categorically they may take an accompt what is done by his Majesty in his inseriour courts yet they would have the people think them to have such a power and therefore they lay it down as a supposition which they seem to take for granted although they know it to be false If they were a full and legal Parliament they might indeed take an accompt what is done in his Courts by subordinate Officers but not what is done by his Majesty who as King can do no wrong His authority is from God and if injustice be committed in his Courts his Kingly authority is not the cause thereof but the corruption of his judges who abuse it and his Majesty may take an accompt of them either privately or in his Parliament but is not himself accountable for their abuses For although the judgement of his courts may and is termed in law the judgement of the King yet that is to be understood of the act it self which cannot be effected without his influence and concurrence K. H. 7.4 not of the obliquity and deviation from justice which is in it Nor is he yet accomptable to any but God for his perfonal actions by the lawes of the land he cannot be obnoxious to any guilt had he committed treason or any other crime before he was King by taking the Crown upon him all attainder of his person is purged ipso facto Enough hath been said already to prove both the Houses and the Members thereof as well collectively as severally taken to be his inferiour delegate and subordinate ministers that derive their authority from him and in case of grievance are to sue unto him by petition which is all the help the law giveth in such exigencies for they are so far from having any jurisdiction over him in matters of misdemeanour that they cannot take knowledge of those cases wherein Majesty without disparagement may submit it self to a legal triall as in controversies of right or of title to land c. except he be pleased to have the businesse decided in that Court. In Haedlows case before mentioned it is resolved by all the Justices that controversies which concetn the King cannot be determined in Parliament 22. E. 3.6 and it is there added above what hath been cited that Kings may not be judged by others then themselves and their justices unques Roys ne serra adjuge si non per eux mesmes lour justic And this is true as it was resolved by Scrope in the Bishop of Winchesters case not only in respect of others but in respect of the Members of Parliament themselves for although they are to be tryed by their own respective houses in things which concern the Parliament if the fact touch not the King yet if it touch the King and the case be prosecuted by him they cannot then take cognisance of it except he thinks it expedient who hath power if he please to try it in any of his other Courts Fitz. tit coron p. 3. E. 3. p. 161. Ceux queux sount judges in Parliament sount judges de lour Pieres mes le Roy naver Piere in sa terre demesne per que il ne doit per eux estre judge ne ailours faire son suite vers cestui qui luy trespassa quam la ou luy pleist i. e. They which are judged in Parliament are judged of their Peers that is the Lords by the House of Lords and the Commons by the House of Commons bur the King can have no Peer in in his own Land and therefore he ought not to be judged by them nor to make his processe against him that offends but where he please himself Object 3 Last of all they charge the King for atttibuting too much power and authority to himself And it is preached to the People in the Kings Declarations that by the Supremacy is meant a power inherent in the Kings person without above against all his Courts the Parliament not exceped whereby the excellent Lawes are turned into an Arbitrary Government It is no wonder if the Members of the Pretended House were more inclined to hear what their own seditious Divines preached in Saint Margarets then what the King preached in his Declarations yet I believe it had been better for them if they had entertained his Majesties Person and Declarations with more respect and duty However for the present may seem to have ruined him and his people too yet they which have mounted to places of dignity and profit upon the dead bodies of the King and People may find in the end that Rebellion and Murder sit not so high but that vengeance and divine Justice sit above them As for the charge which they bring against his Majesty it is partly false his Majesty never used such expressions as they pin upon him where doth he say that he hath a personal power above and against the Parliament let any man produce the words out of which he can force such a sense Their Charge is also partly vain and frivolous for whereas they accuse him for saying his Supremacy was inherent in his Person they might as well accuse him for saying he was King Supremacy is an essential attribute of Majesty and cannot be seperated without the corruption of its Subject to say the Kings Supremacy is in his Courts and not in his person is not only to contradict the Lawes but the Common principles of reason This hath been demonstrated in divers places yet because occasion is offered again I will hear adde the resolution of all the Judges made in the first year of Henry the seventh concerning this matter for a Parliament being then called and both the King himself and divers of the Members being attainted of high Treason it was resolved by the Judges that the Attainder of the Members ought to be adnulled before they could sit in the house but touching the King it was resolved that his attainder was adnulled upon his admittance to the crown because the King is personable that is because his Kingly authority was inherent in his Person by reason whereof he was discharged of all guilt against the Laws 1. H. 7.4 Et donques fuit move un question que serra dit pur le Roy mesme pur ceo que il fuit atteint puis communication ew entor eux touts accordront que le Roy fuit Personable discharge de ascune atteind eo facto qil prist sur luy le Reigne ee Roy. i. e. And then a Question was moved what shall be said of the King himself for he was also attainted and after communication had amongst them all agreed that the King was Personable and discharged from all attainder in the very act that he took the Kingdome upon him and became King Nor is the other part of their charge lesse frivolous and vain wherein they accuse his Majesty as if he had committed a great crime in saying his Supremacy was a power inherent
and Seat of supreme power to be a mixed subject but granted a mixture in the administration of power alone His second deduction is that the King granteth the power of interpreting 2. Deduction Reply to Doctor Fern. Pag. 34. and giving finall judgement of the sense of law to be in the two houses this he concludeth to be his Majesties meaning when he said The Lords being trusted with a judicatory power are an excellent screen and bank between the King and People by just judgments to preserve the law Reply The Lords may have a judicatory power be as a bank Screen between the King and People without the power of interpretation and giving finall judgment of the sense of Law It is sufficient that they have a power to interpret Law judicially in such cases as are cogniscible in the court although they have no power to interpret it authoritively which is a prerogative belonging to the King calling his Judges unto him But the best of all is that he inferreth from the words above said both the Houses to have a power of declaring law for whereas his Majesty in the premisses speaks onely of the House of Lords by a trick of more then Presbiterian Legerdemain he hath juggled the House of Commons into his inference Deduction 3 His third deduction is that his Majesty granteth the two Houses a power of forcible resistance in case they should judge his actions tyrannicall and unjust this he collecteth out of these words since therefore the power legally placed in both Houses is more then sufficient to prevent and restrain the power of tyranny This he says cannot be made good unlesse the Houses have a power of resistance for tyranny cannot be otherwise restrained It is evident that