The Sovereign Power of Parliaments and Kingdoms, Text (4 of 4)

The Sovereign Power of Parliaments and Kingdoms · Text (4 of 4)

p. 69Anno. 5 & 6 R. 2. the Commons petition was,Rotulo Parliamenti, An. 5 & 6 R. 2. that the excessive number of the Kings meniall servants may be remedied, or else the realme would be utterly undone, and that his houshould might not exceed the ordinary revenue of the realme.

Anno 4 H 4. the people crave a reformation of the Kings house;Rotulo Parliam. 4 H. 4. & 11 H. 4 & Anno 7. that he would dismisse some number of the retinue, since it was now more chargeable and lesse honourable then his progenitors; and that the ancient Ordinances of the houshold, in …ase of the people might be kept, and the Officers of the houshold sworne to put the Ordinances and Statutes in due execution; and to consider the griefes of his Subjects by unjust purveyance, contrary to the Statute, that hereafter he might live OF HIS OWNE GOODS IN EASE OF HIS PEOPLE.Ex Rotulo & act. Conc. Anno 7▪ H. 4. Which the King willingly doth, as appeareth by an Ordinance in Counsell whereby the charge of the houshold is limited to 16000. markes.

Anno 12 & 18 H. 6. the charge of the Kings house is reduced to a certainty,Rotulo Parliamenti, An^o. 12 H. 6. & 18 H. 6. Ex Rot. Parl and lessened by petition and order in Parliament.

Anno 12 E 4. the King in Parliament promiseth to abate his houshold,An^o. 12 E. 4. Ex libro Ordinationum, An^o. 12 E 4. and hereafter to live upon his owne, so setling a new forme of his Court, which is extant in many hands, and intituled, Ordinations for the Kings house.

Anno 3 E. 2. an Ordinance was made for the Kings houshold in ease of the Kings people oppressed with purveyance,An^o. 3 E 2. Ex liber dict. Au…a Regis. by reason of the greatnesse thereof; and the motive of that Ordinance was, to the honour of God, and profit of holy Church, and to the honour and profit of the King, and the benefit of his people, according p. 90TO RIGHT AND REASON, AND THE OATH WHICH OUR LORD THE KING MADE AT THE BEGINNING of His Raigne.

Thus R. 2. did discard the Bohemians, Ex Rot. Parl. 7 & 12 H. 4. & 10. R. 2.Anno 10. by an act of Parliament, at the peoples petition surcharged by them.

Thus H. 4. did with the Gascoignes and Welsh in like sort,Ex Rot. Parl. A^o. 7 & 12. H. 4. overburdening and impoverishing the King and Realme with perpetuall suits, so that in Court as the Record saith, there were no men almost of substance, or valiant persons, as there ought to be, but rascals for the greater part.

Hence was it,Rotulo Parliam. A^o. 11 R. 2. that the wisedome of former times foreseeing the mischiefe the open hand of the Soveraigne might bring the state into, made a Law 11 R 2. that whatsoever commeth to the King by judgement, escheat, forfeiture, wardship, or in any other waies,A^o. 2. 4 5. H. 4▪ n. 9. shall not be given away, and that the procurer of any such guift shall be punished.

This Law the Parliament continued 7 H. 4. untill the King was out of debt,7 H. 3. Rot. Parliamenti. making frustrate the grants of these, and ordaining a penalty of double value to every mover or procurer of such grants.

The like in Anno 11 H. 4. and that no Petition for any thing should be delivered to the King but in presence of the Councell,Rotulo Parliamenti, A^o. 11 H. 4. n. 293. who might examine it, lest that the Kings wants should light upon the Commons.

And to keep the hand of H. 6. from wastfull giving,20 & 25 H. 6. marked 24. the Councell enduced him to convey to the Archbishop of Canterbury and others, all profits of wards, marriages, reliefes, escheats and forfeitures, to defray the charge of his house.

It is one of the greatest accusations in Parliament against the Duke of Sommerset for suffering the King to give away the possessions and profits of the Crown in manner of a spoile,Ex Rot. Parl. 28 H. 6. for so are the words of the Record.

And it was the first and chiefest Article to depose R. 2. for wasting, and bestowing the Lands and the revenue of the Crowne upon unworthy persons,Ex Rotulo Parliamenti, 1 H. 4. and thereby overcharging the Commons with exactions.

Nor yet to mention the Parliaments Soveraigne Power and JurisdictionttMatth. Paris p. 500, 562, 933 934, 935. in making or proclaiming Warre or Peace, in which they have oft times not onelyonly advised, but overswayed the King; in creating the highest Officers,ttSpeed p. 750. Grafton, p. 188, 189, 240, 241, 221, 222, 223. in ordering the Militia of the Kingdome by Sea and Land by setled Lawes (of which more anon;) or in ordering the Coyne and Money of the Land, together with the Mint, or designing how the Subsidies and Aydes granted by them to the King, shall be disposed of to the Kingdomes use,ttThe severall Acts for Subsidies and R…stal Warre, Truce, Armes, Money, Mint, Musters, Taxes, Tonriage, & Poundage. The Parliaments two Remonstrances concerning the Mi…it…a, Cooks ins…it. on Artic. Super Chartas. 575. to 579. of which there are sundry presidents. All which, together with the Acts concerning his Purveyance, Pardons, Charters, Grants, and all Revenues Royall, are strong (u) evidences of its Soveraigne Authority. Nor yet to remember that in…allible Argument, to prove Kingdomes greater, and more valuable then Kings; that Kings as publique servants to their Realmes, ought to hazzard their lives for their Kingdomes safety and preservation (as many have done in warres against enemies) but never ought the whole Kingdome to be lost or hazzarded to preserve the Kings Prerogatives, that of Iohn 11. 48, 49, 50. and chap. 1814. being an undoubtted rule in Divinity and Policy.**See Mat. Par. p. 268. Legimus quod multi alii Reges, imo & Reguli, usque ad mortem dimicaru…, &c. That it is expedient that any one man, (though a King, yea Christ the King of Kings) should die for the people, that the whole Nation perish no…; rather then the whole Nation die for him. Priorque mihi & potior ejus officii ratio es…, quod humano generi, quam quod uni hominum debe…, as Seneca de Benefic. l. 7. p. 91Gentilis de Iure Belli. l. 1. c. 16. resolve, from the light of nature and common reason. I shall onelyonly adde this important consideration to illustrate this obscured truth. It can**See Iohannis Mariana de Rege & Regis Ins…it. l. 1: c. 8. Marius Salamonius de Principatu. l. 1, 2, 3, 6. Fortescue, c. 9. to 15. Aristot Polit. l. 3. c. 9, 10, 11. l. 5. c. 10, 11. Hugo Grotius, de Iure Belli, l. 1 c. 4. sect. 7. p. 85▪ 86. hardly seeme probable, much lesse credible, that any free people whatsoever when they voluntarily at first incorporated themselves into a Kingdome, and set up an elective or hereditary King over them, would so absolutely resigne up their Soveraigne popular …riginall authority, power, and liberty to their Kings, their heires, and successors for ever, as to give them an absolute, irrevocable, uncontroulable Supremacy over them, superiour to, irrestrainable, irresistable, or unalterable by their owne primitive inherent Nationall Soveraignety, out of which their regall power was derived. For this had been to make the Creator inferiour to the Creature, the Parent subordinate to the Child, the Derivative greater then the Primitive, the Servant (for Princes are but their Kingdomes publique Ministers) more potent then the Master; of Freemen, to have made themselves and their Posterity absolute slaves and vassals for ever; and in stead of a Principality, intended only for their greater safety and immunity; to have erected a Tyranny, to their perpetuall irremediable Oppression and slavery: A most brutish, sottish, inconsiderate rash action, not once to be imagined of any people; quite contrary to the practice of the Lacedemonians, Romans, Germans, Aragonians, and most other Nations, who still reserved the Soveraigne power to themselves, and never transferred it to their kings or Emperours, who were ever subject to their jurisdictions, and censures too, as I shall manifest at large in the Appendix: no absolute Monarchy being ever set up in the world but by direct Tyranny and Conquest, as Cassanaeus in his Catalogus Gloriae Mundi pars 5. Consid. 1. manifests at large, not by the peoples free election and consents. And had our Ancestors or any other Nations, when they first erected Kings, and instituted Kingly government, been demanded these few questions: Whether they meant thereby to transferre all their Nationall authority, power, and priviledges so farre over unto their Kings, their heires, and successors for ever, as not still to reserve the supremest power and jurisdiction to themselves, to direct, limit, restrain their Princes supremacy & the exorbitant abuses of it, when they should see just cause? or so as not to be able ever after to alter or diminish this form of government upon any occasion whatsoever? Or if their King should turne professed tyrants, endeavouring to deprive them (against all right and justice) of their Lives, Goods, Liberties, Religion, Lawes▪ or make open warres upon them to destroy them, or bring in forraigne enemies upon them, to conquer or subject them to a forraigne power without their free consents, that yet they should patiently submit themselves to these their unnaturall, tyrannicall, destructive proceedings without any the least resistance of them by necessary defensive Armes, or calling thē to account for these grosse irregularities? I make no question that they would have joyntly answered (as I doubt not but our Parliaments, Kingdomes, and all other Nations, were they at this day to institute their preerected Principalities and Kings, would answer to) that they had never any imagination to erect such an absolute, eternall, unlimited, uncontrollable, irresistable Monarchy, and plaine tyranny over them; and that they ever intended to reserve the absolute originall Soveraigne Jurisdiction in themselves, as their native hereditary priviledge, which they never meant to divest themselves of: that so by means thereof, if their Princes should degenerate into Tyrants, they might have a just authority, power, and remedy residing in them, whereby to preserve themselves, the Nation Kingdome, from utter desolation, ruine, and vassalage. An impregnable evidence, that the whole Kingdom and Parliament representing it, are the most Soveraign power; and above the King himselfe, because having the supream Jurisdiction p. 92in them at first, they never totally transferred it to our Kings, but reserved it in themselves, which is likewise further confirmed by that notable passage of**In Melch. Goldasti Monarchia, Tom. 1. p. 128. Philocheus Archilacus in his Somnium Viridarii, c. 171. Royall power is instituted three manner of wayes: First, by the will and pleasure of the people, because every people wanting a King of their own (not being subject to the Emperour, or some other King) MAY BY THE LAW OF NATIONS MAKE THEMSELUES A KING, 94. Dist. c. Legitima. If a Royall Principality be thus instituted, as it is in the proper pleasure and power of the people to ordaine, that the King shall be either Successive of Elective; so it is in their pleasure to ordaine, That Kings succeeding hereditarily shall enjoy their power due nnto them either immediately before any Coronation, or any other solemnity, or that they shall receive this power onelyonly by their Coronation or any other solemnity about him. Thereason whereof is, Because as every one in the delivery of the gift of his owne goods, may impose what covenant or condition he pleaseth, and every man is moderator and disposer of his owne estate; so in the voluntary institution of a King and Royall Power IT IS LAWFULL FOR THE PEOPLE, SUBMITTING THEMSELUES, TO PRESCRIBE THE KING AND HIS SUCCESSORS WHAT LAW THEY PLEASE: so as it be not unreasonable and unjust, and directly against the rights of a Superiour: Therefore lawfull to reserve …he Soveraigne Power in and to themselves, and not to transfer it wholly to their Kings.

