hath a power by law of dissolving Parliaments when he shall think it fit hath been alwayes without controversy The two houses in the last Parliament though thrifty managers of their priviledges Modus tenendi Parliamentum 4. pars instit fol 3.4 never claimed an arbitrary power of sitting without the Kings assent It is a known Maxime of the law Rex est Principium Caput Finis Parliamenti The King is the Beginning the Head and the End of Parliament Secondly he that last fashioned and reformed the English Monarchie obtained the crown by conquest he had it not by election as a gift and gratuity of the people but made his passage by the Sword and Conquerours are not wont to allow of such coordinations or admit so many sharers in the rights of Soveraigntie as it is phantasied Answer 1 Some answere that conquest is no good title Reply I shall speak of this at large in the second question where I shall shew that conquest in a just war undertaken by those that have authority is a lawfull and just title Answer 2 Others answer that the conquest was not full and entire but a partiall conquest occasioning a composition and agreement and so the government is specificated according to that finall composition and agreement which was made Reply I deny not a composition and agreement but I say there was none such as is pretended for the composition and agreement was made after a victory and it is not probable that the conquerour having been at such expence of blood in gaining the crown and rights of Soveraignty should after his victory give them away again and agree to such a mixture as is pleaded for And although it may be justly exacted from them to prove that there was such a composition and agreement as they speak of made between them yet I will take the burden of proving upon my self and shew there was not for all the composition and agreement which was made or reported to be made by any author was a grant from the conquerour that the Kingdom should injoy the ancient lawes and customes whereby it had been formerly governed which were called the lawes of King Edward this he performed being moved by the petitions and instances of the people in the fourth year of his reign wherin he confirmed unto them the said lawes and customes Now amongst the lawes of King Edward there is nothing to be found that can give the least colour or pretence for such a coordination as is conceited but on the other side the Kings supremacy is chiefly established by the ancient lawes of the land for the common law was the same it is now before the conquest and is the base and pillar of Royall power as hath already been shewed sufficiently To which I could adde many other things out of the lawes of King Edward wherein the King is declared to be a Monarch and to be Gods vicegerent constituted and ordained to govern the Kingdome which includes the people collectively taken and his Church and to protect and defend them which is an act belonging onely to supreame authority and which can not be performed without it from injuries and oppression 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fol. 142. Rex autem quia Vicarius summi Regis est ad hoc est constitutus ut regnum terrenum super omnia sanctam veneretur Ecclesiam ejus et regat ab injuriosis defendat etc. Vniversa vero terra et tota et insulae omnes usque Norwegiam et usque Daciam pertinent ad coronam regni ejus et sunt de appendicijs et dignitatibus regis et una est Monarchia et unum est Regnum et vocabatur quondam Regnum Britanniae modo autem vocatur Regnum Anglorum i. e. The King because he is the vicar of God is ordained that he may govern the Church and his Kingdom and the people of God and defend them from all injuries c. But the whole continent and all the Islands ar far as Norway and Denmark belong to his crown and are the appurtenances and dignities of the King and are one Monarchy and one Kingdome and it was anciently called the Kingdome of Brittain now the Kingdome of England By an other law of King Edward all men within the Realm are oblieged to take an oath of Allegiance and to promise fidelity to the King a Besold de jurib Majestat cap. 2. num 36. Bornit de Majest c. 17. which is a duty to be payed onely to supreme authority b L. 35. Ita debent facere omnes Principes Comites simul jurare coram Episcopis Regni in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 similiter omnes proceres regni milites liberi homines universi totius regni Britanniae facere debent in pleno 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fidelitatem Domino Regi ut praedictum est coram Episcopis Regni i. e. So ought all Princes to do that is to take the Oath of Allegiance and Earls and swear together before the Bishops of the Kingdome in a publick assembly in like manner all the great men of the Kingdome and Knights and all the free men ought to do fealty to our Lord the King in a full assembly before the Bishops of the kingdome To conclude this point by the Laws of King Edward the Crown hath legibus solutam potestatem c Iohan. Corvin Breviar cap. 11. Bisol cap. 2. de jur Maiest Special num 41. Morla in Empocio juris tit 1. quaest 2. Petra cap. 25. which is a prerogative competible to none but supreme powers by them the King may dispence with the Statutes pardon the transgression of them and loose whom he please from imprisonment wheresoever he goeth by his bare word alone d L. 19. Habet etiam Rex alterius modi potestatem misericordiae super captivos ubieunque enim venerit in civitatem vel burgum vel castellum vel villam vel etiam in via si captivus fuerit potest eum solo verbo solvere à captione Solutus tamen satisfaciat cui foris secit Murdrator vero vel traditor hujusmodi criminosus quamvis Rex iis condonaverit vitum membra secundum legem nullatenus in patria remanebunt i.e. The King hath also another kind of power of pardoning such as are in prison for wheresoever he goeth into any City Borrough Castell or Village or also in the high way if any prisoner be there he may by his word alone release him from imprisonment yet he that is so released must satisfie those to whom he hath made the forfeiture but a Murderer Traytor or any such notorious Delinquent although the King hath given him his pardon of life and Member may not by Law remain in his Country The lawes then granted by William the Conquerour did not deprive him of the rights of Soveraignty but did rather strengthen his Title joyning law to conquest for lest he might inconsiderately suffer his
