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.

Of the Prerogatives Royall, which the late King claim∣ed as inseparables of the Crown.

• 1. OF the Royal Power, what it is.
• 2. His sole and absolute power over the Militia.
• 3. His Negative voyce in all Parlia∣ments.
• 4. His power to Array the people at will and pleasure.
• 5. His Prerogative to call and dissolve Parliaments at pleasure.
• 6. His Prerogative to pardon Murderers and Fellons.
• 7. His Prerogative to dispose of Wards, Mad-men and Lunaticks, &c.
• 8. Lastly, that Tyrannous assertion of his own and his Father King Iames, viz.

• That they were not bound to give ac∣count of their actions to any but to God alone.

These Prerogatives claimed by the late King, as the Royalists say, were in∣vaded by the Parliament, and the grounds of the late destructive Wars; happily after-Ages as well as the present, may be inquisitive to know whether they were so legally in the Kings absolute power, that he stood bound to uphold them by the sword to the ruine of the Kingdom? and whether the Parliament (by their trust) stood not more obliged to withstand them as encroachments on the common freedoms and liberties of the people? We shall therefore (for the general satisfaction) briefly shew the extent of them all, as they are either defined by our ancient Lawyers, or confined and limited by our common Laws and Statutes.

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 * 1.1 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 * 1.2 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 * 1.3 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. * 1.4 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 * 1.5 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.

The Power of the Militia how the Kings.

BRiefly now to the Militia, and what kinde of power our kings by the Laws of England have had therein: It hath been often told the late king (all along the late Controversie) that the power of the Mili∣tia was in him no other then fiduciary, and not at his absolute dispose, or that at his own will and pleasure he might pervert

the Arms and strength of the kingdom from their proper use, and against the intent of the Law (as 'its visibly known he did even to the highest breach of trust wherein a king could be intrusted:) Now for proof, that this power was onely fiduciary, and by Statute Law first confer'd on * 1.6 Edw. 1. in trust, and not his by the Com∣mon Law, is most apparent, by the Express words of the Statute it self, which (as they are commonly inserted) were onely for the the defence of the Land and safety of the people, (salus populi) being that grand Law and end of all Laws; now such as are verst in our Historie, know that this Prince was one of the most magnanimous kings that ever swayd the English Scepter; and therefore it cannot be imaginable that he would clip his own power, and so great a right belonging to him by the Common Law, in accepting a less by Statute Law, to his own loss of power, or that ever he would have assented thereunto, by an after Act of his own, as follows in haec verba, viz. Whereas on sundry complaints made to us by the Lords and Commons in this present Parliament, that divers of the standing Bands have been removed and taken out of their

respective Counties by vertue of our Com∣missions, and sent to us out of their Shires, into Scotland, Gascoyn and Gwoyn, and other parts beyond the Seas contrary to the Laws of the Land, &c. Our Soveraign Lord willeth that it shall be done so no more. Agree∣able to this we finde, Anno 1. Edw. 3^d. viz. The King willeth that no man henceforth be charged to arm otherwise then he was wont in time of our Progenitors, the Kings of Eng∣land, and that no man be compell'd to go out of his Shire, but where necessity requireth, and the sudden coming in of strange Enemies into the Realm.

And in the same kings time, there being a peace concluded between him and the French king, wherein the Duke of Britain was in∣cluded, whom the French king shortly thereupon invaded, whereof complaint was made to king Edward, he instantly summons a Parliament, and there moves the Lords and Commons, both for their advice and as∣sistance, whereupon it was concluded, that the king should be expeditiously sup∣ply'd in ayd of the Britton; but the Act was made with such provisoes and restrictions, as Royallists happily, and others of late years would have deemed them too dishonourable and unbefitting the late kings acceptance;

howsoever this Act shews that the ordering of the Militia (of those times) was not solely left to the kings disposure; but that which is of more note, was, that both the Treasure then granted, was committed to certain persons in trust to be issued to the onely use for which it was given; as also that no Treaty or any new peace or agree∣ment with the French King should be made without the consent and privity of the Par∣liament; By these instances all Royalists may make a clear judgement, that the Mi∣litia of those times, and the power of the Arms of the Kingdom were never so ab∣solutely conferr'd on our kings, as that their power therein extended to such a latitude as they might use them as they pleased, and to turn that power (provided for the onely defence of the people) against themselves; and therefore wheresover we finde the Mi∣litia, by other Statutes conferr'd, and yeeld∣ed to the disposal of our kings, without any particular mention of the word (trust) which is necessarily imply'd, or exprest in most of the Statutes or their preambles, viz. * 1.7 In these wotds, For the honour of God, the Church, common profit of the Realm, or defence of our people;

No man in common reason can conceive the Militia to be such an inseparable flower of the Crown, as if it had been brought into the world with the King, and chain'd unto him as his birth-right, but onely as a per∣missive power recommended unto him by the people in their Representatives, as the most eminent and illustrious person to be intrusted with such choyce weapons, in trust and confidence that he will use them no otherwise then to the end for which-they were concredited unto him as the Sove∣raign of the people, and for their onely safety and defence which trusted him in honour of his person and place; Many o∣ther Statutes there are (though some of them repealed) which prove the Militia is onely fiduciary, and not absolutely inherent to the Crowns of our Kings.

