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The juſt meaſure of A Perſonall Treatie BETWEEN The KINGS Majeſty, And both Houſes of PARLIAMENT.

Grounded on Divinity, Reaſon, Hiſtory, Divine and Humane, Common and Civill Lawes; with many other authentick Authors.

By R. M. of the middle Temple, Eſquire.

Printed in the Yeere 1648.

1

The juſt meaſure of a perſonall Treaty between the Kings Majeſty, and both Houſes of Parliament.

There are theſe only waies to reform theſe in­novations, and to prevent the ruin of the Kingdome.

  • 1. By a perſonall Treaty, and how conditioned.
  • 2. If that may not be obtained ſo qualified from the Hou­ſes, it is lawfull to levy Warre againſt them, and that VVarre is hereby proved juſt.

A Perſonall Treaty between His Majeſtie and the two Hou­ſes of Parliament, would be a Soveraigne remedy againſt the innovations and growing evills of this Kingdome, and an aſ­ſured meanes to ſettle a firme peace in it; provided, that this Treaty be thus qualified, both for the manner and matter of it; for if it be otherwiſe, I am much afraid it will prove both un­profitable and ineffectuall. Firſt, it ought to be when his Maje­ſtie is free and at liberty, without any preingagement on his Ma­jeſties part, either by conceſſion of any thing which they de­mand, as an inducement thereunto, at leaſt of the moſt materiall things which the Treaty ſhould conſiſt of, ſuch as the Militia, the ſetling of Presbyteriall Government, and the reſt now late­ly offered to his Majeſty to be granted unto them; for untill his Majeſtie be ſet free and at liberty, without any conditions pre­ceding unto it, His Majeſtie cannot properly or ſecurely (for the good of the people) treat of any matter conducing to a Peace;aaGrotius de jure belli & pa­cis, lib. 3. cap. 10. ſect 3. Nam (as learned Grotius ſaith) Rex qui aetatis eſt ejus quae judicii maturitatem non habet, qui imminutae mentis eſt, qui captivus, aut exul, pacem facere non potoſt. A King that is under age of an infirme mind, a captive or an exile, cannot treat of, or conclude a peace: And elſe where,bbGrotius lib. 3. cap. 20. ſect. 2 Sicut Rex infans jus habet, ſed impe­rium2 exercere non poteſt, ſic furioſus & captivus: As a King that is an infant hath right to govern, but cannot exerciſe his dominion, no more can a King that is a mad man, or a Priſoner; and without the King there can be no peace made, treated on, or concluded in this Kingdome: for the King having by the Law of England the Soveraigne or ſupreme power of the Realme, as is amply manifeſted by the precedent diſcourſe, he hath the only power to make peace and war, as the ſame Author obſerves,ccGrot. l. 3. c. 20. Sect. 2 Pactiones inire quae bellum finiant, eorum eſt, quorum eſt bellum, Rei enim ſuae quiſque est moderator, unde ſequitur, ut in bello utroque publico, hoc eorum ſit qui ſummum imperii exercendi jus habent: Regis igi­tur hoc erit in ſtatu verè regio, modò is Rex etiam jus non habet impeditum; It is their office, and to them it belongs to make leagues or pactions to end a warre, to whom the right of ma­king warre belongs; for every one ought to be a moderator in his owne affaire; from whence it followes, that in every publique warre, it is their right to make warre or peace which have the right to exerciſe the ſoveraigne power, therfore it is the Kings right only to make warre or peace in his Kingdom, ſo that the Kings right be not hindred in the exerciſe of it, that is, by in­fancy, impriſonment, or the like infirmities aforeſaid: this is the judgement of a moſt learned man: what fruit then can be expe­cted of or from a Treaty with his Majeſty dureing his reſtreint or impriſonment? certainly none: nay if his Majeſty ſhould grant what they deſire dureing his impriſonment, and being inforced thereunto for his enlargement, what validity were there in ſuch a grant? certainly none, it being a cleere truth as that great Law­yer Bracton obſerves,ddBract. l. 2 c. 5 ſect. 14. f. 17. Quod in nullo caſu valet donatio cùm quis fuerit in Priſona, vel quia hoc facit per coactionem, & quia poteſta­tem ſui non habet, nec eorum quae ſua eſſe debent, poteſtatem habebit; & ſicut ille qui in ſervitute fuerit, nihil poſſidere poterit, quia poſſide­tur; ita nec ille qui poſſidetur ab hoſtibus vel detentus fuerit: a conceſ­ſion or grant is in no caſe valid ſo long as a man is in priſon, where he is in priſon by force and not by right, where he is inforced to make ſuch grant, becauſe he hath not then the power of himſelfe, and having not power of himſelfe he hath not power of any thing that is his, for as he which is in ſervitude can poſſeſſe nothing be­cauſe he is poſſeſt, ſo neither can he which is in the poſſeſſion of his3 enemies or deteined by them in priſon: neither can we from any rule of policie expect, that whatſoever the King is inforced to grant by any reſtraint or coertion, if the grant were in it ſelfe good, the thing could be of any continuance, ſince the nature of all grants and accords is to be voluntary, therefore Clement Edmonds, in his obſervations upon Caeſars Commentaries well noteth;eeClem. Edm. p. 629. That no accord made by force can be truely kept, and Machiavel plainly excuſes the breach of them, ſaying,ffMach. Diſcourſe upon Livy pag. 629. that it is no diſhonour to violate thoſe promiſes, grants or accords, which by force a man is conſtreined to make, and that promiſes or accords extorted regarding the publique, wil be broken with­out the diſgrace of him that breaks them; upon this ground