14 There is one cleare Demonstration yet remaining, to prove the supreme power of Parliaments above Kings themselves, which is this: That the Parliament is the highest Court and power, to which all xxSee Sir Thomas Smiths Common wealth, l. 2. c. 1. 2. Holinsheds description of England, c. 8. p. 173. and Chronicles of Ireland, p. 127. to 130. Cromptons Iurisdiction.Appeal…s are finally to be made from all other Courts and Iudges whatsoever, yea from the Kings own personall resolution, in, or out of any other his Courts: and such a transcendent … ribunall from whence there is no appeale to any other Court or person, no not to the King himselfe, but onelyonly to another Parliament. If any erroneous Judgement be given in the Kings Bench, Exchequer-Chamber, Chancery, Court of Wards, or any other Court within the Realm, or in the Parliament in Ireland, it is finally to be reversed, or determined in Parliament by a Writ of yy1 H. 7. 1▪ Br. Parliament. 92. 98. Error 65, 88. 137. See Ash. Error 65, 66, 67, 68, 70Error, or upon a Petition or Bill: If any sentence be unjustly given in any Ecclesiasticall Courts, or before the D…legates, the finall Appeale for redresse must be to the Parliament. Illegall sentences in the (now exploded extravagant) Courts of Star-Chamber, or High Commission; Injuries done by the King and his privy Councell at the Councell Table, are examinable and remediable in this high Court. Nay, if the King himselfe should sit in person in the Kings Bench, or any other Court (as sometimes our Kings have done) and there give any Judgement, it is not so obligatory or finall, but that the party against whom Judgement is pronounced, may appeale to the Parliament for reliefe, (as Seneca epist. 100. out of Tully de Repub. & Fenestella, Hugo Grotius de jure Belli, l. 1. c. 4. s. 20. p. 65. record; that among the Romanes in certain causes they might appeale from the King to the people.) But if the Parliament give any Judgement, There **See 22. E. 3. 3. Error 8. 8 Hen. 4. 12, 13.can be no appeale to any higher Tribunall, Court, or person, no not to the King, but onelyonly to the next or some other Parliament, as is evident by experience, by all zz21 R. 2. cap. 1. to 15. 1 Hen. 4. cap. 2, 3, 4. 8 Hen. …. 12, 13. See Martae c. 1. … Elez. cap. 1, 3, 21. Iac c. 28. And all Acts for rest… tution in blood of persons attainted, and Acts of repealing Statu…es, Bracton. lib. 1. cap. 2.Attainders of Trea…on, by or in Parliament, by all inconvenient and unjust Acts passed in Parliament, which concerne either King or Subject; which cannot be reversed nor repealed, though erroneous, nor the right heire restored in blood by any Charter from p. 93the King, but onelyonly by an act of repeale or restitution in another Parliament. Now this is an infallible Maxime, both in the Common, Civill, and Canon Law, that The Court or person to whom the last appeale is to be made, is the Supream…st power; as theaaSee Ashes Tables, Error 65, 66, 67, 68, 69, 70. Kings Bench is above the Common Pleas, the Eschequer Chamber above the Kings Bench, and the Parliament above them all, because a Writ of Error to reverse erroneous judgements given in the Common Pleas, lyeth in the Kings Bench: Errors in the Kings Bench may be reversed in the Eschequer Chamber; and errors in all or either of them, may be redressed finally in Parliament, from whence there is no further appeale. Hence the Canonists conclude, abbBodin, l. 1. c. 10. Summa Angelica, & Rosella Tit. Appellatio. Lindwo…d, lib. 2. de Appellationibus, F…X Acts and Monuments, Vol. 1. p. 448, 449. 452. 506. 24. H. 8. c. 12. All Papists and Protestants, in their Controversies of the Popes Supremacy, & of general Councels Generall Councell above the Pope, the Pope above the Archbishop, the Archbishop above the Ordinary, because men may Appeale from the Ordinary to the Archbishop, from him to the Pope (but now with us to the Kings Delegates.) If there be any difference betweeneccSee Grafton p. 512, 513. 161. Matthew Paris, p. 954. Fox old Edition, p. 508. King or Subject, touching any inheritances, Priviledges or Prerogatives belonging to the Crowne it selfe, or any points of misgovernment; yea, which is more, if there be any suite, quarrell, or difference betweene our Kings in Act, and any other their Competitors, ddSee Hoveden, p. 724, 725for the Crowne it selfe, which of them hath best title to it, who of them shall enjoy it, and how, or in what manner it shall be setled, the Lords and Commons in Parliament are and ought to be the sole and final… Judges of it.

Not to give you any instances of this kinde betweene King and Subjects, which I have formerly touched; nor to relate how our King Iohn eeMatthew Paris, p. 273. 274, 275.condemned to death by a Parliament in France, by French Peers, for slaying his Nephew▪ Arthur treacherously with his own hands, and likewise to lose the crown of England: or bow ffMatthew Paris, p. 892. 925. 930. 948. 954, 955. Grafton, p. 188, 189 Speed, p. 687, 688. 785. 786. Andrew Favine Theater of honour, l. 2. c. 12.Henry the third, K. Edward the first and other our Kings have Appealed to the Parliaments of France and England, upon differences betweene the Peeres and Kings of France and them, concerning their Lands and Honours in France. ggWalsingham Hist. p. 514. Speed, p. 647. 648Or how King Edward the third, and Philip of France submitted both their Titles to the Kingdome of France, to the determination in a French Parliament, where they were both personally present, which adjudged the Crowne to Philip. Nor yet to mention how the Parliaments and generall assembly of the estates of France have**See Andrew Favine his Theater of Honour, l. 2. c. 12. Fabian, the generall History of France, with others in the Appendix. frequently disposed of the Crowne of that Kingdome, determined the controversies of the right and titles pretended to it; and elected Protectors or Regents of the Realme during their Kings minorities, or distractions; of which I shall cite divers precedents in the Appendix, to which I shall referre you. Nor yet to trouble you with Spanish Precedents of this nature, where the severall claimes and titles of the pretenders to the Crownes have beene oft referred to, debated in, and finally resolved by their Parliaments and generall assemblies of the States, the proper Iudges of such controversies, as**Censura Dua…di Nonii, In Iosephi Teixerae libellum, c. 76. to 83. & de Vera Regum Portugal. Genealogia, c. 17. 18. Ioannes Mariana, **Munsteri Cosinogr. l. 2. c. 20, 21. Ioan. Mariana de Rege & Regis Instit. l. 1. c. 3. 4. 5. Michael Ritius de Regilus Hispaniae and others.Euardus Nonius, and other Spanish writers determined; as Philip the second the 18. King of Portugall his title to that Crowne and his competitors, together with the rights and claimes of Alfonso the 1. 3. 5. Iohn the 1. Emanuel and other Kings of Portugall, and their Corivals were solemnly debated and determined in the assembly of the States of that Realme, and of divers Kings and Queenes of Arragon, Castile, Navarre: A pregnant argument, that their assemblies of States are the soveraigne Tribunall, since they have power and right to determine and settle the descent, right p. 94and succession of the Crowne betweene those who pretend titles thereunto: I shall confine my selfe to domesticke precedents. Not to repeate theiiPag. 9. forementioned precedents, how the Lords and commons when the Title to the Crowne hath been in dispute have transferred it from the rightfull Heires to others; I shall give you some other pregnant evidences, where the Parliament hath finally determined the Title to the Crowne, when it hath beene in competition, and setled it in a legall manner to avoid debates (by way of Appeale to them by competitors, or reference from the Kings themselves) as the onelyonly proper Judges of such a superlative controversie. Not to mention any stories of our British Kings to this purpose, where the **See Matthew Westm. Fabian. Grafton, Holin.Kingdome, Lords and Commons then, disposed of the Crowne in cases of minority, want of Heires, misgovernment, and controversies about the Title to the Crowne.

**Polychron. l. 6 c. 18. Speed, p. 399. See Grafton and Holinshed accordingly.Canutus after the death of King Edmund, Anno 1017. clayming the whole Realme against Edmunds Brethren and Sonnes, referred his Title upon the agreement made betweene Edmund and him for this purpose, to the Parliament, who resolved for Canutus Title, and thereupon tooke an Oath of fealty to him, Offering to defend his right with their swords against all others claimes. After his decease, the**Matthew Westminster & Malmesbury, Anno 1036. Holinshed, l. 17. c. 13 p. 398. Speed, p. 404. Huntingdon, Walsingham. Anno 1036. 1040. Title to the Crowne being controverted betweene Hardicanute the right Heire, and Harold his elder, but base Brother; it was referred to a Parliament at Oxford, who gave their voyces to Harold, (there present) and presently proclaymed and consecrated him King; Anno 1036. After whose death, the States of England sent and adjudged the Crowne to Hardicanute, then in Denmarke. He dying,**Huntingdon, l. 6. Polychron. l. 6. c. 18. Speed. p. 410. Matthew Westmin. Anno. 1042 p. 415. Edward the Confessor, by a generall consent of the Nobles, Clergy, and People (who presently upon Harold… death, enacted by Parliament,) That none of the Danish blood should any more Reigne over them) was elected King, and declared right Heire to the Crowne, Anno 1126.kkHoveden, Huntingdon, Matthew Westm. Matthew Paris, Walsingham, Polychronicon, Fa…ian, An. 1126. Speed p. 477. See Holinshed, Grafton, Stow, Anno 1126. King Henry the first having no issue male, but onelyonly one Daughter Maude, to succeed him, summoned a Parliament in the presence of himselfe and David King of Scotland, wherein the Crowne was setled upon Maude after his decease, being of the ancient Royall English blood; whereupon Stephen, his Sisters Sonne, and all the Nobles presently swore fealty to her, As much as in them lay, after King Henries death (if hee died without issue male) to establish her Queene of the Monarchy of great Britaine. But Stephen after his decease, usurped the Crowne against his Oath, By the unanimous consent and election of the Lords and Commons: And after seventeene yeares civill wars, to the devastation of the RealmellWalsingham, Ypod, An. 1113 Matthew Westm. An. 1153. p. 42. Mat…hew Paris, p. 82, 83 Speed p 497. Hoveden, p 490. Huntingdon, Hist. l. 8. p. 598. Fox. Vol. 1. p. 261. King Stephen and Henry the Sonne of Maude came to a Treaty at Wallingford, where by the advise of the Lords, they made this accord; That Stephen if he would, should peaceably hold the kingdome during his life, and that Henry should be his adopted Sonne and Successor, enjoy the Crowne as right Heire to it after his death; and that the King and all the Bishops and Nobles should sweare, that Henry after the Kings death, if he survived him, should possesse the Kingdome without any contradiction: Which done the civill warres ceased, and a blessed peace ensued: and then comming to Oxford, in a Parliament all the Nobles did fealty to Henry, who was made chiefe Justiciar of England, and determined all the affaires of the kingdome. In the 8. and 25. of E. 3. there was amm25. E. Par. 2. in the Statuts at large doubt moved in Parliament, whether the children of the King, or others borne beyond the Seas within his Allegiance, should inherit lands in England? The King, to cleare all doubts and ambiguities in this case, and to have the Law herein reduced to certainty; charged the Prelates, Earles, Barons, and other wise men of his Councell assembled in Parliament in the 25. yeare of his Raigne, p. 95to deliberate of this point; who with one assent resolved, That the Law of the Realme of England is, and alwayes hath beene such, that the children of the Kings of England in whatsoever parts they be borne, in England or elsewhere, be able and owe to beare inheritance after the death of their Ancestors: Which when they had declared, the King, Lords and Commons by a speciall Act, did approve and affirme this Law for ever, the onelyonly Act passed in that Parliament. And in a**Cooke l. 8. The Princes ca…e. Parliament, 1…. E. 3. this Kings eldest sonne was created Duke of Cornewall by Parliament, which then also entailed the Dutchy of Cornewall upon the eldest sonnes … of England. So 21. R. 2. c. 9. the Principality of Chester … on the Prince by Act of Parliament.

