And why shall we think other wayes of it seing the Conquerour came not to the Crown of England by blood-right but by meer Conquest having the whole Kingdom of England against him And Polydore saith Hinc colligere licet vel Edovardum non servasse sidem Gulielmo quam à principio de hereditate regni non satis considerate dedisset vel nullum qnod verisimilius est fecisse promissum Angl. hist lib. 8. This he gathereth from that which Edward spake to Haraldus whileas he prayed GOD that either he would avert the comming of England into the Conquerours hand or else that he would keep him back from it so long as he lived Therefore to me it is more then apparent that the Confessour did not in his Testament assigne the Conquerour to the Crown albeit Salmasius alledgeth the contrary Def. Reg. cap. 8. What Doth not Polydore tell us that because Edgarus was of young and tender years he was not admitted by the people to reigne And fearing lest the Conquerour should succeed to the Crown they rejoyced greatly that Harald took upon him to reigne in Edward's room Whereat as may be learned from Polydore Edward was not displeased himself but very well satisfied that Harald should succeed to him Whereupon we fear not to say that not onely the power of enkinging was in the people's hands but also that the Confessour did not promise the Kingdom to the Conquerour after him although the contrary be alledged And is it likely that the people would have so much declined and withstood the Conquerour if Edward had assigned him to the Crown as his heir No verily for they adored him as their Law-giver It is known that Rufus was but third son to the Conquerour and yet he was created King Him the people preferred before Robert his eldest brother What Would they have done so if blood-right by the Law of the Kingdom had been the title to the Crown No verily It is remarkable that Rufus was ordained King and it was not so much as objected that Robert was elder then he he being but the third son to the Conquerour and Robert being the eldest Yea Rufus dying without children they appointed Henry the Conquerours fourth son King as yet passing-by Robert the eldest And which is more though Henry 1. had left in his Testament his daughter Mathildis together with her sons as heirs of the Kingdom yet not withstanding the people created Steven Nephew to Henry 1. By the authority of Parliament it was ordained that Steven so long as he lived should enjoy the Kingdom of England and that Henry 2. son to Marthilais daughter to Henry 1. should succeed to Steven in the Kingdom of England passing by any that was begotten by Steven Likewayes the people created John King although K. Richard dying without heirs had lest Arthure son to Gaufredus who was elder then John heir to the Crown I might speak more for clearing this putpose but I forbear judging this sufficient Whence it is more then evident that the Crown of England since the dayes of Edward the Confessour by no Law of the Kingdom is hereditary I confesse since that time now and then the Kings eldest son did succeed and was holden as Heir of the Kingdom But this was onely by custome through favour of the Race in which according to the manner of Nations which I must needs call an abuse very ordinarily the first-born is preferred as the onely lawfull Heir of the Crown Therefore seing the Crown of England since that time hath not been at least precisely hereditary to me it seemeth very probable that for that time it hath not been absolute and arbitrary for so the original and fountain-power of enkinging is in the People's hands And consequently in this respect the People are simply above the King as the cause is simply above its effect Philosophers say That can a est nâ—bi◠〈◊〉 effect 〈◊〉 And so seing the King of England dependeth from the People no question they have simply a power over him and not he an absolute power over them Secondly Because according to these Laws the liberty of the subject is vindicated and the Prince is subjected to Law Because in Henry 1. his time a Parliament was holden At which time Parliamentary Power by the Law of the Kingdom was declared the Supream and highest Authority for any thing of weight was referred to it So that whatsoever was done either by the command of the King or of the People it was holden null unlesse it had been ratified by the Parliament In it every one whether King or other Members thereof have alike and equal power of speaking And withall nothing spoken in it is of validity and force unlesse it be concluded on by the major part together with the approbation of the King Polyd. Ang. hist lib. 11. It is observable That by the authority of the Parliament it was ordained That Steven so long as he lived should remain King of England and that Henry 2. afterward should succeed him By whose mediation and authority the debate between Henry and Steven touching the Crown was decided And I pray you how could these things have been unlesse the Parliament had been above the King Inst 4. But