The royalist's defence vindicating the King's proceedings in the late warre made against him, clearly discovering, how and by what impostures the incendiaries of these distractions have subverted the knowne law of the land, the Protestant religion, and reduced the people to an unparallel'd slavery.

CHAP. VI. That the Judges of the Realme ought to be elected, and au∣thorized by the King of England, for the time being, and by none else.

THe legall authorizing of the Judges of the Law, is of that im∣portance, as upon it depends the preservation of the people, for no Law, no government, no Judge, no Law, and if authorized by an illegall Commission, no Judge.

It appears before, that when the Iudge extends beyond the bounds of his Commission, his proceedings are void, as done coram non Judice. Upon the same grounds, be the words of the Commis∣sion

never so large, if the authority be derived from such as have not power to grant it, the whole Commission is voide.

Yet Mr. Pryn, by the authority of the Commons House, hath published a Treatise intituled thus.

The Parliaments right to elect Privy Councellors, great Officers, and Judges.

Wherein he endeavours to prove the two Houses, by the Laws of England, ought to elect the Iudges: And proceeds thus. Kings (saith he) were first elected by the people, and as he beleeves, the peo∣ple at the first elected the Judges and great Officers, and bound them by publike Laws, which appears (saith he) by infinite Acts of Parlia∣ment, regulating both the power of the King, and His Officers.

That in ancient time Lieutenant Generals and Sheriffs, were ele∣cted by the Parliament, and people: That the Coroners, Majors, Aldermen of Corporations, Constables, and other such like officers, at this day are elected by the people, Knights of Shires, and Burgesses are elected by the Commons of the Realme.

That the King can neither elect a Commoner, nor exclude a Mem∣ber of either House to sit or Vote. That the Parliament consists of Honourable, wise, grave, and discreet persons.

That although the Kings have usually had the election of great of∣ficers, and Judges, it hath rather been by the Parliaments permission, then Concession. That the Judges and Officers of State are as well the Kingdomes as the Kings.

And saith, that Mr. Bodin a grave Politician declares: That it is not the right of electing great officers which prove the right of Sove∣raignty, because it oft is, and may be in the Subject.

Answer.

Although his whole discourse, is either false or impertinent, yet his saying that Kings were first elected by the people: That the people as he beleeves elected the Judges, and bounded them by publike Laws. And for proof positively affirming (although not naming one Act) That all this appears by infinite Acts of Parlia∣ment, regulating the King and His officers.

The vulgar may thereby conceive that the Members of the two Houses without the King have made Acts of Parliament. That by those Acts it appears, That the people elected the first King of England, and the Judges, and bounded them by publike Laws. Al∣though Mr. Pryn himselfe well knowes, that never any Act of Parliament, was, or could be made, without the Kings expresse con∣sent: And that the people of this Nation have been governed under Kings 1200. years before the first Act of Parliament at this day extant.

So that if Mr. Pryn had made his Argument according to the truth of the fact, it had been but thus.

After King H. 3. begun his reigne (and not before) the Kings of England have made some Laws by Act of Parliament, whereby in some things they have regulated their owne authority, and the power of their officers and Judges, Ergo, the people (although we had Kings 1200. years before that) elected the first King, the Judges, and bounded them by publike Laws.

Besides, admit the people had elected the first King, and the Judges; That nothing proves, that the Members of the two Hou∣ses at this day by our Law outgh to nominate the Judges.

And for the rest of his Arguments they are to this effect.

A question being asked, who ought to elect the Judges? Mr. Pryn saith, Leiutenant Generals and Sheriffs were anciently elected by the Parliament and people, Colonels, Majors, Aldermen, Constables, Knights of the Shire, and Burgesses, are elected by the people. Kings cannot elect a Member, or exclude him from sitting.

That the Members are honourable, grave, and wise. That the Judges are the Kingdomes as well as the Kings. That although the Kings have usually had the election of them; perchance it was by usur∣pation, and Mr. Bodin a great Polititian saith, that the election of these officers may be and often are in the Subject.

Now hereupon to conclude, Ergo, By the Laws of England, the Members of the two Houses ought to elect the Judges. I cannot more aptly parallel the Argument then thus, How many miles to London? Answer, a poke full of plums, Ergo, it is 20. miles to London, upon this it might as well have been concluded, 40. 100. or 1000. miles to London as 20. and so for electing the Judges, upon any of Mr. Pryns reasons, or upon all together (admitting them all true)

It might with as much sence and reason have been concluded thus, Ergo, the Major of Quinborough, the great Turke, or the man in the Moon ought to elect them.

Besides, the Members of the two Houses cannot have the electi∣on of the Judges for these reasons.