**7. H. 4. c. 2 Hals Chronicle, 1. H. 4. f. 10. 15. Fabian. part. 7. p. 376 Speed p. 763.King Henry the … the inheritance of the Crownes and … his posterity, caused them by a speciall … his raigne, to be entailed and setled on … and Prince Henry his eldest sonne to be established▪ … heire apparant to him, and to succeed him in the said … and Realmes, to have them with their appurtenances after the Kings death, to him and the heire… of his body begotten; And if hee should die without heire of his body begotten, … remaine to the Lord Thomas, the Kings second sonne, with successive remainders to Lord John the third, and Lord Humfry the Kings fourth sonne, and the heires of their bodies begotten. After which Act passed (for the avoyding of all claimes, titles, and ambiguities, to be made unto the Crowne) he thought never by any of his Subjects to be molested or troubled: the rather, because in this Parliament it was first concluded; that deposed King Richard should continue in a large prison, and be plenteously served of all things necessary both for viande and apparell, and if any persons should presume to reare warre or congregate a multitude to deliver him out of prison, that then he should be the first that should die for that seditious commotion: Which King Richard (as**Fabian, part. 7 p. 373. Sir Iohn Bagot by his Bill exhibited to this Parliament averred) had divers times, at sundry Parliaments in his time holden, said; that hee would have his intent and pleasure concerning his owne matters, whatsoever betide of the residue; and if any withstood his will or minde, he would by one meanes or other bring him out of his life; And further said to him at Lichfield in the one and twentieth yeare of his raigne, that he desired no longer for to live then to see his Lords and Commons have him in as great awe and dread, as ever they had of any his Progenitors, so that it might bee chronicled of him, that none passed him of honour and dignity, with condition that he were deposed, and put from his said dignity the next morrow after. So wilfull was hee, as to preferre his will before his Crowne or safety.

nnHall, Anno 38. & 39 H. 6. f. 176. to 183. F…bi…n, Anno 1441. p. 470. Grafton. p. 643. to 648. Holinshed, Stow, Howes, Anno 1440. 1441.In the yeares 1440. and 1441. Richard Duke of Yorke came into the Parliament House, and there, in a large Oration laid claime, and set forth his Title to the Crowne of England, which King Henry the sixth had long enjoyed, desiring the Parliament to determine the right of the Title betweene them, both sides submitting to their resolution as the proper Iudges of this weighty royall controversie: After long debate and consideration of the case among the Peeres, Prelates, and Commons of the Realme, it was finally agreed and resolved by them: That in as much as Henry the sixth had beene taken as King for 38. yeares and more, that he should enjoy the name and title of King, p. 96and have possession of the Realme during his naturall life. And if he either died, or resigned, or FORFAITED THE SAME for breaking any part of this concord, then the said Crowne & authority royall should immediately descend to the Duke of Yorke (King Edward the 4. his Father) if he then lived; or else to the next heire of his line. And that the said Duke from thenceforth should be Protector and Regent of the Kingdome. Provided alway, that if the King did closely or apertly, study or goe about to breake or alter this agreement, or to compasse or imagine the death of the said Duke or his bloud; then he TO FORFEIT THE CROWNE: and the Duke TO TAKE IT: These Articles made by the Parliament betweene them, they both subscribed, sealed, and swore to, and then caused them to be enacted. Loe here we have these two Kings submitting their Titles to the Crowne and Kingdome it selfe to the Resolution of both houses of Parliament, as the Soveraigne Judge betweene them; who setled the Crowne in this order, under paine of forfeiting it by King Henry, if he violated their Decree herein; and appointing a Lord Protector over the Kingdome in his full age, asooHistoria Angliae p. 458. Parliamentum fuit convocatum in quo Parliamento ex assensuomnium Statuum, idem Dux, Defensor seu Protector Angliae fuerat nominatus & ordinatus, omnia que Regni officia & beneficia ejus disposition… sunt commissa. Walsingham informes us, a Parliament constituted Duke Humfry to bee Protector of him and his Kingdome of England, and the Duke of Bedford to bee Regent of France, during his minority; who exercised all regall power, by vertue of that authority which the Parliament derived to them. After this, in these two Kings reignes,ppSee Grafton p. 691, 692. Speed p. 869. 878. 859 886. 1. E. 4. c. 1. 17. E 4. c. 7. the Crowne and its descent were variously setled by Parliament (as I have formerly manifested) yet so, as that which one Parliament setled in this kinde, continued firme till it was altered or reversed by another Parliament. KingqqSpeeds Hist. p. 928. 931 Richard the third comming to the Crowne by usurpation, to strengthen his Title, procured the Lords and Commons to passe an Act of Parliament, wherein they declare him to bee their lawfull King, both by election and succession, entaile the Crowne upon him and the heires of his body lawfully begotten, create his Sonne Edward, Prince of Wales, and declare him heire to succeed him in the royall Crowne and dignity after his decease.

In which Act of Parliament (recited at large by Speed) there is this memorable passage: That the Court of Parliament is of such Authority, and the people of this land of such a nature and disposition, as experience teacheth; that manifestation or declaration of any Truth or Right made by the three Estates of this Realme Assembled in Parliament, and by the Authority of the same, makes before all other things most faith and certainty, and quieting of mens mindes, removeth the occasion of all doubts, and seditious language:rrHals Chro. 1 H. 7. f. 855. Henry the seventh afterwards slaying this usurping Richard at Boswell-field, to avoyd all ambiguities and questions of his Title to the Crowne, in his first Parliament procured the Lords and Commons by a speciall Act, to settle the inheritance of the Crownes of England and France, on him and the heires of his body lawfully begotten, perpetually by the grace of God, so to endure, and on none other, and all attainders and Acts against him, by Edward the fourth, and King RichardssGrafton p. 856. this Parliament annihilated. After him King Henry the eighth, to ratifie his divorce from Queen Katherine, caused it to be confirmed, and his ttSp. p. 1028.marriage with her to be utterly dissolved by Act of Parliament: and by uu25 H. 8. c. 22 26 H. 8. c. 13. 28 H. 8. c. 7. 35 H 8. c. 5. See Hall.sundry Acts, ratified his subsequent Marriages, and setled the descent of the Crowne to his posterity, somewhat different from the course of the Common Law; which Statutes were afterwards altered and the descent of the Crowne setled by other speciall Bils in Parliament, both in xx1 Mar. c. 1. & Parliament 2. c. 1. 2. 1. Eli. c. 3 13 Eliz. c. 1.Mark 1Queene Maries, and Queene Elizabeths Reignes, whose Titles to the Crowne were setled, and in some sort created by the Parliament.

p. 97By the notable Sta. of 13. Eli. c. 1. worthy reading for this purpose, it is made no lesse then high Treason, to affirme; That the Queene, WITH, and BY THE AUTHORITY OF THE PARLIAMENT of England, is not able to make Lawes and Statutes of sufficient force and validity to BINDE, LIMIT, RESTRAINE and governe all PERSONS, THEIR RIGHTS AND TITLES THAT IN ANY WISE may or might claime any interest or possibilitie IN OR TO THE CROWNE OF ENGLAND in POSSESSION, REMAINDER, INHERITANCE, SUCCESSION, or OTHERWISE HOWSOEVER; and all other persons whatsoever. King Edward the sixt, Queene Elizabeth, and other our Princes holding their Crownes by a Parliamentary Title, rather then by the course of the**See Cooks Institut. Liulet. f. 15, 16. Common Law, which this Statute affirmes the Parliament hath power to alter, even in case of descent of the Crowne.

It is observable that the Statutes of 25 H. 8. c. 22. 28 H. 8. c. 7. and 35 H. 8. c. 1. doe not onelyonly Nulli…ie some of this Kings marriages, and ratifie others of them, declaring some of his issues legitimate and hereditable to the Crowne, others not, and appoint the Queene, if living, to be Protector of the infant King or Queene, that should inherit the Crowne; or such of the Lords as the King by his last will should designe; But likewise prescribe strict Oathes for every Subject to take, to maintaine the Succession of the Crowne, as it is limited by those Acts, which Oathes for any to refuse, is made high Treason, or to write or speake any thing against the succession of the Crowne as it is therein limited: And withall they derive a plenary authority to the King (who thereupon **35 H. 8. c. 1.acknowledgeth the great trust and confidence his loving Subjects had in him, in putting in his hands wholly the Order and Declaration of the Succession of this Realme) by his Letters Patents under his Seale, or his last will in writing signed with his hand, for lacke of issue lawfully begotten of his body, to**28 H. 8. c. 7. 35 H. 8. c. 1. give, limit, assigne, appoint or dispose the imperiall Crowne of the Realme, to what person or persons, and for such estate in the same, and under such conditions as it should please his Majesty. The Parliament therein promising by one common assent to accept, take, love, dread, and obey, as their Legall Governours, and Supreame heads, such person or persons onelyonly, as the King by authority of those Acts should give the Crowne unto, and wholly to sticke to them as true faithfull Subjects. Provided, that if any of his Children or Heires, afterward did usurpe one upon the other in the Crowne of this Realme, or claime, or challenge the said imperiall Crowne, otherwise, or in any other course, forme, degree or condition, then the same should be given, disposed, or limited unto them, by the King, by vertue of those Acts. Or if any person or persons to whom it should please the King, by authority of those Acts to dispose the said Crowne and Dignity of this Realme, or the Heires of any of them, should at any time hereafter demand, challenge, or claime the Crowne of this Realme, otherwise, or in any other course, forme, degree or condition, then the same should be given, disposed, and limited unto them by the King, by vertue and authority of these Acts; That then all, and singular offenders, in any of the premises contrary to these Acts, and all their Abettors, Maintainers, Factours, Counsellours, and Aiders therein, shall bee deemed, and adjudged HIGH TRAYTORS TO THE REALME; and that every such offence shall be accepted, reputed, and taken TO BE HIGH TREASON, and the offenders therein, their ayders, &c. for every such offence shall suffer such judgement, paines of death, losses and forfeitures of Lands, Goods, and Priviledges of sanctuary, as in any …ases of high Treason. p. 98And over, that as well THE KINGS SAID HEIRES AND CHILDREN, as EVERY SUCH PERSON & PERSONS TO WHOM THE CROWNE SHOULD BE LIMITED AS AFORESAID, and every of their Heires, for every such offence above specified, by them to be committed, SHALL LOSE AND FORFEITE AS WELL ALL SUCH RIGHT, TITLE, AND INTEREST, THAT THEY MAY CLAIME OR CHALLENGE, IN OR TO THE CROWNE OF THIS REALME, AS HEIRES BY DESCENT, OR BY REASON OF ANY GIFT OR ACT DONE BY THE KING, for his or their advancement, by authority of those Acts, or by any manner of meanes or pretence whatsoever.