did the Eſtates g of France refuſe to ſubmit to that accord & tréaty of Peace made between K. Edward of England, and John King of France, who was taken at the battell of Poitiers, and brought by King Edward Priſoner into England; where the ſaid treaty and accord was made during his impriſonment; upon the like ground did King Francis the firſt of that name, King of France, avoid his treaty and accord made which Charles the Emperor, whilſt he was Priſoner at Madrill in Spaine, by which treaty he was obliged to grant unto the Emperor all his right in the Dutchy of Burgundy, which after he was ſet at liberty he refuſed to doe, becauſe that accord was made during his reſtreint. By theſe authorities & preſidents I conclude, that it is neceſſary that the King ſhould be ſet at liberty before he can be in a condition to grant or treat of any thing concerning the publique order for the good of the ſubject. The place where the treaty muſt be is alſo of conſideration, for the Lords and Commons aſſembled in Parliament can treat with the King in no other place then in the Lords houſe at Weſtminſter, the King ſitting upon the Throne or chaire of State, they being no way enabled by the Law to treat with him in any other place or manner; and in this place they are by the tenor of their Writ, it being thus:iiRegiſt. Bri. Cooks Inſtit. 4. par. p. Rex Vicecomi­ti ſalutem, quia nos de aviſamento & aſſeſſenſu Concilii nostri pro quibuſdam arduis & urgentibus negotiis noſtris, ſtatum & defenſio­nem regni noſtri Angliae, & Eccleſiae Anglicanae concernentibus, quoddam Parliamentum apud Weſtmonast teneri ordinaverimus, & sbid. cum Praelatis, magnatibus & proceribus dicti regni noſtri collo­quium4 habere, & tractatum &c. by this Writ the Lords have a power to treat with the King ſitting in their Houſe, of matters concerning the defence of the Realme, and of the Church of England, and the Commons may be pre­ſent, and are to conſent to what the King and Lords ſhall agree of, and in no other manner or place can they legally, or with their owne ſafety treat with the King; for as free Princes or equals they cannot treat with him, the Law having inveſted them with no ſuch powers or dignities, the King being caput Regni, and by the Law indowed with the Soveraigne power of the Realme, and they being but Subjects; and inferiour to him in all degrees, either of power or abilities whatſoever: In this capacity therefore as free Princes or equalls, they cannot treat with him, if they treat with the King any where but in Parliament, and that of making of peace, which is the ending of warre already begun by them, and yet proſecuted againſt him and his loyall Subjects. They muſt treat with him as his Subjects, and if as his Subjects, they therein will accuſe them­ſelves to be Traytors, or Rebells, in that they muſt treat of laying downe thoſe Armes that they have unlawfully raiſed a­gainſt him: Therefore if they would follow mine advice, they ſhould treat with His Majeſty in no other place then the Lords Houſe, and onely of thoſe things that by their Writ they are inabled to, viz. De arduis & urgentibus negotiis, Regem, ſtatum & defenſionem Regni Angliae, & Eccleſiae Anglicanae concernentibus: Of thoſe things that cencerne the preſervation and defence of the King, his ſtate and dignity, and of the Realme and Church of England, and not to conſult of a meanes, or to demand thoſe things that tend to the ruine and deſtruction of them all. But in caſe the two Houſes will not admit the King to come to the Lords Houſe to treat with them, or that if they ſhould, they demand of him thoſe things that he neither can or ought to grant or part withall, (as the Militia, his Negative voice, or the deſtruction of the Church) being intruſted with them by God, and the Lawes, for the good of the people committed to his charge, and for whom he muſt give an account to God: The Queſtion will then properly fall out to be in the next place, Whether the people of England may not juſtly levy Warre a­gainſt5 them? and whether the Warre be not juſt? which Que­ſtion I ſhall hold affirmatively: Each Warre ought to have its foundation in reaſon, and force imployed to a right uſe is no other then a ſervant to reaſon; if then the two Houſes ſhall de­ny a perſonall Treaty to his Majeſty ſo qualified as afore-ſaid, whereby the Kingdome may be preſerved from ruine, it is agree­able to right reaſon, that the people ſhould uſe force, and levy warre upon them, to inforce them thereunto: for when ordi­nary remedies doe faile, by the rule of right reaſon men are warranted and bound for their owne preſervation, to recurre to extraordinary meanes, provided, that they be in themſelves lawfull; and therefore ſince the Houſes have denyed the King a perſonall Treaty de integro, tying him up to termes of con­deſcention to the moſt weighty matters, which ſhould be the ſubject of the Treaty, before they will entertaine a Treaty with him for the reſt, (which can be onely of matters of ſmall or no importance) His Majeſty having granted the things they demand of him before-hand, the people may aid the King, who is by the Law their only protector, with their Armes, for regain­ing their owne lawfull Liberties, and His Majeſties juſt Rights, which will never be reſtored unto them by petitioning, or any other civill courſe, and therefore Grotius ſaith, Ʋbi judicia defi­ciunt, incipit bellum,kkGro. l. 2. c. 1. ſect. 2. where legall or civill remedies are wan­ting, or denied, War may juſtly begin: Plerique (ſaith the ſame Author) bellorum tres statunnt cauſas juſtas, defenſionem, recupera­tionem rerum, & punitionem: Moſt men do determine theſe three cauſes of Warre to be juſt, defence of themſelves, recovery of their goods, or eſtates, and puniſhment for injuries done; for as S. AugustinellAug de fivit Dei, l. 4. ſaith, Injuria partis adverſae, juſta bella ingerit; an injury done by the Adverſe Party doth ground a juſt Warre; and what are juſt Warres, he tells us in another place,mmAug. l. 6. 