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of the kingdom, that is, all the kingdom in general, is charged, not any spared; the clergy, the King himself, are to join in the provisions. 5. The final end and scope of all this preparation is defensio regni, tuitio maris, retentio dominii maris, securitas subditorum, salus reipublicae.
Now whether to set the commonwealth free and in safety from this peril of ruin and destruction, the King may not, of his own royal authority, and without common assent in Parliament, impose a charge upon his subjects in general to provide such shipping as is necessary in his royal judgment, to join with His Majesty's own ships to attend them for such time as His Majesty in his royal wisdom shall think fit, and also to enjoin them to be themselves at the expenses, tam in victualibus quam hominum salariis, et aliis ad guerram necessariis ?
I would be loth to irritate any differing in opinion from me with provoking or odious terms; but I cannot more fully express myself (and so I desire it may be taken as an expression, and not as a comparison) than in saying, that it is a dangerous tenet, a kind of judaizing opinion, to hold that the weal public must be exposed to peril of utter ruin and subversion, rather than such a charge as this, which may secure the commonwealth, may be imposed by the King upon the subject, without common consent in Parliament. So that the security of the commonwealth, for the very subsistence of it, must stay and expect until a Parliament provide for it; in which interim of time, it is possible, nay, apparently probable, yea, in a manner to be presumed, that all may be, yea, will be brought to a final period of destruction and desolation.
All know that the Jews were so strict, that they would not use means for defence of themselves and their country upon their Sabbath. Their enemies took the advantage, and ruined their state. The Second General Head.-I now come to my
second general head, wherein I proposed to consider of the fundamental policy, and maxims, and rules of law, for the government of this realm, and of the reasons of law pertinent.
which are very many. I will briefly and severally point at those which make impression in me.
1. It is plain that as originally, even before the Romans' time, the frame of this kingdom was a monarchical state, so for divers hundreds of years past, upon the Romans' desertion of it,
to our case,
and after the heptarchy ended, it was, and continued, and still continueth monarchical. And our gracious sovereign is a monarch, and the rights of free monarchy appertain unto him ; and yet still with this, that he must leges ad consuetudines regni servare, et praecipue leges et consuetudines et libertates a glorioso rege Edwardo (that is, Edward the Confessor) clero populoque concessas ; as appears in the old Magn. Chart. fol. 164, tit. juramentum regis quando coronatur.
2. Where Mr. Holborne - supposed a fundamental policy in the creation of the frame of this kingdom, that in case the monarch of England should be inclined to exact from his subjects at his pleasure, he should be restrained, for that he could have nothing from them, but upon a common consent in Parliament.
He is utterly mistaken herein. I agree the Parliament to be a most ancient and supreme court, where the King and Peers, as judges, are in person, and the whole body of the Commons representatively. There Peers and Commons may, in a fitting way, parler lour ment, and show the estate of every part of the kingdom ; and amongst other things, make known their grievances (if there be any) to their sovereign, and humbly petition him for redress.
But the former fancied policy I utterly deny. The law knows no such king-yoking policy. The law is of itself an old and trusty servant of the King's ; it is his instrument or means which he useth to govern his people by. I never read nor heard that lex was Rex; but it is common and most true that Rex is lex, for he is lex loquens, a living, a speaking, an acting law: and because the King is lex loquens, therefore it is said that Rex censetur habere omnia jura in scrinio pectoris sui.
There are two maxims of the law of England, which plainly disprove Mr. Holborne's supposed policy. The first is, “That the King is a person trusted with the state of the commonwealth. The second of these maxims is, “That the King cannot do wrong. Upon these two maxims the jura summae majestatis are grounded, with which none but the King himself (not his high court of Parliament without leave) hath to meddle, as, namely, war and peace, value of coin, Parliament at pleasure, power to dispense with penal laws, and divers others; amongst which I range these also, of regal power to command provision (in case of necessity) of means from the subjects, to be adjoined to the King's own means for the defence of the commonwealth, for the preservation of the salus reipublicae. Otherwise I do not understand how the King's Majesty may be said to have the majestical right and power of a free monarch.
1 One of Hampden's counsel.
It is agreed that the King is, by his regal office, bound to defend his people against foreign enemies; our books are so, Fitzherbert, Natura brevium, fol. 118, Est a entendre que le roy doit de droit ; saver et defendre son realme com' vers le meere, com' vers enemies. Juramentum Regis, cited before, servabis ecclesiae Dei, clero, et populo, pacem ex integro secundum vires tuas ; if ex integro, then against all disturbers of the general peace amongst them, most chiefly, in my judgment, against dangerous foreigners.
Bracton and Glanvill, in the front of their books, pub. lished that the King must have arms as well as laws ; arms and strength against foreign enemies, laws for doing justice at home. Certainly if he must have these two neces. saries, he must be enabled with means for them, and that of himself, not dependent ex aliorum arbitrio ; for it is regula juris, lex est, quando quis aliquid alicui concedit, concedit et id sine quo res ipsa esse non potest.