First, the Chancery, a the Kings Bench, the Common Pleas, and the Court of the Exchequer, are Courts of Justice by prescripti∣on, they were instituted before the time of memory, none knows the beginning thereof, b but certaine it is, they were Courts of Iustice before the House of Commons had being.

Secondly, as it is necessary that the Iudges of the Law be knowne persons: It is as requisite that such as elect them, should be constant∣ly visible. But the Members out of Parliament are invisible.

Thirdly, suppose it enacted; That none that shall be a Iudge unlesse elected by A. and B. It were no wonder for them, irrecon∣cileably to differ in their choice: And the two Houses are as di∣stinctly two, as A. and B. That difference which is, renders the Members more improper for the worke, and consequently not of a Composier fit to elect the Iudges.

And that this is the Kings right, is made good thus.

First, It appears before, that those Courts, have had Judges time out of mind. And so long as any may can shew, or prove, there hath been Judges of those Courts, so antiently the Kings of England and none else have elected and authorized them, which is the stron∣gest proof in the Law: It is the Law it selfe. It were absurd for any man to deny that it is felony to steale, or that the eldest son is heir to his Fathers land, yet there is no other proof to make it good, but use and practise. And the Kings have as antiently, and constantly, elected the Iudges, as theft hath been punished, or that the eldest son hath by discent enjoyed his fathers land.

Secondly, if this King hath not right to elect the Iudges, no former King had it, and consequently we never had one Judge rightly authorized: So that Mr. Pryn hath found out a point in Law, which at once makes a nullity of all former proceedings in those Courts, as things done coram non Judice. But this not all: If Mr. Pryns doctrine be true, we have had no Parliament, for the Kings not having power legally to authorize the Lord-keeper, all creations of Peeres are void, and so the Writs for electing the

Knights and Burgesses were illegall and void too; And conse∣quently Mr. Pryns Law admitted, there is no Member of either House Lawfully authorized to sit or Vote.

And for authority of bookes, either Law or History, I dare be bold to say there is not one man in the World, untill the sitting of these Members, who hath upon any occasion mentioned these things, but hath delivered it as a fundamentall ground, and a positive truth: That the authority to elect the Iudges, is in the King alone. So thatsuch as are unsatisfied of the Kings right herein, may with as much reason doubt whether we have had a King, Law, or govern∣ment.

Nothing can herein be alledged against the King, or on the Members behalfe, unlesse a new maxime of Law be started up: That no proof (be it never so clear) is sufficient to entitle the King to any Interest, or authority; But for the Members, although they have neither authority, use, practise, president, or reason to make it good, have title and interest, to what they list.

But if the two Houses have the finall power to judge the Law, and that every one who shall dispute their Votes, break the privi∣ledge of Parliament. It matters not who hath the election of them, nor who are chosen: If the man be flexible enough, the meanest capacity, in one dayes study, and with the expence of one single penny, may be sufficiently compleat for a States Judge, his Library needs not consist of more bookes then a copy of the Houses Votes, whereby we are declared breakers of the priviledges of Parlia∣ment, to deny that to be Law which they declare so to be: For by these Votes, we have no Law but the Members will. And conse∣quently those persons they call Iudges, are no other but their Ecchoes. But the true Judges authorized by the King, have not on∣ly the name, but the power of Judges, the knowne Law of the Land is their rule to determine every question depending before them, which they are sworne to observe, notwithstanding any com∣mand of the King, the Members, or any persons whatsoever. And consequently every one is thereby preserved in his just Inte∣rest; but by the Members taking upon them both to nominate the Iudges, and to declare the Law, the Law it selfe is destroyed, and both King and people inslaved.

Upon the whole matter clear it is, That the King and none

else hath power to nominate and authorize the aforesaid Iudges and officers: And therefore if the Members of the two Houses have, or shall, either in the Kings name, or in their owne, de facto, appoint any persons for Judges in those Courts, or in words, by Commission of Oyer and Terminer, or generall Gaole delivery, give power to any to execute the office of Judicature, in Circuits or otherwise, such persons have not de Jure, the power of Iudges. For the Members have no more authority to make a Judge, or to give any such power, then any other subject in the Kingdome hath therein. And consequently all the judgements, acts, and procee∣dings of those nominall Iudges, or such Commissioners are void as things done coram non Judice. Every person, by such authority, who, either in the Kings Bench, or at the Assises, or elsewhere, hath been, or shall be condemned and executed for any crime (whe∣ther guilty or not guilty) is murdered. And every other judge∣ment or sentence by them given, either in Capitall, Criminall, or Civill affaires, is invalid. In the next place it is proved that the King is the only Supreame Governour.

Notes

• a

  Coke 5. fo. 62. 9 E. 4. fo.
• b

  Coke 8. f. 145.
• Vid. the Votes.
• Vid. the Oath.