9, 10. Justa bella definiri ſolent, quae ulciſcuntur injurias; thoſe are juſt warrs which are levied to puniſh great injuries: let all the world then judge, whether according to theſe rules, the Prince and the people of England, have not juſt cauſe to take Armes; the injury done to the perſon of his Royall Father, is reputed to be done to the Prince himſelfe; the Prince then in defence of his Fathers perſon by force oppreſt, for the redemption of it forth6 of priſon, for their recovery of the rights and revenues of the Crowne, uſurped and violated againſt all law and right, by thoſe what were called together to adviſe the beſt they could for it, and have no manner or colour of Title unto it, for the reſtoring of the people unto their antient Lawes and Liberties, ſo much trodden upon and trampled under foot by thoſe men, who ſhould be the chiefe preſervers of them, and for the reſetling of men in their own proper offices, eſtates and goods, whereof they have been ſo illegally diſſeiſed, ſequeſtred, deveſted, robbed, and diſpoſſeſſed of. And laſt of all, to bring the Ringleaders of theſe ſo great evills, innovations, iniquities, and injuries, to re­ſtitution and condigne puniſhment; and as the Prince, ſo have the People, juſtifiable cauſe and warrant to take armes, and make warre againſt thoſe robbers, oppreſſors, and uſurpers, who have not onely brought in all the innovations and injuries aforeſaid, impriſonments, taxes, arbitrary powers, Excizes, contributions, impoſitions, benevolences, and myriads of evills, onely to en­rich themſelves, contrary to the knowne eſtabliſhed and funda­mentall Lawes of England, and contrary to their promiſes and ingagements to the people, to whom they promiſed that their welfare ſhould be their ſupreme Law, and care: for as Plato ſaith,nnPlato in Alcib. Juſta bella geri poſſunt, non modò ſi quis vi opprimatur aut expiletur, verumetiam ſi deceptus fuerit: Juſt wars may be waged, not onely, where a man is oppreſt by force or plunder of all he hath, but alſo where he hath been cheated and cozened; have any people under heaven been ſo cheated and cozened as the people of this nation have been cheated and cozened by thoſe that uſurp the preſent Government? Did they not at firſt ſo creep and inſinuate themſelves into the affections of the people, give out that they would make his Majeſty the moſt potent, rich and glorious King in Chriſtendome, that they would make the people a mighty, wealthy and flouriſhing people? that they would reforme all the abuſes both in Church and State, and ſet­tle the three Kingdomes in a firme and laſting peace? and have they not contrary to all their promiſes, Proteſtations, and Decla­rations to this purpoſe, impriſoned his Majeſties ſacred perſon, deprived him of his power, robbed him of his Royall revenue, and as much as in them lay, ſought to weaken his Majeſties re­putation,7 both with his allies abroad, & amongſt forraine Nati­ons & Princes, & at home amongſt all his Subjects of his three Kingdomes, Have they not inſtead of making the people of this Land a flouriſhing & wealthy people, weakned them with a long barbarous and civill Warre, exhauſted them with Contributions, loaden them with Taxes, polled them with Excize and bene­volences, wearied them with continuall Impoſitions, and almoſt loſt the reputation of the Nation in all forraigne parts? Have they not inſtead of reforming the abuſes in Church and State almoſt deſtroyed both, inſtead of Monarchy brought in an A­narchy in the State, and inſtead of unity, and uniformity in the Church, let in accurſed Hereſie, ugly multiformity, and fanta­ſticall unſtable Independency? Nay, I might ſay almoſt Tur­ciſme, or Atheiſme. And to conclude, inſtead of ſetling the peace of the three Kingdoms, have they not (though petitio­ned thereunto by many Counties) refuſed to reſtore His Maje­ſtie, to disband their Army, by which they reſolve to govern and conquer the Kingdome, to keep the people in thraldome all their lives; yea and cut the throats of all ſuch, as ſhall come to Petition them, as they did Surrey-mens, and doe they not now make war upon Kent and Eſſex in order to theſe ends? Let this be denied by any ſober and indifferent man, if he can: and being granted, I conclude infallibly upon all the rules & grounds afore­ſaid, that it is lawful both for the Prince & people, if they ſhall deny His Majeſtie a perſonall Treaty ſo qualified, as aforeſaid, to make warre againſt them, and that ſuch a warre is juſt, Sa­pientiSal. in o­rar. ad Caeſar. eſt, ſaith Saluſt, pacis cauſâ bellum gerere, wiſe men make warre to obtaine peace; and S. Auguſtine,ooAug Ep. 1. ad Boni­fac. Non pacem quari ut bellum exerceatur, ſed bellum geri, ut pax acquiratur, men muſt not ſeek peace, to the end they may exerciſe warre: but men muſt make warre that peace may be obtained. And to deale candidly with the world in this point, mine owne private opinion is, that a good and firme peace can never be obtained in this Kingdome without a vigorous war well proſecuted on his Majeſties behalfe.

