Defense of the People of England, Chapter 9
CHAP. IX.
I Think by this time 'tis ſufficiently evident that Kings of England may be judged even by the Laws of England; and that they have their proper Judges; which was the thing to be proved. What do you do farther? (for whereas you repeat many things that you have ſaid before I do not intend to repeat the anſwers that I have given them), 'Tis an eaſie thing to demonſtrate even from the nature of the things for which Parliaments are ſummon'd, that the King is above the Parliament. The Parliament, you ſay, is wont to be aſſembled upon weighty affairs, ſuch as wherein the ſafety of the Kingdom and of the people, is concerned. If therefore the King call Parliaments together, not for his own concerns, but thoſe of the Nation, nor to ſettle thoſe neither, but by their own conſent, at their own diſcretion, what is he more than a Miniſter, and as it were an agent for the people? ſince without their Suffrages that are choſen by the people, he cannot E… the leaſt thing whatſoever, either with relation to himſelf, or any body elſe? Which proves likewiſe that 'tis the King's duty to call Parliaments whenever the people deſire it; ſince the peoples and not the King's concerns are to be treated of that Aſſembly, and to be ordered as they ſee cauſe. For although the King's aſſent be required for faſhion ſake, which in leſſer matters, that concerned the welfare of private perſons only, he might refuſe, and uſe that form, the King will adviſe; yet in thoſe greater affairs that concern'd the publick ſafety, and liberty of the people in general, he had no Negative voice; for it would have been againſt his Coronation Oath to deny his aſſent in ſuch caſes, which was as binding to him as any Law could be, and againſt the chief article of Magna Charta, Cap. 29. We will not deny to any man, nor will we delay to render to every man Right and Juſtice. Shall it not be in the King's power to deny Juſtice, and ſhall it be in his power to deny the Enacting of Juſt Laws? Could he not deny Juſtice to any particular perſon, and could he to all his people? Could he not do it in inferior Courts, and could he in the Supreme Court of all? Or, can any King be ſo arrogant as to pretend to know what's juſt and profitable better than the whole body of the people? Eſpecially, ſince he is created and choſen for this very end and purpoſe, to do Juſtice to all, as Braction ſays, Lib. 3. Cap. 9. that is to do Juſtice according to ſuch Laws, as the people agree upon. Hence is what we find in our Records, 7 H 4. Rott. Parl. num. 59. The King has no Prerogative that derogates from Juſtice and Equity. And formerly when Kings have refuſed to confirm Acts of Parliament, to wit, Magna Charta, and ſome others, our Anceſtors have brought them to it by force of Arms. And yet our Lawyers never were of opinion that thoſe Laws were leſs valid, or leſs binding, ſince the King was forced to aſſent to no more than what he ought in Juſtice to have aſſented to voluntarily, and without conſtraint. Whileſt you go about to prove that Kings of other Nations have been as much under the power of their Senates or Counſels, as our Kings were, you do not argue us into Slavery, but them into Liberty. In which you do but that over again, that you have from the very beginning of your Diſcourſe, and which ſome ſilly Leguleians now and then do, to argue unawares againſt their own Clients. But you ſay, VVe confeſs that the King whereever he be, yet is ſuppoſed ſtill to be preſent in his Parliament by vertue of his power; inſomuch that whatever is tranſacted there, is ſuppoſed to be done by the King himſelf; and then as if you had got ſome petty bribe or ſmall morſel, and tickled with the remembrance of your Purſe of Gold, We take, ſay you, what they give us; and take a Halter then, for I'm ſure you deſerve it. But we do not give it for granted, which is the thing you thought would follow from thence, That therefore that Court acts only by vertue of a Delegated Power from the King. For when we ſay that the Regal Power, be it what it will, cannot be abſent from the Parliament, do we thereby acknowledg that Power to be Supreme? does not the King's Authority ſeem rather to be transferred to the Parliament, and, as being the leſſer of the two, to be compriſed in the greater? Certainly if the Parliament may reſ…ind the King's Acts, whether he will or no, and revoke Priviledges granted by him, to whomſoever they be granted. If they may ſet bounds to his Prerogative, as they ſee cauſe, if they may regulate his yearly Revenue, and the Expences of his Court, his Retinue, and generally all the concerns of his Houſhold; If they may remove his moſt intimate Friends and Counſellors, and as it were pluck them out of his boſom, and bring them to condign puniſhment: Finally, if any Subject