A remonstrance of the un-lawfulnesse of the warre, undertaken by the pretended Parliament of England, against their soveraign, and of the in-justice of the alteration of the ancient gouvernment and fundamentall laws of the kingdome

CHAP. IX.

Divers generall objections taken from the testi∣mony of his Majesty, Bracton, and Fortescue, together with the presidents of Edward the second, and Richard the second, answered.

BEsids the former objections they urge the te∣stimony of his Majesty, of Bracton, and For∣tescue; to vvhich I ansvver in generall, that the decision of this controversy depends upon lavv, and not upon the bare wordes and authority of any. The vvordes of Lavvyers are to be regarded no further then they are approved by lavv; for they are but men, and may be incited by passion or pri∣vate

interest to speak or vvrit vvhat they ought not. I have therefore purposely my selfe omitted all proofes of that nature, and although I could pro∣duce a catalogue of Lavvyers longer then a Ge∣nealogie to confirme the Kings right, yet I have cited none but such as prove what they say by the lawes, except onely those that are cited by themselves, which I had also omitted, but that I desire to make it evident how farre those Authours are from favou∣ring their seditious opinions. And if his Majesty out of a desire to avoyd the effusion of blood used such gracious expressions as vvere most likely to prevayle vvith the people, and consolidate their mindes, they ought not in equity to prejudice the rightes of the Crovvne, although he had abdicated therein some parte of his authority, and granted things de∣structive to his ovvne prerogative. I have given this generall answer not because his Majesty, Bracton, or Fortescue have affirmed any thing in favour of their right, but to shew the insufficiency of this obje∣ction in case they had; but the truth is they have notoriously perverted the meaning of his Majesty, as also the meaning of Bracton and Fortescue. And although I can not Imagine any man so sencelesse as to beleeve his Majesty ever subscribed to their judgement; or any that have perused the works of Bracton and Fortescue so voyd of understanding as to thinke they were ever abettors of such phanta∣sies: yet that they may not exclaime for want of an

answer I vvill more particularly examine vvhat they say.

Out of his Majesties answer to the nineteene pro∣positions they alledge this passage. There being three kinds of Government amongst men, absolute Mo∣narchy, Aristocracy, and Democracy, and all these having their particular conveniences and inconve∣niences, the experience and wisdome of your Ance∣stours, hath so moulded this out of a mixture of these, as to give to this Kingdome (as farre as humane pru∣dence can provide) the conveniences of all three, without the in conveniences of any one, as long as the ballance hangs even between the three estates, and they run jointly on in their proper channell (begetting verdure and fertility, in the moddowes on both sides and the overflowing of eyther, on eyther side raise no deluge or inundation); the ill of absolute Monarchie is Tyranny; the ill of Aristocracie is faction and divi∣sion; the ills of Democracie are tumults, violence, and licenciousnesse. The good of Monarchie is the vni∣ting a nation under one head, to resist invasion from abroad, and insurrection at home; the good of Aristo∣cracy is the conjunction of Councell in the ablest per∣sons of a state for the publik benefit; the good of De∣mocracie is libertie and the courage and industry which libertie begets — the Lords being trusted with a judicatory power, are an excellent screen and banke between the prince and people — by just judgements to preserve the law, since — therefore

the power legally placed in both houses is more then sufficient to prevent and restraine the power of tyran∣ny — since to the power of punishing, which is al∣ready in your handes according to law. Thus farre, and in this manner, his Majesty is cited by the fuller Answerer, who that he might the better wrest his Majesties Speeches to his owne purpose, hath made many transitions from one place to another, mutilating the sence, and leaving out that which should have made his Majesties meaning appa∣rent.* 1.1 And from these wordes he maketh divers de∣ductions; his first deduction is, that his Majesty gran∣teth the Government of England to be mixed in the power it selfe, this he inferreth because his Majesty acknowledgeth a mixture, and it is no true mixture he saith, which is not in the very supreamacy of power it selfe; but this is answered in the former chapter: I shall here onely desire the reader to take notice that his Majesties true and reall intention is such as I have their expounded; for these wordes, The good of Monarchie is the uniting a Nation under one Head, are a perfect Comentarie upon the former, and doe clearely manifest that his Majesty asserted not the Head and seat of supreame power to be a mixed subject, but granted a Mixture in the admini∣stration of power alone. His second deduction is that the King granteth the power of interpreting,* 1.2 and giving finall judgement of the sence of law, to be in the two houses, this he concludeth to be his Ma∣jesties