And the Statute of 35 H. 8. c. 1. which entailed the Crowne upon Queene Mary, after Edward the sixt his decease without issue▪ … this proviso; That if th… said Lady Mary doe not keepe and performe such conditions as King Henry by … Patents or last Will in writing, … estate in the Imperiall Crowne; … Imperiall Crowne shall be and come to the … lawfully begotten, in such like manner and forme, as … Mary were then dead, without any Heires of her body begotten, any thing in this Act contained to the contrary notwithstanding. And the like provis there is for Queene Elizabeth, That if she performe not the like conditions, limited as aforesaid, to her estate in the Crowne, That then the said Imperiall Crowne shall be and come to such person or persons as the King by his Letters patents or last Will shall appoint. By all which Acts, (worthy reading and consideration) the Parliaments Supreame power of setling and disposing the descent and inheritance of the Crowne, and giving Authority even to the King himselfe, to dispose of it upon condition, on paine of forfeiture as aforesaid (which the King alone had no power at all to doe) will easily appeare to the most malignant Spirits.

In the firstyy1 Iac. c. 1.Jas 1 Parliament of our late King Iames, the first Bill then passed, was an acknowledgement, and confirmation of his immediate, lawfull, and undoubted succession and right to the Crowne of England, as the next and onelyonly Heire of the blood Royall, to whom of right it descended; which Dolman the Priest, and some Jesuites opposed in Printed seditious Bookes. So thezz1 Mariae, Parl. 2. c. 2. Articles of Qu. Maries marriage with K. Philip, were appointed, and ratified by Parliament: And the Imperiall Ecclesiasticall Jurisdiction usurped by the Pope and Prelates, hath likewise byaa25 H 8. c. 19, 21. 26 H. 8 c. 1, 3. 27 H. 8. c. 10. 28 H. 8. c. p. 16. 32 H. 8. c. 22, 24, 29. 31 H. 8. c. 10, 14. 33 H. 8. c. 29. 34 & 35 H. 8 c. 17, 19. 35 H. 8 c. 1, 3. 1 Eli. c. 1 1 E. 6. c. 2, 1 Ma. c. 1. & Parl. 2. c. 1. 8. El. c. 1. sundry Statutes beene restored and united to the Crowne, and the Title of Supreame head, and Supreame Governour in all causes, and over all persons, Spirituall, Ecclesiasticall and Temporall, setled upon our Kings and Queenes; Who during their minorities have had Guardians and Protectors, appointed to them bybbWalsingham Hist. Angl. H. 5 p. 458. Speed p. 1108. 28 H. 8. c. 7, 17. 1. E. 6. c. 11. Hals Chron. 1 H. 6. Parliament, to summon Parliaments, assent to Bills, and execute all Royall Jurisdiction in their names and steads. And as the Title and Right to the Crowne of England, and the Jurisdiction thereof hath thus from time to time beene decided and setled in and by our Parliaments, so hath the Title and jurisdiction of the Crowne of Scotland, beene ccHist. Angl. p. 16 to 26. 31 to 33, 42. 46 to 56. See Holin. Grafton, Stow, & Speed in the life of Edw. the f…rst. Ypodig. Neust. p. 72 to 96.frequently discussed and setled in our Parliaments, upon appeales made to them by the Kings of Scotland, and their Corrivals to that Crowne; Witnesse the famous p. 99case and competition for that Crowne long agitated and resolved in Parliament betweene the King of Norway, Bailiol, and Bruce, (to omit others) in the Reigne of King Edward the first; And this King Edwards Title to the Crowne of Scotland, declared and resolved by our Parliament here; All which are Recorded at large by Thomas Walsingham, and Matthew Westminster, in the life of King Edward the first, and in the Parliament Rolls, and Pleas of his Reigne, withdd1 Iac. …. sundry other instances of this nature (frequent in our Historians) which for brevity I pretermit.

It is aee35 H. 8. c. 1. cleare case without dispute, that if the King should dye without any Heire, the Crowne would escheate to the whole Kingdome and Parliament, who might dispose of it in such a case, to what person they pleased, or quite change that forme of Government, if they saw good cause; no particular kinde of rule being so simply necessary by any divine Right or Law to any State or Kingdome, but that as it was at first instituted, so it may in such a case be changed by the whole Kingdomes generall consent, upon sufficient grounds. This appeares by the case of**Blondus Decad. 2. l. 2. Regin l. 2. An. 800. Bishop Bilson of Christian Subjection, &c. par. 3. p. 423. Charles the Grosse, who being deposed from the Empire and his Kingdomes, for a mad man, and dying without any Heire, the Kingdomes which before were subject to him, Destitute of a right Heire, began to fall in sunder on every side, and to chuse Kings of themselves of another Family. France elected Charles, a childe, sirnamed Simple, for their King; and after his simplicity displeased them, they Crowned Otho Sonne of Robert Duke of Saxony in his place▪ At the same time the people of Italy meaning to have a King of … not agree on the matter, but some chose Beringarius, … Kings in Italy, both calling and bearing themselves as …; And the Germanes elected Arnolph Duke of Bavaria for their Emperour. Thus**Zona. Annal. Tom. 3. f. 126. Grimstons Imperiall hist. p. 303 Zeno the Emperour dying without any Heire that might succeed him, Anastasius a man of great reputation, yet of no Noble Family, was chosen his Successor, by the Senate and Legions. The like we reade of divers other Emperours deceasing without Heire; of some of our Saxon and British Kings, before the Conquest; and of other in Castile, Aragon, & other Kingdomes, where the Crowne hath beene translated from one Family to another, by the Kingdomes consent for want of Heires.

Duardus **Censu. in Ioseph. Tei. Libel. c. 78. in Ioan. Pisterius hispan. illust. Tam. tom. 2. p. 1250.Nonius Leo, a learned Portugall Lawyer, informes us; That Ferdinand King of Portugall, dying without any lawfull Heire, lineall or collaterall, as they beleeved; the Estate of that Kingdome assembling at Coimbre, elected Iohn a bastard for their King upon this very ground, (specified in their decree of his Election) That King Ferdinand dyed without any lawfull issue or kindred; UNDE JURE GENTIUM, Whence BY THE LAW OF NATIONS, they affirmed it to BE LAWFULL FOR THE PEOPLE TO CHUSE A KING OR GOVERNOUR, WHOM THEY PLEASED. Beleeving therefore, that they had returned to that state WHEREIN BY THE LAW OF ALL NATIONS THEY MIGHT CREATE THEM A KING, namely the kingdome being voyd without an Heire; They said they might lawfully elect Iohn, a most valiant man, and one who best deserved of the Common-weale to be their King, he being begotten of the stocke of the Kings of Portugall. Thus this whole Parliament at Coimbre; and this Lawyer there, and elsewhere**I…d ca. 76. p. 1248. affirmes; THAT BY THE LAW OF ALL NATIONS, if the King in an Hereditary Kingdome die without Heire, THE PEOPLE p. 100MAY LAWFULLY ELECT WHOM THEY PLEASE FOR THEIR KING; as they do in all elective Realmes: Which Ioannes Mariana, de Rege & Regis Instit. l. 1. c. 3, 4. doth likewise averre: The reason is,**See Marius Salamonius de principatu, l. 1, 2 3, 6 p. 19, 20, 27, 41, 120, 126. Because the whole kingdome and people are the originall supreame Soveraigne power, by whose common consent and Authority all lawfull Kings, kingdomes, and Royalties were at first created and instituted, and from whom they derived all their regall Iurisdiction: And therefore as all Mesnalties, Tenancies, and Fees, by the deaths of their Tenants without heire, returne by way of Escheate to those Lords and Sergniories, by whom they were original…y created; and all politique Corporation Lands, (as Abbies, Prioies, Bishopricks, Hospitals, and the like,) by the dissolution of those Corporations by death or otherwise, returne to the first founders of them; (as **See Fitz. Ash. Tab. Tit. Escheat**Eccles. 1. 7.Eccl 1:7all Rivers run into the Sea, out of which they primitively issue:) So all successive kingdomes by the selfe same reason, upon the Kings decease without any lawfull heires to inherit or succeed them, must by all Law, right, equity, revert to the dispose and dominion of all the People of the Realme, or to the representative Body thereof the Parliament as to the Supreame Lords and Founders of it; from and of whom the King himselfe doth hold the Crowne, (if I may so speake) by those regall duties and services expressed in generall in his Coronation Oath, which he takes to all his people;) and if he die his Heire to the Crowne being within age, the Parliament and kingdome as the Soveraigne Lord and power may and usually doth appoint a**See Leges Edwardi Confes. c. 17. Bra. l. 3. c. 9. Guardian and Lord Protector over him (as I have**See Par. 2. p. 48 to 65. elsewhere proved) till his maturity, to discharge his regall Trust and duty to his people in his name and stead. Hence Hugo Grotius in his Booke de Iu…e Belli & Pacis, r. 2. c. 9. sect. 8, 9, 10, 11. concludes: That if an elective King dye, or … King decease without any knowne heire to succeed him, the Empire or Soveraignty … in the King as Head, returnes unto, and remaines in the people as in the intire body, which continues the same it was before: And therefore in such cases they may either create a new King if they please, as in elective kingdomes, or divide the kingdome into parts, and erect a new Empire, as the Romans, Germans and Persians did; or change the Government; the people in this case being Sui juris, having the raines of Government in their owne hands, as at first before they erected an hereditary Monarchy, to order and dispose of the government as they shall thinke meete: it being a thing which in its owne nature is not capable of an Occupancy, nor seisible by any, unlesse the people will voluntartly desert their owne liberty, none having authority to usurpe a regency over them in such a case, but by their free assents. Upon which ground he holds with Cynus, and Raynorius, That if the Roman Emperour (or any other King by like reason) be sicke, or taken prisoner, so as he cannot administer the government, the people of Rome may create and appoint him a Vice-roy to governe them; the power of the Emperour, and the most absolute Monarch, being onelyonly a power of Administration for the peoples good and service, not of dominion for his owne profit; of which none but the people can dispose; as**De Iure Belli l. 3. c. 15. Abberius Gentilis proves at large.