Now for our conclusion of this senceless & illegal Prerogative (as to the absolute power thereof) let us in a word take notice of the destructive consequence; admitting this power should be left to the Kings absolute disposure, it then follows that he may take all that the Subject hath (for he that hath the power of the sword, on the same ground may command the purse,) which the late King not onely intended but practised; witness the many great sums of money, plate, jewels and other

moveables whatsoever taken either by his command or permission in the late Wars; the instances whereof would amount to a vo∣lumn; and as to his intentions, without injury to his memory, we may take notice of his own expressions, in his Letters to the Queen; viz. That though he wanted money, yet good swords and Pistols would fetch it in; Ex un∣que Leonis; We may judge of the Lyons strength by his paw, and of the kings in∣tentions, had he lighted on the fortune to have mastered the Parliament.

Of the Kings Negative Voyce in Parliament.

WE now come to that so much asser∣ted and inseparable Flower of the Crown (as the king and Royalists would have it believed,) viz. his Negative voyce in Parliament; a claim so absurd and con∣trary to Law and Reason, that wise men may laugh at it, and fools discern the distru∣ctive consequence thereof; for at one blast or breath of the kings, it utterly frustrates the very Essence and Being of all Parliaments,

and obstructs all their Consultations; and whatsoever they shall never so well advise and agree upon as a necessary Law, shall be made of no effect with this one single word of the kings (Negatur) which is point blank against his Corronation Oath, where he swears or ought to swear to Govern both by the old Laws, & per istas bonas leges quas vulgus eligerit, (though it pleased the Arch∣bishop to emasculate that most essential part of the Oath, so to leave the king at liberty) and by such good Laws as the Parliament shall chuse, so that the Legislative power hath always resided in that Soveraign Court to make and unmake Laws according to the vicissitude of times and change of mens manners, and not at the kings choyce, who hath only the distributive power, when Laws are made to see them duly executed; and the Law of the Land also limits that power; for the king, (as before 'tis noted) cannot exe∣cute the Laws at his own pleasure, but in and by his Courts of Justice. But strange it is, what a ridiculous construction Royalists have made of the verb eligerit, to be meant in the preterpersect Tense and not of the future, to make any new Laws (though never so ne∣cessary) but that the people must stand to their old Laws (though some of them

never so fit to be abrogated) unless the king please to give way to the establishing of new, or repealing of the old, which is a most irrationall and destructive assertion: Nei∣ther may we omit to shew what Royalists farther aver, that such is the necessity and force of the Kings assent, that be the Law never so useful and beneficial for the people to be established, yet without the Kings (fiat) it can never have the force and stamp of a Law; which is the same as when the King chosen Generalissimo, and trusted with the conduct of the Kingdoms Armies, will turn the mouth of the Canon from the Enemy on his own Souldiers, and deny them to provide for their own safeties: such ab∣surdities have the late and present Licenciates of this time ran into, as if men had been be∣witch't to betray their own freedoms; It is not denyed, but that the Kings assent to a Law (thought fit by the Parliament to be Enacted) is very necessary; yet it follows not that it must be of necessity; for if the King out of a perverse humour will not (after some time of consideration) assent to such a Law, which if not ratified by his (fiat) tends to the inevitable destruction of the Common-wealth, shall the publick safety be neglected for the humoring of one mans

obstinate will? and in such a case ought not the States Assembled in Parliament provide against a common mischief, Enact and Or∣dain for the publick indemnity as former Presidents in such cases may direct them, and when no other remedy can be had? The Lords in the time of king Richard the Se∣cond, would not be so answered, when they sent him word that if he would not come to the Parliament (according to his promise) and joyn his helping hand to theirs in re∣dress of the publick grievances, they would chuse such a King that should.

The Array of the People.

WE now come to the principal and practical part of the kings power over the Militia; for the Array of the people is the grand piece of that usurpatious claim; viz. That at his own will and pleasure he may send forth his Commissions to Array the people against themselves; and this power (under colour of Law, and of right belong∣ing unto him) the universal Nation knows he forbore not to put in execution against

their Representative, summoned by his own Writs, a president without president, nei∣ther for the legality known either in our Histories or Law-books, otherwise then by consent of Parliament, and in cases of immi∣ment danger for opposing of an invading Enemy; but for a king trusted with the de∣fence of his people, in calms of peaceable times, and on no necessity, to put in executi∣on such a reasonless and unlimited power, as one of his Royal Prerogatives, and to main∣tain it by the sword, was besides the breach of his Royal trust; such a daring action, as none but a Tyrant in folio would have at∣tempted. 'Tis true, that heretofore, during that long continued feud between the Eng∣lish and the Scots, divers Gentlemen of the North parts and others on the Welch-Bor∣ders of the kings Tenants, were by their Tenures bound to rise, watch and wind * 1.8 horns, on all incursions of the Scots; and of these kind of Tenures, Littleton treats in his chapter of petty Serjeanty; but I suppose none so very cowards (though not bound by their Tenures) but would take up Arms in the common defence, and contribute their best assistance for the expel∣ling of an invading Enemy, though in this