is no good colour or pretence much lesse a sufficient ground for such a coordination and mixture as is pressed by them Although their assents be free and not depending upon the will of the Monarch yet that makes them not coordinate with him in the rights of Soveraigntie It is the common assertion of a Pannormit cap. gravem de fententia excommun Canonists b Bertol. in L. omnes populi ff de justitia jure q. 2. princip quoestiunc 5. num 20. Civilians and c Suarez lib. 1. de legibus lib. 1. cap. 8. num 9. Schoolmen nor is it to my knowledge contradicted by any that the Legislative power is delegable d Besold de jurib Majest cap. 2. that such a concurrence is no argumeni of Supremacy or of such a mixture as they would inferre out of it e Arnisae doct polit lib. 1. cap. 8. Some call it therefore apparens mixtura because it seemeth to destroy a simple form of government and to make a mixture in the power it self but doth not though otherwise they acknowledge it to be such a mixture as doth remit the simplicity thereof Grotius affirmeth to this purpose Istam legislationem quae alii quam summae potestati competit nihil imminuere de jure summae potestatis quod in Scholis dicunt cumulativè datam censeri non privativè He speaketh this of lawes made by generall conventions whose concurrence he saith doth not in the least manner diminish the rights of Majesty Such a mixture of the three estates hath been in other monarchies which all men acknowledge to have been absolute in respect of power In the Persian monarchie how absolute soever the other Estates had interest with the monarch in the legislative power as appeareth by that passage of Daniel wherein the Princes Governours and other officers of Darius sought to betray him by a law Then these Presidents and Princes assembled together to the King Dan. cap. 6. vers 7 8 9. and said thus unto him King Darius live for ever all the Presidents of the Kingdome the Gevernours and the Princes the Counsellours and the captaines have consulted together to Establish a Royall Statute and to make a firm decree that whosoever shall aske a petition of any God or man for thirty dayes save of thee O King he shall be cast into the den of Lyons Now O King Establish the decree and sign the writing that it be not changed according to the law of the Medes and Persians which altereth not wherefore King Darius signed the writing and the decree These Princes Governors and Officers of Darius had the same authority in making laws that the Lords and Commons have in England yet were not coordinate with the King They had votum Consultivum and Decisivum these words have consulted to establish a Royal Statute include both an act of Counsel and an act of Authority and Jurisdiction Grotius saith they signed the Decree as well as the King and that they had this authority by the constiution of the Government And the sequele of the History doth imply as much In Dan. cap. 6. for had the act been his alone had he set out his Decree by way of Edict or Proclamation he might have altered it himself as Ahasuerus did the Decree he set out touching the destruction of the Jewes Esther 3.12 13. 8.10 13. but being made by the assent of others who had a concurrent authority with him by Law he could not alter it I shall not need to instance in the Roman Empire or in other Kingdomes for it is generally known that such a mixture was in that and hath been and is in most other Monarchies And not only whole representative bodies but divers particular free Cities have the same priviledge yet have not supreme authority In our own Kingdome the Common-Councill of every Incorporation have authority to make ordinances and constituions within their own Liberties for the good order and government of their body The Inhabitants of every Parish have authority to make Bylawes and Ordinances amongst themselves for their own profit where they have custome for it and for the publick good where they have no custome Coke part 5. in the Chamberlain of Londons Case tit Cases de Bilawes ordinances Inhabitants dun ville sauns auscun custome poyent faire ordinances ou Bylawes pur reparation del Eglise ou dun haut voy ou dascun tiel chose que est pur le bien publique generalmēnt in tiel case le greinder part lier touts sauns ascun custome Vide 44. E. 3.19 Mes si soit pur lour private profit dem comme pur le bien ordering de lour Common de pasture ou semblables la Sauns custome ils ne poient faire Bylawes i. e. The Inhabitants of a Parish without any custome may make Ordinances and Bylawes for the reparation of a Church or of the high way or any other thing that is for the publick good in general and in such a case the greater part shall bind the lesse But if it be for their own profit as for the ordering of their Common or the like there without Custome they cannot make Bylawes Why doth not the Treatiser and the Pretended Parliamentarians conclude from hence that every man is coordinate with the King in the rights of Soveraignty for this is done by the Legislative power and this authority they have by the constitution of the Government But secondly I answer to the consequent that the Legislative power is not radically in the three estates but in the King alone for although their assent be free and dependeth not upon his will yet their authority is derived from him he should have proved his consequent which he saith appeareth in the former question where indeed he doth confidently affirm the whole latitude of the Nomothetical power to be