saith Salmasius the power of convocating and dissolving the Parliament belongeth to the King of England The power of the Parliament is extraordinary and pro-tune But the power of the King is ordinary and perpetual And likewise the King of England in Parliament hath a negative voice And therefore in many Acts of Parliament he is called the King and Lord of the Parliament and what is ordained is enacted in his Name And so saith he though the King of England doth act according to the Laws of the Kingdom and concurrence of his Parliament yet notwithstanding he is an absolute King Otherwise the Kings of the Jews had not been absolute who had power to do nothing without the consent of the Sanhedrin And Artaxerxes had not been absolute who could not be reconciled to Vasthi because the Law discharged it Yea if Kings were not absolute because they act according to the Law and the advice of their Parliament then Cambyses had not been absolute who conveened a Councel whileas he intended to marry his german sister and demanded of them if there was any such law for allowing such a marriage Def. Reg. cap. 8. 9. Answ Salmasius shall do well to consider these few things 1. What the power of the English Parliament is Which is defined by Camdenus to be made-up of three Estates having the highest and most sovereign power in making Laws confirming Laws annulling Laws interpreting Laws and in doing every thing wherein the good of the Commonwealth is concerned Brit. chorog de Tribun Ang. This is far from Salmasius mind who Def. Reg. cap. 9. opinionateth that the Parliament hath not power over every thing in the Kingdom But Polydore summeth-up the power of the Parliament under these notions First
though they had power of convocating and dissolving it It is not unknown that their power notwithstanding was a non-absolute and limited power Alex. ab Al. ibid. Pompon Let. de mag Rom. cap. 15. Fenest de mag Rom. cap. 7. So say Festus and Coelidus 2. What honour is given to the King And if Salmasius will consider this aright he will find that there is a vast disproportion between his honour and his power and that there is more given to him in word then in deed The King of Scotland cannot be called by Salmasius or any other an absolute Prince This afterward shall most evidently appear And yet in many Acts of Parliament he is called the Parliament's Sovereign Lord and King and what is enacted in Parliament ordinarily it is expressed under the King's name Salmasius imagineth that this maketh much for his purpose whileas it is said Dominus noster Rex ad petitionem suorum proelatorum comitum baronum congregatorum in Parlamento constituit certos articulos In praf stat voc Art sup chart temp Ed. 1. i.e. Our Lord the King at the desire of his Prelats Earles and Barons assembled in Parliament constituted certain Articles In Parlamento supremi domini Regis illius concilium convenit it a proeceptum est ab ipsomet In stat Escheat fact 29. an Edv. 1. i. e. In the Parliament of our Sovereign Lord the King his Councell conveened and so it was commanded by himself The like we have in the Acts of the Scotish Parliaments Eodcm die Rex per modum statuti ordinavit Jam. 1. Parl. 6. act 83. i.e. The same day the King by way of Statute ordained Rex ex consensu totïus Parlamenti statuit ordinavit act 84. i.e. The King with consent of the whole Parliament did statute and ordain But Parl. 5. act 81. the King withall getteth a very lordly stile Item the said day our sovereigne Lord the King with consent of the whole Parliament ordained The Scotish parliamentary acts are full to this purpose But can any therefore conclude that the King of Scotland is an absolute Prince No verily Kings get such honour and every thing for the most part is enacted and emitted in their name not because they have power and dignity above the Parliament but because they are the highest and chiefest Members of Parliament And let me tell you people are so much deluded with the greatnesse of the King that they cannot give him onely that which is his due but they ascribe that which is due both to him and Parliament to him alone People know better how to idolize Kings then how to honour them Yea people are more ready to obey the King then the Parliament And therefore I think Parliaments that will have Kings for effectuating their purposes do wifely to emit Acts in the King's name and set him a-work to execute them Therefore Salmasius shall not need to boast with this that the King of England is called the Parliament's Sovereigne Lord and the Parliament the Councell of the King The like he will find more then once amongst the Prefaces and Acts of the Scotish Parliaments Yet he or any for him can never prove that the King of Scotland is an absolute King He shall therefore do well left he confound things which should be divided to distinguish carefully between that which the king hath re tenus and what is given to him but nomine tenus And so he will find that though the king of England hath as much nomine tenus