very case (by the Law of the Land.) 'Tis very dangerous for him, that shall raise Forces without special Commission from the King and Parliament; and * 1.9 Cromwel Earl of Essex in Henry the Eigth's Reign, (though at that time Lord President of the North) dyed for no o∣ther cause then this, that he raised an Army both for the suppression of an insurrection, and expulsion of the Scots; so nice and provident our Ancestors have ever been of levying Armies in the bowels of the Land on any pretence what∣soever; But for the king first to raise an Army at York, assuring the Parliament that it was to no other end then for a Guard to his Person, and therewith to cause so many half-witted Lords (then attending him) to attest that for truth, which was false, as it ma∣nifestly appeared by his immediate marching to Nottingham, where he set up his Standard of War, as a summons of the people to his assistance against the Parliament, when him∣self was both the first Assaulter and Invader: and yet at that very instant of time, to re∣assure the Parliament, that he raised not his Standard against them: and at the same con∣juncture•• of time to send out his Commissions

of Array, was doubtless such a breach of Trust, and a Treachery of so deep a die, as that in all our Histories we finde it not par∣rallel'd amongst all our kings, but onely in that Tyrant of Tyrants king Iohn, who indeed invaded the Land, and ruined the Castles, and Houses of the Barons & Gentry that opposed his Tyrany, and came not to his assistance at a call; and in this kinde of Tyranny, it can∣not be gainsaid, the late king came not be∣hind him, if not exceeding that irregular king, as 'twas evident by this instance, that im∣mediately after the sending forth of his Commissions of Array, on the heels of those, issued out his Commissions of Oyer & Ter∣miner, to hang all those which adhered to the Parliament. But in a little more to the il∣legality of the kings Commissions of Array, both before and after the setting up of his Standard; surely those Lawyers that waited on him first at York, and after at Oxford, were doubtless those which mis••ed him, and with such artifices and pains drew up his Answer to the Parliaments Declaration of the first of Iuly 1642, against the legality of the Commissions of Array. He that will take the pains to examine that Declaration compared with the kings Answer, may soon perceive that the Contrivers and Penners

thereof were not so honest as they should have bin, neither as it seems so wel read in the Laws, or so expert workmen, as to avouch the Statute of the 4. & 5. of Hen. the 4. 150 times over in that Answer, and not∣standing all their endeavors, to entrust the King with a legal power to send forth his Commissions for arraying of the people at his own will and pleasure without consent of Parliament; yet those fine Iohns for the king, have not, neither could they produce any scrap of Law or piece of Statute that enables the king to Array the people against themselves, to engage English against En∣glish, and to set so many as came into his assistance together by the ears with those which adhered to the Parliament, and at a time when there was not the least fear or ex∣pectation of an invading Enemy, more then of those which the Parliament feared should be sent him out of France, Lorrain, and Denmark; but to what other ends then to ruine the Parliament, let any impartial Royalist make his own judgement; 'tis true, that in case of Forraign invasions the king by Law hath been evermore trusted as Generalissimo to command the Force•• of the Kingdom, for defence and safety of the peo∣ple, and to no other end; and so was the Law

expounded in Parliament, the thirteenth of Queen Elizabeth, but never so wrested be∣fore by any of our Lawyers, as by those that waited on the King, would have enforc't thereby to impower him at pleasure, to com∣mand the strength of the Kingdom against it self; and surely it appears to me and thou∣sands more, that forty Judges, Serjeants, and Lawyers, then in both Houses of Parliament, should better understand and know more of the Law, in the case of Commissions of Array, then those eight or ten * 1.10 sycophant fellows that followed, and anima∣ted the King in such irre∣gular motions, onely in hopes of preferment, and to form him into such a posture of absolute power, that when he pleased he might destroy himself and the Kingdom, as that to our grief we may re∣member they had taught him, and put him in the high-way of the accomplishment. I remember a pertinent passage related in our Histories, how that the Earls of War∣wick and Leycester being peremptorily sum∣moned to attend Edward the First into France, the Earls in plain English told him, that by the Laws of the Land they were not bound to wait on him out of the Land at his pleasure, but onely within the Realm and

for the defence thereof, and that onely on Invasions of Forraign Enemies; which agrees with that before recited of his taking the Train-men out of their respective Coun∣ties by his Commissions, to serve him in Gascoyn, Gwyn, and other places beyond the Seas, contrary to the Laws of the Land, which grievance the King then redrest; nei∣ther could I ever yet finde any one express Law or Statute that enables any of our Kings by their sole power without consent of Par∣liament to Array the people, but onely in the case of Forraign Invasions, and coming in of strange Enemies; howsoever the Penners of the Kings Answer to the Parliaments Decla∣ration, have laboured (though to no pur∣pose) to prove it otherwise; however 'tis worth the observation, what fruitless pains they have taken in their frequent reci∣tals of the Statutes of the 4. & 5. of Hen. 4^th, the 13. of Edw. the 1^o. 1. Ed: 2^d. 25. of Edw. the 3^d. 9. of Edw. 2^d. the 4. & 5. of Phil. and Mary; 1^o Iacobi, with divers others, all of them principally tending to the Assize of Arming the Subject secundum facultates, according to his ability; those Assizes ha∣ving been almost in every Raign altered, and the Statutes according to the vicissitudes of times, change of Arms, and invention of Guns, for the most part of them repealed,