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That by the Lawes of God, of nature, and of England, the Subjects of England are bound to riſe, and joyne in Armes for the re­ſcue and relief of the King out of priſon, and to follow the Prince or any other of the Kings Subjects, or friends that ſhall take Armes for the King, and lead an Army to that purpoſe; notwithstanding that they have not the Kings actuall Commiſ­ſion.

FOr Subjects to impriſon their King it's againſt all Laws, & e­ſpecially the Laws of England, and not only an injury to the Perſon of the King, but the greateſt prejudice that may bee, to the right and intereſt of the Subject, for ſince the Lawes doe tell us that,aaHobarts Re­ports p. 218. Rex eſt centrum & ſtabilimentum juſtitiae, the King is the Center and ſupport of juſtice,bbPlow. Com. 242. 12. H. 7. f. 17. and that all adminiſtration of juſtice is both derived from him, and belongs to him originally,ccCaſe de pen. Statutis. Cooks Repor. and is inſeparable from him, ſince the King isddBeverleyes caſe. Cooks 4. Reports. ſo. 124. Caput & ſalus reipublicae, & à Capite bona valetudo tranſit in omnes; the head and health of the Commonwealth, and from this head the health of all the people is derived,eeCalvins caſe. 7. par. Cooks Reports. ſince that all protection of the people muſt come from the King, and none other can protect the Subjects of the Kingdome, but the King alone,ffHobarts Re­ports. f. 112. ſince the Law tells us that the reformation of all wrongs and injuries done to the people belongs to the King,ggPlow. Com. 268. ſince the King is the chiefe Captaine of Chivalry within the Kingdome,hhCooks Com. ſur Littleton. f. 75, 76. Calvins caſe ubi ſupra. ſince that the Mi­litia doth wholly belong unto him, and hath ſo done to his Roy­all Progenitors, ever ſithence the raigne of King Edward the Con­feſſor,iiCooks Inſt. 3. par. f 160. 201. Stat. of Nor­thampton. . E. 3. c. 13. and that no men may arme themſelves in this Kingdome without the Kings aſſent,kkCooks Inſtit. 4. par. p. 91. ſince that the King is ſubject to none within this realme, ſince that the Law ſpeakes itllHobarts Re­ports. that acceſſe to the King may not be ſhut up from the Subjects,mmCooks In­ſtit. 4. par. p. 93. which to do is a great preſumption, ſince as Forteſcue ſaith,nnForteſcue c. 13. Rex ad tutelam le­gis, corporum & bonorum erectus eſt, the King is ordeined for the preſervation and defence of the Lawes, and of mens bo­dies and goods, and as Bracton notes,ooBracton l. 2. p. 55. ch 24. Bract. l. 3. de aſtionibus. Ʋt populus ſibi traditus à Deo in pace ſileat & quieſcat, quis alterum verberet, vel malè tractet, quis alienam rem per vim vel per roberiam aufe­ret vel aſportet, quis hominem mahemiet vel occidat; That the people committed unto him by God may reſt in peace9 and quiet, that one beat not, nor evill intreat another, nor take and carry away another mans goods by force or robbery, now called plunder, nor that any one of them kill and maime ano­ther; and ſince, as the ſame Author ſaith,**Bract l. 2 ubi ſupra Rex habet, &c. the King hath all rights in his hand which belong unto the Crown, all temporall power, that is the Militia, or the power over the people, and the materiall Sword, which is neceſſary to the Go­vernment of the Kingdome, and ſince that the King hath the only Juriſdiction of Judgement within this Kingdome, that thereby, as the Miniſter and Vicar or Vicegerent of God, he may give and deliver to every man that which of right belongs unto him. It is not onely a moſt preſumptuous offence againſt God and his Lawes, a moſt injurious violation to the Lawes of this Realme, nay even to the Lawes of nature, a moſt barbarous and unparallell'd affront to, and uſurpation upon the Royall and ſacreo Majeſty, but the moſt prodigious and deſtructive miſ­chiefe to the generall peace, and publique ſafety of his Majeſties Dominions, and the people inhabiting in them, to impriſon the King, to detain him in priſon under ſtrong & military guards, to deny a perſonall Treaty with his Majeſty for the ſetting of the Kingdomes, though his Majeſty hath often ſought it; and to vote an order, that none of his Subjects ſhall make addreſſe unto him upon paine to incurre the puniſhment of High Treaſon: what is this but to diſplace Gods Subſtitute? to rob the Almighty of the honour of appointing his owne Deputy? What is it but to ſubvert and overthrow the antient and fundamentall Lawes of England? to take away and utterly to deſtroy the Liberty and property of the people of England? to ſtrip and rob them of the Kings protection, the onely meanes to preſerve them, their families and poſterities in a deſired peace and an aſſured plenty, to the end, that they may pillage and plunder them of their goods, diſſeize them of their eſtates and Lands, deprive them of their offices and promotions, impriſon their perſons, nay take a­way their lives at pleaſure without impunity of the King ooBract. l. 4. c. 24. ſect. 1. Qui ſolam habet juriſdictionem ut delinquentes puniat & castiget, as Braction for good Law aſſures us; Who hath the onely juriſdi­ction to puniſh and chaſtiſe ſuch Delinquents, and to protect his good people from ſuch violence and rapine: or without the10 reprehenſion of the antient and eſtabliſhed Lawes of England, which I am too much afraid they intend to lay aſide, and ſubvert, and never more to obſerve, as being oppoſitely contrary to all their actions and purpoſes; What then? is there no legall reme­dy to prevent the Kingdomes deſtruction? Yes there is, and if there were no more to be ſaid in it or for it, then that which theſe men laid downe for a Maxime to ground all their rebel­lious practiſes upon (falſly ſuppoſing cauſes of miſgovernment in the King, which the Kingdome now too ſenſibly feels under them, raiſing of jealouſies, and fomenting of feare where no feare was, yea even of the utter ruine and deſtruction of the Kingdome, by the King, as they then falſly alledged; but by their owne actions have aſſured us will follow from themſelves) this their owne Maxime I ſay might ſerve,qqDeclar. that a Kingdome muſt not be left without a means to preſerve it ſelf. This myſteri­ous rule were ſufficient to warrant the whole Kingdome, in caſe they will not admit the King to a perſonall Treaty, and reſtore him to his Rights, Prerogatives, and Power of protecting his people, (to whom as a learned Authour in the Lawes of England obſerves,rrGervaſ. Tilburi­enſis in praefat. ad Hen. 2. Ab ipſo Deo ſingulariter oſt credila cura ſubditorum: Even from God himſelfe the care of his Subjects are credited and committed) to riſe up in Armes to ſuppreſſe and ſubdue them; but there are knowne Lawes of England, and ſufficient Preſidents to warrant ſuch a proceeding: and without this man­ner of acting, the work will never be done, but the Kingdome muſt ruine, Salus populi eſt ſuprema Lex, the welfare of the peo­ple is the ſupreme Law, it's their owne Maxime, and we agree to it; but withall we ſay, with that learned Sir Edw. Cook**Cooks Reports Beverl. caſe ubi ſuprà Rex eſt caput & ſalus reipublicae, & à capite bona valetudo tranſit in omnes; The King is the head and health of the Common-wealth, from whom all welfare is derived to the people; therefore the welfare of the King is the chiefe Law to preſerve him, to ſerve him, which is the health of all; all men by nature are bound to it, as is well obſerved by learned,ſſGerv. Tilbur. u­bi ſupra. Oportet Regibus ſervire, non in conſervandis tantùm dignitatibus per quas gloria regiae Majesta­tis elucet, verumetiam mundanarum facultatum copiis, quae eis ſui ſtatus ratione contingunt; All Subjects ought to ſerve their King, not only in maintaining thoſe dignities by which the glory of the11 Kingly Majeſty doth appeare, but alſo