meaning when he saith, The Lords being trusted with a judicatory power, are an excellent screen and banke between the King and People by just judgements to preserve the law. But this they may doe without having a power of interpretation and giving finall judgement of the sence of law; It is suf∣ficient that they have a power to interpret law judi∣cally in such cases as are cogniscible in the court, when they are brought before them, although they have no power to interpret it authoritatively, and to rule all cases as they please. This is a great Savegard to the people, and as convenient and fit a remedy against oppression as humane prudence can pro∣vide, for a certaine and infallible remedy against all mischiefs they can not have: if the two houses had a power to declare what they would to be law, what screen should the people have against their oppres∣sion? what bankes to hinder the irruption of their tyranny? whereas now they have a remedy by law against the evill instruments of the King, and may repaire their losses by a legall tryall, what remedy could they have against the misimplyed agents of the houses? Such a povver placed in them, vvould not make them a Screen or banke betvveen the Prince and people, but a Rocke and precipice, dange∣rous and fatall to them both; and vvould be as con∣trary to the true interest of the Kingdome, as the in∣ference is to his Majesties true intention. But the best of all is that he inferreth from the vvordes above

said both the houses to have a power of declaring lavv, for vvhereas his Majesty in the premisses speaks onely of the house of Lords, by a trike of more then Presbyterian Legerdemaine he hath jug∣gled the house of Commons into his inference. His third deduction is that his Majesty granteth the tvvo houses a povver of forcible resistance in case they should judge his actions tyrannicall and unjust; this he collecteth out of these vvords since — therefore the power legally placed in both houses is more then sufficient to prevent and restraine the power of tyranny. This he says can not be made good unlesse the houses have a povver of resistance; for tyranny can not be othervvise restrained. But it is evident that his Majesty speaks not in this place of a forcible, but of a legall vvay of restrainte; Id possit quisquam quod jure possit, Every man is said to have a povver to doe that vvhich he can doe by lavv, although he may be hindered in the execu∣tion of it. His Majesty grants them not an absolute povver of restraining tyranny, but let that be taken in vvhich goeth immediatly before, and his vvordes vvill beare no other sence but that they have a povver of restraining it, so farre as humane prudence can by lavvfull and just vvayes provide: as for for∣cible resistance his Majesty knevv it to be against the lavv of God, and that to invest the pretended houses vvith such a povver, vvas not the vvay to pull dovvne, but to set up tyranny. Neyther is forcible

resistance a more certaine means of restraining ty∣ranny then other legall vvayes lesse corrasive, if the houses had a povver of resistance, they are not sure alvvayes to prevaile, a tyrant and his evill in∣struments may be able sometimes to oppose them, and to hinder the execution of their povver: it is not convenient therefore they should have such a povver, it is better to tolerate a mischiefe then to use a remedy vvhich is vvorse then the disease, and un∣certaine too. But they have by lavv a double povver as effectuall as forcible resistance, they may inflict exemplary punishment upon evill instruments, vvhereby others may be affraid to take upon them such imployments, and they may refuse to give the King subsidies and other necessary assistance, if he refuseth to moderate his excesses; If a tyrant and his evill instruments be strong and in no necessity, vvere it lavvfull to resist and to levy vvarre against them, the successe vvould be doubtfull, the dam∣mage certaine: and if the best happen they should but cure the commonvvealth of an Ague by giving if the Plauge; but if he be necessitated eyther by in∣surrections, or othervvise, to crave the assistance of his subjects, they shall then have liberty to execute their povver upon his evill instruments, or to make use of any other means the lavv hath put into their handes. Where tyranny reignes such opportunities vvill in a short time assuredly be offered; the best Princes can not alvvayes suppresse rebellions

by the helpe of their loyall subjects, how much lesse can tyrants be able to do it without them. Such exigencies being considered, I say the power legally placed in the houses is more then sufficient to re∣straine tyranny, without a power of resistance.

[Objection.] Secondly they alleadge the testimony of Bracton. Rex habet superiorem Deum. S. item legem per quam factus est Rex,* 1.3 item curiam suam videlicet Comites, Barones, that is, The King hath God, the law, and his Court of Earles and Barons superiour to him.

[Reply.] Themselves will not admit the house of Lords alone to be superiour to the King, and yet these words can have reference to no other; for the house of Commons consists not of Earles and Ba∣rons, neyther are they a court of judicature. It is otherwise also evident that Bractons scope and meaning can not be such as they would fasten on him, who, when he speaketh of this subject, doth every where resolve the contrary, whereof the places above cited are sufficient instances. The wordes therefore can not relate to a legall supe∣riority over the person of the King, but to a morall superiority over his conscience, and they imply onely that the King in governing the people hath God, the law, and the house of Earles and Barons morally above him, by whose admonitions and judgements, so farre as they are legall, he ought in conscience to be swayed. I well set downe the