may by Law appeal from the King to the Parliament, all which things, that they may lawfully be done, and have been frequently practiſed, both our Hiſtories and Records, and the moſt eminent of our Lawyers aſſure us, I ſuppoſe no man in his right wits will deny the Authority of the Parliament to be ſuperiour to that of the King. For even in an Interregnum the Authority of the Parliament is in being, and (than which nothing is more common in our Hiſtories) they have often made a free Choice of a Succeſſor, without any regard to an Hereditary deſcent. In ſhort, the Parliament is the Supreme Councel of the Nation, conſtituted and appointed by a moſt free people, and armed with ample power and authority, for this end and purpoſe; viz. to conſult together upon the moſt weighty affairs of the Kingdom; the King was created to put their Laws in execution. Which thing after the Parliament themſelves had declared in a publick Edict (for ſuch is the Juſtice of their Proceedings, that of their own accord they have been willing to give an account of their actions to other Nations) is it not prodigious, that ſuch a pitiful fellow as you are, a man of no authority, of no credit, of no eſtate in the world, a meer Burgundian …, ſhould have the imprudence to accuſe the Parliament of England, aſſerting by a publick Inſtrument their own and their Countries Right, of a deteſtable and …rrid Impoſture. Your Country may be a…amed, you Rascall, to have brought forth a little inconſiderable fellow of ſuch profligate impudence. But perhaps you have ſomewhat to tell us that may be for our good: Go on we'l hear you. VVhat Laws, say you, can a Parliament Enact, in which the Biſhops are … present? Did you then, ye madman, expell the Order of Biſhops out of the Church to introduce them into the State? O wicked wretch, who ought to be delivered over to Satan, whom the Church ought to forbid her Communion, as being a Hypocrite, and an Atheiſt, and no Civil Society of men to acknowledg as a member, being a publick enemy, and a Plague-ſore to the common liberty of Mankind; who, where the Goſpel fails you, endeavour to prove out of Ariſtetle, Halicarnaſſaeus, and then from ſome Popish Authorities of the moſt corrupt ages, that the King of England is the head of the Church of England, to the end that you may, as far as in you lies, bring in the Biſhops again, his Intimates and Table-Companions, grown ſo of late, to rob and Tyrannize in the Church of God, whom God himſelf hath depoſed and degraded, whoſe very Order you had heretofore aſſerted in Print that it ought to be rooted out of the world, as deſtructive of and pernicious to the Chriſtian Religion. What Apoſtate did ever ſo ſhamefully and wickedly deſert as this man has done, I do not ſay his own, which indeed never was any, but the Chriſtian Doctrine which he had formerly aſſerted? The Biſhops being put down, who under the King, and by his permiſſion held Plea of Eccleſiaſtical Cauſes, upon whom, ſay you, will that Juriſdiction devolve? O Villain, have ſome regard at leaſt to your own Conſcience; Remember before it be too late, if at leaſt this admonition of mine come not too late, remember that this mocking the Holy Spirit of God is an inexpiable crime, and will not be left unpuniſht. Stop at laſt, and ſet bounds to your fury, leſt the wrath of God lay hold upon you ſuddenly, for endeavouring to deliver the flock of God, his Anointed ones, that are not to be touched, to Enemies and cruel Tyrants, to be cruſht and trampled on again, from whom himſelf by a high and ſtretched out arm had ſo lately delivered them; and from whom you your ſelf maintained that they ought to be delivered, I know not whether for any good of theirs, or in order to the hardning of your own heart, and to further your own damnation. If the Biſhops have no right to Lord it over the Church, certainly much leſs have Kings, whatever the Laws of men may be to the contrary. For they that know any thing of the Goſpel know thus much, that the Government of the Church is altogether Divine and Spiritual, and no Civil Conſtitution. Whereas you ſay, That in Secular Affairs, the Kings of England have always had the Sovereign Power. Our Laws do abundantly declare that to be falſe. Our Courts of Juſtice are erected and ſuppreſſed, not by the King's Authority, but that of the Parliament; and yet in any of them, the meaneſt Subject might go to Law with the Ring; nor is it a rare thing for the Judges to give Judgment againſt him; which if the King ſhould endeavour to obſtruct by any Prohibition, Mandate, or Letters, the Judges were bound by Law, and by their Oaths not to obey him, but to reject ſuch Inhibitions as null and void in Law; the King could not impriſon any man, or ſeize his Eſtate as forfeited; he could not puniſh any man, not ſummoned to appear in Court, where not