in the ſtrength and abun­dance of all thoſe worldly faculties and powers which belong unto him by reaſon of their degrees, Illa enim illustrant, haec ſubveniunt, the former do ſerve to make him famous, but the latter ought to be aiding and aſſiſting unto him, (ſaith he) we ought not only that are ſubjects to the King to pitty him and to ſpeak well of him, to honor him with our lips and words only, but we ought to honor him with our ſubſtance, aſſiſt him with our armes, for the recovery of his rights, and of his li­berty, and for the ſubduing and ſuppreſſing of his enemies, and of thoſe that traiterouſly riſe up and rebell againſt him. The lawttPlow. Com. c. 319. doth not make the Subject greater then the King, nor the ſer­vant then the Maſter, the Law here compares the King to a Ma­ſter, a ſubject to a ſervant, yet all men know that the Prerogative of the King over his Subject is larger and greater then the prae­eminence of a Maſter over his ſervant, even as much as the Law of Nature, hath precedency of the civill Law, or Law of Nations; the Allegiance due from a Subject to the King, being dueuuCalvins caſe ubi ſupra. by the Law of Nature, the duty that a ſervant owes to his Maſter being but grounded either upon his owne contract, the Law of his country, or at moſt the Law of Nations. The duty then that a Subject owes to his King, is more obligatory to him, then that which a ſervant or a ſlave owes his Maſter, and the Law doth more exact it at his hands, and juſtifie him in the performance of it. The law of England tells us, thatww35. H. 6. f. 50, 51. a ſervant by the Law may juſtifie the battery or beating a man in defence of his Maſter, and to take bowes and arrowes, or other invaſive weapons,xx9. Ed. 4. f. 28. 19. H. 6 f. 31 nay a ſervant may juſtifie the beating of any man for the defence of his Maſters goods; Nay yet more,yy21. H. 7. f. 39. 3. Ed. 3. Fits. Co­ron. pl. 303. 305. 26. aſſ. pl. 23. a ſervant may juſtifie by the Law the killing of any man in defence of the life of his Maſter, of his houſe or goods. Doth the Law protect a ſervant in his Ma­ſters defence to performe this duty, and ſhall it not a Subject in the performance of his towards his King? yes ſurely à fortiori, therefore by the Law everie man hath power given him z to ſeize upon the goods of thoſe that are the Kings Enemies;aa27 Ed. 4. f. 5. 9. Ed. 4 f. 26. Cooks Reports 5. par f. 92. Semaines caſe. e­verie man hath power by the Law to arreſt Felons, Rebells, and Traitors; Nay it is their duty ſo to doe: who thoſe Traitors and Rebells are, the Law informes everie man, and Commands him12 to purſue them, holding him indempnified if he doe it, and if he doe it not, one way or other the Law condemnes him to pu­niſhment, becauſe it is for the weal publique to take & ſuppreſſe Rebels and Traitors, everie manbb12. H. 7. f 17. nay all men (ſay our bookes) are bound to goe with the King into the warres, and there to**11. H. 7. f. 18. aid him. ccHornes Mirror de Juſtices cap. 1. Stat. pe­che del Majeſt p. 20. M. 8.They are guilty of perjury (ſaith a learned Author of our Lawes) which beare armes againſt the King, or that ſtie from his battailes, or from his lawfull hoſt, and thoſe Miniſters that diſavowablement, viz. unlawfully ſtop men, or counſell men that they goe not into warre with the King, where they are bound to goe, or are ſummoned thereunto: this is the antient Common Law of England, and ſhewes that it is the duty of eve­ry Subject to be aiding and aſſiſting to the King, in his warres. ddStat. 11. H. 7. c. 1.By Statute Law all men are bound to attend the King in his wars, and to aid him with their true and faithfull ſervice, and it matters not whether the King be in perſon in the feild or not; for if he be any where by the Kings command, that is acting by the Kings Commiſſion, or by his power, or in preſervation of the Kings Royall Perſon, Crowne and dignity, for that his ſervice and doing, no man by the Law can or ought to be queſtioned, moleſted or impeached, and the reaſon of it is, becauſe the Law ſaitheeStat. 7. E. 1. de de. fenſione portandi arma. that to the King it belongs to preſerve the peace of the Realme, and to ſuppreſſe all force that ſhall be raiſed without him in the Kingdom at all times when it ſhal pleaſe him:ffCowells Inſtit. in Proem. Nam in Rege neceſſaria ſunt duo haec, arma, viz. & leges, quibus utrum­que tempus bollorum & pacis rectè poſſit gubernare: For as the learned in our Lawes ſay. Two things are neceſſary for a King, that is to ſay, the power of Armes and Lawes, by which he may rightly govern both in time of peace and warre;**Plow. Com. f. 268. Bract. 1. 2. p. 55. cap. 24. for being the chiefe Captaine of Chivalry as before is remembred, he hath all rights in his hands which belong to the Crowne and his Kingly power, eſpecially the materiall ſword, which inables him to the government of his Kingdome: therefore are all his Subjects bound to aſſiſt him in his Warres, to repell forraign e­nemies, to ſuppreſſe and ſubdue Rebells, and ſuch diſloyall Sub­jects as riſe in Armes againſt him, and to aſſiſt him to chaſtiſe all trayterous Conſpirators that ſeeke to deſtroy his life, de­flowre his Crowne, and ſubvert his Government. Rebellion13 hath ever been ſo odious in Law, that in all agesggStat 17. R 2. c. 8. Stat 13. H. 4. c. 7. Stat. 2. H. 5. c. 8. 9. Stat. 19. H. 7. c. 13. Stat. 3. Ed. 6. c. 5. Stat. 7. Ed. 6. c. 11 Stat 1. Mar. c. 12. Sta. 1. Eliz. c. 17. Briefe de aſſiſtance, de Cheſ. vic. de County. good Lawes have been made in Parliament for the ſuppreſſing and puniſhing of it, by which Statutes every Subject of England, be he never ſo great in degree of honor or eſtate, or be he never ſo meane, be he Farmer, Artificer, Yeoman, Husbandman, Labourer, or o­ther, being of the age of 18. years or more, and under the age of threeſcore years, being able to ſerve, and not ſick, lame, or impotent, ought to be aiding and aſſiſting to the ſuppreſſion of it, and if he or they kill any of ſuch as are in Rebellion, of that fact they ought to be free, diſcharged and unpuniſhed. hhDalton Iuſtice de Peace p. 206.The King is the head, life and rule of the Common-wealth, a­gainſt him only there may be Rebellion, and not againſt any o­ther, pretend they never ſo much power, as to be a Parliament or State, every riſing in Armes againſt the King, (without his power immediate or mediately derived) either by ſound of Drum or Trumpet, ringing of bells, or otherwiſe, In terrorem populi, to doe any unlawfull act, which in it ſelf containes and is high Treaſon, be there aſſembled to the number of 12. perſons or above, is rebellion by the knowne Lawes of England, and e­very loyall Subject of the King is bound to be aiding and aſſi­ſting to the utmoſt of his power to the ſuppreſſion of it. iiCooks Inſt. 3. par. p. 12.Now to raiſe armes to impriſon the King, or to detaine him in priſon, is rebellion,kk43. Eliz. Earl of Eſſex caſe. Cooks Inſtit. 3. par. f. 62. to make warre againſt the King, upon pretence to remove evill Counſellers from him is rebellion,llHill 1. Iac. the Lord Cobhams caſe. Cooks Inſtit. 3. par. p. 9. 39. Eliz. Bradfords caſe. Brooke Treaſon. p. 24. or to depoſe him, or to alter the eſtabliſhed Lawes, or Religion by force, or with intent to ſurprize, take, detaine or keep from the King any of his Caſtles, Forts, or ſhipping, or to impoſe unlawfull Taxes, or impoſe new Oaths without the Kings aſſent; theſe and ma­ny other of the ſame nature are Rebellions, which every She­riffe, Juſtice of Peace, and Conſtable in England, yea and every man when he ſhall be ſummoned thereunto, without expecting any particular Writ, or Commiſſion, is bound to uſe his utmoſt power by force of Armes to ſuppreſſe, and the ſooner the bet­ter, taking this advice of the Poet,