his Majesty speaks not in this place of a forcible but of a legall way of restraint Id possit quisquam quod jure possit Every man is said to have a power to doe that which he can doe by law although he may be hindered in the execution of it His Majesty grants them not an absolute power of restraining tyranny but let that be taken in which goeth immediately before and his words will bear no other sense but that they have a power of restraining it so far as humane prudence can by lawfull and just wayes provide Neither is forcible resistance a more certain means of restraining tyranny then other legal wayes lesse corrasive if the Houses had a power of resistance they are not sure alwayes to prevaile it is better therefore to tolerate a mischiefe then to use a remedy which is worse then the disease and uncertain too But they have by law a double power as effectuall as forcible resistance they may inflict examplary punishment upon evil instruments wherby others may be affraid to take upon them such imployments and they may refuse to give the King subsidies and other necessary assistance if he refuseth to moderate his excesses If a tyrant and his evill instruments be strong and in no necessity were it lawfull to resist and to levy war against them the successe would be doubtfull the dammage certain and if the best happen they should but cure the Common-wealth of an Ague by giving it the Plague But if he be necessitated either by insurrections or otherwise to crave the assistance of his Subjects they shall then have liberty to execute their power upon his evil instruments or to make use of any other means the law hath put into their hands Where Tyranny reigns such opportunities will in a short time assuredly be offered the best Princes cannot always suppresse rebellions by the help of their loyal Subjects how much lesse can Tyrants be able to do it without them Such Exigencies being considered I say the power legally placed in the Houses is more then sufficient to restrain Tyranny without a power of resistance Object 2 Secondly they alleadge the testimony of Bracton Rex habet superiorem Deum Item Legem per quam factus est Rex Item Curiam suam videlicet Comites Barones That is Lib. 2. cap. 16. The King hath God his Superiour and the Law by which he is made King and his Court namely his Earls and Barons Reply Some think that Bracton speaketh not this himself but supposeth only that some might make such an Objection for these words Sed dicere poterit quis which go immediately before seem to agree with that interpretation and to be appliable to that which is here cited and to all that followeth in the same Section But because the words may also admit of another construction and because I desire to satisfie the Reader in every regard I will a little more strictly inquire into the sense and meaning of them and shew the insufficiency and weaknesse of this Objection if they could be proved to be his own for it is evident that these words cannot relate to any coercive power or civil jurisdiction the Earls and Barons have over the Person of the King but to a directive power alone which their Counsells ought to have over him in governing of the people For as both a Aquin. 2. Quest 96. art 5. Divines and b Cabedo part 2. decis 78. Num. 1. Navar. in Rub. de judiciis num 100. Lawyers usually distinguish one may be said to be superiour to another per potestatem Coërcivam in respect of a coercive power or civil jurisdiction he hath over him by virtue whereof he may command what he please within the extent of his jurisdiction and force him to obey it this is a Legal power and superiority which none but Magistrates have over their Subjects or per potestatem directivam in respect of a directive power he hath over him by which he ought in Conscience to be ruled although he cannot by legal process be forced to obedience this is a moral power or superiority which Subjects may have over their Magistrates for in this regard Masters are superiour to their Scholars Counsellours superiour to those that are guided by their Counsells and the Laws superior to the Law-Makers Bractons scope in this place if these words be spoken positively by himself and not as a supposed Objection can be nothing else but to assert the Earls and Barons in his Court to be Superiour to the King per potestatem directivam in respect of the directive power their Counsels ought to have over him which although they be no legal commands and cannot therefore civilly obleige him to obedience yet they do morally obleige his Conscience when he is convinced that they are just and necessary for the government of the Kingdome These words cannot in any other sense be reconciled to that which he saith in other places who when he speaketh of this Subject doth every where resolve the contrary if the Earls and Barons should be interpreted here to be his Superiors in respect of a coercive power civil jurisdiction whereof the places above mentioned are sufficient
of good right and equity it appertaineth any grants usages prescription act or acts of Parliament or any other thing to the contrary hereof notwithstanding Secondly the power of appointing subordinate judges is declared and determined to be in the King by the same Statute And be it also enacted by authority aforesaid that no person or persons of what estate degree or condition soever they be from the said first day of July shall have any power or authority to make any justices of Eire justices of assize Justices of peace or justices of Goale delivery but that all such Officers and Ministers shall be made by Letters Patents under the Kings great Seal in the name and by authority of the Kings highnesse and his Heirs Kings of this Realm in all Shires Counties Counties Palatine and other places of this Realm Wales and the marches of the same or in any other his Dominions at their pleasure and wills in such manner and form as justices of Eire justices of Assise and justices of peace and justices of Goale delivery be commonly made in every shire of this Realm any grants usages prescription allowance act or acts of Parliament or any other thing or things to the contrary thereof notwithstanding Thirdly the power of making leagues with forraign Princes and States is declared to be in the King by a Statute made in the fourteenth year of Edward the fourth which begins thus 14. E. 4. cap. 4. Whereas divers and great offences and attempts have now of late been done and committed against the amities and leagues made betwixt our said soveraign Lord the King and strange Prince By this beginning of the Statute it is manifest that the power of making leagues and contracting alliance with forraign estates is a right belonging onely to the crown I could yet add divers other acts of Parliament to confirm this and all the other particulars above named but I suppose these which are already alledged are more then sufficient there are also other rights of Soveraignty which I could shew by the statutes to be in the King but because there is no contestation about them I will not fight with a shadow those above mentioned are the chiefest and inseparable from Majesty CHAP. IV. The Kings Supremacy in general shewed by the Common Law HAving shewed the Kings Supremacy from the Statutes I come now to the Common law which is the ground and foundation of it for Statutes are but declarations of the royal power the power it self with the several modifications and qualifications of it is more ancient then any statute and cannot be limited or restrained by an Act of Parliament in any thing that tends to the derogation or diminution of Majesty for the English Monarchy by the common law is an absolute Monarchy susceptible of no alteration in the rights and preheminences of Majesty First I say the English Monarchy is an absolute Monarchy by the Common Law admitting no mixture in the rights of Soveraignty the King alone being the onely supreme head and governour having none superiour to him or coordinate with him either singly or collectively taken this is expresly determined in Sir Edward Cokes reports If that Act of the first year of the late Queen had never