jointly in the three estates yet offereth not to prove it But there is scarcely any man in the Kingdom so much a stranger to the Laws but knows that the King alone hath power to dispence with the Statutes and to abate their rigour where a mischief would otherwise insue that he alone hath power by edicts and Proclamations to order all affairs for which there is no order taken by certain and perpetual laws that he with his Judges hath power to declare the meaning of the Law and to give an authentick interpretation to statutes of ambiguous and doubtful sense The King can exercise these and all other parts of the Nomothetical power which are of absolute necessity to government without the assent of the two houses whose concurrence is only necessary in making laws which shall bind posterity and may not be repealed without the consent of the people as well as of the King The whole latitude therefore of the Nomothetical power is not jointly in the three Estates but the power only of making certain and perpetual Lawes and when such laws are made it is the Kings
THE Kings Supremacy ASSERTED OR A REMONSTRANCE OF The Kings Right AGAINST The PRETENDED PARLIAMENT By ROBERT SHERINGHAM M.A. and Fellow of Gunvill and Caius-Colledge in Cambridge C R HONI SOIT QVI MAL Y PENSE Printed formerly in Holland and now Reprinted by W. Godbid and are to be sold by Richard Skelton and Richard Head at 〈…〉 TO HIS MOST EXCELLENT MAJESTIE CHARLES II. By the Grace of God KING of England Scotland c. Defender Of the Faith Most Gracious and Dreadfull Soveraign THE Pretended Parliament of England having their Agents lately in the Low Countryes treating with the United Provinces about conditions of an offensive and defensive war my resolution was to have set out this Remonstrance in the Dutch tongue for the satisfaction of those Provinces but the treaty ended almost as soone as I began to actuate my resolution whereupon I altered my purpose and have now set it out in English for the satisfaction of your own Subjects hoping the truth being here clearly illustrated may have some effect upon their Consciences which cannot but have great sway over them in ordering and directing their Actions Experience teacheth that most men act lesse boldly and resolutley especially where their lives must be engaged when they act against their Conscience then when they are perswaded of the lawfullnesse and justice of their cause There hath been more blood spilt by civill war in your Majesties dominions within the space of ten years since those pernicious principles touching the Supremacy of the People and lawfulnesse of resistance have been instilled into mens mindes by some who fetched their doctrine from Hell to furnish the world with tragedies then formerly in an Hundred I conceive the nearest and readiest way to reform such un-christian practises is to reform the Conscience although I deny not but more sharp and violent remedies must also be applyed for some have lost all sense of Conscience whom your Majesty I hope assisted by the almighty providence of God shall reform by the Sword This is that which Religion calls for at your hands now oppressed by such a multitude and confused swarm of Sectaries that I should think it impossible for so many men of severall Religions to live together in unitie did not the Likenesse of their Nature and Manners reconcile their affections as much as their differences in Religion can alienate and estrange them And this is that which all your faithfull Subjects pray for who desire nothing more in this world then to see your Majesty seated in your Royall Throne and able to protect them from the insolencies of the Rebells who make their will their law disposing as freely of mens lives and fortunes as if they had created them and given them their Being It is a rule in Opticks when a dark body is greater then a light to which it is directly opposed it casteth a shadow in infinitum Such a shadow if the continent were capable of an infinite shadow will the dark body of the Rebells cast upon the Kingdome of England whilst it is interposed between your Majesty and your loyall Subjects depriving them both of your favourable Aspect and of your Light and Influence without which they can look for nothing but a continuation of their present miseries for should the Rebells prevaile and prosper in their designes what else can be expected but that which is wrested from others by Force and Violence should be maintained by Tyranny and Injustice But whilst they wade in blood to places of preferment and command the Lord shall overthrew them in the middest of their course as he overthrew the Aegyptians in the Red-sea I usurp not the name of a Prophet but I speak as one believing God to be a faithfull observer of his promises He will not always be deafe to the prayers and complaints of those that are oppressed but send them diliverance in his due time and supply your Majesty with all things necessary both to vindicate your own Rights and free your People from their oppression THE CONTENTS AN INTRODVCTION The beginning rayse and progresse of the Rebellion raysed by the pretended Parliament The Principles whereby they endevour to justifie their proceedings The Questions that shall be discussed THE FIRST QUESTION Whether the people and their Deputies in Parliament be Supreme and above the King or coordinate with him by the Lawes of the Land CHAP. I. The State of the Question explained CHAP. II. The Kings Supremacy in generall shewed by the Statutes of the Land CHAP. III. The Kings Supremacy in particular shewed by the Statutes of the Land CHAP. IV. The Kings Supremacy in generall shewed by the Common Law That the English Monarchy is susceptible of no alteration That fundamentall Laws ought not to be changed CHAP. V. The Kings Supremacy in particular shewed by the Common Law CHAP. VI. The Kings Supremacy both in generall and particular shewed by Reasons depending upon the Lawes and Customes of the Land CHAP. VII Divers objections