Principiis obsta, ſerò medicina paratur,
Cùm mala per longas convaluere morat.

But here it may be objected, that it is not lawfull for any man to riſe in defence of the King, and in aid of him to relieve him14 out of priſon without the Kings Commiſſion or command: if any ſuch objection be made, it muſt needs proceed from one that hath been heretofore, or ſtill is of that party, which uſually is called the Parliament party. To him I anſwer, that it is much more lawfull for the Kings loyall Subjects to fight for him, to ſet him at liberty, and to reſtore him to his rights, which is the onely means to preſerve the Kingdom, then it was either for the E. of Eſſex or the L Fairfax to fight for him without his Com­miſſion, to impriſon his royall perſon and there to deteine him, to the apparent ruine and deſtruction of the Realme. This is, I hope, a ſufficient argument ad hominem, to convince any of that ſide concerning this truth. But I deſire that it may be remem­bred, that it is proved before to be the duty of every loyall Sub­ject, to arreſt Traitors, and ſuppreſſe Rebells; and withall that the King is a cloſe priſoner, that all addreſſe to him is blocked up by Vote and Ordinance, that he cannot ſend his Commiſſions abroad, that it is impoſſible that he ſhould, that per legem nemo te­netur ad impoſſibilia; & it being impoſſible to obtain the Kings Commiſſion to chaſtiſe Traitors & ſuppreſſe Rebels, it is as juſtifia­ble for the preſervation of the King & Kingdom to raiſe arms in this caſe, as it is in caſe a forein enemy were landed, and ready to poſſeſſe one of the ſtrongeſt holds in the Kingdome, and the people within it ſhould make reſiſtance againſt that enemy with­out the Kings Commiſſion; or that one ſeeing a conſpirator ready to ſtab the King, and ſhould prevent the ſtroak before he asked the Kings authority, to preſerve him from murder; which if he ſhould ſtay to do, it might be too late to ſave his lifes; for as the Poet ſaith,

Ignis ab exigua naſcens extinguitur unda,
Ovid.
Sed poſtquam crevit, volitantquead ſidera flammae,
Vix putei, fontes, fluvii ſuccurrere poſſint:

