Court of Parliament; and therefore in their preſence, as to this purpoſe, ought to ceaſe. And I ſhall compare this caſe, to one caſe onely, which is in the 10. Rep. in the caſe of the Marſhallſea,10. Rep. fo. 7•…the caſe of Marſhallſea where the caſe is thus; The Sheriffe who is preſcribed by the Law to hold his Tourne within the Moneth after Mich. &c. held his Tourne after the Moneth, and tooke an indictment of Robbery at the ſame Tourne, and the Indictment being removed by a Cerciorari into the Kings Bench, by the advice of all the Juſtices, the partie ſo indicted, was diſcharged, for that the Indictment was utterly voyde, and Coram non Judice, becauſe at this time the Sheriffe had no authoritie to hold his Court: ſo I ſay, in this caſe, the Declaration or Proclamation of the King, is Coram non Judice, for that though the King properly, and onely, ought to declare the Law, by the advice of his Judges, at another time, yet at this time he cannot, for that their judgement is eſtopped and ſuperſeded, by the ſuperintendency of the high Court of Parliament: Then the Law being thus, this juſtifieth the proceedings of Parliament, in puniſhing of ſuch, who dare adventure, againſt Law, to execute the Commiſſion of Array, or to proclaime, or declare any thing in his Majeſties name, againſt his owne judgement, and the judgement of his Parliament; for the Rule of Law is; Extra territorium jus dicenti, non paretur, impunè; he that obeys the command of any power, out of its juriſdiction, ſhall be puniſhed for it: So I conclude this point alſo, and conceive, that for this reaſon likewiſe, the Parliament hath done no more then what is warranted by the Lawes of the Land.
Fourthly, and laſtly, I hold that the Parliament have done no more then what is warrantable by Law, upon this ground (which ought to be the Baſis and end of all Law) viz. the common good and ſafetie: but of this onely a word, for that I have touched it before. That Law which is above all Law, & to which all Law ought to ſubſcribe, is Salus Populi, the ſafetie of the people. True it is, that the Law was made to defend every mans private intereſt, as well as the Republique, but primarily and principally the Republique: it is the Rule of Law (as I have ſhewed before) Quod bonum publicum, privato anteferri debet; that the publique good ought to be preferred before the private. And againe, we have another Rule, Quod magis dignum, trahit ad ſe quod eſt minus dignum, that the more worthy doth draw to it the leſſe worthy: and without controverſie, the magis dignum, the more worthy, is the Commonwealth;42 why then the minus dignum, the leſſe worthy, which is every mans private concernment, muſt ſubſcribe to that.
And the reaſon, wherefore the good and ſafotio of the Republi•que, ought principally and in the firſt place to be maintained, and therefore is ſtyled Suprema Lex, that is, the moſt ſupream•Law, or, if you will, a Law above all Lawes, is, for that as in the naturall body, if the body be in health, the members muſt needs be well alſo, and if the body be ſicke, the members muſt needs ſympathiſe with it•ſo it is in the body politique, if the body be well, the members fare all the better for it, if the body be in diſtemper, the members cannot but be diſtempered alſo; ſo the happineſſe, or miſery, of every individuall perſon, h••geth upon the good or ill ſucceſſe of the Common-wealth and therefore the good of the Common-wealth ought to have the firſt and chie•e endeavour, of every true and faithfull member of it.