the King but the ordinary Judges gave Sentence; which they frequently did, as I have ſaid, againſt the King. Hence our Bractan, lib. 3. cap. 9. The Regal Power, ſays he, is according to Law; he has no power to do any wrong, nor can the King do any thing but what the Law warrants. Thoſe Lawyers that you have conſulted, men that have lately fled their Countrey, may tell you another tale, and acquaint you with ſome Statutes, not very Ancient neither, but made in King Edward 4th's, King Henry 6th's, and King Edward 6th's days; but they did not conſider, That what power ſoever thoſe Statutes gave the King, was conferred upon him by Authority of Parliament; ſo that he was beholding to them for it; and the ſame power that conferr'd it, might at pleaſure reſume it. How comes it to paſs that ſo acute a diſputant as you, ſhould ſuffer your ſelf to be impoſed upon to that degree, as to make uſe of that very Argument to prove the King's Power to be Abſolute and Supreme, than which nothing proves more clearly, That it is ſubordinate to that of the Parliament? Our Records of the greateſt Authority with us, declare, That our Kings owe all their Power, not to any Right of Inheritance, of Conqueſt, or Succeſſion, but to the people. So in the Parliament Rolls of King Hen. 4. numb. 108. we read, That the Kingly Office and Power was granted by the Commons to King Henry the 4th, and before him, to his Predeceſſor King Richard the 2d. juſt as Kings uſe to grant Commiſſioners places, and Lieutenantſhips to their Deputies, by Edicts and Patents. Thus the Houſe of Commons ordered expreſly to be entred upon record, That they had granted to King Richard to uſe the ſame good Liberty that the Kings of England before him had uſed: Which becauſe that King abuſed to the ſubverſion of the Laws, and contrary to his Oath at his Coronation, the ſame perſons that granted him that power, took it back again, and depoſed him. The ſame men, as appears by the ſame Record, declared in open Parliament, That having confidence in the Prudence and Moderation of King Henry the 4th. they will and enact, That he enjoy the ſame Royal Authority that his Anceſtors enjoyed. Which if it had been any other than in the nature of a Truſt, as this was, either thoſe Houſes of Parliament were fooliſh and vain, to give what was none of their own, or thoſe Kings that were willing to receive as from them, what was already theirs, were too injurious both to themſelves and their Poſterity; neither of which is likely. A third part of the Regal Power, ſay you, is converſant about the M…litia; this the Kings of England have uſed to order and govern, without Fellow or Competitor. This is as falſe as all the reſt that you have taken upon the credit of Fugitives: For in the firſt place, both our own Hiſtories, and thoſe of Foreigners, that have been any whit exact in the relation of our Affairs, declare, That the making of Peace and War, always did belong to the Parliament. And the Laws of St. Edward, which our Kings were bound to ſwear that they would maintain, make this appear beyond all exception, in the Chapter De Heretochus, viz. That there were certain Officers appointed in every Province and County throughout the Kingdom, that were called Heretochs, in Latin, D…s, Commanders of Armies, that were to command the Forces of the ſeveral Counties, not for the Honour of the Crown only, but for the good of the Realm. And they were choſen `by the General Council, and in the ſeveral Counties at publick Aſſemblies of the Inhabitants, as Sheriffs ought to be choſen. Whence it is evident, That the Fo… of the Kingdom, and the Commanders of thoſe Forces, were anciently, and ought to be ſtill, not at the King's Command, but at the people's; and that this moſt reaſonable and juſt Law obtained in this Kingdom of ours no leſs than heretofore it did in the Commonwealth of the Romans. Concerning which, it will not be amiſs to hear what Cicera ſays, Philip. …. All the …egions, all the Forces of the Commonwealth, whereſoever they are, are the people of Rome's; nor are thoſe …egions that deſerted the Conſul Antonins, ſaid to have been Antonin's, but the Commonwealths …egions. This very Law of St. Edward, together with the reſt, did William the Conqueror, at the deſire and inſtance of the people, confirm by Oath, and added over and above, cap. 56. That all Cities, Boroughs, Caſtles, ſhould be so watched every night, as the Sheriffs, the Aldermen, and other Magiſtrates, ſhould think meet for the ſafety of the Kingdom. And in the 6th. Law, Caſtles, Boroughs, and Cities, were firſt built for the Defence of the people, and therefore ought to be maintained free and entire, by all ways and means. What then? Shall Towns and Places of Strength in times of Peace be guarded againſt Thieves and Robbers by common Councils of the ſeveral Places, and