Therefore we muſt not expect to ſee the King at Liberty to grant his Commiſſions, before they act for the preſervation of the King and Kingdome, but muſt make a vertue of neceſſity, alwaies takeing this for an authentique Maxime, in Law, Quod id ſemper juſtum eſt quod omnino eſt neceſſarium, It is neceſſary the Kingdom ſhould be preſerved, it is therfore lawful, it matters not which way. But the caſe of thoſe that ſhall engage in this warre15 will be much better; The certainty of the Royall line (ſaith that great Lawyer**Hobarts Reports, f. 332. the Lord Hobart (is the peace of the realme; The moſt excellent Prince of Wales; Qui coruſcat radiis Regis, & cenſetur una perſona cum Rege, as the Law ſaith;mm8. Rep. Cook, the Princes caſe. 21. Ed. 3. Fitzh. Praerog. 16. who is the perfect Image of his Father, and ſhines with the gliſtering beams of Kingly Majeſty, and is eſteemed one perſon with the King,nnStat. 25 Ed. 3. c. 2. 1. H. 5. f. 7. and who ought to enjoy all the antient Prerogatives of the Crowne, whoſe death to imagine, compaſſe or conſpire, is as high a treaſon, as it is the Kings,ooBr. Trea­ſon. pl. 27. and againſt whom to fight, he coming in aid of the KingppStamf. pl. de Coron. f. 1. I. his father, or to fight againſt thoſe that ſhall aſſiſt him therein, is alſo High Treaſon: Hee, I ſay, is ſufficient Commiſſion in himſelfe, had he not the Kings Commiſſion: but to avoid all ſcruples, he hath the Kings war­rant and authority, and iſſues out Commiſſions to ſuch as require them in his own name as Generaliſſimo (under his Royall Fa­ther) of the three Kingdomes of England Scotland and Ire­land, to all ſuch as defire them, whereby all that ſcruple may be ſatisfied in the Juſtice and formality of their ingagements, though there needs no ſuch wary caution for mens undertake­ings in ſo juſt and neceſſary a war, unleſſe it be that they deſire to ſupport this rule; Abundans cautela non nocet, which ſpeakes more of curioſity then of neceſſity, wherein not onely the ſafety of the Royall perſon of his ſacred Majeſty their Royall Sove­raigne, the preſervation of his Crowne and dignity, (wherein all the peoples protection and ſafety is included,) the mainte­nance of the Lawes of the Land, the Liberties and properties of the free people of England is ſo much concerned; Nay I may juſtly ſay, the health, welfare and being of three famous King­domes lies at ſtake, they being now in a way of ruine and deſtru­ction. But to leave it without ſcruple, that if the Prince had not Commiſſion from the King, yet both he and all the Subjects of England in his aſſiſtance may lawfully take armes in defence and preſervation of the Kings cauſe and perſon, and for his redemp­tion forth of priſon; and this I ſhall prove both by ſufficient preſidents, and the moſt uncontrollable Lawes that are. We read in the Chronicles of England,qqDaniels Chron. p. 152. Sir Rich. Bakers Chron. p. 86. That Anno Chriſti Incarnationis 1256. in the 49. yeare of his raigne, King Hen. 3. of that name King of England, and Prince Edward his eldeſt ſonne and16 heire apparent to the Crowne, afterwards King Edward the firſt, were taken Priſoners by the douze Peers, or the twelve Gover­nours of the Kingdome, and their adherents, at the battell of Lewis in Suſſex, King Hen. himſelfe was conveyed by them Pri­ſoner to the Tower of London, and Prince Edward to the Caſtle of Hereford, the King remaining ſtill a Prſoner, the Prince made an eſcape forth of the Caſtle of Hereford, and in Wales and the parts adiacent, raiſed an army and at Eveſham in Worceſterſhire fought with theſe douze Peeres, the chiefe whereof was Simon Monfort Earle of Leiceſter, who thinking to make their party the ſtronger, thereby declared for the King, took him out of the Tower, and brought him to the battaile, but kept him as a Pri­ſoner: But the Prince declaring alſo for the King his Father, the people riſe in armes with him and defeated the Earles army, kill­ing him in the place, with many others of his confederates, and redeemed the perſon of his Royall Father from his impriſon­ment, reſtored him to his Crowne, who enjoyed it in peace af­terwards till his death, the fact of the Prince was approved of by the Law, but thoſe that fought againſt him were declared trai­tors and Rebells by act of Parliament,rrDictum de Kenil­worth an. 51. H. 3. and paid their fines and forfeitures. The like preſident we find in King Hen. 6. his time, which is thus, Anno Domini 1459. King Hen. the 6. was taken PriſonerſſMartins Chron. p. p. 258, 259, 260. at the battell of Northampton, by Ed­ward Earle of March, eldeſt ſonne to Richard Duke of York, (afterwards King Edward the fourth) and by his then aſſiſtant Nevell the great Earl of Warwick, the King was conveyed as a priſoner to the Tower of London, and afterwards inlarged from thence and committed to the cuſtody of the Duke of Norfolk: Queen Margaret wife to King Hen. 6. and his eldeſt ſon Prince Edward levied an Army, overthrew the Duke of York at Wake­field, and afterwards defeated the Duke of Norfolk, to whom the King was a priſoner, redeemed the Perſon of the King, and re-eſtabliſhed him in his Throne, notwithſtanding that neither of them were armed with either of the Kings Commiſſions for the doing thereof: theſe preſidents we have of the like under­takings, many others I could produce out of the Annalls of France, and Scotland, if deſire of brevity did not prevent me; but both theſe, and all others of this nature are warranted by17 the immutable and diſpenſable Laws of God and nature,ttExod. 10. 11. & 21. 17. God hath commanded children to honour their father and mother, this is a Morall and an eternall Law ever to be performed by children to their Parents,uuMatth. 15. 4. our moſt bleſſed Saviour hath ſo de­clared it, upon which placexxIunius & Tre­mellius. Arrias Montanus Junius and Tremellius and others agree, that Honoris nomine, intelligitur officii omne genus, quod à li­beris parentibus debetur, hic vero juxta proprietatem ſermonis He­braicae magis pertinet ad ſubſidium quàm ad ſalutationem, ac civilia illa vitae officia: By the word Honor, ſay they, is meant all kind of duty that is due from children to their Parents, but in this place by reaſon of the propriety of the Hebrew Speech it rather ſignifieth aid or aſſiſtance, then ſalutation or other civill duties of life; ſo then in this caſe by the Law of God, the Prince is bound to aid the King his Father by every poſſible meanes he can both in civill and military affaires, and by the equity of this Law all the Kings Subjects are bound to doe the like, as the King is Pater patriae, the Father of the Countrey and common Parent of us all, and as children, ſervants, and Subjects are bound by the Law of God to aid and aſſiſt their Father, and King, ſo are they no leſſe bound by the Law of nature, for both are by the ſame Law obliged to be inſtrumentall to their Father, Maſter or Common Parent in all caſes of aid in time of neceſſity, were there no inducement of their owne profit inviting them there­unto; for as learned Grotius hath it,yyGrotius de jure belli & pacis l. 2. c 5 ſect. 2. & 3. Sunt diverſa hominum in­ter ſe vincula, quae ad opem ſuperiorum invitant, tale inſtrumentum eſt Patri filius, pars ejus quippe naturaliter, tale & ſervus quaſi ex lege, quale autem in familiis eſt ſervus, tale in republica eſt ſub­ditus, ac proinde inſtrumenta imperantis ut bellum licitè gerant: There are ſaith he, by the Law of nature divers bonds between men which invite them to the aid of their Superiours, ſuch an inſtrument ought the ſon be to the father, becauſe he is natural­ly a part of him; ſuch an inſtrument ought the ſervant be to the maſter, becauſe he is bound thereunto by the Law of Nations, (which is the part of the law of nature) and ſuch an inſtrument as a ſervant is in a family, ſuch a one ought a Subject of a King­dome be to his King, that is, an inſtrument of his Soveraigne, that may lawfully wage warre for him: From theſe premiſes I gather this irrefragable argument, That whatſoever men are18 bound and injoyned to do by the Lawes of God and Nature, is lawfull for every man to doe without further Commiſſion. But Children are bound to aſſiſt their Parents and Soveraigns in all matters, either civill or military; therefore it is lawfull for the Prince to aſſiſt his Father, and all the Subjects of England to riſe in Armes to aid their King and his urgent neceſſities againſt his oppreſſors, notwithſtanding that they have not his actu­all Commiſſions, or any other derived from his power. Agree­able to this are thoſe rules of the Common-Law of England,zzCooks Rep. 5. par. f. 115. Wades caſe. Quando aliquid mandatur, mandatur & omne quod pertinetur ad illud: When a man hath command to doe his duty, every meanes that is conducing thereunto is warranted unto him, by the Law, and likewiſe,aaCooks Rep. 5. par. f. 12. Saunders caſe. Quando Lex aliquid al••ui concedit, con­ceditur & id ſine quo res ipſa eſſe non potest; when the Law gives a liberty to any man to do any act, it gives him all the neceſſary meanes to effect that, without which it cannot be brought to paſſe. The Law commands and gives licence to all the Kings Subjects to aid, relieve, ſuccour and redeem the King out of Priſon (from whom they can expect no actuall Commiſſion,) therefore the Law ſupplies that defect by her owne power, by a neceſſary meanes conducing to that end, the Kings and King­domes preſervation. This is warrantable and juſtifiable by all the Lawes aforeſaid, let all good Engliſh men therefore take hold of the preſent opportunity, laying a ſide deteſtable Newtra­lity, and redeem their King, Lawes and Liberties, or be ſlaves for ever.