been made it was resolved by all the judges that the King or Queen of England for the time being may make such an Ecclesiastical Commission as is before mentioned by the ancient prerogative and Law of England Coke lib. 5. in Caudreys case And therefore by the ancient Laws of the realm this Kingdom of England is an absolute Empire and Monarchy consisting of one head which is the King and of a body politick compact and compounded of many and almost infinite several and yet agreeing members all which the law divideth into two general parts that is to say the Clergy and the laitie both of them next and immediately under God subject and obedient to the head also the King head of this Politick body is instituted and furnished with plenary and iutire power prerogative and jurisdiction to render justice and right to every part and member of this body of what estate degree or calling soever in all causes Ecclesiastical or Temporal otherwise he should not be head of the whole body This is further proved by Sir Edward Coke by divers Precedents and Acts of Parliament who concludeth his report after this manner Fol. 40.6 Thus hath it appeared as well by the ancient common lawes of this Realm by the resolutions and judgements of the judges and sages of the Lawes of England in all succession of ages as by authority of many acts of Parliament ancient and of later times that the Kingdome of England is an absolute Monarchy and that the King is the only supream governour as well over Ecclesiastical persons and in Ecclesiastical causes as temporal within this Realm to the due observation of which Laws both the King and Subject are sworn In the second year of King James in Hillary Terme letters being directed to the judges to have their resolution concerning the validity of a grant made by Queen Elizabeth under the great seal of the benefit of a penal Statute in which grant power was given to the Lord Chancelour or Keeper of the great Seal to make dispensations when and to whom he pleased after great deliberation it was resolved that when a Statute is made by Act of Parliament for the publick good the King could not give the power of dispensation to any Subject or grant the forfeitures upon penal lawes to any before the same be recovered and vested in his Majesty by due and lawful proceeding and the reason there alledged is because the King as head of the Common-wealth and the fountain of justice and mercy ought to have these rights of Soverainty annexed only to his Royal person Coke lib. 7. tit penall Statutes Car quant un statute est fait pro bono publico le Rey come le teste del bien publique le fountaine de justice mercie est par tout le realme trust ove ceo cest considence trust est cy inseparablement adjoyne annexe al Royal person del Roy in cy haut point de soveraigntie que il ne poit transferre ceo al disposition on poiar d'ascune privat person ou al ascune privat use that is For when a Statute is made for the publick good and the King as head of the Common-wealth and the fountain of justice and mercy is by all the Realm trusted with it that confidence and trust is so inseperably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transfer it to the disposition or power of a private person or to any private use I shall not need to explain and amplifie the matter by arguments and inferences drawn from these reports for the words are clear of themselves and do expresly declare and resolve the Monarchy of
the common law made void Stanford lib. 2.101 because they cut off part of the Kings prerogative So likewise to grant letters patents of Denization is esteemed by the common law inter jura Majestatis insignia summae potestatis Coke in Calvins case and is so inseparably and individually annexed to the Royal person of the King as it cannot be divided from it That which I have hitherto said of the rights and preheminences of Majesty is to be understood of those rights and preheminences that are so essential to it as they cannot be separted without the diminution or destruction of Majesty As the power of the Militia the power of making laws the power of appointing Judges and such like Acts of jurisdiction as also the power of dispensing with penal Statutes the power of pardoning the transgressions of the Law the power of prosecuting the law and such like supreme acts of justice and mercy some of which rights and preheminences cannot be taken away without giving a wound others not without bringing death and dissolution to Majesty yet there are other rights and preheminences that are called priviledges which are not so essential to Majesty but that they may by special grace of the King be separated Bracton lib. 2. cap. 24. Ea vero quae jurisdictionis sunt pacis ea quae sunt justitiae paci annexa ad nullum pertinent nisi ad Coronam dignitatem Regiam nec à Corona separari poterunt cum faciant ipsam Coronam Ea vero quae dicuntur Privilegia licet pertineant ad Coronam tamen à Corona separari possunt ad privatas personas transferri sed de gratia ipsius Regis speciali id est Those things which belong to jurisdiction and peace and those which are annexed to justice and peace pertain to none but the Crown neither can they be separated from it because they make the Crown But those which are called Priviledges although they pertain to the Crown yet they may be separated from it and transferred to private persons but not without the special favour of the King It may seem strange that the King and the Lords Spiritual and Temporal and the House of Commons which are virtually the whole kingdome should not have power to make what Laws they please and to bind themselves and the whole kingdome by them in things not repugnant to the law of God yet if we consider the ground of this restraint we shall find it reasonable for they which lay the first foundation of a Common-wealth have authority to make lawes that cannot be altered by posterity in matters that concern the rights both of King and people for foundations cannot be removed without the ruin and subversion of the whole building As for example the division of things which is made at the first foundation of a Commonwealth whether the people took the countrey they divide from the Inhabitants by conquest in a just war or whether they did first actually possesse it themselves as being before emptie and vacant cannot be altered by posterity and a new division made without manifest injustice The Laws which they then make for the preservation of their right and propriety in the said division can not be disannulled by succeeding Parliaments nor can any particular man be deprived of his inheritance which descends unto him by virtue of that division or of any part or parcel or appurtenances thereof by any contrary law which shall be made by them I speak not what Parliaments may do by force but what they may justly do for they have not such an arbitrary power but that they are alwayes in a morall subjection to the rules of justice and natural equity And in this case the Kings condition ought not to be worse then the peoples but his share and rights in the said division are as firmly and unchangeably to be preserved as the share and rights of particular men And both the King and people are obliged to this not only by the rules of Justice and natural equity but by oath and by the municipal Lawes of the Land l. 17. to which they are both sworn That the King is bound to this appears by the Lawes of King Edward Debet vero de jure Rex omnes terras honores omnes dignitates jura libertates coronae regni hujus in integrum cum omni integritate sine diminutione observare defendere dispersa dilapidata amissa regni jura in pristinum statum debitum viribus omnibus omnibus revocare i. e. The King ought by right to maintain and defend all the Lands honours dignities rights and liberties of the Crown entirely without diminution and by all means to recall again those rights which are lost and separted from the Crown That the people are bound to this l. 35. l. 56. appears likewise by the Lawes of King Edward and of William the Conquerour who did a little inlarge the Lawes of King Edward in this particular Statuimus