made by the pretended House answered The Kings Supremacy shewed to be in his Person not in his Courts CHAP. VIII Divers generall objections made by the Authour of the treatise of Monarchy touching the limitation and mixture of the English Monarchy and coordination of the two Houses answered The nature of absolute limited and mixed Government explained CHAP. IX Divers generall objections taken from the testimony of his Majesty Bracton and Fortescue together with the Presidents of Edward the second and Richard the second answered CHAP. X. Objections made against the Kings Supremacy in particular by Mr. Bridge the Reverent Divines and Other answered AN INTRODUCTION The Beginning Rayse and Progresse of the Rebellion raised by the pretended Parliament The Principles whereby they endevour to justifie their proceedings The Questions that shall be discussed I Look upon the government of England if the Laws might be restored to their ancient dignity and authority as inferiour to none in the world Parliaments whilst the King and Parliament have acted in their several spheres not invaded the rights and priviledges of one another have alwayes been the surest means under God to unite their affections together and to prevent those dangers which by their mutual discord must of necessity have ruined both Some are so rash as to affirm that all Transactions Negotiations and accords between Kings and Subjects ought to be interdicted not onely depriving subjects of the light and favours which they should receive from their Prince but Princes also of many commodities which they may receive by capitulating with their subjects in Parliaments where the whole kingdome being present either in person or by representation may give the King and receive from him again such reciprocal testimonies of love that he may be assured his people seek nothing more then the preservation of his life honour and Royal dignity and they that their King endeavoureth no less to encrease and maintain the liberty riches and prosperity of his people And I am
greatest enemies to justice are set up in their places some are bereft of their estates others are driven out of the Kingdome and forced to seek a forraign ayre where they may breath more freely then in their own The whole Nobility Clergy Commonalty walk desolately mournfully up and down being no more like the men they were then the skinnes of sacrificed beasts are like their living bodies And after all these indignities offered to the King and people they endevour contrary to the lawes to alter the government and to pull up the very foundation of the Kingdome calling their new frame and structure a Free Estate and themselves the keepers of the freedome of England Thus having guilt over this Idol of their own fancy they force all men to fall down and worship it they whose vertue oblige them to refuse are cast into a furnace hotter then that of Babylon Seeing the body of the Kingdome devoured thus to the very entrails I could not withont horrour behold such a miserable carkasse so rent and torn in every part nor could I satisfie mine own conscience if I should not endevour according to my poor abilities to oppose the rage and sury of these men which are grown so fat with the blood and spoile of others My intention therefore is reserving matters of fact to speak here of matters of right and to shew the injustice of their cause and discover the falshood of all those Principles whereby they endevour to justifie their proceedings not doubting but I shall so far convince the understanding of all those that shall read this insuing discourse that they shall not hereafter enter into any combination with the rebels or continue with them in them in case they be already engaged except their hearts be hardened so far as they dare act in matters of such concernment contrary to their consciences The Principles and grounds whereby they endevour to justifie this present war against the King are two First they say that it is lawful for the people to resist their soveraign and supreme governours by force of arms in case they be Tyrants and bent to subvert the laws and religion established or by illegal proceedings invade the lives estates or liberties of their subjects But there is some disagreement amongst them in the restriction and limitation of their Principle for some give free scope and liberty to all private persons to resist and with their swords in their hands to defend their lives and estates against the unjust invasion of all Kings and governours whatsoever Others do a little stint the people and limit the bounds of resistence permitting none to have that power but subordinate Magistrates or the people collectively taken and their subsistutes in Parliament Yet these content themselves with the same particular instances brought by others alledging little besides particular examples as the example of David who as they say would have resisted Saul if occasion had been offered The example of the Priests who as they say assaulted Uzziah and such like examples of particular men which were neither the people collectively taken nor their substitutes in Parliament nor yet the greater part subordinate Magistrates But some have thought upon an other way how to make good their rebellion confessing the former assertion to tend directly to the ruine and subversion of government and to be also contrary to the law of God these proceed upon another Principle namely that supreme jurisdiction belongs to the people the King they say is major singulis but minor universis greater and hath more authority then any one of his subjects taken by retaile but taken in the gross his subjects are greater and have more authority then he and these agree altogether in this that they teach all authority to be originally in the people tanquam in primo subjecto creato as in the first subject immediately under God and from them translated to Magistrates Yet these are also divided amongst themselves about the extent