Yea, Bishop Bilson ffThe true difference betweene Christian …ubjection & unchristian rebellion, par…. 3. p. 418. to 422.himselfe (though a great Royalist,) positively affirmes; That if a King, or right Heire to any Crowne be borne, or becomes a naturall Foole, or starke mad, or run besides himselfe, so that he is not able to governe himselfe, much lesse his Realme; in these two cases, ANY REALME BY PUBLICKE CONSENT and ADVICE MAY CHUSE ANOTHER KING: (for what should he doe with a Royall Office, or by what divine or humane right can he enjoy a Crowne, who is utterly unable to manage it?) Upon this groundggSee the generall history of France in his life, Sabellicus Ennead. 8. l. 8. p. 245. Nauclerus vol. 3. Gen. 26… Blondus, Decad. 1. l. 10. Aventinus, l. 3. p. 293, to 300. Gaguinus l. 3. in Car. Mart. Herman. Schedel, Chron. Aetas 6. f. 185.Gen 26 King Childerick was deposed by his French and German Subjects generall consents, because he was a p. 101fool, a Sot, a Beast, unable to govern his Kingdom, and Pepin of another race, elected and crowned King in his stead; which act by Pope Zacharies resolution, was adjudged both just and lawfull, even in point of conscience, before it was put in execution. So33Godfredus Vi…t…rbiensis Chro. pars 17. col 468. Regino l. 3. An. 887. H. Mutius, Germ. Chr. l. 12. Grimstons Imperiall History p 404. Charles the third, the last Emperour of Pepins race, was deposed from the Empire, by the Princes, Dukes, and Governours of the Provinces of Germany and France, for that he became foolish and unfit to govern, being bereaved of his senses; and by common consent, Arnolph was elected Emperour in his stead; Thus44E…gri… Eccl. hist. l. 5. c. 11 1. 3 Zonaras Annal. Tom. 3 f. 150. 151. Eutropiu… l. 16. p. 211. Iustinus the second falling into a frenzie and madnesse, so that he had no sense nor understanding of any thing that was done, was removed, and Tiberius placed in the Empire; at his Coronation, Iustinus used this notable speech; Let not the glory of these Imperiall robes, lead thee into errour, neither be thou deceived with the glorious shew of such things as are subject unto the senses, wherewith I my self now (alas) beig snared, have brought my self foolishly into grievous torments. Wherefore in governing the Empire with great moderation and mildnesse of spirit, redresse what is amisse, and correct what I have lewdly committed. And pointing at his ill Counsellors with his finger, he said;**Nota. Thou must in no wise be ruled by these men, for these be those which brought me into this lamentable plight, and the misery thou seest me in. A memorable strange speech of a distracted Prince. And thus the Emperour55Grimstons Imperiall History p. 581, 582. Sententia Exaucterationis & Depositionis Wences…ai, An. 1400. in Germ. Hist. Tom. 2. p. 180. 181. Iean. Crespin. L…estate de Lesglise p. 465. Wenceslaus, was likewise deposed by the Princes electors of the Empire, For besotting himself so with pleasures, &c. as that he became altogether unfit for the government, and a man unprofitable for the Empire and Christian Common-wealth; and Rupert Count Palatine of Rhine, and Duke of Bavaria, was elected Emperour in his stead. The like (no doubt) might be lawfully done here in England, by the whole Kingdom and Parliament, if any such cases of incurable folly or frenzy should befall any of our Kings, who might then either create a Lord Protector to govern both King or Kingdom, during such disabilities of Government in the King (as66Aventine l. …. f. 293. Fr…st g. 1. 3. c. 13. Naucl. vol. 3. Gen. 26.Gen 26 Childricke for a time, before his deposition, was governed and overruled in all things by the Marshall of the Palace) or else Crown the next Heir King, if he be capable to Govern. Yea, in the time of our Saxon Kings, when the right Heir was an Infant, unable to govern, the Crown usually descended to the next Heir of full age: Hence**Speeds Hist. p. 252. 253. 262. 364, 365 See Matthew West. Polychr. Floren. Wigo…. Holinshed, Huntindon, and others. Wibba King of Mercia deceasing▪ Penda his son being an Infant, the Crown descended to his Nephew C…orl of full age, after whose death Penda being of ripe age inherited the Kingdom. So King VVulfcher deceasing, leaving his son Kenred within age, his Brother Ethelred succeeded him; who resigning his Crown and turning Monke after he had Reigned 30. yeers, Kenred then of full age enjoyed the Crown. So Ethelfred King of Northumberland dying, Edelwald his Brother entred the Government and Reigned, Aldulfe, Ethelherds son, being then a minor, who enjoyed not the Crown till after Edelwalds death. So**Gauf. edu… Mo…u. l 3. c. 20. Graf…n p. 67. Casse…elan succeeded Lud his Brother in the Kingdom of Britain, Luds sons being too young and insufficient to Reign: The like was very usuall in Scotland, of which there are divers presidents in Grafton, 77Grafton l. 1. 112.Hector Boetius, and Buchanan, which I pretermit. All which particulars laid together, are a most clear unanswerable demonstration, that the Soveraignest power and Jurisdiction of all others, resides in the whole Kingdom and Parliament, not in the King himself, since they may thus dispose of the very Crown it self, and are the sole and onelyonly supream Judges to determine all controversies. all titles which concern it; The King alone having no power to transfer it to any other without the Lords and Commons free consents, as was resolved p. 102in the case of King Iohn, who resigned and granted his Crown to the Pope, without the Kingdoms consent; and therefore the resignation and grant were adjudged void not onelyonly by the**Matth. Paris. p. 270. French King and his Lords, but by our own Parliament, as you may read in 40. Ed. 3. Nu. 8. and in Doctor Crakenthorpe, Of the Popes temporall Monarchy, Cap. 2. p. 251. to 255. I shall conclude this point with the words of this memorable Record;**40 E. 3. n. 7. 8. The Prelates, Dukes, Counts, and Barons, being in the white Chamber, and the Commons in the Painted Chamber, it was shewed unto them by the Chancellour, how they had understood the cause of the Summons of Parliament in generall; but the will of the King was, that the causes should be shewed unto them in speciall, telling them how the King had understood that the Pope by vertue of a Deed, which he said that King John had made to the Pope to do him homage for the Kingdom of England and the land of Ireland, and that by reason of the said homage that he ought to pay him every yeer perpetually one thousand Marks; and that he purposeth to make out Processe against the King and his Realm, for the said Service and Rent, concerning which the King prayed the advice and counsell of the Prelates, Dukes, Earles, and Barons: and what he should do in case the Pope would proceed against him for this cause, or against the said Realm: And the Prelates prayed the King that they might thereupon advise alone by themselves, and return their answer the next morning: which Prelates by themselves the next morning, and after the said Dukes, Earls, Barons, and great men, answered and said; That the said King John, NOR NO OTHER, MIGHT PUT HIMSELF, NOR HIS REALM, NOR HIS PEOPLE IN SUCH SUBJECTION, WITHOUT THE ASSENT AND ACCORD OF THEM: And the Commons being advised and consulted with thereupon, answered in the same manner. Whereupon it was ordained and assented BY COMMON CONSENT in manner following; In this present Parliament held at Westminster, the Munday next after the Invention of holy Crosse, in the yeer of the reign of King Edward, the 40. as well to maintain the estates of holy Church, as the rights of his Realm and his Crown, it hath been shewed amongst other things; how it hath been reported and said, that the Pope by vertue of a Deed which he said that the said John, late King of England, had made to the Pope in perpetuity, to do him homage for the realm of England and land of Ireland, and by reason of the said homage to render to him an Annuall rent, and hath purposed to make Processe against the King for to recover the said Services and rent; The which thing being shewed to the Prelates, Dukes, Earls, Barons, and the Commons, to have their advice and counsell thereupon, and to demand of them, what the King should do in case that the Pope should proceed or attempt any thing against him or his Realm for this cause: Which Prelates, Dukes, Earles, Barons, and Commons having taken full deliberation thereupon, answered and said, OF ONE ACCORD; That the said King John, NOR NO OTHER MIGHT PUT THEMSELVES, NOR HIS REALM NOR HIS PEOPLE IN SUCH SUBJECTION WITHOUT THEIR ASSENT. And as it appears by many evidences, that if it were done, it was done WITHOUT THEIR ASSENT, AND AGAINST HIS OATH IN HIS CORONATION. And moreover that the Dukes, Earls, Barons, great men, and Commons accorded and granted, That in case the Pope would endeavour or attempt any thing by Processe or any other act, to constrain the King or his Subjects to perform what is p. 103said he will claim in this behalf; That THEY WILL RESIST AND OPPOSE HIM WITH ALL THEIR MIGHT. And before this in the great**Matthew West. ch…. 1245. p. 191 to. 197 Walsing. Ypodig p. 60 Matthew Paris. p. 646. Here part. 2. p. 13. Councell of Lyons, the Proxies and Procurator of the Church and realm of England, in the name of the whole Realm, complained and protested against this grant of King Iohn as a meer Nullity, BECAUSE IT WAS MADE WITHOUT THE CONSENT OF THE REALM AND LORDS, which neither did, do, nor ever after would consent thereto, as I have elsewhere proved: This being the common received opinion of all Civilians and Statists, That no King or Emperour can alien, or engage all or any part of his Kingdom to another without his Subjects generall consents, and that such an alienation or Morgage is meerly void in Law to all intents, as Albert. Gent. De jure Belli, l. 3. r. 15. and Hugo Grotius proves at large, De jure Belli & Pacis, l. 2. c. 6. 7. & lib. 1. cap. 4. sect. 10. where he affirms, That a King who aliens and would actually deliver up possession of all or any part of his Realm to another forraign power without the peoples consents, may lawfully be resisted with force of Arms by his Subjects; concluding with this Sentence out of**Con…r. l. 11. contr. 9. Seneca, with which I shall close up this Discourse; Et si parendum in omnibus Patri (naturall or politicall) IN EO NON PARENDUM QUO EFFICITUR NE PATER SIT.

This point I have thus copiously debated, not out of any the least intention to derogate from his Majesties just Supremacie and Prerogatives royall, which I have oft solemnly sworn to maintain to the utmost of my power, and shall (God willing) perform; but out of a serious desire to rectifie the generall mistakes of men, touching a pretended Prerogative, which their fantasies onelyonly (not the Law) have unduely attributed unto Kings: and to vindicate the just Liberties, Priviledges, and Prerogatives of Parliaments (so much decryed, declaimed against of late by a company of ignorant Papists, Malignants, Royalists, who know not what the jurisdiction of Parliaments is) according to the Protestation, the clearing of which points (in my weak apprehension) is the onelyonly high and ready way to compose our present differences, to settle all our distractions, which the ignorance, the mistakes of the Kings and Parliaments just Prerogatives and Powers, (next to the treacherous malice of Papists) have principally raised among us, almost to the ruine of the Kingdom. For my part, I professe sincerely, I love and honour both King and Parliament alike, and in the controversies now between them concerning their Jurisdictions, stand as a man indifferent to do right to both, without prejudice to either; and the King being the Principall Member of the Parliament, the elevating of its now disdained Power to its due altitude, can be no depression, but advancement of the Kings Prerogative, which shines most perspicuously in Parliaments, whiles King and Parliament are united, and is most eclipsed onelyonly when they are divided, as the precedents in all ages manifest. And this I dare confidently averre, That there are no such enemies to the Kings Prerogative, as those who advancing it beyond due bounds, do necessarily draw it into dispute, in which it commonly comes off with losse and diminution in the end, as in the late cases of Loanes, Ship-money, and the like. It was a notable true Speech of our King**Holinshed p. 1584. Cromptons Iurisdict. of Courts f. 10. Henry the 8. in the 34. yeer of his reign in the case of one George Ferrers, a member of the Commons house, arrested contrary to their Priviledge, of which the King being informed, used these words among other to the Speaker and House of Commons, p. 104We are informed by our Iudges, That we at no time stand so highly in our estate Royall, as in the time of Parliament; wherein we as Head, and you as Members, are knit together into one Body politick; so as whatsoever offence and injury (during that time) is offered to the meanest of the House, is to be judged, as done against Our Person, and the whole Court of Parliament; which Prerogative of the Court is so great, as all Acts and Processes coming our of Inferiour Courts, must for the time cease, and give place to the highest; which being so, My Vindication of the Parliaments Soveraign Power and Right, can be no impeachment, nor diminution of the Kings just Authority, though many Sycophants and Malignants falsly repute it so.