whole and intire Period, with that which imme∣diatly before hath reference to it, and let the Reader Judge of the sence. Nec factum Regis nec chartam potest quis judicare, ita quod factum Domini Regis irritetur. Sed dicere poterit quis, quod Rex justitiam fecerit, & bene, & si hoc eadem ratione quod male, & ita imponere ei quod injuriam emendet, ne incidat Rex & justic. in judicium viventis Dei propter injuriam Rex autem habet superiorem Deum. S. item legem per quam factus est Rex, item Curiam suam, vide∣licet Comites, Barones, quia Comites dicuntur quasi Socii Regis, & qui habet socium habet Magistrum, & ideo si Rex fuerit sine froeno. 1. sine lege, debent ei froe∣num ponere. If these wordes be well considered it will be cleare that nothing but a morall superiority can here be understood; first, he saith that no man hath authority to judge of the Kings fact, or of his Charter, Nec factum Regis nec Chartam potest quis judicare. This can not stand with a legall superio∣rity; if the Earles and Barons can not judge of the Kings fact, or of his charter, they can not have a legall superiority over him. Secondly, he saith some notwithstanding, in case justice be not duely ad∣ministred, may advertise him thereof, and admonish him to reforme his errours, Sed dicere poterit quis quod Rex justiciam fecerit, & bene, & si hoc, eadem ratione quod male, & ita imponere ei quod injuriam emendet. thirdly he sheweth that the Earles and Ba∣rons in Parliament have this authority, who, if they

see him breake out into violent and illegall Courses, ought to put a bridle of the law upon him, Rex au∣tem hvbet superiorem Deum. S. item legem per quam factus est Rex, item Curiam suam videlicet Comites & Barones, &c. But the whole tenour and effect of the wordes import that they ought to put upon him a bridle of law by faire and gentill means, as by ad∣monitions, advertisments, councell, or any such other way as the law prescribs, and not like judges by force and compulsion. Fourthly, he saith the King hath God his superiour, and the law, and the Earles and Barons in his court: he maketh no distinction of superiority, but calleth them all superiour after the same manner, now it is evident that God doth not exercise a legall superiority over Kings, and that the law being inanimate can not; both of them have onely a morall influence upon their consciences, and therefore those words must be interpreted onely of a morall superiority. It is true after his death God shall dispose of him as his judge, but Bracton in thise place speaketh of giving present judgement upon his fact and upon his patents, according to humane lawes, which how illegall soever can not be judged by any: yet he saith God, the law, and the Earles and Barons in his court are Morally above him, by whose counsels and admonitions he ought to amend his excesses. Fiftly he giveth this reason why they are his superiours because they are his Com∣panions, and he that hath a Companion hath a master,

this is true of a Morall Master but not of a Legall; all Companions can not Legally be one anothers Masters, but Morally they may. The vvhole co∣herence of the vvords, but especially this reason doth make it cleare that they are meant of a Morall supe∣riority, so that if the whole period be taken in, this passage of Bracton maketh not for them, but against them.

Thirdly they alleadge the testimony of Fortescue, who speaking of the King of England, saith, Princi∣patu ne dum Regali sed & Politico suo populo domina∣tur. That is, He governeth his people not onely by Kingly, but also by politique power.

Fortescue implyeth in these wordes that the King ought not to make his will, but the lawes the rule of his power; not that others are coordinate with him in the rights of Soveraigntie. For Imperium is eyther Despoticum or Politicum; Despoticall or Kingly power is an arbitrary and unlimited power, not re∣strained by humane lawes and constitutions; Poli∣tique power is a limited povver, restrained and mo∣derated by humane and politique lavves. Novv Fortescue saith that the Kings power is not meerly Despoticall and Regall, but Politique and tempered by law; and his intention is to shew the difference between the common lawes of England, and the ci∣vill law; by the civill lawes the Emperour after the power was translated to him from the Common∣wealth by that law which in the Digest is called lex

regia, untill the custome of making lawes by the as∣sent of the people tooke place againe, might Com∣mand what he pleased, Quod Principi placet legis habet potestatem, is a part of that lavv; but the King of England, he saith, can not altogether govern his people by such a power, but is obli∣ged to rule them according to the tenour of the po∣litique lawes and constitutions of the Kingdome. But how doth this concerne the case in hand?

[Objection. 4] Fourthly they alleadge Presidents; Parliaments saith M^r. Prinne, have exercised a supreame power over the Crowne of England it selfe, to transferre it from the right Heire, and setled it upon whome them∣selves thought meet to elect for their King. He citeth two Kings which were deposed, Edward the second, and Richard the second, and then conclu∣deth that those Parliaments which have exercised such jurisdiction over them must certainely be above them, and the highest Soveraigne power.

[Reply.] The deposition of those Kings hath been resolved treason by all the Iudges of England;* 1.4 and yet if it had been legall, the Presidents are impertinent, for those acts were confirmed by the Kings themselves, and could never have been esteemed acts of Parlia∣ment without their owne assent.

Notes

• * 1.1

  Answer to Doctor Fern pag. 3.
• * 1.2

  Reply to Doctor Fern pag. 34.
• * 1.3

  L••b. 2. cap. 16.
• * 1.4

  Coke insti∣tut part. 2. tit. treason.