etiam firmiter praecipimus ut omnes liberi homines totius regni nostri praedicti sint fratres conjurati ad Monarchiam ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servandum pacem dignitatem coronae nostrae integram observandam ad judicium rectum justitiam constanter omnibus modis pro posse suo sine dilatione faciendam Hoc decretum sancitum est in civitate London i. e. we will and command that all free men of our Kingdom be sworn Brothers to defend and keep our Monarchy and Kingdome according to their power against the Enemies of the same and to maintain the peace and dignity of our Crown entire and to exercise right judgement and justice according to their power without deceit and delay This Decree was enacted in the City of London By the civil law also the rights of Soveraignty cannot be separated from the Prince and the reason alleadged is because they are essential to Majesty Suprema jurisdictio potestas regia etsi Princeps velit se separari non possunt sunt enim ipsa forma substantialis essentia Majestatis ergo manente ipso Rege ab eo abdicari non possunt Cabedo practic observ par 2. decis 40. n. 8. Io. Andr. in addit ad specul tit de jurisdict c. Cum Marthae de celebrat Missar i. e. Supreme jurisdiction and Kingly power cannot be separated from the Prince although he would himself for they are essential to Majesty and cannot be abdicated whilst he remaineth King CHAP. V. The Kings Supremacy in particular shewed by the Common Law I Come now to the particular rights of Soveraignty which are all by the Common law wholly in the power of the King First 19 E. 4.6 Coke 7.25 B. the Militia is his by the Common Law and to him it only pertaineth to make War with
upon the Statute of Glocester made in the sixt year of Edward the first extant amongst the printed Statutes and following immediately after the said Statute in these words After by the King and his Justices certain expositions were made upon some of the articles above mentioned that is to wit to the first article for entries by disseisin damages shall run from the time of the Statute published In the same wise in writs of entre upon disseisin in all writs of Mortdauncester Cousenage Aiel or Befaiel of intrusion by one act by any manner of writ damages shall run after the writ purchased against them that held by Statute albeit their ancestors died seised thereof c. Here we see to whom the interpretation of the law belongeth the Judges by themselves have a power to interpret it judicialiter they could not otherwise proceed to judgement but being called by the King with him and under him they have a power to interpret it authoritative as hath been the practice and is the known law of the Land But for the two houses besides that they can do nothing joyntly together unless the King doth actually concurre with them their structure is such that they are altogether uncapable and unfit to interpret law For the power that interprets law must be always existent to act as new occasions shall arise which requires the exercise of that power which the two houses are not And yet were they alwayes existent both houses having a negative voyce upon any disagreement between them the interpretation of the law must be retarded and all controversies depending thereupon undecided and this disagreement might perhaps endure for ever and so a final determination in such suites would be impossible Now these are inconveniences which ought not to be admitted in any common-wealth for it derogates both from the honour and wisdome of a Nation to be so moulded and framed that justice cannot have a free passage in all contingencies I will yet adde for the further clearing of this point that not only the legislative power it self but the very exercise of the power also so far as it is essential to government is in the King alone for he can by edicts and proclamations provide for all necessary occasions and special emergencies not provided for by fixed and certain laws which is one of the most excellent and eminent acts of the legislative power and a sufficient remedy against all mischiefs in case the two houses should refuse to concur with him in those things which concern the benefit of the Kingdome He may also grant immunities liberties and priviledges to any colledge town city or incorporation and authorise the said communities to make such local Statutes as shall oblige every member thereof so far as they contradict not the general Statutes of the Land which are all acts of the legislative power that he can exercise without the concurrence of the two houses Now concerning the Kings negative voice 12. H. 7.10 4. H. 7.18 7. H. 14. Judge Jenkins fol. 18. it is the known law that the King hath a power of dissenting and that no act of Parliament can have any authority except either in person or under his seal he signifies his assent Thirdly allegeance or ligeancy is due to the King and none but the King by the Common law as Sir Edward Coke sheweth at large in Calvins case from the resolution of the Judges By that which hath been said appeareth saith he that this ligeance is due onely to the King so as therein the question is not now cui sed quomodo debetur It is true that the King hath two capacities in him one a natural body being discended of the blood Royal of the realm and this body is of the creation of almighty God and is subject to death infirmity and such like The other is a politick body or capacity so called because it is framed by the policy of man and in the 21. E. 4.39 B. is called a mystical body and in this capacity the King is esteemed to be immortal invisible not subject to death infirmity infancy nonage c. Vide Pl. Com. in le Case de Seigmor Barclay 238. Et in the case del duchie 213. vide 6. E. 3.291 26. ass pl. 54. Now seeing the King hath but one person and several capacities and one politick capacity for the realm of England and another for the realm of Scotland it is necessary to be considered to which capacity ligeance is due and it was resolved that it was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural capacity and is not due to the politick capacity onely that is to the crown or Kingdome distinct from his natural capacity In the same case a little after it followeth And where divers books and Acts of Parliament speak of the ligeance of England as the 31. E. 3. tit Cosinage 5.42 E. 3.2.13 E. 3. tit Bre. 677.25 E. 3. Statut. 2. De natisultra mare All these and divers other spenking briefly in a vulgar manner for loquendum ut vulgus and not pleading for sentiendum ut docti are to be understood of the ligeance due by the people to the King For no man will affirm that England it self taking it for the continent thereof doth owe any ligeance or faith or that any ligeance of faith should be due to it but it manifestly appeareth that the ligeance or faith of the subject is proprium quarto modo to the King omni soli semper Fourthly the power of making Judges and all such State officers as exercise any jurisdiction is in the King alone by the Common law and can not nor ought not to be separated from him for it is not reasonable that delegate Judges should be substituted by any but those whose delegates they are nor can a King execute justice according to his oath which next the Glory of God is the chief end of Government by a naked title onely His subjects may be vexed by the rapine and exactions of unjust Judges they may be wearied by delayes exhausted by insupportable fees opprest many several ways and the King in the mean time must stand still and look on if his hands be bound and he disabled from punishing their delinquencies deputing others into their places And therefore this power cannot be disunited from the crown but ought to be de jure as it hath alwayes been de facto a part of the Kings prerogative Bracton lib. 3. tit de actionibus cap. 10. Et si ipse Dominus Rex ad singulas causas terminandas non sufficiat ut levior sit illi labor in plures personas partito onere eligere debet de regno suo viros sapientes timentes Deum in quibus sit veritas eloquiorum qui ederunt avaritiam quae inducit cupiditatem ex illis constituere Justiciarios