and new Statutes made in their rooms with power of Commissions to be issued as the exigency of affairs should require on In∣vasions from abroad, home defence on In∣surrections, &c. All which so often and so much prest in the Kings Answer made no∣thing to the matter in question, between him and the Parliament 1642. The point in que∣stion, was not then concerning the old Commissions of assizing Armes, or Com∣missions of Lieutenancies in every Coun∣ty; but the reasons of the Parliaments De∣claration, and the exceptions they took, were against that exorbitant power the King assumed to himself under pretext of Law, to Array the people one against the other, and against their Representative, as that sure enough he failed not to put in practise, howsoever disguised under an elaborate and ridiculous Answer, when (as we have noted before) there is not one Statute or scrap of Law to be found in all our Law-books, that legally enables the King to raise war against a Court of Par∣liament, and raise combuston in the bowels of the Kingdom; which I trust may satis∣fie all Royalists, that the Parliament had then good cause to complain, when in times of Peace he made them times of war and desolation, by sending out those his

illegal and destructive Commissions, which whether they were so or not, doubtless the Parliament was better able to judge and determine then the King or his Minions then attending his Person.

Of the Kings Prerogative to call and dissolve Parliaments at his own will and pleasure.

AS to the Kings power to call and dis∣solve Parliaments at his will & pleasure, to summon a Parliament with one breath, and blow it away with another blast of his mouth (as 'tis still frequently maintained by Royalists and others newly started up, that by Law and presidents he was enabled to do) is an assertion so irrational, as that I wonder not so much at their ignorance, as their audacious language; since 'tis the known Law of the Land, and by two Statutes of near 400 years standing, ordained, That Par∣liaments shall be call'd once every year, and oftner as the emergency of affairs may give occasion; why then it should rest in the kings onely power to call them, and that his assent to a Triennial Parliament should be such a

boon bestowed on the people, surely may encrease the wonder, since by our old Laws and the usuages of former times, they ought not to be dissolved, until all grievances be heard and redrest; otherwise to what end or use were Parliaments Instituted? which as one calls them, are the Beasoms that sweep clean all the nasty corners of the Common-Wealth. But observe the sad consequences of this absurdity; for suppose the King would not call any Parliament in ten or twelve years together till his necessities inforc't him, how then should the publick grievances be redrest, and by whom shall the disorders and obliquities of the Church and Commonwealth be rectified? Royalists An∣swer, by the king alone, or his Councel of State, as the suprem Magistrate within his own Dominions; A strange task surely for one man to undergo, and more then that active Magistrate Moses was able to per∣form, as we may see by * 1.11 Iethro's Counsel, who advised to take in∣to his assistance, the Princes and best of the people to ayd him in the Ad∣ministration of Justice to the Israelites, and all that with the least in a populous Nation. Well then, let it be considered how many grievous enormities and disorders (during that interval of ten years discontinuance at

least of Parliaments) were crept into the Church and State (meerly through their dis∣use) we have sorry cause to remember, when through the pangs of the kings necessities, the ill managery of the publick affairs, the prodi∣gality of the Court, the corruption of all Courts of Justice & the Judicature, with the li∣centiousness of a dissolute Clergy, inforc't him at last to cal the late Parliament; yet how soon he endevoured by his many wiles & practises to annihilate it, nay, by all possible means he could invent, hindred their endeavors, in reducing the Church and Common-wealth into order, never ceasing to interrupt their consultations, purposly to disorder and thrust all into a Chaos of confusion, insomuch as to this day, the Parliament have had their hands full to finde out the means how to reduce and settle things in that order as at first they might have been, had not the publick affairs been obstructed, and all reformation hindred by his onely means, so to render them as odious to the future, and as contemptible to the people, as heretofore they were bo∣loved and desired of them; notwithstanding that at their first sitting down he promised to contribute his own Authority to theirs, and to leave the re-ordering of all things amiss to their onely managery, an overture so acceptable unto them, as that in retribu∣tion

thereof, how willing and intentively bent they were (in the midst and heat of their distractions) to make him rich and glorious; and how indulgently ready to cover his faults in the recovery of his honour at home, and his reputation abroad, none unless blinde men, or besotted, but may remember: But the truth was, he could not brook any Rival with himself in the Government, pursuing to the last his design of absoluteness so long, that in the end the Parliament was inforc't not to retain any longer such a Rival as a King amongst them, but rather chose to estate the people in the same peaceable Go∣vernment as we see it now established, then to imagine themselves able to better it by retaining of Kingship.

Of the Kings Prerogative in granting of Pardons to Mur∣therers and Fellons.

WE now come to that Prerogative, or rather lawless usuage of our Kings in granting their Charters of pardon to Murtherers and Fellons condemn'd by the

Laws of the Land. 'Tis confest, that it hath been practised by all or most of our Kings, though as it may be supposed, rather per∣missively then by vertue of any Law extant; but by what warrant in Justice they have assumed such a Soveraign power to them∣selves, will be the question; for by Gods Law, 'tis absolutely forbidden; Yee shall take no sa∣tisfaction for the life of a murtherer which is guilty of death, but he shall be surely put to death. Numb. 35. 31. and vers. 33. Ye shall not pollute the Land wherein ye dwell, for blood defileth the land; and the land cannot be clean∣sed of the blood that is shed therein, but by the blood of him that shed it. Thus much briefly may suffice as to Gods Law; Now as to the Laws of England, the King cannot pardon a Murtherer or Fellon condemn'd by the Laws of the Land, without a plain breach of those Laws and his Coronation Oath; for Anno 2^d Edward the Third, it was by Act of Parliament ordain'd, that Charters of pardon should not be granted but onely where the King may do it by his Oath. And further amongst this Kings often breaches of the Laws, this very particular of his frequent granting of pardons to Murtherers was complained of in open Parliament; and the King by three several * 1.12 Acts was restrained in those

cases; but how faulty both the late Kings were in pardoning both Murtherers & Fellons condemn'd by the Laws, is too well known; and how guilty and insensible the late King was of shedding of innocent blood, three Kingdoms have lamentable cause to re∣member.