latitude of the power that may be translated for some of them say that the rights of soveraignity belong to the people by the law of nature and are so essential to them that they cannot be seperated or divided from them they cannot be taken away by conquest they cannot part with them by consent but under what form of government soever they live by what means soever established and set up they have still reserved in them a supreme jurisdiction over all Magistrates by which they are authorised to give a legal judgment upon all their actions and to resume again their whole authority when they shall see occasion making a circle in government and granting a power in Magistrates to judge and govern the people and also in the people to judge and govern their Magistrates Others on the contrary side say that the people may lose the rights of soveraignty by conquest or part with them by consent so that they shall not reserve to themselves supreme jurisdiction over their Magistrates to judge juridically whether their actions be legal or illegal but the people of England they say have not de facto parted with their authority in such a full degree but are supreme by the laws of the land or at least coordinate with the King for at the first coalition of the government by paction and agreement made with the King they reserved to themselves a part in the rights of soveraignty which they still hold by law This is their other Principle as destructive to government as the former and the authors and maintainers of them both agree well enough in their end that is to stir up the people to rebellion only they of the first rank would perswade them they may lawfully do it by way of self preservation and they of the second by way of jurisdiction I intend now by Gods assistance to examine these mischievous Principles and to discover as well the falsity of them as the dangerous consequences that flow from them which I hope to perform with such clearness and evidence that the most harc-brain'd sectaries amongst them shall be convinced if they will but read that which shall be alledged against them Now that I may proceed in opening and clearing the truth with the better method I will divide the matter I am to handle into two parts In the first part I will speak of Supremacy and here I will shew that the King alone is the only supreme head and governour of the Kingdom of Englan and that all the people and their deputies in Parliament as well collectively taken as severally are his subjects and not coordinate with him In the second part I will speak of Resistance and there I will shew that the supreme Magistrates and governours of any Kingdom or Commonwealth may not by their subjects be resisted by force of armes upon pretence of tyranny or misdemeanour or upon any other cause or pretence whatsoever I will begin with Supremacy because they endevour now
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
forrain Princes and Estates as also to maintain the peace to suppresse Rebellions and to see justice executed at home within his own Kingdome Fleta lib. 1 cap. 17. Habet Rex in manu sua omnia jura quae ad Coronam Laitalem pertinent potestatem materialem gladium qui pertinet ad Regni gubernaculum i. e. The King hath all the rights in his hand which belong to the Crown and to Temporal jurisdiction and the power of the sword which belong to the Government of the Kingdome So likewise saith Bracton lib. 1. cap. 8. Sunt alii potentes sub Rege qui dicuntur Barones hoc est robut belli sunt alii qui dicuntur Vavasores viri magnae dignitatis vavasor enim nihil melius dici poterit quam vas fortium ad valetudinem sunt sub Rege milites s ad militiam exercendam electi i. e. There are other great men under the King which are called Barons and other which are called Vavasours men of great dignity There are also soldiers under the King chosen to exercise the Militia And in the beginning of his Book he saith that it is necessary this power should be in the King In rege quirecte regit necessaria sunt duo haec arma videlicet Leges quibus utrumque tempus bellorum pacis recte possit gubernari utrumque enim istorum alter us indiget auxilio quo tam res militaris possit esse tuta quam ipsae Leges usu armorum praesidio possint esse servatae Si autem arma defecerint contra hostes rebelle indomitos sic erit regnum indefensum Si autem Leges sic exterminabitur justitia i. e. In a King that governeth well two things are necessary armes and lawes by which he may be enabled to rule both in times of peace and war and both these help the need of one another whereby both armes and lawes may be preserved If arms be wanting against enemies and rebells the Kingdome shall be without defence if Lawes be wanting without justice This is also evident from the Tenures whereby most of the chief men in the Kingdome hold their estates for all that hold in capite by Knights service are bound for their fee to assist the King in his wars whensoever they shall be summoned by him whether it be to suppresse rebellion or to resist a forraign invasion And this hath been the known Law of the Land ever since the time of William the Conquerour in the fourth year of whose reign this right was confirmed unto him by Act of Parliament The words of the Statute are these Statuinus firmiter pracipimus ut omnes Comites Barones Milites Servientes universi liberi homines totitu regni nostri praedicti habeant teneant se semper bene in armis in equis ut decet oportet quod sint semper prompti parati ad servitium suum integrum nobis explendum peragendum cum semper opus adfuerit secundum quod nobis debent de feodis tenementis suis de jure facere sicut illis statuimus per commune consilium totius Regni nostri praedicti illis dedimus concessimus in feodis jure hereditario i. e. We will and command that all Earls Barons Knights Villeins and all Freemen of out whole kingdom be alwayes well provided with horse and armes as it behoveth them and that they be alwayes in a readinesse to serve us