In 18. E. 2. which you ſhall ſind cited in the 10. Rep. Keighleyes C.•8. E. 2. 27. •0. Rep. 139. b. Keighleyes C. a man brought an Action upon the caſe, againſt another, and the ground of the Action was, for ſuffering of a Wall of the Sea, that the Defendant was bound by preſcription to repair, when need ſhould be,••repaired, ſo that for default of reparation, the water entred, and ſurrounded the lands of the Plaintiffe; The Defendant traverſed the preſcription, upon which they were at iſſue, and it was found for the Plaintiffe; and that there was a default in the wall, for not repairing, for which the Plaintiffe recovered his Damages, and a Writ was awarded to the Sheriffe, to diſtrain the Defendant to repair the wall, where need was,•and d•ſault: Upon which my Lord Cooke maketh a ſpeciall obſeruation; Not a Reader, ſaith he, this judgement, and the reaſon of it, is, pro bono publico, for the common good. For, ſaith he, Salus ▪ populi, eſt ſuprema Lex: the ſafetie of the people is the moſt ſupreme Law: and therefore it is part of the judgement, in this Action, that the Defendant ſhould be reſtrained to repair the wall. As if he had ſaid, this Action is brought by the Plaintiffe, for his ſpeciall da••ification onely, and this he hath reſtored to him by the judgement: (But yet note, for that it concerneth the weal-publique, the Judges conſidering themſelves to be tied both in Law and conſcience, to provide for the ſecuring of the ſame, made this part of their judgement likewiſe, that the Deſendant be compelled to repair the ſame; leſt in defect of this the Common-wealth ſhould ſuffer alſo. Here you may ſee, the car•that the Judges then had of the common good: It were well that this were pondered on in thoſe dayes, in which I doubt, men are too ready and prone to prefer their own private concernment in their indeavours, I mean their honou•, before the publique ſafetie.
In Davis ReportsDa. Rep. fo. 32. b. it is〈…〉43to the intereſt of one particular perſon, & yet reaſonable, where it is for the benefit of the Common-wealth in generall; as a cuſtome to make Balwarks upon the land of another for the defence of the Realm, 36. H. 8. Dyer, and to raze houſes in publico incendi•, in a common fire, 29. H. 8. Dyer, (theſe caſes I have remembred before) ſo to turn the plough up•n the head-land of another, in favour of husbandry, 21. E. 4. and to drie Nets upon the land of another, in favour of fiſhing, and navigation, 8. E. 436. H. 8. Dyer fo. 60•29. H. 8. Dyer fo 36•21. E. 4. 28•8. E. 4. 18. But ſaith the book, a cuſtome which is contrary to the publique good, which is the ſcope and generall end of all Laws (for ſalus populi, ſuprema lex) or injurious and prejudiciall to the multitude, and beneficiall onely to ſome particular perſon, ſuch a cuſtome is repugnant to the Law of reaſon, which is above all poſitive Laws, &c. Here note, that it is ſaid, that the Law of reaſon is above all poſitive Laws: and no doubt but it is, for that Law, which is againſt reaſon, is rather a myſtery of iniquitie, then Law: and in truth, it is no Law, which is not grounded upon the Law of reaſon. For as ſome will have it, the word (Lex) is derived, à ligando, quoniam ad obſervandas leges, homines ligat: and no queſtion a Law, which is unreaſonable, doth not oblige men to obedience: ſo that it is no Law, if it be not warranted by the Law of reaſon. Now to apply this to the caſe in queſtion; the King, by his Prerogative, ought to have the ſole diſpoſing of the Militia: the kingdom being in imminent danger, the King refuſeth to ſettle it, by the adviſe of his great Counſell, for the ſecuring of himſelf and his people; Now the doubt is, whether the Parliament may without the conſent of the King, aſſume this power to themſelves, for the ſecuring of his Majeſtie, and his kingdom? or whether they ought to ſubſcribe to the Prerogative of the King, though it be to the apparent deſtruction of the Common-weal; which of theſe two is the reaſonable Law, is the queſtion? Why no doubt, Salus populi, the ſafetie of the people: for theſe reaſons. Firſt, for that the Law was made for the people, and not the people for the Law. And ſecondly, for that the whole ought to be preferred before any part: wherefore I conclude that it is Suprema Lex; the moſt ſupreme Law, and therefore the Prerogative of the King ought to give way to this; and not this, to the Prerogative of the King: for if you preſerve and maintain the common good, you preſerve and maintain the Kings Majeſtie, his Prerogative, your Laws, and your ſelves; and if you do otherwiſe, you deſtroy all. And therefore I conclude all with this, Non ſolum conveniens eſt, ſed neceſſe eſt, ut ſalus populi, ſit ſuprema Lex: That it is not onely convenient, but neneſſary, that the ſafety of the people, ſhould be the moſt ſupreme Law: And therefore the Parliament have done that which is agreeable both to Law and reaſon, in preferring of the publique ſafetie.