If any here object Object.against the premises, ff1 Eliz c. 1.That the King is the only Supreme Governour of this Realm, That ggLib. 1. c. 8. f. 5, 6. l. 3. c. 3. f. 107.Bracton,hhL. 1. c. 5. 17. Fleta, and our ii3 Ed. 3. 19. Corone 161. 22. E. 3. g. b Dyer, 297. a. Stamso. 253. a.Law Books resolve: That the King hath no Peer in His Kingdom, for so He should lose His Empire, since Peers (or Equals) have no command over one another; much more then ought He not to have a Superiour, or mightier, for so He should be Inferiour to those who are subject to Him; and inferiours cannot be equall to Superiours. The King ought not to be under man, but under God and the Law. If then Iust…ce be demanded of Him by way of Petition, (because no W…it runs against Him (thoughkk22 E. 3. 3 b. anciently some Writs did) if He do not justice, this punishment may be sufficient to Him, that He may expect God will revenge it. Nemo quidem de factis suis praesumat disputare, multo fortius contra factum suum venire, &c. Therefore the King is above the Parliament, and whole Kingdom, not they above Him.

I answer, First, That the meaning of all these Books is, That the King is above every one of His Su…jects, and hath no Peer nor Superiour, if they be taken particularly and dist…ibutively, as single men; as the words Parem, Superiorem, in the singular number, and the like, explain the meaning of the Books to be. But if we take them collectively in Parliament, as they are one body and represent the whole Kingdom; then these very Authors resolve (in their forequoted words) That they llBracto… l. 2. Answ. c. 16. f. 134. a. Fletal. 1. c. 17.are above the King, and may, yea, ought to restrain and question his actions, his Mal…-Administrations, if there be just cause.

Secondly, Bracton explains himself, how He is highest and without a Peer, to wit, In mmPare…u…em habere non debet, nec multo fortius superiorem, maxime in justitia exhibenda, licet in justitia recipi…, minime de regno suo comp… …etur, lib. 3. c. 9. f 167. a.distributing Iustice, that is, He is the highest Iusticiar in the Kingdom, but as low as any in receiving Iustice.

Thirdly, Even in Parliament it self, the King is the Supreme Member, and in that regard the Parliament in most publike Acts, in all their Petitions or Addresses, usuall stiles him,nnSee Bodius Common-wealth. l. 2. c. 1. p. 192. the like of the Parliaments in France. Their Soveraign Lord: Besides, The Parliament it self is ever ooSee Madus renendi Parliamentum Camb. Brit. pag▪ 177. Crompt. Iuris. of Courts, f. 1. to 6. Sir Tho. Smiths Common-wealth. l. 2. c. 2. 3. Hol. Descrip. of England c. 8▪ Cowel & Minsh. Tit. Parl. Mr. Hack manner of passing Bils, sect. 8.summoned, dissolved by his Writ, in his name, by his Authority: And in passing all Acts and Bills of Grace, or such as are not simply necessary for the publike safety and utility of his people, He hath an absolute negative voyce, and his Royall assent is in some sence simply necessary for the passing of all ordinary lasting binding Laws: In which respects he is, and may be truely said in some sence, To be above the Parliament it self, and the only Supreme Governour; but yet in the forenamed regards, the Parliament really is, and may be justly averred to be Paramount him, and the Supremest Soveraign Power, though not Governour.

Fourthly, The Oath of Supremacy, That the King is the only Supreme Governour, relates only, and at least principally to the Popes forraign Princes Authorities, formerly usurped in this Realm, as the Title, Words, scope of the Statute of 1 Eliz. p. 105cap. 1. and the very next words in the Oath it self undenyably manifest, (And that NO FORRAIGN Power, Person, Prelate, State or Potentate hath or ought to have any Iurisdiction, Power, SUPERIORITY, PREHEMINENCE, or Authority, Ecclesiasticall or Spirituall within this Realm; and therefore I do utterly renounce and forsake ALL FORRAIGN Iurisdictions, &c.) Therefore it refers not at all to Parliaments, or their Jurisdiction, Power, Superiority, Preheminence, or Authority; not so much as once thought of by the prescribers of this Oath, which had its creation and Authority from the Parliament, and made some addition to the Kings Prerogative.

Fifthly, ppCommonw. l. 1. c 9. l. 2. c. 5.Bodin with others (as I shall hereafter manifest) assure us, That the Soveraign Power, and Iurisdiction both in the Roman and German Empires, and in most forr…ign Christian Kingdoms, was, and yet is, in the Senate, People, Parliaments, States, Dyets; yet this is no empeachment at all to their royall Supremacies, or Titles of Supreme Heads, and Governours, Within their own Dominions, no more then the asserting of generall Councells to be above Popes themselves, by the learnedst Papists, is any derogation (as they hold it is not now) to the Popes most absolute pretended Soveraignty qqSee p. 2. ….above all Emperours, Kings, Princes, Prelates, Subjects, and the world it self, of which they affirm him sole Monarch: Therefore by the self-same reason, this asserting of the whole Kingdoms, and Parliaments power to be above the Kings, is no diminution at all, much lesse a denyall of his Supremacy, and just Prerogative Royall.

If then the Parliaments Power be thus higher and greater then the Kings Personall Power and Jurisdiction out of Parliament, it will necessarily follow from hence:

First, That in these unhappy times of division and separation of the Kings Personall presence (not legall which cannot be severed) from the Parliament: The Lords and Commons Orders, Votes, Ordinances, made legally in Parliament it self, are to be preferred, obeyed by all the Kingdom, before any His Majesties Proclamations, Declarations, Commissions, Warrants, or Mandates, made illegally out of Parliament in affront of both Houses proceedings and Decrees, since when ever two distinct powers command different thing…, that are lawfull, or of the same nature, the higher Power ought still to be obeyed; As if a Master commands his Servant one thing, and the King another; or the King one thing, God another; the King is to be obeyed before the Master, because the Superiour Power; but God before the King, because the highest Power, as the rrSee Gratian causa 11. qu. 3. where he quotes August. Hier. & …fiedor. to this purpose.Fathers and Canonists resolve most fully: And**Resolving of Conscience, sect. 1, 2, 3. An appeal to thy conscience, and others. Doctor Ferne with other asserters of the Kings Prerogative, not only grant, but prove; And therefore presse an absolute Obedience to all the Kings commands against the Parliament, on this false ground; Because the King (say they) is the highest Soveraign Power, and above the Parliament it self: The contrary whereunto being now made evident to all men; The Argument falls fatally on them that urge it. The Parliament, not the King, is the most Soveraign Power: Erg…, Its Votes, and Ordinances must be preferred and obeyed before the Kings.

Yea, The Parliament being the highest Power, the King Himself ought to submit thereto, and to be ruled and advised thereby. This conclusion (though it may seem a Paradox to most men) is an undubitable verity both in point of Divinity and Policy, as is most apparent, by the 1 Sam. 14. 38. to 46. and c. 29, 1, to 11. 2. Sam. 18. p. 1062, 3, 4. c. 19. 1. to 9. 1 K. 12. 1. to 25. 2. K. 20. 7, 8, 9. 1 Chr. 13. 1. to 6. 2 Chr. 10. & 11. c. 30. 2, 3, 5, 23. c. 32. 3. Esth. 1. 13. to 22. c. 9. 23. to 23. Ier…. 38. 4. to 28. Dan. 6. 4. to 20 Ionah 3. 7. Ezra 10. 3. 8. Eccles. 4. 13. Prov. 11. 14. c. 15. 22. c. 25. 5. compared together, and with Iosh. 20. 11. to 34. Iudg. 20. 1. to 20. (where we finde the Princes, and people alwayes overruling their Kings, who submitted their judgement wholly to them, not the Kings overruling their Princes and people;) who as Iosephus records, Antiqu. Iudaeorum, l. 4. c. 18. Ought to do nothing besides, against, or without the sentence of the Senate, or Congregation; Whence King Zedechiah said unto his Princes, Jere. 38. 4, 5. The King is not he that can do any thing against you: And in point of Law and Conscience, even in our own Kings and Kingdom, as is clear by 20 E. 3. the Preface, and c. 1. 25 E. 3. Parliament 6. the Statute against Provisors, 38 E. 3. Stat. 2. c. 1, 2, 3. 3 E. 1. c. 17. and 48, with other Statutes which I shall hereafter cite at large, in answer to the fourth Objection, concerning the Kings negative voice; which Texts and Statutes those who will, may peruse at leisure for their better satisfaction. And in Pauls time, the highest Powers in Rome, were not the Roman Emperours, as ignorant Doctors make the unlearned world beleeve, but the Roman Senate, who had full power, not only to elect and command, but censure, and depose their Emperours, and adjudge them unto death, as**commonwealth l. 2. c. 5. Iohn Bodin acknowledgeth, and I shall hereafter abundantly manifest in the Appendix.

Secondly, That the Parliaments resisting of the Kings personall Commands (especially such as are illegall and destructive to the Kingdom) or any private Subjects resisting them by vertue of a publike Ordinance or Countermand from the Parliament, is no resisting of the higher Power, against Pauls injunction, Rom. 13. 1. to 7. asffResolution of Conscience, sect, 1, 2. &c. And Revindication of Psalm 105. 15. Printed at Cambridge, 1643.Ps 105:15 Doctor Ferne, and other illiterated Doctors vainly fancy, but a direct submission and obedience to the highest Powers (the Parliament;) and those who resist the Parliaments Ordinances and Commands (especially such as tend to the preservation of Religion, Laws, Liberties▪ Priviledges of Parliament, and the Kingdom, or bringing Delinquents to condign punishment) though they do it by vertue of any extrajudiciall countermand from the King or His ill Counsellors, do both in point of Law, Divinity, Conscience, resist the higher Powers, because they resist the Parliament (which is in truth, the highest Power, as I have manifested, not the King:) and so shall receive damnation to themselves for it, either here, or hereafter, if they repent not; which I seriously desire all those Delinquents, Papists, Malignants, ill Counsellors, and Cavaliers, to consider, who contrary to severall Orders, and Declarations of Parliament, yea contrary to the Law of God, of Nature, of the Realm, have like unnaturall Vipers, taken up offensive Arms against the Parliament and Kingdom, to ruine them, Religion, Laws, and Liberties at once.

Thirdly, Hence it follows, That the Resolutions and Declarations of the Lords and Commons in Parliament, the supremest Court, against the Commission of Array, Arming of Papists, raising of Forces, imposing Taxes to maintain Warre against the Parliament, Plundering, and the like, ought to be obeyed, and submitted to, as lawfull and binding, both by the King Himself, the Kingdom, and every private Subject whatsoever; and that the Kings extrajudiciall and illegall Declarations out of Parliament in direct opposition and contradiction to these Resolutions and Votes of both Houses in Parliament, ought not to be obeyed, the King himself as our Law p. 107Books resolve, Being no tt8 H. 4. 13. b. 24 H. 8 c 12 52 H. 3. c. 1. 25 H. 8. c. 21. Cook…. Institutes on Mag. Charta, f. 103. 25 Ed. 3. Parl. 2.competent Iudge (especially out of his Courts) what is Law, or what not in those Cases, but the Parliament only. Which extrajudiciall new device of controlling, affronting the Resolutions and Declarations of both Houses, by opposite Proclamations, and Declarations published in his Majesties name; is such a transcendent violation of, and contempt against the known priviledges, the sacred venerable Authority, and power of Parliaments, as (I am confident) no age can Paralell; and if not severely vindicated by exemplary punishments of the highest nature, upon those ill Counsellors, and corrupt Lawyers, who contrive and pen them, will bring this highest, greatest and most honourable Court (wherein the uu31 H. 8. c. 1. 1 lac. c. 1. Dr. & Student, 44. a.whole Kingdom, and every Member of it are represented) into greater contempt and lesse estimation with all men, (whether Natives or Forraigners) then the basest Court of Pipouders is. No King nor Subject ever yet attempted such affronts against the Resolutions of any Judges in inferiour Courts; Let no person whatsoever then presume by pen or tongue, any longer to arraign or traduce the Resolutions and Ordinances of this highest Tribunall. If Kings or Counsellors of State, will instruct or excite the Subjects, peremptorily to disobey and contemne the Ordinances, the Judgements of the Parliament, let them never expect the least obedience or submission to any of their own commands, which are of lesser credit and Authority; which all former Ages have most reverenced and submitted to.