his Courts not in his private capacity and to speak properly only in his high Court of Parliament wherein he is absolutely supreme Head and Governour from which there is no appeal Object 2 And if the Parliament may take account what is done by by his Majesty in his inferiour Courts much more what is done by him without authority in any Court Object 3 And it is preached to the people in the Kings Declarations that by the Supremacy is meant a power inherent in the Kings person without above against all his Courts the Parliament not excepted whereby the excellent Lawes are turned into an arbitrary Government Reply Argus Eyes will scarce be able to discover a word of Law or truth in all this every sentence seemeth rather to be a Sarcasme then to contain matter of serious importance wherein they deal with his Majesty as the Jews did with our Saviour Christ who having stripped him of his apparrel and used all the spiteful and opprobrious tearms they could devise against him added at last a mock to their other incivilities bowing unto him and saying HARLE KING OF THE JEWES The pretended House having likewise seized upon all his Majesties Revenues and rights of the Crown and offered him all the indignities they could invent do yet style him their King and supreme Head and Governour but in such a manner as they may seem like the Jews rather to do it by way of derision then in earnest The Kings Supremacy they say is meant in Curia non in Camera in his Courts not in his private capacity As they fancy the people to have conveyed all authority to the King so they fancy the King to have poured it out again into his Courts as if he had no power authority or jurisdiction adherent in his person but had committed all to his delegate Judges or rather which they say is to speak properly unto themselves Manwood of sorrest lawes part 1. whereas he hath by law a royal and supiremenent jurisdiction above all his courts and may call causes out of them before himself or hear appeals and reform their abuses when occasion require Lambart Archaion fol. 95. I shall not need to repeat that which I have before this time opened touching the beginning of the Kingly power and authority for the delivery of justice to all the sorts and in all the suits of his subjects but I will confirm by proofes drawn out of our country lawes and lawyers that the self same generall jurisdiction is appropriated to all the Kings of this realm of England Master Henry Bracton that lived in the time of King Henry the third hath in the ninth and tenth chapter of his book these words following Rex non alius debet judicare si solus ad id sufficere possit cum ad hoc per veritatem Sacramenti teneatur astrictus exercere igitur debet Rex potestatem juris sicut Dei Vicarius minister in terra Sin Dominus Rex ad singulas causas determinandas non sufficiat ut levior sit illi labor in plures personaspartito onere eligere debet viros sapientes timentes Deum ex illis constituere justiciarios The words do prove two things serviceable to this purpose first that the K. onely is to be the judge of his people if he alone were able to performe that office as well because he is within his own Kingdome the vice-Roy of God the supream judge of the world as also for that he is thereunto bound by oath taken at the Coronation The second that albeit he doe for the multitude of causes substitute others underneath him yet is he not thereby discharged himself for it is done ut levior sit illi labor that his labour be the lighter not that he should sit unoccupied and least you should doubt that so much is not comprised in that oath of his one question therein amongst others is this Facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in misericordia veritate secundum vires tuas To which he answereth faciam wherein the words judiciis tuis vires tuas doe more properly denote his own doing then the doing of his subalterne justices albeit their judgment be after a certain manner the judgement of the King himself also from whence their authority is derived Much like the words of Bracton speaketh King Edward the first in the beginning of his book of law commonly called Britton where after he had shewed that he is the Vicar of God and that he hath distributed his charge into sundry portions because he alone is not sufficient to heare and determine all complaints of his people theu he addeth these words Nous volons que nostre jurisdiction so it sur touts jurisdictions en nostre realm issent que in touts manners de felonies trespas contracts en touts maners de autres actions personals on real ayons poer a rendre faire rendre les jugements tiels come ils afferont sans a uter processe par la ou nous scavons la droit verite come judges We Will saith the King that our own jurisdiction be above all the jurisdiction of our realm so as in all manner of felonies trespasses contracts and in all other actions personalls or realls we have power to yeild or cause to yeild such judgements as do appertaine without other processe wheresoever we know the right truth as judges Neyther may this be taken to be meant of the Kings bench where there is onely an imaginary presence of his person but it must necessarily be understood of a jurisdiction remaining and left in the Kings Royall bodie and breast distinct from that of his Bench Marshalsey Common pleas Exchequer and the other ordinary courts because he doth immediatly after in the same place severally set forth by themselves as well the authority of the Kings Bench as of the rest of those his ordinarie Courts of justice And that this was no new made law or first brought in by the Normin conquest I must put you in mind of that which I touched before out of tho Saxon lawes of King Edgar where you did read it thus Nemo in lite Regem appellato nisi quando domi jus consequi non poterit sin juris summi onere domi prematur ad regem ut is id oneris allevet provocato Let no man in suit appeale to the King unlesse he may not get right at home but if that right be to heavy for him goe to she King to have it eased By which it may evidently appeare that even so many years agoe there might appellation be made to the Kings Person whensoever the cause should inforce it Hitherto Mr. Lambart who doth afterwards further prove this supreame and supereminent jurisdiction of the King by divers precedents and acts of Parliament And although the Commons in some other Parliaments have seemed to impugne this prerogative yet here as he saith
Fol. 125. the Kings alwayes most gravely and considerately repelled that sort of attempt The Kings supremacy then is inherent in his Person not in his Courts as the pretended House affirm for his politique capacity can not be seperated from his naturall but what power soever he maketh over unto his Courts the same and greater remaineth in Himself His authority is not separated from him by such a concession privitivè but Cumulativè onely as Civilians distinguish in Concessions of like nature made by the Emperour that is He loseth no authority by Communicating it to others but others hould that which is communicated together with himself As God loseth no authority by communicating it to Kings so Kings loseth it not by communicating of it to their Courts The Civilians give these reasons for the ground of their law not much different from those alleadged by Lambart out of Bracton and others Credendum non est Imperatorem ita fontes suos derivasse foras ut nihil penes se remanserit sed in quavis concessione semper authoritas persona ejus excepta censetur quis enim tam stolidus ut alii benefaciendo seipsum consumere velit cum etiam Principis sit ad offitium ejus proprie pertineat jus dicere Knichen d. superiorit territ cap. 1. num 518. Wurms evercit 3. num 15. Rosental d. feud cap. 5. conclus 13. Pruckman d. Regal cap. 1. num 17. Leipold d. Concurrent jurisdict quaest 1. i. e. It is not to be imagined that the Emperour should so empty his fountaines as to leave nothing in himselfe but it is to be conceived that in every concession his own person and authority is excepted for who is such a fool to consume himself by doing good to others it is also the essentiall