ſhall they not be defended in dangerous times of War, againſt both Domeſtick and Foreign Hoſtility, by the common Council of the whole Nation? If this be not granted, there can be no Freedom, no Integrity, no Reaſon in the guarding of them; nor ſhall we obtain any of thoſe ends, for which the Law it ſelf tells us, that Towns and Fortreſſes were at firſt founded. Indeed our Anceſtors were willing to put any thing into the King's power, rather than their Arms, and the Gariſons of their Towns; conceiving that to be neither better nor worſe, than betraying their Liberty to the Fury and Exorbitancy of their Princes. Of which there are ſo very many inſtances in our Hiſtories, and thoſe ſo generally known, that it would be ſuperfluous to mention any of them here. But the King owes protection to his Subjects; and how can be protect them, unleſs he have Men and Arms at Command? But, ſay I, he had all this for the good of the Kingdom, as has been ſaid, not for the deſtruction of his people, and the ruin of the Kingdom: Which in King Henry the 3d's time, one Leonard, a Learned man in thoſe days, in an Aſſembly of Biſhops, told Ruſtandus, the Pope's Nuncio and the King's Procurator, in theſe words; All Churches are the Pope's, as all Temporal things are ſaid to be the King's, for Defence and Protection, not his in Propriety and Ownerſhip, as we ſay; they are his to De…end, not to Deſtroy. The aforementioned Law of St. Edward, is to the ſame purpoſe;and what does this import more than a Truſt? Does this look like Abſolute Power? Such a kind of Power a Commander of an Army always has, that is, a Delegated Power; and yet both at home and abroad he is never the leſs able to defend the people that chuſe him. Our Parliaments would anciently have contended with our Kings about their Liberty and the Laws of St. Edward, to very little purpoſe; and '…would have been an unequal match betwixt the Kings and them, if they had been of opinion, that that the Power of the Sword belonged to him alone; for how unjuſt Laws ſoever their Kings would have impoſed upon them, their Charter, tho never ſo great, would have been a weak Defence againſt Force. But ſay you, What would the Parliament be the better for the Militia, ſince without the King's Aſſent, they cannot raiſe the leaſt Earthing from the people towards the maintaining it? Take you no thought for that: For in the firſt place you go upon a falſe ſuppoſition, That Parliaments cannot impoſe Taxes without the King's Aſſent, upon the people that ſend them, and whoſe concerns they undertake. In the next place, you that are ſo officious an enquirer into other mens matters, cannot but have heard, That the people of their own accord, by bringing in their Plate to be melted down, raiſed a great Sum of Money towards the carrying on of this War againſt the King. Then you mention the largeneſs of our King's Revenue: You mention over and over again Five Hundred and Forty Thouſands; That theſe of our Kings that have been eminent for their Bounty and Liberality, have uſed to give Large Boons out of their own Partimony. This you were glad to hear; 'twas by this Charm, that thoſe Traytors to their Countrey allured you, as B… the Prophet was enticed of old, to curſe the people of God, and exclaim againſt the Judicial Diſpenſations of his Providence. You Fool! what was that unjuſt and violent King the better for ſuch abundance of Wealth? What are you the better for it? Who have been no partaker of any part of it, that I can hear of, (how great hopes ſoever you may have conceiv'd of being vaſtly enriched by it) but only of a Hundred pieces of Gold, in a Purſe wrought with beads. Take that reward of thine Iniquity, Balaam, which thou haſt loved, and enjoy it. You go on to play the Fool; The ſetting up of a Standard is a Prerogative that belongs to the King only. How ſo? Why becauſe Virgil tells us in his Aeneis, That Turnus ſet up a Standard on the top of the Tower at Laurentum, for an Enſign of War. And do not you know, Grammarian, that every General of an Army does the ſame thing? But, ſays Ariſtotle, The King muſt always be provided ofa Military Power, that he may be able to defend the Laws, and therefore the King muſt be ſtronger than the whole body of the people. This man makes Conſequences juſt as O…nus does Ropes in Hell; which are of no uſe but to be eaten by Aſſes. For a number of Soldiers given to the King by the people, is one thing, and the ſole power of the Militia is quite another thing; the latter, Ariſtotle does not allow that Kings ought to be maſters of, and that in this very place which you have quoted: He ought, ſays he, to have ſo many armed men about him, as to make him ſtronger than any one man, than many men got together; but he muſt not be ſtronger than all the people, Polit. lib. 3. cap. 4. Elſe inſtead of