Of Wards, Ideots and Mad men.

AS to the Kings Prerogative in taking of Wards and their Marrages, it hath been granted him by Statute Law, as hereafter shall appear; and as to Ideots incompos mentis, and madmen, or such as have by accident fallen into destraction, for the king to assume to him∣self their estates, doubtless there is no Law for it (as I can remember) extant, otherwise to dispose of their estates, but an accompt to be given to the next Heir at Law; and this of late years was resolved by Mr. Calthrop his own Aturney in the Court of Wards, in the case of the Widdow of whose husband being burnt with powder at a muster in Moorfields dyed, & his wife for grief falling

distracted, the King gave her estate to one of his * 1.13 servants a Scotch-man; but she having many chil∣dren and good friends, they petitioned the King therein, and in the end he was pleased to retract his grant as to the whole of the estate, but with this proviso, that Ramsey should have the use thereof du∣ring the Widows life, in case she continued incompos, giving security for the repayment to the children; but the Gentlewomans friends found it unsafe to trust so great an estate as 30000. l. in Ramseys hands, and therefore with great difficulty they drew Ramsey to accept of 3000. l. ready money to to be quit of him.

Of the Kings assertion, that he was not accomptable for his actions to any but to God alone.

AS to that odious position or rather Ty∣rannical assertion, both of the Fathers and the Sons, that they were not accomptable

for their actions to any but to God alone, doubtless 'tis an impious position, and in the next degree to blasphemy, and cannot be (without repentance) forgiven of God, nor forgotten of men, and those of their subjects which felt the effects thereof. Should we longer insist on this Theam, and produce proofs that Kings for their irregularities and Tyrannies, have in divers Kingdoms been call'd to account, they would amount to a Vo∣lumn. The Justice of Arragon, the Ephori amongst the Lacedemonians, the Senate of Rome, the Parliaments of England and Scotland, will soon evince and put this que∣stion out of doubt; for Kings as well as subjects, both by Gods Laws and mans, are under the Law; and in this kingdom and many other well regulated Soveraignties, they have been often over-ruled, withstood in their exorbitancies, sued at Law and evi∣cted, and some deposed, expeld and sen∣tenced to death; and should it not be so, Subjects would be no other then inanimate slaves; sure we are, Almighty God never impowered Kings with such absolute So∣veraignty that might enable them to tram∣ple on their subjects without controule. Saul made a rash vow (as a Law to the Isaelites) that none should eat any food

all the day until the evening but he should die; Ionathan, being then absent & not know∣ing thereof, had dipt his rod in a Honey∣comb and tasted it; but being told of his Fathers Law, he answered the people, My Father troubles Israel; and indeed such troublers there are amongst kings; howsoever Ionathan was sentenced to death; but the people withstood the king, and swore that a hair of his head should not fall, and they rescued him in the face of the king; cer∣tainly should not there be some one other power in a kingdom to curbe and con∣troule the exorbitancies of irregular kings (for few of them are Saints) no man should be exempted from their oppressions; and therefore Bracton delivers it as the law of the Land, that in such cases the Barons or Parliament ought not onely to withstand oppressive kings, but to call them to account for their misdemeanors, which may suffice to show how much the two late kings were mistaken in this their Tyrannous asser∣tion.

Now Gentleman Royalists, these So∣veraign Rights (as you would have them) so often treated on, utterly dissonant to the Laws of the Land, whereunto particularly I have briefly made answer, are those good∣ly

Prerogatives wherewith you would have invested the late king as his indubitable birth∣rights, and inseparables of his Crown, for which you still constantly aver he was com∣peld to fight, and your selves with him to uphold them; where I must by the way remember you of a time, when he shamed not to * 1.14 divulge it to the whole Nation, that he fought for the Protestant Religion, the Laws of the Land, and Priviledges of Parlia∣ament (for he was not to seek wherein to please the people, and win them to his cause, though never so unjust) when as in truth he fought against all those three, and so long as untill he could fight no more; but by what law or reason other then his own, none may better know then your selves, which as well as infinite others that opposed him, have felt the fruits of your unadvisedness, & the effects of his obduracy, his cunning and crafty fetches to attract friends for backing of an unlimited Soveraignty, to which had he at∣tained, it would have been no other then too heavie a burthen for him to bear, a sting in his own conscience, & a sore in yours, which you will all finde, whensoever it shall please God to open the eyes of your understanding, and