property and office of a prince to doe justice The pretended House proceed And to speak properly only his high court of Parliament wherein he is absolutely supreme head and governour from which there is no appeale Reply They speak not more properly as they say but much more improperly then they did before it is the same authority that is in all his courts in his person too though not all the same authority for it is limited restrained in his courts by commission writ or law and according as as those limitations and restrictions are more or lesse so may courts be said to have a greater or lesse jurisdiction but not the King to be more or lesse supreme nor is their expression improper onely but also full of falshood and deceit for whereas they say there can be no appeale from the high court of Parliament they desire the people should so construe their words as to think the two Houses could jointly by reason of the Kings virtual presence take cognizance of a plea and give judgement upon it from which there could be no appeale which had they spoke out their falshood had been transparent for onely the Lords House is a court of judicature and from thence appeales may be made to the King who may and have reformed the undue proceedings of that Court Lambarts Archeion sol 133. for anno 18. Edward 1. Bogo de Clare being discharged of an accusation put against him in Parliament for some imperfections of form that were discovered in the complaint the King commanded him neverthelesse to appeare before himselfe ad faciendum recipiendum quod per Regem ejus confilium fuerit faciendum and so proceeded to are-examination of the whole cause Neither is the former part of their words truer then the latter the Kings supreamacy they say to speak properly is onely in his high court of Parliament This in their sense is false the supreamacy of the King is no more in his high Court of Parliament by reason of his virtual presence or politique capacity then in his other Courts when he is personally there his supreamacy then together with his Person is in the Court not otherwise For I have shewed already in divers places that the rights of Soveraigntie are not onely individually inherent in his Person but so inseperably also annexed unto it that they can not be communicated to others by any grant or concession made by himself in private or by an act of Parliament I shall now adde Lib. 7. in Calvinet case that their conceit is called in Cooks reports a damnable and damned opinion and hath been at large confuted and condemned by all the judges as is there related it was first invented by the Spencers who to cover their treason said that homage and the oath of ligeance was more by reason of the Kings Crown that is by reason of his politique capacity then by reason of the Person of the King from which opinion they inferred these detestable consequences 1. If the King doe not demeane himself by reason his Leiges are bound by oath to remove him 2. Seeing the King could not be reformed by suit of law that ought to be done per aspertee 3. That his Lieges are bound to govern in ayd of him all which were condemned by two parliaments one in the Reign of Edward the second called exilium Hugonâ—s le Spencer And the other anno 1. E. 3. cap. 1. And indeed their conceit is so irrationall that it might easily be prognosticated they would never make good Statsmen For when the King is not personally present in his Courts he can be there by reason of his politique capacity no other wayes but by virtuall emanation there can be in them no more authority then is delegated and committed to his judges now it is a common conception as evident as the first principles that a delegate power can not be supreme The exercise of supreme authority in some Commonwealths may but the power it selfe can not be delegated Kings may also abdicate and resigne up supreme authority but they can not delegate it In how generall tearmes soever say Civilians authority be granted by the Concessour to the concessary supreame authority can not be comprised under those termes Quocuuque modo Regalium concessio fiat nihilominus superius illud Majestaticum imperium ea largitione nunquam censeatur comprehensum sed potius major semper quam est concessa reservata retenta putetur potestas cap. Dudum ¶ Hoc igitur de praebend in 6. l. inquisitio Et ibi De c. de solut Periginus de jure sisci lib. 1. tit ult num 33. Kniken de jure territorii cap. 1. num 315. i. e. Which way soever Regalities are granted it may not be supposed that supreame authority is comprehended under such a grant but rather that a greater power then is granted is reserved to the Prince Object 2 Their second objection is If the Parliament may take an accompt what is done by his Majesty in his inferiour courts much more what is done by him without authority in any court Reply This if is well put in they say not
reason although it be contrary to the Common received principles of other Authors who teach that such a transcendent interest or primity of share cannot make a Monarch For such a preheminence is in some persons in the most popular States as in the Dukedomes of Venice and Genna Besold Synops Polit doct lib. 1. cap. 6. num 4. where the Dukes have a transcendent interest and primity of share above the rest and are Rectores executores summique magistratus having the gubernative and executive power in their hands and excelling all other in dignity and authority Such preheminences therefore are reckoned amongst the Simulacra imperii Regii Clapmar Dearcan Rerump tit de simulacris Imperii cap. 3. Vindication of the Treatise of Monarchie fal 39. being but images and shadowes of Kingly government where full and intire power is wanting Again that he might illude the Laws wherein the King is declared to be Supreme he saith that a transcendent interest or utmost Chiefty is sufficient to make good that title yet he endevoureth not to confirm this by one instance although it be contrary to the received signification of the word when it hath reference to power and jurisdiction for in Law when a governour or Ruler is called Supreme the word Supreme is alwayes opposed to subordinate and not to lesse amongst Lawyers he shall often find power and jurisdiction divided into Supreme and subordinate but never into Supreme and lesse if that which is lesse be also Supreme and independent But yet if his new principles were granted to be true he cannot by such shifts in any plausible manner evade the Statutes wherein the King is declared to have intire whole and plenary power and to be so supreme that all authority is derived from him and wherein it is declared that all obedience is due to him and to him only Will a transcendent interest make good all this Is a Primity of Share intire whole and plenary power Can all authority be derived from him that hath but an utmost chiefly Is all obedience due to one of the Estates where the mixture is in the power it self and supreme authority radically in the other Surely if the other Estates have Power Allegiance and Obedience is due unto it they had as good challenge no power as challenge no obedience CHAP. IX Divers generall objections taken from the testimony of his Majesty Bracton and Fortescue together with the Precedents of Edward the Second and Richard the Second answered BEsides the former objections they urge the testimony of his Majesty of Bracton and Fortescue to which I answer in generall that the decision of this controversy depends upon Law and not upon the bare words and authority of any The words of Lawyers are to be regarded no further then they are approved by law for they are but men may be incited by passion or private interest to speak or write what they ought not I have therfore purposely my self omitted all proofs of that nature and although I could produce a catalogue of Lawyers longer then a Genealogie to confirm the Kings right yet I have cited none but such as prove what they say by the laws except only those that are cited by themselves which I had also omitted but that I desire to make it evident how far those Authors are from favouring their seditious opinions And if his Majesty