as if he were an absolute Prince yet re tenus he is subjected to Law And whereas he alledgeth kings may governe by advice and counsell of Parliament and yet may be absolute and have a negative voice the like say I too But he shall give me leave to say that such have not such a vast power as he talketh-of as afterward is shewed I confesse the examples of Ahasuerus and Cambyses are to the purpose though the man fail a-little concerning the jus of the kings of the Jewes as afterward is shewed Howsoever though I grant this yet shall he never prove that the king of England according to the Law of the kingdom is an absolute Prince and hath a negative voice in Parliament He can never shew me that the king of England had the same power which the king of Persia had Inst After the Conquerour saith Salmasius in Rufus ' Henry 1◠Steven Henry 2. and Richard 1. did remain purum putum Monarchicum the power of even-down and unmixed Monarchy And though faith he in the reigne of King John that power was lessened yet was there nothing derog ated from the King's supremacy and absolutenesse remaining unviolated untill the perjured English rebels at this day have altered and diminished the just greatnesse of the King of England Def. reg cap. 8. Ans I admire that this man knoweth nothing but to rail on them whom he knoweth not Well I cast him over into GOD'S hands and fall to examine what he alledgeth Sure I am not withstanding all his railing it cannot abide the touch-stone It is known to be a manifest lie which he alledgeth concerning the immediat successours of the Conquerour It is reported in even-down terms that these kings of whom Salmasius expresly speaketh esteemed Norman Laws established by the Conquerour too rigorous and unjust And therefore before they got the Crown they promised to the people to abrogate them and in place of them to establish the Laws of the Confessour Yea every-one of them promised more then another and to keep themselves within the bounds of Law to the very heart's desire of the people This was not only promised by themselves but also by others in their name And unlesse they had so promised they could never have gotten the Crown They got it upon the expectation of the accomplishment of their promise as the English Histories do abundantly storie And it cannot be denied but Henry 1. did give the Englishes a free Parliament and made it the government of the kingdom So that he is called the first king in England in whose time the power of Parliament was established And as for John it is very well known that because he did not stand to his oath and promise at his Coronation for establishing the ancient Laws of the kingdom but endeavoured to governe after the manner of the Conquerour in an arbitrary and loose way therefore the people rose-up in arms against him and dethroning him did set-up another in his room And whereas this man saith that the ancient Lawes of the kingdom did not derogate from the supremacy and absolutenesse of the king the contrary of that is already proved It seemeth strange to me that he is not ashamed to affirm that what Laws were established by Edward the Confessour and granted by King John were preserved inviolable to this day derogating nothing from the absolutenesse of John's successours Who knoweth not that the liberties of Magna
from all punishment and restraint And yet albeit I have read most of the ancient and chief Chronicles of all the ancientest and chiefest Kingdoms of the world I never read of any Kingdom that proceeded so much against and so often did punish delinquent Kings as the Scots in old have done No question our LORD in his wisdom hath done this that the ancient Scots may stand up in judgment to-day to condemn the practice of the latter Scots who are not ashamed to idolize a King a creature like themselves Having most abundantly evidenced how that Regal power in many sorrain Kingdoms in old hath been subjected to Law no lesse then any inferiour power we do now in the next room drawing home toward our own doors demonstrate the King of Britain to be a regulated and non-absolute King according to the Laws and Customes of England and Scotland As for England we must needs take it under these notions 1. As it was before Julius Caesar conquered it for that time it is thought very doubtsome and uncertain and therefore I minde to passe it at this time till aftâ—rwards in a more convenient place in a word not soaring to say that Brutus the first King of England was an absolute King for as he lived in the dayes of the Heroes wherein Regall power was most in request so by his own proper conduct and industry he firstly founded and planted a Kingdom there This cometh nigh that which Aristotle saith alledging that â—n the dayes of the Heroes Kings had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Observe by the way that thoâ—gh 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 draweth nigh to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yet is there some difference between