Fourthly, That the Parliament and whole Kingdom, being the highest Power, or any Member of the Parliament, cannot by any publike Acts or Votes of theirs consented to in Parliament, become Traytors, or guilty of high Treason, against the King, either by the Common Law, or the Statute of 25 Edw. 3. chap, 2. of Treasons, which running in the singular number; If A MAN, &c. (That is, any private man or men, by their own private authority) shall levy warre against the King, &c. it ought to be judged high Treason; extends not to the whole Kingdom, or Court of Parliament representing it, (of which no treason was ever yet presumed,) the rather, because the Parliament by this very act is made the Iudge of all Treasons that are doubtfull, and was never yet included within the words or meaning of any Law concerning Treason, and therefore cannot be guilty of it. Hence the depositions ofaaGra… part 6. p. 62, 63. Galfredus, Momun, Fabian, Polycha. and others. Archigallo and Emerian, two ancient British Kings, by the unanimous assent of the Lords and Commons, for their rapines, oppressions, and Tyranny, with other forenamed Saxon Kings; and of Edward the second, Richard the second, Henry the sixth, Edward the fourth, by Acts of Parliament; the creating of Richard the third, King; with the frequent translations of the Crown from the right Heir at Common Law,bbPag 5. to 10. to others who had no good Title, by the whole Kingdom or Parliament, (no lesse then ccBracton l. 2. Glan. 1. 2. f. 11 2. Myrror, c 1 sect. 4. Britton. c. 8. f. 16. c. 22. f. 39. 25 E. 3 c. 2. See Rastal, Broke, Stamf. Crompt. Dalton, in their Titles and Chapters of Treason.high Treason in private persons) was never yet reputed, much lesse questioned for, or adjudged high Treason in the whole Kingdom or Parliament, or any chief active Members in those Parliaments; which by the Law, are uncapable of Treason, for any their judiciall actions and resolutions in such cases, being only Tortious and Erroneous, reversible by other Acts in Parliament, not Trayterous and Rebellious, as appears by all the forequoted Statutes; and by 13 Eliz. cha. 1. which makes it high Treason for any person to affirm, That the Queen by Authority of the Parliament of England, is not able to make Laws and Statutes of sufficient force to alter, limit, and binde the Crown of this Realm, and the Descent, Limitation, Inheritance, and Government thereof, and any mans Title, or right thereto.

p. 108And for direct Authorities in this very point,eeWalsingham Holin. Graf. Sto. Speed, Martyn Fab. Polychro. in 21 R▪ 2. & 11 R. 2. c. 3, 4. 21 R. 2. c. 12. Robert Trisylian and Belknap (then chief Justices) Holt, Fulthorp, and Burgh, Judges, Locton King Sergeant, and Blake the Kings Counsell, in the Parliament of 11 Rich. 2. Were condemned, executed, and banished the Realm, as guilty of high Treason, only for affirming under their Hands and Seals.ffSee the particulars more at large in 21 R 2 c. 12. Grafton, p. 312 353. Iohn Trussels, R. 2. p. 11, 12. Walsingham and Holinshed…in 10. & 11 R. 2. That the Duke of Glocester, the Earls of Arundel and Warwick were; and the other Lords and Commons might be guilty of high Treason, for procuring a Commission, and other proceedings Voted in Parliament, and be punished it as Traytors. Which opinion of theirs, being afterwards affirmed for Law, in a packed Parliament, 21 Rich. 1. was the very next Parliament in 1 Hen. 4. c. 2. 3, 4. repealed, and the judgement given against those Judges for this Trayterous opinion (tending to the utter subversion of Parliaments) resolved, and enacted to be just. ThisggSee 1 H. 4. c. 3. and here p. 13. Iudge hhSpeed p 747Belknap foresaw, and therefore was unwilling to put his Seal to this opinion, saying; There wanted but a hurdle, a horse, and halter, to carry him where he might suffer the death HE HAD DESERVED: For if I had not done this, I should have dyed for it, and because I have done it, I DESERVE DEATH for betraying the Lords. Which makes me wonder at a passage in iiHist. p. 675.Speed (who records it) now frequent in Malignants mouthes. That the very shop where the Barons originall Treasons were forged, was THE PARLIAMENT-HOUSE, wherein from time to time they forced on the King (Edward the second) presumptuous and TREASONOUS ORDINATIONS, not only to reform the Kings House and Counsell, and to place, and displace all great Officers at their pleasure; but even claimed a joynt interest in the Regiment of the Kingdom, together with the King, which William I…ge (a Iudge of the Common Law) with other like sticklers, trayterously perswaded them, was according to Law: Which grosse slander of the Parliament House, would have been capitall at least in former ages, and may now indanger the necks of those who speak or write the same of the present Parliament. Never did any of our Kings, charge any Parliament with high Treason hitherto; much lesse indict or wage warre against their Parliaments, as Traytors, though they have questioned and deposed Kings for offences against, and being Enemies or Traytors to the Kingdom: Let none then dare affirm, That the Houses of Parliament are, or can be Traytors now, for providing for their own, and the Kingdoms safety, by a necessary defensive Warre, which I shall in the third part fully clear to be neither Treason, nor Rebellion against the King in point of Law, or Conscience, either in the Houses of Parliament, or any that bear Arms by their command.

Fifthly, That to conspire or levy warre against the Parliament, or Kingdom, to dissolve, or destroy it, or the Members of it, is no lesse then High Treason; as hath been solemnly adjudged in Parliament, 15 E. 2. in the Act entitled, Exilium Hugonis le de Spenser, in 1 E. 3. the Preface, and cap. 1. in 11 Rich. 2. c. 2, 3, 4. and in the Parliament Roll, Printed by Order of both Houses, August 27. 1642. And before both these, inkkLib. 14. sect 112 Stamf. l 1 c. 2. f. 1. b. and Cromptons, Jurisdict. f. 73. Glanvil, who declares it to be Treason, even at the Common Law, Si quis machinatus fuerit vel aliquid feoerit in SEDITIONEM REGNI: Agreeable tollInstit. l. ult. Tit 8. Vlpian, and themmTit. 3.Titus 3 Saxon Laws, which inform us of Treasons against the Common-wealth and Kingdom, (the case ofnnCice…o Orat. in Catil. Cateli… andooLi…. hist. I. 23 sect. 17. others) as well as against the King; and to the Statute of 13. Eliz. c. 1. which makes it High Treason for any person to stirre up any Forraigners or strangers p. 109with force to invade this Realm or Ireland. And if it be no lesse then high Treason against the King to slay the Chancellour, Treasurer or any of the Iudges, or Iustices of either Bench, Eyer, Assize, or Oyer and Terminer, being in their places doing their Offices (though by the Kings command; as is clear by 25 E. 3. c. 2. and all our Law Books;) then much more must it be high Treason against the King and Kingdom, to warre against the highest Court of Parliament, or slay any Member of it, for doing their Offices and executing the Houses just Commands. If bare mis-Councelling the King to the prejudice of the Kingdom, hath so frequently been adjudged high Treason against the King and Realm in severall Parliaments, as appears by the forecited Histories of Gaveston, the two Spensers, Alexander Nevill, De la Pole, Trysilian, and others; then what is it to miscou…cell, and assist him to make an offensive War against his Parliament, Kingdom, people, for to ruine them? certainly this must be high Treason against King and Realm in the superlative degree. If the Parliament and Kingdom be destroyed, or their hearts blood shed, their vitall spirits let out by an unnaturall War against them; the King himself (at least in his royall Capacity as King) and his royall posterity too, must necessarily be unkinged, and overwhelmed in their ruines; but if the Kingdom stand and flourish (for whose Peace and safety Kings themselves ought not onelyonly to lay down their Crowns, but **John 10. 10, 11, 15. & 11. 50 & 18. 14.John 10:10John 10:11John 10:15John 11:50John 18:14lives, as Christ, the**Rev. 17. 14. & 19. 16.Rev 17:14Rev 19:16 King of Kings hath resolved, and the High Priest too,) though the King should die or perish (as all **Psal. 86. 6, 7.Ps 86:6Ps 86:7Kings ever were and will be mortall) yet their posterity may enjoy the Crown, and reign in honour, in prosperity after their death, which they cannot do if the Kingdom perish. Therefore all those Malignants, Papists, Delinquents, and others, who have most unnaturally taken up arms against the Parliament and Kingdom to dissolve and ruine them, though by the Kings own illegall Commission or Command, are not onelyonly Arch-traytors to the Parliament and Realm alone, but likewise to the King himself and his Posterity too, in the very judgement of Law; whose blood is shed, whose Crown and Royalty subverted, ruined, in the bloodsh…d, ruine, destruction of his Parliament, Kingdom, people. As it is in the naturall, so likewise in the politic… Body; a mortall wound in any part of the body, kills both body and head; the body naturall or politicke cannot die or miscarry, but the head must do so likewise; therefore this War against the Parliament and Kingdom, must in point of Law and Conscience too, be a War against the King himself the chief politick head and member of them both, from which he cannot legally be severed, and high Treason at least against them both, as the Parliament, the sole Judge of Treasons hath resolved long since in their**An exact … loction, see p. 576. Declaration of August 18. 1642. in th…se positive words; The Lords and Commons do declare, That all such persons as shall, upon any pretence whatsoever, assist his Majesty in this war, with Horse, Arms, Plate, or Money, ARE TRAYTORS TO HIS MAJESTIE, THE PARLIAMENT AND THE KINGDOM, and shall be brought to condigne punishment for so high an offence: which they have since seconded in sundry other Declarations and Impeachments.

In brief, the Gunpowder plot in 3. Iacobi to blow up the Parliament House, was then adjudged, resolved by the Parliament, **3 Iac. c. l, 2, 4, 5 and in his Proclamations for apprehending those Traitors. The proceeding against Traitors, Spe…d hist p 1248 to 1257.King and Judges, to be high Treason, not onelyonly against the King, but Parliament and Kingdom too: and to blow up, or assault the Parliament now, in the Kings absence, is questionlesse High Treason, both against the King, Parliament, and Kingdom. Yea, the Statute of 28. H. 8. p. 110c. 7. declares those, who shall claim the Crown even of right, in any oeher manner then is limited by vertue and authority of that Act, after the Kings death; with all their Counsellors and abettors, to be deemed and adjudged HIGH TRAITOURS TO THE REALM, (not the King) and such their offence to be reputed HIGH TREASON; and they for it, to suffer such pains of death and forfeiture of Lands and Goods, as in any cases of high Treason is used, onelyonly because it might in common probability ingender a Civil war and Dissentions in the Kingdom, to be destruction of the people and their posterities; much more then must it be high Treason against the Realm, and those High Traitours who now actually wage War against the Parliament, the Kingdom, and destroy the Subjects and their estates in divers places, which they have burned, sacked, ruined. I read in**Par. 7. p 186. Fabian, that Eguiran, chief Councellour to Philip the third of France, was judged to death, and hanged on the Gibbet at Paris, for Treason against King Philip and the REALM OF FRANCE, as our Powder Traitors were executed for high Treason against the King and Realm of England of late, and Gaveston with the Spensers heretofore.