out of a desire to avoyd the effusion of blood used such gracious expressions as were most likely to prevail with the people and consolidate their minds they ought not in equity to prejudice the rights of the Crown although he had abdicated therein some part of his authority and granted things destructive to his own prerogative I have given this generall answer not because his Majesty Bracton or Fortescue have affirmed any thing in favour of their right but to shew the insufficiency of this objection in case they had but the truth is they have notoriously perverted the meaning of his Majesty as also the meaning of Bracton and Fortescue And although I cannot imagine any man so senselesse as to believe his Majesty ever subscribed to their judgement or any that have perused the works of Bracton and Fortescue so voyd of understanding as to think they were ever abettors of such phantasies yet that they may not exclaime for want of an answer I will more particularly examine what they say Out of his Majesties answer to the nineteen propositions they alledge this passage There being three kinds of Government amongst men absolute Monarchy Aristocracy and Democracy and all these having their particular conveniences and inconveniences the experience and wisdome of your Ancestours hath so moulded this out of a mixture of these as to give to this Kingdome as far as humane prudence can provide the conveniences of all three without the inconvenienees of any one as long as the ballance hangs even between the three estates and they run joyntly on in their proper channell begetting verdure and fertility in the meddows on both sides and the overflowing of either on either side raise no deludge or inundation the ill of absolute Monarchy is Tyranny the ill of Aristocracy is faction and division the ills of Democracy are tumults violence and licenciousnesse The good of Monarchy is the uniting a nation under own head to resist invasion from abroad and insurrection at home The good of Aristocracy is the conjunction of Counsell in the ablest persons of a State for the publik benefit The good of Democracy is libertie and the courage and industry which libertie begets the Lords being trusted with a judicatory power are an excellent screen and bank between the prince and people by just judgements to preserve the law since therefore the power legally placed in both houses is more then sufficient to prevent and restrain the power of tyranny since to the power of punishing which is already in your hands according to law Thus far and in this manner his Majesty is cited by the fuller Answerer who that he might the better wrest his Majesties Speeches to his own purpose hath made many transitions from one place to another mutilating the sense and leaving out that which should have made his Majesties meaning apparent And from these words he maketh divers deductions his first deduction is that his Majesty granteth the Government of England to be mixed in the power it self 1. Deduction Answer to Doctor Fern. Pag. 1. this he inferreth because his Majesty acknowledgeth a mixture and it is no true mixture he saith which is not in the very supremacy of power it self Reply This is answered in the former chapter I shall here only desire the reader to take notice that his Majesties true and reall intention is such as I have there expounded for these words The good of Monarchy is the uniting a Nation under one Head are a perfect Comentarie upon the former and do clearly manifest that his Majesty asserted not the Head
instances to which I could yet add more if I thought it needful But it would be superfluous to illustrate and interpret this place by other when the words considered by themselves imply no more for he maketh no distinction of Superiority but calleth God and the Law and the Earls and Barons in his court superiour to the King after the same manner Now it is evident that God in this place is said to be superiour to him in respect of the directive power his Law hath over him for although God hath de jure a coercive power and jurisdiction over Kings and shall de facto after their death dispose of them as their Judge and in this life also doth often restrain them by his secret judgements yet Bracton speaketh not in this place as will appear immediately when the whole and intire period shall be cited of either of those kinds of jurisdiction but of giving present and open judgement upon the Kings fact and upon his charter which is a jurisdiction that he exerciseth not but giveth his Law only for direction by which all Princes ought to be regulated both in granting their charters and in the whole administration of their power It is also clear that the Laws of the Land are said to be superiour to him in respect of the directive power of them having otherwise no force or influence upon him Bracton therefore meaneth that the Earls and Barons in his Court are superiour to him in the same respect and not in respect of any jurisdiction they ought to exercise over him But if we look upon the coherence of these words and their dependence upon the precedent and subsequent matter Bracton's intention will more fully and easily be discerned I will therefore set down as much as is necessary to the present purpose and explain every clause of it and shew the relation and connexion one thing hath with another and let the Reader judge whether this testimony of Bracton doth not strengthen the Kings cause and might not rather be alledged for him then against him Nec factum Regis nec chartam potest quis judicare ita quod factum Domini Regis irritetur Sed dicere poterit quis quod Rex Justitiam fecerit bene si hoc eadem ratione quod male ita imponere ei quod injuriam emendet ne incidat Rex justiciari in judicium viventis Dei propter injuriam Rex autem habet superiorem Deum Item legem per quam factus est Rex item curiam suam videlicet Comites Barones quia Comites dicuntur quasi socii Regis qui habet socium habet Magistrum ideo si Rex fuerit sine frano i. e. sine lege debent ei fraenum ponere That is No man may judge of the Kings fact or his charter so as to make void the fact of our Lord the King But some may say the King hath done justice and well and if so by the same reason that he hath done ill and impose upon him to amend the injury lest he and his justices fall into the judgement of the living God for the injury But the King hath God his superiour and the Law by which he is made King and his Court namely his Earls and Barons for they are called Comites as being Companions to the King and he that hath a Companion hath a Master and therefore if the King be without a bridle that is without Law they ought to put a bridle upon him If this passage be well considered it will be clear that Bracton in the words alleadged calleth not the Earls and Barons superiour to the King in a civill and legall but in a moral regard alone First he saith No man may judge of the Kings fact or his charter so as to make void the fact of our Lord the King How can the words alledged agree with this if their exposition be admitted How can the Earls and Barons in his Court be superiour to the King in respect of a coercive power or civil Jurisdiction when they cannot judge his charter or his fact No man can have a coercive power or civil jurisdiction over another but he hath authority to judge him according to Law and to force the execution of his Sentence Secondly he saith But some may say the King hath done Justice and well and if so by the same reason that he hath done ill and impose upon him to amend the injury lest he and his Justices fall into the hands of the living God for the injury But the King hath God his superiour and the Law by which he is made King and his Court namely his Earls and Barons Having declared what power the Earls and Barons have not over the King here he declareth what power they have In case justice be not duly administred there are some he saith which may advertise him of it and impose upon him to reform what is amisse and those he declares to be the Earls and Barons in his Court who as well as God and the Laws of the Realm are superiour to him that is are