them but how they diffâ—r as also how Aristotle in this place is to be understood you have at length expressed afterward Now Aristotle foâ— his saying assigneth many causes amongst which these be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either by gathering people togâ—ther or by puâ—câ—asing a kingdom Pelit 3. cap. 10. Now Brutus aâ— is reported did both these And consequently we need not scruple to say that he had a full and absolute power We dare not say so much in behalf of his posterity and those who immediatly sâ—cceeded hâ—m Heroîcisme then was upon the declining hand and withall the people were not so much engaged to them as to Brutus himself And after the Line of Brute was ended it is reported that Corbomannus K. 28. was deposed by the people which could not have been if he had had an absolute and arbitrary power Emerianus K. 34. when he had tyrannously reigned seven years was deposed Chirennus K. 41. through his drunkennes reigned but one year Whereupon we may very probably conclude that from Brutus unto Cassivelanus who was subdued by Julius Caesar the English Kings were not absolute 2. As it was from Julius Caesar unto William the Conquerour As for this time there may be something said for the absolutenesle of the English Kings If we speak of those Kings whom the Roman Emperours deputed it is likely they had an absolute power by derivation from the Roman Emperours as had Herod from Antonius and the Roman Senat. Jos an t lib. 15. cap. 4. And whileas the Englishes were subdued by the Danes and Saxons I think it no wonder though then the Kings of England had an absolute power and that which is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 We have shewed already that conquering Kings are all-commanding Kings See Concl. 1.4 And those who are acquainted with the English History do know that from Cassivelanus unto William the Conquerour the Kingdom of England was never free either of intestine or of forraigne wars It was no time then for exercising Laws to the full against any much lesse Kings There were some of their Kings at that tâ—e to whose conduct and valour the Englâ—shes were much engaged 〈◊〉 maintaining their Liberties and withstanding the force and fury of the common Enemy No wonder though such by way of gratification were invested with a full and large power Others again were meer Conquerours or else deputed by the Conquerour And so we think there was reason for it why such were clothed with an absolute and plenary power for then the Kingdom of England was not under Kings but under Masters And what can Masters do but ford over their servants All that while the Kingdom of England was an unsettled Kingdom and could scarcely be called it 's own Which maketh me in reason conclude that theâ— there was little time left for exercising Policy and putting Lawes in execution This Polydo us Virgâ—lius telleth in a word whileas he saith that before Henry 1. there were few Conventions made by the Kings amongst the people for ordering according to Law the businesse of the Kingdom Angl. hist lib. 11. Although in an absolute notion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 we may say that from Brutus unto Cassivelanus and from Cassivelanus unto William the Conquerour Kingly Government in England was non absolute and without full power yet we cannot say so in a relative notion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as afterward shall appear 3. As the Kingdom of England was about the dayes of the Conquerour whether a little before or afterward unto this time We deny not but under the reigne of the Conquerour himself Regall Government in England was of a most absolute and arbitrary power In this we take Salmasius by the hand He needed not Des Reg. câ—p 8. to have troubled himself to have cited any Authors for proof thereof Very reason it-self teacheth the pâ—t for he subdued England by strength of hand But sure I am a Conquerour may dispose upon a conquered Kingdom according to his pleasure It is an act of favour in him if he do not destroy all much more as an absolute Lord to rule over all In the interim I desire Salmasius to take a view of Polyd. Virg. Angl. hist lib. 9. where he shall find the point evidenced to his heart's desire beyond any Historian he citeth Although in this we go-along with him as we must needs do yet notwithstanding we cannot say so much whether concerning Edward who preceded or those who succeeded him Let it be so that those who succeeded the Conquerour had the same priviledges which the Conquerour did arrogat to himself Yet can it not be denied but according to Edward the Confessour his Lawes or as they are called the ancient Lawes of the Kingdom Kingly Government in England is regulated and not absolute We make the point good from these reasons Firstly because according to these Laws the King of England is not hereditary And therefore we read not that ever Edward did tie the Crown of England to Royall succession I confesse it is alledged that he promised the Crown after him to William the Conquerour who was of neer kinred and great credit with him if he had not children of his own But this is not only improbable in it-self but also it is so judged
