Refractoria disputatio: or, The thwarting conference,: in a discourse between [brace] Thraso, one of the late Kings colonels. Neutralis, a sojourner in the city. Prelaticus, a chaplain to the late King. Patriotus, a well-willer to the Parliament. All of them differently affected, and disputing on the subjects inserted after the epistle, on the dissolution of the late Parliament, and other changes of state.

The Royal power, what it is.

FIrst then, that this Royal power of our Kings, hath never been any other then a limited and intrusted power to govern by

Law, to which their Coronation Oathes ob∣lige them, which may very well satisfie any ra∣tional man, and save us the labour farther to dispute this point. But we shall make it more plain, that the highest of this Royal power was never more by the Law of the Land (throughout all Ages) then in the executive power, Ius suum cuique tribuere, to give to every subject his right; neither can the King otherwise dispence this right or Law to the people, but in and by his Courts of Judicature, non per se tantum, not by himself out of the law of his own breast; for that's plain Tyranny; Stat pro ratione vo∣luntas; & quod principi placuit, legis habet vigorem (which are the common principles of all Tyrants) that, That shall be the Law which the king wills, which is more then the Grand Signior claims or exerciseth; nei∣ther can this Royal power (whatsoever of late times by flattering Lawyers hath been exposed to deceive the people) enable the king to do that which the Law forbids. What kings as Tyrants will do, makes no∣thing to the matter in question, but what they ought to do, and what by the Law, their Oath, and duty of their Office, they are bound to do, is the true state of this Question: Neither were any of our kings

ever so absolute in power and Supremacy, but that by the fundamental Laws of this Land, they had their Superiours, and those which were above them, as one of the most eminent and ancient of our Lawyers affirms, (often re∣cited during the late Contro∣versie) viz. Rex habet superiorem, scilicet legem, per quam factus est Rex; alterum, sci∣licet curiam, comites, & Barones; which is, The king hath a superiour, to wit, the Law by which he is made king, another (though very much scorned by the late king) viz. The Court of Parliament composed of the Earls, Barons and selected Gentry of the Land; for this Court hath in it the Legislative power or the Authority of making Laws; and who knows not the old principle, Quod efficit tale, est magis tale; that which makes the thing, is greater then the thing made? And another of our eminent and learned Lawyers, Fortiscue Chancellour to Henry the Sixth. fol. 40. cap. 18. positively delivers it as a fundamental Law, that the kings power is no other then that which the Law gives him, and that cannot be farther extended or made greater without the assent of the whole Realm; for should it be otherwise, it fol∣lows that the king might then sell, or dispose

of the kingdom to whom he pleaseth, which by the Law he cannot do; neither (by the ancient Laws of the Land) can the king sell, or alienate the Regalia and Jewels of the Crown (though the late king took the liberty to sell them for Arms against the Par∣liament) neither can the King by his own sole power, dispose of the Cities, Towns, Forts, and Castles of the Kingdom, as the Scotch Lords 1639 told him in down-right terms on his fortifying of the Castles of Edenburgh and Dunbarton; and the reasons they gave, were valid both in Law and reason; for that those Forts and Castles were built for defence, security and safety of the people against Invadors, and not for their offence to be man'd and fortified at the Kings pleasure against themselves; And the reason of this Law is rendred by a most learned and expert Jurist, viz. Quod Magi∣stratus sit nudus dispensator & defensor Iurium Regni, constat ex eo quod non possit alienare Im∣perium, oppida, urbes, regionesve, vel res sub∣ditorum, bonave Regni, quia Rex Regni non proprietarius: Which is, that a King or Magi∣strate is no more then a bare dispensor of the Laws of h••s Kingdom; and the reason is ma∣nifest, for that he cannot sell or alenate the

Kingdom, or the Cities, Towns and Pro∣vinces thereof, neither the Subjects goods, or goods of the Kingdom, because the King is onely the Director, not the Owner and Pro∣priator of the kingdom: But Royalists and some jugling Lawyers and igno∣rant Divines, have both taught and written the contrary, and made the late king believe that his power was absolute and without bounds, which is fearful to imagine, and shameful in those which continue to possess the people with such damnable untruths, as lamentable it is to see the generality of the Nation to stand still unshaken in their belief that the kings rights were invaded, and himself inforc'•• to make war for his own; the contrary where∣unto, that his power stood bounded and li∣mited by the Laws of the Land, hath been so often alledged and prest upon him by the Parliament, in their Answers and Expresses, that the re inforcing of more Arguments on a subject so much overworn would be nauseous to all ingenious Readers.

To period this particular, as 'tis the gound-work of all the kings other Prero∣gative claims, I shall onely put all Roy∣alists in remembrance of that which the Earl of Strafford aver'd to the

king 1640. viz. loose and absolved from all the reines of Government; whether this assertion (amongst other of the Deputies) tended not to place the kings power above the known Laws of the Land, I appeal to the judgement of any rational man; for as a late, a worthy Mem∣ber of Parliament observed at the Earls tryal, that the Laws were the boundaries and measures betwixt the Kings Prerogative, and the peoples Liberty: But whether the king throughout the whole course of the late destructive War, and ••ome years before, was not a prompt disci∣ple in the Deputies doctrine, I leave to Royalists to make their own judgement. And whether that which after befell the king and his Fathers house, was not rather of the justice of heaven then of men, I leave to the judgement of all the world. Sure we are, the best Jurists maintain, Si Rex hostili animo arma contra populum gesserit, amittet Regnum; which is, that if a King with an hostile intent shall raise Arms against his people, he loseth or forfeits his kingdom: Now, that the late king assumed to himself such a Royal power as to raise

Arms against the great Councel of the Land, I suppose no man in his right wits can deny Its most true, a moderate Royal power to rule by the Laws, is doubtless of Gods Or∣dinance; but a Tyrannical power to cut their throats, I am sure is of no Divine Institu∣tion, and a Dominion fitter for beasts then men; yet this is that power which Royalists would have fastned on the king; and too many there are which constantly believe that the more injury was done him, that he had it not, as by the Laws of the Land they erroneously conceive he ought to have had.

Notes

• Bracton.
• Novil. 85. princi. cap. 18.
• Judge Ienkins.
• Vide, The Iuncto.
• Mr. John Pim, in his Speech to the Lords.