enable you to see how you have bin decoyed in with Oathes, Protestations, and hopes of preferment, & made the instruments of your own Invassalage. This if you believe not to have been the design, yet you may finde it legible, not onely in the claims and pretences he made to those illegal and irrational Pre∣rogatives before recited, but more appa∣rently figured in that bloody Rubrick of a continued War, which he so long waged to be absolute master of them, and consequenly over all the free people of England. Thus have I shewed you how invalid the grounds are whereon you continue to insist in ju∣stifying the late king and your selves; how dissonant, and contrary to the Laws, usuages, and Statutes of the land; such was the wise∣dom and providence of our ancient Parlia∣ments in all their enactings, evermore to pre∣fer the common interest before the kings, though they failed not to gratifie them (as they found them compliable, to the redress of the publick grievances) with many Royal immunities, as we may finde them registred in the Statutes at large, on the Title of Pre∣rogative, some whereof I think fit here to present to your view, that so you may judge whether Sir Walter Rawly was not in the right, who avoucheth that few of our kings

but have gotten ground and improved their Soverainties meerely by their Parliaments, & as I verily believe none more then the late unfortunate King, had he been pleased, (in imitation of Queen Elizabeth) to have com∣plyed with the late Parliament. But as to his Prerogative of Wardships and Marriages, they were first conferr'd on our Kings 17 of Edw. 2^d, their primer session, 52. Hen. 3^d, the tuition of Ideots and distracted persons, 17. of Edw. 2^d, 32. of Hen. 8^th, but with several proviso's of accompts to be made to the next Heirs of Ideots, and the children of him that was incompos mentis. As to wracks of Sea, Whales &c. they were given by Parlia∣ament to Edward the Second the 17 of his Raign; Felons goods the 9 of Hen. 3. power to make Justices of peace; 27. of Hen. 8. the Legitimation of the Kings children born be∣yond the Seas; 25. Edw. 3. Tonage and Pondage to Edw. 4. pro tempore, yet granted to every of his Successors by the meer in∣dulgence of their Parliaments, though the late King challenged it as his own right. I may not omit farther to inform you, that this Nation hath not been so much abused and deceived by any one proficient in our Laws, as by that false and jug∣ling Judge Ienkins, who in his Lex * 1.15 Terrae, by his

accumulation of several Statutes, insinuates and endeavors to make the Kings power absolute, and consequently the people mee•• Slaves and Vassals, alledging this and that to be the Law of the Land, which is not or ever was, taking his Authorities and Authors by piece-meals, curtaling the Statutes in their sense, without the explanation of their mean∣ings and intents; whereby (on my own knowledge) he hath deceived and prevailed on the belief of many in the Nation: But not longer to insist on this subject, I shall onely say, that the Soverainty of our kings hath been ever of a mixt nature and not ab∣solute; and as Bellarmine affirms of Mo∣narchies in his Chapter De Romano Pontifiee, Monarchiam temperatam & mixtam inter Aristocratiam & Democratiam, semper me∣liorem esse puts: That a Monarchie mixt and tempered between an Aristocratical Go∣vernment and a Democratical, is the best of all Governments: so am I bold to avouch such hath ever been the nature of our English Soverainty; would the late King have so conceived of its constitution, or given credit to the old learned Lawyers, viz. Bracton, Fleta, Fortiscue, and many others; for the Kings of England have originally received their power from the people; Potestatem à populo effluxam Rex habet, quo non licet

••••potestate alia populo suo dominari, Fort. de leg. Aug. The King hath his power from the people, and ought not to govern them but by that Power and Law which he had from them; though Royalists generally have otherwise conceived thereof, supposing that the King cannot be a King, unless he be absolute in power and command over the people: which was the error or rather wilfulness of the late King, who knew not or would not know the extent of the English Soveraignty; but what out of his own inclinations, and others infusions he was induced to believe, that he could not rule otherwise then by a plenary power: which is most dangerous to himself: for plenitudo potestatis, est plenitudo tempestatis, and enables him to destroy himself at his own plea∣sure, though the late King conceived otherwise, and that to be subject to the controule of a Court of Parliament, he could be no more then a mock-King, or a Duke of Venice; And certainly the gene∣rality of the people thought no less; and that a king was such a supernatural and Divine creature (not made up of sinful flesh and blood like other men) as the poor woman conceived of Henry the Eighth, who riding in progress through a Country

Village, attended with a great train of No∣bility, the Woman cryed out, Shew me the king; which of these is the king? He (quoth a foot-man) whom thou seest with a Feather in his Cap and a blew Ribban about his neck; Whoo! crys out the wo∣man, will you make me believe the Moon is made of Cheese; that's a very man, or else I never saw one in all my life; And the silly soul was in the right; for kings in their humane nature, are no other then mortal men, though in their other capacity (as they are kings the best of men in Supremacy) yet the worst, if they neglect the duty of that great Office wherewith they are invested (by Gods appointment) for the publick good, more then their own; but I have taken too much liberty in ex∣patiating my self on a subject so often treated of; though my design therein ex∣tends not beyond my affection, which hath lead me rather to perswade by the soft Argument of Law and Reason, then in bit∣terness of language to exclaim against any mistaken in their opinions; not doubting that either themselves or any other (on due consideration) will tax me for imper∣tinency; when as 'tis well known the whole state of the old Controversie (since the dis∣solution

of the late Parliament) hath been and is assidually revived by Royalists, and a new disconted sort of male-con∣tents, which forbear not to justifie the late King in all his errors, and condemn the Parliament for invading his just and right∣ful Prerogatives; so that what and how many soever they are, they must not ex∣pect but that of necessity there will new An∣swers be made (though upon the old matter) to new objections, which may satisfie all such as out of the over-fineness and sharpness of their wits, will censure whatsoever hath been afore said on a sub∣ject long since determined, to be both needless and impertinent; But to con∣clude;