king's power is the creature of the Parliament depending from it as the effect from the cause But sure I am cause est nobilior suo effectu And consequently if the king hath an absolute power by vertue of the Parliament then must the Parliament's power be more absolute for prepter quod unumquodque est tale illud ipsum est magis tale And nemo dat qnod non habet Inst 7. Bractonus saith Salmasius doth averre that the King hath power over all that is in his kingdome And that those things which concern peace and power do only belong to the Royal dignity Every one saith he is under the King and he is inferiour to none but to GOD as reason requireth In power be ought to be above all his subjects for he ought to have none like him nor above him in the Kingdom De Angl. Monar lib 4. cap. 24 fect 1. lib. 1. cap. 8 sect 8 lib. 2. de Reg. In Rich. 2. stat 18. cap. 5. it is said Corona Anglie libera fuit omnt tempore non habet terrenam subjectionem sed immediate subdita est DEO in omnibus rebus nulli alteri Act. 24 Parl. Henr. 8. Regnum Angliae est Imperium ita ab orbe fuit acceptum Act. Parl. 24 Hen. 8. Quod hoc tuae gratiae regnum nullum superiorem sub DEO sed solum tuam gratlam agnoscat Euit est liberum a subjectione quarumcunque legum bumanarum Cap. 9. Ans We stand not to glosse Bracton's words He lived in Henry 3. his dayes And finding the King and States at variance about superiority as a Court-parafit he wrote in behalf of the King as Royallists do now-a-dayes He did just so as they do now Bracton had that same occasion of writing in behalf of the King which Salmasius hath to-day As the late King was at variance with the people of England for claiming absolute power over them so the controversie stood just so in Bracton's time between Henry 3. and the people But I pray you was it not as free to Bracton to flatter Henry as for salmasius to flatter Charles Leaving this man to himself I hasten to examinet he strength of these Acts which Salmasius citeth And in a word they do not plead so much for the absolutenesse of the king as of the kingdom They do not speak de Rege Angliae of the king of England but de corona or Regno Angliae of the Crown or kingdom of England Howsoever none of them doth speak for immunity and exemption to the king of England from municipall but from forraign Laws And therefore they declare the Crown of England to be a free Crown and subject to no other Crown and the kingdom of England to be a free kingdom subject to the Laws of no other kingdom I confesse they declare the king to be above the kingdom and inferiour to none but to GOD. Which is true indeed taking the kingdom in esse divisivo but not in esse conjunctivo Indeed the King is above all in the kingdom sigillatim one by one And in this respect he is inferiour to none but to GOD though taking the kingdom in a collective body he be inferiour thereto Inst 8. In the first year of James his reign in England the Parliament acknowledgeth him to have an undoubted title to the Crown by blood-right And therefore they did swear alleageance both to him and his posterity Whereupon Camdenus saith that the King of England hath supreme power and meer empire De Brit. lib. And Edvardus Cokius saith That according to the ancient Laws of the Kingdom the Kingdom of England is an absolute Kingdom Wherein both the Clergy-men and Laicks are subjected immediatly under GOD to their own King and head Cap. 9. Ans As for that concerning James we make no reckoning of it He was declared the righteous and undoubted heir of the kingdom through the defection and back-sliding of the times What other Kings of England hinted at before that he did execute Because he became King of Great Britain and entered the kingdom of England upon blood relation therefore slattering Malignant and Antichristian Counsellours did declare his title to the kingdom of England to be of undoubted hereditary right I pray you friend were there not Malignants then as well as now I may say there were moe then then now at least they had greater authority then what Malignants have now a-dayes And tell me do not Malignants at this day make use of the King 's pretended greatnes and hereditary right to the Crown of Britain for cloaking their knavery and effectuating their malignant purposes Do not you imagine but Papists and Malignants in England had that same reason for them to make use of K. Jame's power What I pray you is the over-word of Papists and Malignants in Britain to-day The King say they is the undoubted heir of the kingdom and absolute in power Who then should rise against him This is even the most they have to cloak their knavery and to cast a lustre upon their Antichristian and malignant endeavours Do you imagine that the devill was sleeping in K. James time No verily And there hath nothing been done these twelve or