as often as need shall require according as they are bound by their Lands and Tenements and as we have appointed them to do by the Common-Councell of our whole Kingdome and for that consideration have given and granted them lands in Fee for ever Secondly The Legislative power belongs to the King alone by the Common Law the two Houses have authority granted them by the King to assent or dissent but the power that makes it a law the authority that animates it and makes it differ from a dead Letter is in the King who is the life and soul of the law by whose authority alone the lawes command and forbid and vindicate and punish offenders So saith Bracton lib. 1. cap. 2. Hujusmodi verò Leges Anglicanae consuetudines Regum authoritate jubent quandoque quandoque vetant quandoque vindicant puniunt transgressores i. e. These Lawes and customes of England by the Kings authority do sometimes command sometimes sorbid and sometimes chastise and punish transgressors This was also resolved by divers Earls and Barons and by all the justices in the time of Edward the third For one Haedlow and his wife having a controversy with the King and desiring to have it decided in Parliament a reference being made to divers Earls and Barons and to all the justices to consider of the businesse it was resolved that the two houses were not coordinate with the King in the Legislative power but that the King alone made lawes by the assent of the two Houses that he had none equal or coordinate with him in his Realm and that he could not be judged by the Parliament 22. E. 3.6 Fuit dit que le Roy fist les leis per assent des peres de la Commune non pas les peres le Commune Et que il ne avera nul pere en sa terre demesne que le Roy per eux ne doit estr ajuge i. e. It was resolved that the King makes lawes by the assent of the Lords and Commons and not the Lords and Commons and that he could have no Peer in his own land and that he could not be judged by them The Common practice of the law confirms this as well as the resolution of the Judges for the breach of any Statute whether it be by treason murder felony perjury or by any other way is an offence against the Kings authority alone and pleas made against such offences are called the pleas of the crown because they are done encounter la corone dignitie le Roy Stanford les plees del corone lib. 1. cap. 1. against the crown and dignity of the King So that it is not the dignity and authority of the Lords and Commons which is violated by contempt of the law but the dignity and authority of the King He may dispense also with such laws as forbid a thing which is not malum in se and pardon the transgression of others as Treason Felony and the like which in reason he ought no more to do then to dispense with the laws of Germany Spain or France or pardon the transgressours thereof if they were not made by his own authority Again it is an uncontroulable Maxime of Law Ejusdem est leges interpretari cujus est condere None can interpret the laws but the same power that makes them Now that the King calling the Judges to him hath this power is evident by his exposition
wings to be clipt before he made the said grant he caused all the Lawes and Customes that were in force in the time of King Edward to be written out and then after good deliberation finding nothing in them prejudicial to his Crown and Royal authority he ratified and confirmed them For whereas some of them say the Fundamental Lawes are not written that so they might cover their fraud and deceit who pretending fundamental Laws are able to alledge nothing out of them this is contrary to all the Histories and Records of those times which testifie that Willam the Conquerour commanded twelve of the wisest men to be chosen in every County who did upon oath declare all the Lawes and Customes which they knew not adding or omitting any thing Aldered Arch-bishop of York who had crowned him and Hugo Bishop of London as Chronicon Lichfieldense relateth writ them out with their own hands Yet he granted not these Lawes without some emendations Leges H. 1. c. 2. as appears by the Laws of Henry the first Lagam Regis EDWARD I vobis reddo cum illis emendationibus quibus eam Pater meus emendavit Consilio Baronum suorum i. e. I restore unto you the Laws of King Edward with those emendations which my father by the advice of his Barons added unto them For although he let the old foundation stand yet he inlarged it and added divers new dignities and preheminencies to the Crown 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fol. 151. not wholely relinquishing the rights he had gained by conquest as some without ground or reason affirm but joyning the rights of law and conquest together And this was all done by consent and agreement of the people and confirmed by Act of Parliament Thirdly the two Houses of Parliament are but the Kings Counsell according to their usual style both in our Statutes and Law Books at first the Members of the Pretended Parliament gave themselves no other name and in propability would have been longer content with it upon condition his Majesty would have observed their counsells as Laws and have acknowledged himself bound to obey them for they were willing then he should have had the title of a King so themselves might have had all the power and authority belonging to the Crown But the truth is there is a great distance between Counsels and Commands Counsellours are but subordinate officers and may not impose their Counsells for Lawes upon those which they serve in that employment Answer 1 To this it is answered first That the two Houses are called the Counsel of the Realm as well as the Kings Counsell and are trusted by the People as well as by the King Reply Although in some respects they be trusted by the people yet as touching the office of Councellours they are trusted by the King and when they are called the Councel of the Realm it is all one as if they were called the Councel of the King for under divers