FINIS.

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TextThe just measure of a personall treatie between the Kings Majesty, and both Houses of Parliament. Grounded on divinity, reason, history, divine and humane, common and civill lawes; with many other authentick authors. By R.M. of the middle Temple, Esquire.
AuthorR. M., of the Middle Temple, Esquire..
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Edition1648
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Bibliographic informationThe just measure of a personall treatie between the Kings Majesty, and both Houses of Parliament. Grounded on divinity, reason, history, divine and humane, common and civill lawes; with many other authentick authors. By R.M. of the middle Temple, Esquire. R. M., of the Middle Temple, Esquire.. [2], 18 p. s.n.],[London :Printed in the yeere 1648.. (Place of publication from Wing.) (Annotation on Thomason copy: "July 11th".) (Reproduction of the original in the British Library.)
Languageeng
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  • Charles -- I, -- King of England, 1600-1649 -- Early works to 1800.
  • Great Britain -- Politics and government -- 1642-1649 -- Early works to 1800.
  • Great Britain -- History -- Civil War, 1642-1649 -- Early works to 1800.
  • Great Britain -- Constitution -- Early works to 1800.

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EEBO-TCP is a partnership between the Universities of Michigan and Oxford and the publisher ProQuest to create accurately transcribed and encoded texts based on the image sets published by ProQuest via their Early English Books Online (EEBO) database (http://eebo.chadwyck.com). The general aim of EEBO-TCP is to encode one copy (usually the first edition) of every monographic English-language title published between 1473 and 1700 available in EEBO.

EEBO-TCP aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the Text Encoding Initiative (http://www.tei-c.org).

The EEBO-TCP project was divided into two phases. The 25,363 texts created during Phase 1 of the project have been released into the public domain as of 1 January 2015. Anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source.

Users should be aware of the process of creating the TCP texts, and therefore of any assumptions that can be made about the data.

Text selection was based on the New Cambridge Bibliography of English Literature (NCBEL). If an author (or for an anonymous work, the title) appears in NCBEL, then their works are eligible for inclusion. Selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. In general, first editions of a works in English were prioritized, although there are a number of works in other languages, notably Latin and Welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so.

Image sets were sent to external keying companies for transcription and basic encoding. Quality assurance was then carried out by editorial teams in Oxford and Michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet QA standards were returned to the keyers to be redone. After proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. Any remaining illegibles were encoded as <gap>s. Understanding these processes should make clear that, while the overall quality of TCP data is very good, some errors will remain and some readable characters will be marked as illegible. Users should bear in mind that in all likelihood such instances will never have been looked at by a TCP editor.

The texts were encoded and linked to page images in accordance with level 4 of the TEI in Libraries guidelines.

Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements).

Keying and markup guidelines are available at the Text Creation Partnership web site.

Publication information

Publisher
  • Text Creation Partnership,
ImprintAnn Arbor, MI ; Oxford (UK) : 2011-12 (EEBO-TCP Phase 2).
Identifiers
  • DLPS A89552
  • STC Wing M72
  • STC Thomason E451_40
  • STC ESTC R202844
  • EEBO-CITATION 99863004
  • PROQUEST 99863004
  • VID 161948
Availability

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.