thirteen years by-gone whether against State or Church but what was moulded then The very plat-form of all was cast in his dayes By the Scotish Parliament his power was declared absolute And by the English Parliament his right to the Crown of Englana was declared undoubted and hereditary They stood not to swear obedience to him and his posterity into all ages And how far on he drew the power of Episcopacy and how much he acted for intruding the Masse Book upon the Kingdom of Scotland is more then known Many wits and many Pens in his dayes were imployed for carrying-on and effectuating malignant antichristian designments Sal. is a child to object from the practice of the English Parliament in K. James time He may as well object for evincing his purpose from the practice of the Parliament holden at Oxford by Charles And if he doth either of them he doth nothing but beggeth the question He telleth us that the Parliament of England K. James an 1. declared and enacted his right to the Kingdom of England to be undoubted hereditary Well I can tell him that William the Conquerour the Normane-Lawgiver doth denie to the King of England any such title or claim to the Crown Diaaema regale saith he quod nullus autecessorum meorum gessit adeptus sum quod divina solummodo gratia non jus contulit haeriditarium Nemincm Anglici regni constituo haeredem sed aeterno conditori cujus sum in cujus manu sunt omnia illud commendo non enim tantum decus baeriditario jure possedi sed diro insiictu multa effusione sanguinis humani perjuro Regi Haraldo abstuli interfectis belfugatis fautoribus ejus dominatui meo subegi Camd. Brit. chorogr deser
which he citeth out of hist de monast Steph. Cadom in Norm i. e. I have acquired the Royall Crown which none of my ancestours did bear which the grace of GOD alone and not hereditary right bestowed upon me I constitute no heir of the English Kingdom but I recommend it to the eternall Creator whose I am and in whose hands are all things for I did not enjoy such a honour by hereditary right but by dire conflicts and great effusion of mans blood I took it from the perjured King Harald and subjected it to my dominion having killed or put to flight his favourers Thus Salmasius may see that he buildeth hereditary right to the Kingdom of England upon a sandy foundation in pleading for the undoubtednes thereof from what right the Conquerour had over it Let it be so the Conquerour himself had right to it by the sword yet in his fore-going latter-wil he shaketh all his succestors loose of any right to it by succession and casteth the disposition thereof wholly over upon GOD and the people Whence was it that as is said already the people did create Rufus king in his room and passed-by Robert his eldest son 'T is remarkable that no where it can be read that the Conquerour did tie the Crown of England to his posterity Salmasius cap. 8. maketh a fashion of proving it out of Malmsburiensis Hundingtonionsis and other English histortans who say nothing but that the Conquerour subdued England and caused the people swear allegeance and sidelity to himself No other thing can be read in them And no-where can salmasius find it that ever he did tie the people of England by bath both to himself and his posterity Neither dar Salmasies conclude any thing from these Historians directly He concludeth that but by the way because of the Conquerour's full and absolute subjecting of England to himself as indeed these Historians do report Yet friend this is but a stollen dint You lose more then you gain by it As for Camden he cannot be of Salmasius judgement unlesse he contradict himself From him we have said already that the power of the Parliament is above the King Therefore whileas he faith that the King of England hath supremam potestatem merum imperium it cannot be understood of the kingdom taken in a collective body And it is true indeed taking the people sigillatim one by one the King of England is above them all and interiour to none but to GOD. And in this sense he speaketh well nec praeter Deum superiorem agnoscit In this sense the latter part of Cokius words is to purpose Because of this superiority the 24. Parl. Henr. 8. passeth a fair complement upon him saying that the kingdom of England doth acknowledge none superiour to it under GOD but his majesty and that it is governed by no Laws but what were made within it-self by the tolerance of him and his progenitors Per tolerantiam tuce gratiae tuorum progenitorum Misalmasi it had been more for thy purpose if they had said Per authoritatom tuae gratiae tuorum progenitorum This soundeth no ordinative and effective but permissive and approbative power in the King Well let this passe the former part of Coktus words doth not speak of the absoluteneste of the King but of the kingdom of England Juxa tgitur lages bajus regni antiquas saith he hoc Angliae regnum absolutum est imperium De jur Reg. eccles He saith not Angliae Rex absolutus est imperiator There is a difference indeed between the King's power and the kingdom's power So much of England We come now in the next room to demonstrate the King of Scotland according to the Law of the Nation to be a regulated and non-absolute Prince This is so clear that we need not to speak any thing of it And it is so abundantly proved by our godly 81 dear Country-man Lex Rex quaest 43. that no man in it can go beyond him Therefore we shall only glance at it by comparing in some few particulars the Lacedemonian kingdome with the Scotish in subjecting their Kings to Law 1. As the Lacedemonian King did every thing according to Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. 