protecting them, it would be in his power to ſubject both People and Laws to himſelf. For this is the difference betwixt a King and a Tyrant: A King, by conſent of the Senate and People, has about him ſo many Armed men, as to enable him to reſiſt Enemies, and ſuppreſs Seditions. A Tyrant, againſt the Will both of Senate and People, gets as great a number as he can, either of Enemies, or profligate Subjects to ſide with him againſt the Senate and the People. The Parliament therefore allowed the King, as they did whatever he had beſides, the ſetting up of a Standard; not to wage War againſt his own people, but to defend them againſt ſuch as the Parliament ſhould declare Enemies to the State: If he acted otherwiſe, himſelf was to be accounted an Enemy; ſince according to the very Law of St. Edward, or according to a more ſacred Law than that, the Law of Nature it ſelf, he loſt the name of a King, and was no longer ſuch. Whence Cicero in his Philip. He forfeits his Command in the Army, and Intereſt in the Government, that employs them againſt the State. Neither could the King compel thoſe that held of him by Knight-Service, to ſerve him in any other War, than ſuch as was made by conſent of Parliament; which is evident by many Statutes. So for Cuſtoms and other Subſidies for the maintenance of the Navy; the King could not exact them without an Act of Parliament; as was reſolved about twelve years ago, by the ableſt of our Lawyers, when the King's Authority was at the height. And long before them, Forteſcue, an Eminent Lawyer, and Chancellor to King Henry the 6th, The King of England, ſays he, can neither alter the Laws, nor exact Subſidies without the people's conſent; nor can any Teſtimonies be brought from Antiquity, to prove the Kingdom of England to have been merely Regal. The King, ſays Bracton, has a Juriſdiction over all his Subjects; that is, in his Courts of Juſtice, where Juſtice is adminiſtred in the King's name indeed, but according to our own Laws. All are ſubject to the King; that is, every particular man is; and ſo Bracton explains himſelf in the places that I have cited. What follows is but turning the ſame ſtone over and over again; (at which ſport I believe you are able to tire Siſiphus himſelf), and is ſufficiently anſwered by what has been ſaid already. For the reſt, if our Parliaments have ſometimes complimented good Kings with ſubmiſſive expreſſions, tho neither favouring of Flattery nor Slavery, thoſe are not to be accounted due to Tyrants, nor ought to prejudice the peoples Right; good manners and civility do not infringe Liberty. Whereas you cite out of Sir Edw. Coke and others, That the Kingdom of England is an Abſolute Kingdom; that is ſaid with reſpect to any Foreign Prince, or the Emperor; becauſe as Cambden ſays, It is not under the Patronage of the Emperor; but both of them affirm that the Government of England reſides not in the King alone, but in a Body Politick. Whence Forteſcue in his Book de laud. leg. Angl. cap. 9. The King of England, ſays he, governs his people, not by a merely Regal, but a Political power; for the Engliſh are govern'd by Laws of their own making. Foreign Authors were not ignorant of this: Hence Philip de Comines, a Grave Author, in the Fifth Book of his Commentaries, Of all the Kingdoms of the earth, ſays he, that I have any knowledge of, there is none in my opinion, where the Government is more moderate, where the King has leſs power of hurting his people, than in England. Finally, 'Tis ridiculous, ſay you, for them to affirm that Kingdoms were ancienter than Kings; which is as much as if they ſhould ſay, that there was Light before the Sun was created. But with your good leave, Sir, we do not ſay that Kingdoms, but that the people were before Kings. In the mean time, who can be more ridiculous than you, who deny there was Light before the Sun had a being. You pretend to a curioſity in other mens matters, and have forgot the very firſt things that were taught you. You wonder how they that have ſeen the King upon his Throne, at a Seſſion of Parliament (ſub aureo & ſerico Coelo, under a golden and ſilken Heaven) under a Canopy of State, ſhould ſo much as make a queſtion whether the Majeſty reſided in him, or in the Parliament? They are certainly hard of belief, whom ſo lucid an Argument coming down from Heaven, cannot convince. Which Golden Heaven, you, like a Stoick, have ſo devoutly and ſeriouſly gaz'd upon, that you ſeem to have forgot what kind of Heaven Moſes and Ariſtotle deſcribe to us; for you deny that there was any Light in Moſes his Heaven, before the Sun; and in Ariſtotle's you make three temperate Zones. How many Zones you obſerved in that Golden and Silken Heaven of the King's, I know not; but I know you got one Zone (a Purſe) well tempered with a Hundred Golden Stars by your Aſtronomy.