It now onely remains, that we proceed to the Law of God and by Scriptural proof to facillitate a reconciliation be∣twixt Royalists and that party which ad∣heres to the present Government, wherein I shall briefly shew first the justness and lawfulness of their cordial submission to the powers in being; secondly, the neces∣sity of their union one with the other, with the profit which thereby will re∣dound to the mutual benefit of the whole Nation, not doubting but that by this little

which hath been spoken as concerning the Royal Prerogatives, they may receive some kind of satisfaction, that neither the Kings Interests in them were sufficient grounds whereon to lay the foundation of those bloody wars he so long waged against the great Judicature of the Nation, or that they were so valid in Law as to warrant Royalists to assist him to win them by the sword: That controversie being long since decided, and the Power of Go∣vernment in other hands; yet in a little let us now examine to whom in con∣science we all ought to yield our obedi∣ence: S. Paul to the Romans 13. on this very subject of obedience to Authority, prescribes this as a general rule to all men, viz. Let every soul be subject to the higher Powers; The reason of this Precept fol∣lows, viz. for there is no power but of God; And thereupon he infers, Therefore ye must needs be subject not onely for wrath but for conscience sake; and to this he ex∣horts Timothy to pray for a blessing up∣on all those in Authority: Now if Roya∣lists make question, (as usually they do) of the lawfulness of the present Authority, and say 'tis usurpatious and unlawful, then they fall foul on Gods Oordinance, and

they question S. Pauls Doctrine, and con∣tradict the very reason of obedience in the Text, viz. for the powers that are, are the Ordinance of God: Now that this may more evidently appear, upon what a rock Royalists fall, by calling into question the lawfulness of the present powers, I shall intreat them to take it into their second considerations, whether then the Apostle was not out of the way, when he delivered this Doctrine of Obedience to Authority to his Coun∣try-men the Jews, which was in the raigns of Claudius Caesar and Nero, both which came to their powers meerly by usurpation and the sword; but these Em∣perours being in possession, S. Paul takes no exception (as Royalists do) against their unlawful coming into power, but en∣joyns obedience to be yielded to them; and can any of them positively and of truth affirm, that the powers of this Common-wealth are not devolved and confer'd on the States here by the Ordinance of God? Bucer on this very Text. Rom. 13. says, That when the question is, whom we should obey, we ought not to question, what he is that exerciseth the power, or in what manner he dispenseth it; but it only sufficeth those which live under it that he hath power;

for if any man hath obtained power, its then out of doubt, that he received that power of God; and then without farther scruple, thou must yield thy obedience to him and heartily obey him: And 'tis mani∣fest, that when Christ and Iohn Baptist preach't the Gospel, it was at that very time that the Romans by plain Conquest and Usurpation had gotten the possession of all the Territory of Iudea; neither of them did then teach or disswade the peo∣ple from their obedience to them, or that they should not yield submission to those that had Tyrannically obtained their power by the sword; for 'tis plain, Mat. 22. that Christ did teach that Tribute was due unto Caesar, and he himself paid it: Again, Pet. 2. Be ye subject either to the King as Suprem, or unto Governors as those which are sent of him. It would be superfluous longer to insist on this subject, on which so much hath been exposed to the publick view; it may therefore suffice without other Argu∣ments then such as our blessed Saviour and his Apostels taught and practised, to perswade obedience to powers in ••eing: Onely I shall close up this hearty ad∣••ress to all Royalists with a piece of a Speech delivered by a Learned Gentle∣man

* 1.16; viz.

The Law of God in Scripture and Rea∣son, is the main and gene∣ral root and trunk; and all good Laws are banches that grow from thence; and whatsoever hu∣mane Constitutions cannot either in a direct line or collateral derive themselvs from them, are bastard Issues and shameful to their Pa∣rents, and the Law-makers sins in framing of them; yet the difficulty of Government is to be considered, and many things to be born with; for though they have no ground in Gods Law for the injunction, but are meerly frivolous, and perhaps bur∣thensome; yet if their Authority disables them to make it, and enjoyns me to no Act contrary to my allegeance to God, it is their sin, but my affliction, and must be born as other calamities; for though that law hath no good end, yet my obedience hath; Obedience it self is a good and laudable thing, and I may have the end of maintain∣ing order or preserving peace, and avoyd∣ing disturbance in the Church and Com∣monwealth, of preventing scandal and the like, which are ends prescribed by Gods Law to regulate and frame our actions by: All things are not to be turned upside down

upon every inconvenience that may be ap∣prehended in a Law, whether it be Ecclesia∣cal or civil; for besides that there are few that are fit Judges of a Law: that may be unlawful for Governours to command, which yet is not unlawful but expedient for me to obey being commanded; as it was un∣lawful for Pharoah to command the children of Israel to make Brick without Straw (as being tyrannons) and so sinful in him, as it was unlawful: but rather commendable in them to obey it as far as they could; and S. Paul will have servants to be obedient unto their Masters, though they be froward and perverse. Indeed, if they enjoyn me to do any thing wherein I should offend against Gods Laws in the least degree; no pretence of any, though never so many or so great good ends, must make me withdraw my allegeance from him, and pay it to humane powers; The authority of all men is limited, and so must our obe∣dience to them be also. The Supream power of God is the foundation of all Au∣thority; and therefore our duty unto that must be preferr'd in the first place, and without all leave or exception whatso∣ever: peace must be maintain'd with the rules of piety and trust; and any scandal