phrases the same thing is signified it being an usual custome in law in expressions of this kind to take the Realm or kingdome for the King himself Coke lib. 7.12 And oftentimes in the reports of our Book cases and in acts of Parliament also the Crown or Kingdom is taken for the King himself as in FITZ NATVR BRE FOL 5. tenure IN CAPITE is a tenure of the Crown and is Signory in grosse that is of the person of the King and so is the 30. H. 8. Dyer fol. 44 45. a tenure in chief as of the Crown is meerly a tenure of the person of the King and therewith agreeth 28. H 8. tit tenure Br. 65. The Statute of the 4. Hen. 5. cap. ultimo gave Priors aliens which were conventual to the King and his heirs by which gift saith 34. H. 6.34 the same were annexed to the Crown And in the said Act of 25. E. 3. whereas it is said in the beginning within the ligeance of England it is twice afterward said in the ligeance of the King and yet all one ligeance due to the King So in the 42. E. 3. fol. 2. where it is first said the ligeance of England it is afterward in the same case called the ligeance of the King wherein though they used severall manner and phrases of speech yet they intended one and the same ligeance So in our usual Commission of Assize of Goale delivery of Oyer and Terminer of the Peace c. power is given to execute justice secundum legem consuetudinem regni nostri Angliae and yet Little lib. 2. in his Chapter of Villenage fol. 43. in disabling of a man that is attainted in a praemunire saith that the same is the Kings Law and so doth the Register in the writ of ad jura Regia style the same Answer 2 Secondly it is answered although the two Houses be the Kings Counsell yet they are not chosen by himself the Lords are consiliari nati born Counsellours and the Commons are consiliari dati Counsellours given him by Election of the people Reply Although the Lords be born Counsellours and the Commons chosen by the people yet they cannot sit in Counsell but at such times as the King is pleased to make use of them and when he is pleased to summon them and command them to sit the Lords cannot refuse to come or the people to send their Deputies nor doth it alter their condition whether they be born his Counsellours given him by the people or chosen by himself they which are born to places of dignity and jurisdiction or they which are chosen to them by the people cease not for all that to be subordinate to the King they are all his Subjects and Ministers and are so far from having authority to challenge obedience to their Counsels that if their Counsells be not such as they ought they are themselves obnoxious to a censure of Law A King is obliged in time of Parliament to follow the advice and direction of the two Houses and out of Parliament of his Privy Counsell when their advice and direction tendeth to the preservation of his person and of his Royal authority and to the preservation of his people and of their rights and priviledges not that Counsellours have authority over Kings but because the matter of their Counsels do morally oblige their consciences but if their advice and direction tend to the ruin of either he may and ought to recede from their Counsels and such a King is not a tyrant but such Counsellours traitors by the law This is mysteriously represented to the Lords when they are first preferred to that degree and dignity by the usuall solemnities then performed for if in stead of giving counsell for the King they give counsell against him they are not only by the Statutes of the Land declared to be traitors but if the Statutes were silent by a tacite condition of law annexed to their dignities and vayled under certain ceremonies used at their first creation
Rex quid dig ne tant a benig nitati compenset secum studiose pertractat I andem Divina inspirante Gratia consilium inivit salubre et in die crastina scolam Anglorum que tunc Romae floruit ingressus Dedit ibi ex Regali munificentia ad sustentationem Gentis Regni sui illuc venientis singulos argenteos de familiis singulis omnibus in posterum diebus singulis annis Quibus videlicet sors tantum contulit extra domos in pascius ut trig inta argenteorum pretium excederet Hoc autem per totam suam ditionem teneri in perpetuum constituit excepta tota terra Sancti Albani suo Monasterio bonferenda prout postea coliata privilegia protestantur i. e. The King hearing this considered with himself how he might recompence so great a courtesie at last by Divine Inspiration very Sound counsell was suggested unto him and going the next day into the English School that then flourished at Rome he gave to the sustentation of such as should come thither out of his own Kingdome a penny to be paid yearly for ever out of every family by all whose goods in the field exceeded the value of thirty pence And this he made a perpetuall constitution throughout all his dominions excepting onely the lands that were to be conferred upon the Monastery of Saint Albane as the priviledges afterwards granted doe witnesse This law continued a long time in force yet I find it not confirmed by act of Parliament either in his owne or in the reigns of his successours I find onely in the lawes of some Kings as of King Edgar and King Edward a strict provision made for the payment thereof L. 4. because it was the Kings Almes which reason doth imply that it was not given by the whole Kingdome in Parliament L. 10. but by the King alone But yet in those times laws were made commonly by the approbation and consent of the Nobles Archbishops and Bishops in a publike Synode or Parliament Sometimes the Queen was present sometimes the inferiour Clergie and sometimes also the Commons but that happened very seldome I have seen divers Charters both in the Saxon and Latine tongue granted to Churches and Monasteries confirmed by act of Parliament and attested by the Members of the same yet amongst them all I have not seen so much as one whereunto the assent or name of any of the Commons is subscribed