3. cap. 10 so the King of Scotland hath power to do no other wayes In the Parliament an 1560. the Nobility saith frequently to Q. Regent Regum Scotorum limitatum esse imperium nee unquam ad untus libiâ—inem sed ad legum praescriptum nobilitatis consensum regi solitum So it is declared Parl. at Sterl 1567. and 1578. concerning Q. Mary This was practised by Mogaldus who did all by the Parliament as the ancient custome was Whence the kings of Scotland had no power to do any thing without the advice and counsel of the Estates They had no power to establish or abrogate laws according to their pleasure This my dear Country-man proveth at length in the place above-cited In the interim take-alongst with you that decree made in Finnanâ—s Rex 10. his time viz That the king should enjoyn nothing of concernments but by the authority of Parliament and that they should not administer the Republick by private and domestick councell nor the businesses of the king and publick should be managed without advice of the fathers and that kings by themselves without the ordors of the fathers shires and governours should not make or break war peace or leagues 2. As the Lacedemonian king did bind himself by oath to govern according to the I awes of the kingdom Xenoph. de Repub. Laced N. Damasc de mor. gent. Laced so the king of Scots by Oath and Covenant is tied to do the like The plat-form of the king's coronation-oath is set-down K. James 6. Parl. 1. Whereby he is obliged to maintain the true Kirk of GOD and Religion now presently professed in purity and to rule the people according to the laws and constitutions received in the Realm causing justice and equity to be ministred without partiality This did both James 6. and Charles swear And that this is no new custome amongst the kings of Scotland you will find it more then abundantly proved by our learned Country-man in the place above-quoted 3. The Lacedemonian kings were subjected to the stroke of justice Which maketh Pausanias so to write of them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Concerning the Lacedemonian King judgment was so ordered Twenty eight in number who were called Senatours were appointed to judge And with them did sit the Ephorick magistracy together with the King of the other family So the king of Scots was censured by the Parliament made up of three Estates His neck was brought under their yoke as my learned Country-man maketh good in the place fore-quoted And so as the Lacedemonians did cut-off and turn-out many kings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pol. 5. cap. 10. so the Scots in old did the like as is made good already See Lex Rex loc cit
Charta and de Foresta subject the King to Law And because that Henry 3. did not stand to the maintenance thereof after he had given his Oath at a Parliament at Oxford to maintain them inviolable therefore the People took up Arms against him till after many debates between them they caused him often to promise that they should be inviolably observed as well by him as by all other Thus they tied not only him but also his heirs to govern according to the ancient Laws of the Kingdom And because Edward 2. did act against these Laws following the counsel of Peter Gaveston and the two Spensers therefore he was imprisoned and dethroned after several conslicts between him and the People 'T is remarkable that the People refused to crown him till firstly he did put P. Gaveston from him And likewise Edward 5. was deposed after he had reigned two moneths and eleven dayes and was obscurely buried in the Tower of London Where then I pray you is the absoluteness of the King of England Inst 6. Under Edward 4. saith Salmasius it was enacted That the King might erect a publick Judgment-seat by his Letters patent in any part of the kingdom he would Under Henry 7. it was enacted and declared That the King had a full power in all Causes in administring Justice to every one In the first year of Edward 6. a Statute was made declaring all authority both Spiritual and Temporal to be derived from the King Def. Reg. cap. 9. Answ I must needs say This hath more colour of probation then any thing the man as yet hath objected But not withstanding this he will do well to observe this distinction 1. What is given to the King by way of complement and Court-expression 2. What is giving to him in reality and by way