superiour to him in the same manner namely by a directive power For he saith not that they should by constraint but by admonition impose upon him to amend the injury using this reason lest He and his Justices fall into the hands of the living God according to that which he saith in the place before quoted Cap. 4. p. 37. Satis sufficit ei pro poena quod Dominum expectet ultorem Thirdly he saith For they are called Comites as being Companions of the King and he that hath a Companion hath a Master Here he giveth a reason why the Earls and Barons may be called his Superiours namely because they are his Companions and he that hath a Companion hath a Master This reason holds good if he indevoureth by it to prove them his Superiours in respect of a directive power and moral superiority but is ridiculous if he should indevour by it to prove them his Superiours in respect of a coercive power or civil jurisdiction for every one cannot be Superiour to his Companions in respect of jurisdiction and be a leige Lord or Legal Master over all the rest But every one may instruct Counsell and direct all his Companions and be a moral Master over them in that respect all Companions may be mutually one anothers Masters Fourthly he saith And therefore if the King be without a bridle that is without Law they ought to put a bridle upon him This inference which he maketh out of the former words doth also confirm that Bracton calleth them not his Superiours in respect of a coercive power or civil jurisdiction for because they are his Companions and so in a moral regard his Masters they ought therefore he saith if he be without a bridle to put a bridle of the Law upon him This bridle then must be a bridle of Law and not a bridle of their own
Promitto The word Elegerit they say may and ought to be taken in the future tense and doth obleige the King to agree to all acts that shall be thought convenient by the Houses And to confirm this they alledge a Heraulds Book wherein they say the Oath is found so Englished They alledge also an ancient French Form wherein they say it is so taken The Form is this Sire grantes vous a tener garder les leis customes naturelles les quels la communaute de vostre Royaume aur ' eslue les defenderer efforceeer a l' honeur de Dieu a vostre poiare Resp je le grante promitte Reply In all the authentical Records of the Exchequer the word Elegerit is Englished in the Preterperfect tense and not in the future tense proposing no more unto the King but that he would uphold and maintain the Lawes and Customes only which are actually then in use when he taketh the said Oath not such as shall be offered him by the Houses The words in the oath taken by his Majesty following the usual presidents were these BISHOP Sir will you grant to hold and keep the Lawes and rightful Customes which the Commonalty of this your Kingdome have and will you uphold them to the honour of God so much as in you lyeth KING I grant and promise so to doe The ancient Oath which is upon record used in the time of Henry the eight in whose reign they say the Herauld whose Book they speak of lived was this That he shall keep and maintain the Liberties of the Holy Church Book of Oath Fol. 1. of old time granted by the righteous Kings of England and that he shall keep all the Lands honours and dignities righteous and free of the Crown of England in all manner holy without any manner of minishments and the rights of the Crown hurt decay or losse to his power shall call again into the ancient estate and that he shall keep the peace of the holy Church and of the Clergy and of the people with good accord and that he shall do in his judgement equity and right justice with discretion and mercy and that he shall grant to hold the Lawes and Customes of the Realm and to his power keep them and affirm them which the flock and people have chosen and the evil Laws and Customes wholly to put out and stedfast and stable peace to the people of his Realm keep and cause to be kept to his power As for the French Form I cannot but wonder they should alledge it for it doth manifestly contradict that which they say and indevour to prove by it word for word it is thus to be rendered in English Sir do you grant to hold and keep the rightful Laws and Customes which the Commonalty of your Reaelm shall have chosen and to defend them and give them force to your power Answ I grant and promise it Who is there that understands the French Tongue which sees not that these words aur ' eslue shall have chosen which are put in the future tense can have reference to no other Lawes and Customes but those only which the Commonalty shall have chosen when the King taketh the Oath for the Form should have run thus quels la Communaute de vostre Royaume eslirà that is which the Commonalty of your Realm shall choose if Laws which were afterwards to be made had been intended in the Oath But let it be granted that Elegerit ought to be taken is the future tense yet leges consuetudines cannot relate to the Laws which shall be presented to the King by the two Houses in Parliament for the word vulgus cannot be applyed to the Lords Yet let that also be given them the Oath binds him to protect and corroborate only just Lawes not all which they shall say are just for it is evident whether Elegerit be taken in the preter perfect tense or in the future tense that by justas leges consuetudines it is implied that he is not bound to protect and corroborate all Laws and Customes but only those which are just whereof he himself assisted by his Justices and Council at Law who ought to inform him were he wanteth information is to be the Judge To conclude let the word Elegerit and all the other words signifie what they please it is not much important to their cause for the said Latin Form was never used to be taken In the time of Henry the third the Kings Oath contained only these three things Bracton l. 3. Cap. 9. 1. Se esse praecepturum pro viribus opem impensurum ut Ecclesiae Dei omni populo Christiano vera pax omni suo tempore observetur 2. Ut rapacitates omnes iniquitates omnibus gradibus interdicat 3. Vt in omnibus judiciis aequitatem praecipiat misericordiam In later times the English Form above mentioned without any alteration importing their sense hath been used to be taken many ages together Now if they could shew which I believe they cannot that divers Kings have taken the Latin Form they speak of yet that is not sufficient to prove a Custome seeing the practise was formerly and is at the present otherwise Object 3 Thirdly some infer that the King hath not a power of dissenting from the usual answer which he giveth when he refuseth to passe a Bill Le Roy s'adviserâ wherein they say he doth not peremptorily deny his assent but only craveth time to deliberate upon it Reply To what purpose should he crave time to deliberate about that which cannot be avoided there is no consultation to be used de necessariis Yet he may answer otherwise if he please a Judge Jenkins Fol. 32. Roy ne veult or b Hollinsh vol. 1. Fol. 108. il ne plaist are usuall forms as well as that Object 4 Fourthly they alledge Presidents The Militia and the chief Officers of the Kingdome they say have been disposed of in Parliament Reply If I should give a particular Answer to all their Presidents I should weary the Reader with such impertinencies sometimes they alledge a seditious speech of some of the Members for an Act of Parliament sometimes they say such or such a thing was done by Act of Parliament and and cite an Authour in the margin whereas no such thing is to be found in the said Authour Sometimes they urge a President wherein the Houses denied to give the King such subsidies and assistance as he required to his wars because the said wars were undertaken without their assent and conclude from thence that the power of making war and treating with forain states belong to the two Houses when the reason of their deniall was the miscarriages of the war and the mis-imployment of former subsidies not that they challenged the power of making war or treating with forrain states to pertain unto them They thought it would have been more