3. Though I have gone already very high, I shall go yet to a higher contemplation of the fundamental policy of our laws: which is this, that the King of mere right ought to have, and the people of mere duty are bound to yield unto the King, supply for the defence of the kingdom. And when the Parliament itself doth grant supply in that case, it is not merely a benevolence of the people, but therein they do an act of justice and duty to the King. I know the most solemn form of Parliament, and of the humble expression of the Commons, of their hearty affection and goodwill to their King, in tendering to him their bills of subsidies or fifteenths.
4. I confess, that by the fundamental law of England, the Parliament is commune concilium regis et regni, that it is the greatest, the most honourable and supreme court in the kingdom ; that no man ought to think any
dishonourable thing of it: yet give me leave to say that it is but a concilium ; to say so is no dishonour to it: the King may call it, prorogue it, dissolve it, at his pleasure ; and whatsoever the King doth therein, is always to be taken for just and necessary.
We must consider that it is a great body, moves slowly ; sudden despatches cannot be expected in it. Be sides, though the Parliament cannot err, parliament-men may de facto ; every particular member of the House hath his free voice ; some of them may chance to make scruples, where there is no cause ; it is possible some of them may have sinister ends; these things breed delays, so they may disturbances.-I would to God the late woeful experience of this kingdom had not verified these speculations. Yea, there have been, in former times, censures of Parliaments themselves : the Good Parliament, temp. Ed. 3, parliamentum indoctorum, temp. Hen. 4, and in the same King's time, if we believe my Lord Coke, 11, fo. 113, Brangwit, id est, the White-Crow Act. These matters are considerable in such cases as ours is. Wherein apparently Mora trahit periculum, and to follow the rule, Festina lente, is most dangerous.
5. The point of retentio dominii maris (which is in the case) is not of an ordinary consideration ; for, besides the ancient inheritance and right which the crown of England hath in it, it is obvious to every judgment, that in the continuance or not continuance of it to the crown, not only the bene esse, but even the esse itself of the commonwealth doth consist ; and therefore it behoveth the subjects accelerare to the tuition of it : slowness is an argument of stupidity, or want of that sensibleness of the diminution of that right which every subject ought of right, and hath a concerning reason, to propose to himself.
14. THE SCOTTISH NATIONAL COVENANT. [February 27, 1638. Rushworth, ii. 734. See Hist. of Engl. viii. 329.] The confession of faith of the Kirk of Scotland, subscribed
at first by the King's Majesty and his household in the year of God 1580 ; thereafter by persons of all ranks in the year 1581, by ordinance of the lords of the secret council
, and acts of the general assembly; subscribed again by all sorts of persons in the year 1590, by a new ordinance of council, at the desire of the general assembly; with a general band for the maintenance of the true religion, and the King's person, and now subscribed in the year 1638, by us noblemen, barons, gentlemen, burgesses, ministers, and commons under subscribing ; together with our resolution and promises for the causes after specified, to maintain the said true religion, and the King's Majesty, according to the confession aforesaid, and Acts of Parliament; the tenure whereof here
followeth. We all, and every one of us underwritten, do protest, that after long and due examination of our own consciences in matters of true and false religion, we are now thoroughly resolved of the truth, by the word and spirit of God; and therefore we believe with our hearts, confess with our mouths, subscribe with our hands, and constantly affirm before God and the whole world, that this only is the true Christian faith and religion, pleasing God, and bringing salvation to man, which now is by the mercy of God revealed to the world by the preaching of the blessed evangel, and received, believed, and defended by many and sundry notable kirks and realms, but chiefly by the Kirk of Scotland, the King's Majesty, and three estates of this realm, as God's eternal truth and only ground of our salvation
; as more particularly is expressed in the confession of our faith, established and publicly confirmed by sundry Acts of Parliament; and now of a long time hath been openly professed by the King's Majesty, and whole body of this realm, both in burgh and land. To the which confession and form of religion we willingly agree in our consciences in all points, as unto God's undoubted truth and verity, grounded only upon His written Word ; and therefore we. abhor and detest all contrary religion and doctrine, but chiefly all kind of papistry in general and particular heads, even as they are now damned and confuted by the Word of God and Kirk of Scotland. But in special we detest and refuse the usurped authority of that Roman Antichrist upon the Scriptures of God, upon the Kirk, the civil magistrate, and consciences of men; all his tyrannous laws made upon indifferent things against our Christian liberty ; his erroneous doctrine against the sufficiency of the written Word, the perfection of the law, the office of Christ and His blessed evangel ; his corrupted doctrine concerning original sin, our natural inability and rebellion to God's law, our justification by faith only, our imperfect sanctification and obedience to the law, the nature, number, and use of the holy sacraments; his five bastard sacraments, with all his rites, ceremonies, and false doctrine, added to the ministration of the true sacraments, without the Word of God; his cruel judgments against infants departing without the sacrament; his absolute necessity of baptism ; his blasphemous opinion