to my brother, must rather be admitted then I should prevent it without Gods leave: The rule of Mr. Calvin is good here, Sicut libertas charitati, ita charitas fidei subjicienda est; yet in this case I am to disobey, as modestly and as inoffensively, and with as much shew of reverence to the Ma∣gistrate as may stand with our duty unto God; yet resolutely too, not faintly or fearfully, as the three children unto Nebu∣chadnezzar, Dan. 3. 17, &c. And where we cannot yield obedience, we must yield the third duty of subjection; especially where the Authority is absolute and supream under God, which may be variously stated according to the Laws and Customs of se∣veral Countries and Dominions; then in case we cannot obey, we ought not to resist but suffer, and yield a passive obedience where we may not yield an active one, according to the rule of Gods Word, They that resist, shall receive unto themselves damnation.

Thus Royalists and all may see the judgement of a Gentleman of temper and learning, concerning obedience to be given to powers and Magistrates in being.

I come now to the necessity of Royalists obedience to the present Government, with the profit and security that of course will

acrew to themselves and the whole Nation, by their cordial conjuncture and compliance with the present powers; As to the ne∣cessity thereof I shall say no more, but that if they continue obstinate and fix'd to their erroneous principles, and look back with Lots Wife, to him that claims as heir to the late unfortunate king, the consequences and sad effects whereof are particularly layd down in the former discourse, if they be not hardned and past understanding, they will make the best of them to tremble to think upon the issues, whensoever he comes in by their assistance (though surely very impro∣bable) and their posterity will doubtless curse the time that ever they had such Fa∣thers as were the unhappy Authors of their invassaladge, and the betrayers of the com∣mon freedoms of the English Nation; which of necessity must follow whensover the Scotch Pretender comes in by the sword; so that the necessity of their compliance depends on this hinge onely, their present conjuncture with the present establishment, since this state cannot be secure so long as such a numerous party of rotten hearts re∣maines, lurking in all corners of the Land, and lying at catch (on all opportunities) to disturb the present settlement; for preven∣tion

whereof, it hath been the advice of none of the worst heads, on their next di∣sturbance or insurrection, to proscribe not onely all such as shall be suspected, but to take the course of Justice with those that shall be known actors in any such attempt; neither let any of them think this course strange, since there is no reason to be given to cherish the Viper too long in the bosom of the Nation, least in the end he eats through the bowels thereof; and as a wise man says, What wisdom or providence can it be for this State to suffer such to live amongst them that will not co-operate, act, and joyn with the present powers? And what sense is there, that after so bloody and rapacious a war ended, and peace resettled, that if Royalists will, they may live quietly and peaceably, yet cannot forebear to spit their venome against those which have rescued them from invassalage; why then should others be seen in unlawful things for their benefit, which refuse to do right to others and them∣selves?

Gentlemen Royalists, I have now done, and more I would be willing to do for you, may it be to your advantage; but I know not a more ready way thereunto then at

least to advise you to sit quiet, or cordially to employ your selves in the publick ser∣vice.

To conclude, I wish you all to call to minde, the late banishment of the Moors, out of the Kingdom of Granado into Africa, for no other cause but that the * 1.17 King could not convert them from their Mahometan to the Roman Catholick Re∣ligion; a punishment that at best will befall you, whensoever you shall be found con∣triving of any new disturbance. On this consideration I leave it to your selves to make judgement whether there be not a ne∣cessity of your timely compliance and con∣juncture with the rest of the Nation, that stands firm and faithful to the present Au∣thority; under which we are all bound to give God the glory and praise, that since the sheathing of that raging and bloody sword of the late kings, we may if we list live quietly, enjoy the benefit of our old Laws (if not better) and the peace of our own houses in security; blessings which of late years we had not, neither can we ever have them by the way you perserve to walk in, and wish for by re-introducing Regal Ty∣ranny inseparably united to the Scepters of

most Kings, but undoubtedly to all those which are brought in by the power of the sword: from such, that our good God will deliver us, shall be the hearty prayers of

Yours, most devoted to serve you in all honest and just Endeavors. T. L. W.

FINIS.

Notes

• * 1.1

  Bracton.
• * 1.2

  Novil. 85. princi. cap. 18.
• * 1.3

  Judge Ienkins.
• * 1.4

  Vide, The Iuncto.
• * 1.5

  Mr. John Pim, in his Speech to the Lords.
• * 1.6

  Anno 7. Edw. 1. apud Westminster.
• * 1.7

  Note that these words, viz. for the defence of the Realm, or common profit are afore inserted ••ither in the Stat. them∣selves, or in their preamb.
• * 1.8

  Cornage Tenure.
• * 1.9

  The Lords Cromwels Case.
• * 1.10

  Littleton, Banks, Lane, Heath, the Atturney Herbert, Palmer, &c.
• * 1.11

  Exo. 18.
• * 1.12

  4. Edw. 3. I dem 16.
• * 1.13

  Mr. Ramsey.
• * 1.14

  Vide, The Kings Coyn at Oxford.
• * 1.15

  Lex Terrae, a most vile and fraudulent peice.
• * 1.16

  Mr Thomas Warmistry in the Convoca∣tion, 1640.
• * 1.17

  Philip the Second.