of action The truth is in the first notion there is as much ascribed to the King of England as if he had been indeed an absolute Prince On him you have these Court-Epithets The King of the Parliament The sovereign Lord of the Parliament Yea and the Parliament is called The Parliament of the King He is called The Original both of Spirituall and Temporal power having full power over all causes and persons and to crect Judicatories in any part of the kingdom where he pleaseth This is spoken But what then Examine the matter aright and you will find it but spoken What cannot Court-Parasites and flattering Councellors passe a fair compellation upon their Prince 'T is the least thing they can do to bring themselves in credit with him Read the Parliamentary Acts of Scotland and you will find just as much spoken if not more of the King of Scotland In Parl. 18. Jam. 6. Act. 1. 2. James 6. is called Sovereign Monarch absolute Prince Judge and Governour over all Estates Persons and Caâ—ses And yet who dare say but the King of Scotland according to the Law of the kingdom is a regulated and non-absolute Prince But according to the second notion let us examine the strength of these Epithets And so in the first place we fall a-discussing particularly these three Sanctions of which Salmasius speaketh The first faith That the King by his Letters patent may erect Court-Judicatories in any part of the Kingdom where he pleaseth This will never conclude that the King of England hath an absolute power This Act only speaketh of his power of calling inferiour Judicatories What is that to the purpose The King of England had power to call and dissolve the Parliament the highest Judicatory of the Land Yea Henry 1. did ordain and constitute the Parliament Yet notwithstanding that as is shewed already the King of England cannot be called absolute The King of Scotland hath power of giving-out Letters of Caption Parl. Jam. 2. chap. 12. Courts of Regalities are justified by the King's Justice chap. 26. And the Parliament petitioned the King to cause execute the Act anent the Establishment of Sessions for executing Justice chap. 65. The power of the Colledge of Justice is ratified and approved by the King Jam. 5. Parl. Edinb Mar. 17.1532 But who will therefore call the King of Scotland an absolute King The second Sanction giveth the King full power over all persons and all causes But I pray you doth this give the King power over the Parliament and Laws No verily It only giveth the King power over all persons and estates separatim but not conjunctim as conveened in parliament Which cometh just to that which Aristotle faith alledging that the King hath power over all seorsim but not conjunctim Polit. 3. cap. 11. And he is said to have a full power not because his power is absolute and boundlesse Verily it must not be taken in a simple and absolute notion but in a relative and comparative sense It doth not imply the exemption and immunity of the King from Civill and Politick subjection to Law But at the most it pleadeth for exemption to him from forraine power and subjection to forrain laws This is evident by comparing this sanction under Henry 7. with stat 18. Rich. 2. ch 5. Where it is declared that the Crown of England is free without subjection to any other Crown but is onely subject immediatly to GOD in every thing which relateth to the managing of it's Affairs The like is spoken Henry 8. Par. 24. So we find the like fulnesse of power pleaded-for to the King of Scotland ITEM It is thought expedient that since our Soveraign Lord hath full jurisdiction and free empire within his Realm that his Highnesse may make Notares and in time to-come that no Notare made nor to be made by the Emperour's authority have faith in Contracts Civill unlesse he beapproved by the King's highnesse Jam. 3. parl ch 38. This exemption is pleaded for to the King of Scots from subjection to the Imperiall Lawes But who I pray you for this will conclude the King of Scots to be an absolute Prince having immunity and freedome from all Lawes whether muncipall and Country-Lawes or sorensick and forrain And as for the third sanction the words whereof be these Omnem authoritatem spiritualem temporalem derivari a Rege you shall be pleased concerning it to observe this distinction There be two termes in the act it-self one concerning temporall and another concerning spirituall power We begin at temporall power The King may be called the originall of it two wayes 1. Formally i.e. as if all temporall power were therefore authoritative and juridicall because of the Kingly power it being only in it-self effentially authoritative and commanding This we deny to be the sense of the sanction in respect of temporall power It is not onely repugnant to Magnacharta the ancient Lawes of the Kingdom the nature of Parliaments appointed and ordained in Henry 1. his time to the oaths and promises of Rufus Henry 1. their successoursto act and govern according to Law but also to the ordinary practices of the