By the Stat. of 1 E. 3. c. 1. 5. R. 2. c. 6. 11. R. 2. c. 1. 3. 17. R. 2. c. 8. 21. R. 2. c. 2. 4. 20. 3. H. 5. Stat. 2. c. 6. & 1. Mariae c. 6. certain offences are declared, and made high Treason, and the committers of them, Traitours and enemies, not onelyonly, to, and against the King, but likewise, TO, AND AGAINST THE REALM: and in particular; the illegall indicting of some Lords to destroy them, as guilty of high Treason, for procuring a Commission in Parliament supposed prejudiciall to the King and his Crown, in 10 R. 2. c. 1. and the opposing and annulling of that Commission, and of some Processe, Iudgements, Executions, made, given, and affirmed in some of these Parliaments, raising forces, and leavying war against the Parliament, and Members of it to destroy them, were then **See Walsi…gh. Holinsh. Fabian, Grafton, Stow, Sp…ed, in 10. & 11. R. 2. 21 R. 2. c. 12.adjudged high Treason both against the King and THE REALM (though done by the Kings expresse Commission and command:) The reason is, because the King himselfe and the whole Realm in judgement of Law,**See here p. 20 21 22. are ever legally present in and with his Parliament when they sit, (as I have already proved) where ever the Kings person is; and his royall legall will (of which alone the Law takes notice) is ever presumed to concur with his greatest Counc…ll the Parliament, against whose Priviledges, safety, and protection he neither can nor ought by Law or right to attempt any thing; and if any personall Commands or Commissions of the King, under his great Seal, to do ought against Magna Charta, the Subj…cts liberty… safety, property, the Parliaments Priviledges, the Common or Statute Laws of the Realm (all which, together with the Kings Coronation Oath, and the Prologues of most old Parliaments expresly prohibit the levying of war, killing, wounding, murthering, imprisoning, disinheriting, robbing, or plundering of the Subjects, without legall triall or conviction, as do the Statutes of 2 R 2. c. 7. 1 H. 5. c. 6. 1 H. 5. c. 6. which prescribe exemplary punishments against such Plunderers and Robbers, especially the Welchmen;) issue out to any person or persons whatsoever, especially to raise forces or levie war against the Parliament or Subjects, they are meerly void in Law, and will rather aggravate then extenuate the guilt of those who obey or execute them: as is clearly resolved, not onelyonly by 42. Ass. p. 5. 12. Brooke Commissions: 15. 16. Cooke l. 5. f. 50. 51. l. 7. f. 36. 37. l. 8. f. 125. to 129. but likewise expresly adjudged and enacted by the Statutes of 15 E. 3. 81. 1. c. 1. 3. 42. E 3. c. 1. 3. 11 R. 2. c. 1. to 6. 21 Iac. c. 3. the Petition of Right, 3 Caroli. 28. E. 2. Artic. super Chartas c. 2. 4 E. 3. c. 4. 5 E. 3. c. 2. 25 E. 3. c. 1. 15. 34 E. 3. c. 2. and generally p. 111by all Statutes concerning**See Rastals A bridgment, …it Purveyors. Purveyors: by the memorable old Statute of 15 E. 3. Stat. 1, If any Minister of the King, or any other person of what condition soever be be, do or come against any point of the great Charter, or other Statutes, or the Laws of the Land, he shall answer to the Parliament, as well as the SUTE OF THE KING, as at the sute of the partie, AS FAR FORTH WHERE IT WAS DONE BY COMMISSION OR COMMANDMENT OF THE KING, as of his own authority: And by that parallel good Law recorded by**Part 7. p. 376. Fabian, made in Parliament in the fi…st yeer of King Henry the fourth; That no Lord, nor other person of no degree, should after that day lay for his excuse (as some then did) any constraint or coacting of his Prince in executing of any wrong judgement, or other criminous or unlawfull deeds, saying; That for fear they durst not otherwise do; for such excuse after this day SHALL STAND HIM IN NO STEAD. And in this Parliament, **Fabian, part. 7. p. 342. 375. Hals Chron. 1. H 4. f. 10 Gr…fton, p. 408 Walsinghom, Hist. p. 393. 402.Hall was judged to be drawn from the Tower of London unto Tiburne, and there to be hanged and quartered (which was accordingly executed) onelyonly because he was one of those who secretly murthered the Duke of Glocester at Calice (illegally attainted of Treason in the Parliament of 21. R. 2. without due processe of the Law, by King Richard the second his command, for his good service done in Parliament in 10 & 11. of this King) and likewise the Dukes of Aumarl, Surrey, Exeter, with other Noble-men, were deprived of their Dukedoms, of most of their Lands, Castles, Honours, for having a finger in this Dukes suffocation and death by King Richards instigation and command, (and had lost their heads too if the common people had been their Judges, who murmured against King Henry for sparing their lives) as you may read in**Hist. p. 402. 403. Speed p. 763. Walsingham and Speed.

If these then who murthered but one good Peer of the Realm by the Kings speciall command, for his good service done in former Parliaments, after an illegall judgement of high Treason given against him, were thus hanged, quartered, degraded as Traytors by a solemn Judgement in Parliament; how severe a censure may they expect, who without, and before any such conviction or sentence, have taken up offensive Arms to murther and destroy the Parliament it self and chiefe Members of it as Traitors, and caused them or any of them illegally to be proclaimed Traitors, the more colourably to wage War against them? All which I would advise His Majesties Captains, Cavalliers, and ill Counsellors to consider. The rather, because all levying of War either against the King, or against the Kingdom and Parliament, (now made a matter of high Treason on both sides) must and ought to be determined and resolved, which of them is high Treason and which not, and the pa…ties guilty of it, must and ought to be tried, arraigned, judged, and condemned for it, onelyonly in and by the Parliament, and in and by no other Court or Iudges, as is punctually resolved by the severall Statutes of 11 R. 2. c. 1. 2. 3. 4. 21 R. 2. c. 2. 3. 4. 12. 20. 8 H. 4. c. 10. and the very words of the Statute of 25 E. 3. c. 2. of Treasons, especially being a new case. If then the Parliament are, and must be the onelyonly judges of this question, Which of the two parties now in Arms are Traitors? and the onelyonly Court wherein all must be tried on this point, they may easily judge who are and must be the Traitors in this case; and those who by the Kings meer personall command and presence (whom they have treacherously withdrawn from his Parliament) fight now both against Parliament and King in his legall and regall capacitie, when the time of triall comes, will be found reall Traytors both to King and Kingdom (what ever their own ignorance, temporizing Lawyers, or hopes of prevailing may now suggest unto them) as the Parliament hath already declared them in sundry Remonstrances. In the Parliament of 15 E. 2. the two Spensers were by a**Exilium H…gonis le Lespersor, f. 50 52. speciall Act of Parliament adjudged Traitors, banished, and their lands and goods confiscated, for miscounselling this King, and advising him to ride with armed Troops of horses and men into Glocestershire to assault the good people there, and to levie war within the Realm, to the destruction of the Church and people, contrary to the form of the great Charter, and breach of the peace of the Realm: What severe judgement then may those ill Counsellors and Cavalliers deserve, who have actually levied p. 112war, not onelyonly against the County of Gloc…ster, (which they have pitifully harrowed and spoiled, contrary to all Law, sackingppSee the Rela…ion of the … of Cicester Cicester to its utter ruine, and leading away the good people thence captives to Oxford in triumph, for the most part barefooted, through dirt and mire, in the cold Winter season, chained together in ropes, more like to Turkish Gallystaves then English Christian Subjects; onelyonly for this new kinde of supposed Treason and Rebellion, the defence of their Liberties, lives, and goods, against theeving Cavalliers, (which they may defend by Law, **Fitz… Corone. 192 194 246. 258. 261. 330. Stamford f. 11, 12, 13. 22 H. 7. 39. 24 H. 8. c. 5▪ Cooke l. 5. f. 51. 52. 53.and justifie the killing of all those who shall violently assault them or their houses, to rob them of them) denying them so much as a draught of cold water to quench their thirst by the way, and keeping off all who would give it to them, many of them being since dead at Oxford of famine and more then barbarous usage, but likewise against most Counties and many Towns of England, (miserably wasted, sacked, pillaged, and some in cold blood burned by them) and the whole Kingdom, Parliament, yea King himself in his politick Capacitie; and raised an Army of Papists against expresse late Acts of Parliament; who not onelyonly now set up their long exploded Masse openly in Yorkeshire, Reading, and other places, but (which my very soul abhors to think of) have lately in a most impious manner, Shit upon the English Bible in folio, defaced and burnt many Testaments, and godly English Books, in Iohn Hamonds house (a Bookseller) in Marleborough, when they sacked it, in contempt of our Religion, setting the chimney on fire with their excessive flames; and if reports be credible, have since burned divers English Bibles, with other good Books, in the publike Market place at Reading, under the very Gallows, in detestation of our Protestant Faith, whose utter extirpation is their chief designe. Certainly, if these ill Councellers, or murdering Plundering Cavalliers once come to a legall triall, a Gallows will be too milde a punishment to expiate such a prodigious high Treason, which former ages can hardly parallel, especially if they persevere therein. But of this more hereafter.

Sixthly, Hence likewise it necessarily follows, that the Houses of Parliament being the Soveraign Power, ought of right to enjoy, and may when they see just cause for the Kingdoms safety and benefit, order the Militia, Navy, Ports, Forts, and Ammunition of the Realm, and dispose of them into such persons custodies as they may safely con…ide in; nominate and elect, both the great Counsellers, publike Officers, and Judges of the Kingdom; of right require, (if not enforce, if wilfully denied) the Kings Assent to all publike Bils of Right and Justice, necessary for the Common-weal and safety of his Subjects, in which the King hath no absolute Negative voice; take up defensive Arms to protect their Priviledges, Laws, Liberties, and established Religion, not onelyonly against Malignants and Popish Recusants, but the King himself, if he raise Forces against them, make war upon them, against his Royall Oath and duty, declaring himself an open enemy to his Parliament and kingdom, That they may lawfully in case of present ruine and danger, without the Kings concurrence, when he shall separate himself wilfully from, or set himself against them, (which theqqVer… A COMITIIS IN TEMPESTIVE DISCEDERE ID quidem d…ceb…nt, REGI NEFAS FUISSE; neque tant…m jacturam fact…m Iuris aeque sustinendam▪ Hieron. Blanca. Rerum Arag. Cōment. p▪ 662. Estates of Aragon held A WICKEDNESSE in their King Alfonso the third:) impose taxes on the Subject, and distrain their goods, imprison, confine, secure their persons for the publike safetie, when they deem it absolutely necessary. All which, with other particulars, I shall (God willing) fully prove, by such Demonstrations, Arguments, punctuall Authorities, and undeniable precedents in former ages▪ as shall, I trust, undeceive the blinded world; and convince, if not satisfie, the greatest Royallists, Papists, Malignants, both in point of Law and Conscience, in the next parts of this Discourse.