I will here insert one for example sake granted to the Monastery of Saint Albane by Ecgfride Son of Offa because it is but short Auctar. add tament fol. 239 240. and extant in the last Edition of Matthew Paris where any one that please may see both that and divers others of like nature Ego Ecgfridus gratia Dei Rex Merciorum anno Dominicae incarnation is septingentesimo nonagasimo sexto Indictione quarta primo vero anno Regni nostri terram X. manentium nomino Thyrefeld cum terminis suis Domino meo Jesu Christo ejus pretioso Marteri Albano liberaliter eternaliter cum consensu testimonio optimatum meorum in jus Monasteriale pro anima mâ—a parentum meorum devotissimetribuo libenter concedi Sitque praedicta terra ab omui terrenae servitutis jugo semper aliena atque eadem libertate sit libera qua caeterae terrae Monesterii beati Albani conscriptae atque concessae sunt à glorioso Offa genitore meo †Ego Cynedrid Regina consensi †Ego Vnwona Episcopus †Ego Weohthunus Episcopus †Ego Beona Abbas †Ego Elfhun Episcopus †Ego Brorda Dux †Ego Wigbertus Dux †Ego Wicga Dux †Ego Cutbertus Dux †Ego Ethelheardus Archiepiscopus cons †Ego Eobing Dux †Ego Forthred Abbas †Ego Sighere filius Siger †Ego Esne Dux †Ego Cydda Dux †Ego Winbertus Dux †Ego Heardbertus Dux †Ego Brorda Dux Conscriptus est autem hic liber in loco qui dicitur Chelcyd in Synodo publico That is I Ecgfride by the grace of God King of the Mercians in the year of our Lord seven hundred ninety six in the fourth Indiction and first year of our reign do give grant for my own soul and the souls of my Ancestors with the assent and restimony of my Nobles ten Hydes of Land called Tyrefeld with the Bounds thereof unto the Monastery of Saint Albane and I exempt the said Lands from all Services and make them free with the same freedome which was granted to the rest of the Lands of the same Monastery by Offa our father of glorious memory This Charter was written at Chelehyd in a publike Synod By this Charter it is evident that Parliaments were holden in those times without the Commons for whereas it is specified by the King that the abovesaid lands were given cum consensu testimonio optimatum his meaning is that his grant was confirmed by the assent and testimony of Parliament and yet the word Optimates cannot be extended to the Commons neither was his grant confirmed by their testimony In the prefaces likewise of divers Saxon Lawes set out by Mr. Lambart the persons are expressed by whose counsell and assent the said Laws were enacted yet except only in the preface of King Inas Lawes there is no mention at all made of the Commons but several Kings made most of those Lawes by the advice and consent of their Bishops and wise men which were no other then their Privy Counsel Mr. Lambart in his Archaion affirmeth them to be the Nobility and Commons and to support his opinion he alleadgeth a passage out of the Preface of the Lawes of King Elfred which is neither material nor saithfully cited for there is no such passage to be found in that Preface But to make his errour apparent I shall need no other testimonies then two precedents mentioned by himself the first is of a Parliament holden by Edwin K. of Northumberland the second of a Parliament holden by Segebert K. of the East Saxons whereunto they called their friends and their wise men for Edwine being instigated by Paulinus to imbrace the Christian religion Beda Hist Eccles lib. 2. cap. 13. answered 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 habban that he would speak with his friends and with his wise men in Parliament which he did accordingly and by their assent himself his whole Nobility and a great parr of the Commons were baptized In like manner Sigebert held a Parliament whereunto he called his friends and his wise men upon the like occasion Beda Eccles Hist lib. 3. cap. 22. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Then he held a Parliament with his wise men and friends and by their advice did and consent received the Christian faith From this I gather that their wise men could not be their Nobility and Commons as Mr. Lambart supposeth if Parliaments had
respect of Power and also in respect of the use and exercise of it In this kind of Government there are alwayes more Governours then one which are all Limited in the very essence and being of their power having none of them perfect absolute full and intire authority but onely their severall shares and proportion neither can they act in an arbitrary manner according to the full extent of that power which they have but have a certain rule set them by law The second is Limited in respect of the power alone In this kinde of Government as in the former there are alwayes more Governours then own which have all their Limited shares yet may all act arbitrarily either joyntly together or every one within the pale and limits of his own authority The third is Limited in respect of the exercise onely In this kind of Government the Governours are absolute in regard of power but circumscribed and Limited in the Acts of it As of absolute and limited so there are likewise three kinds of Mixed Government sutable to the other the first is Mixed both in respect of power and also in respect of the use and exercise of it In this kinde of Government there is a mixture of severall powers which compound and make up one perfect absolute full and intire power and also of severall persons and estates to whom the said powers do radically and fundamentally pertain which do jointly concurre in the administration and exercise of them The Second is Mixed in respect of the power alone In this kind of Government severall persons and estates are mixed together in the possession of power but one alone do exercise all the acts of Soveraigntie In this manner was the Roman Commonwealth governed by Sylla and by Dictators in the time of exigence and necessity The third is Mixed in respect of the exercise onely In this kind of Government severall persons and estates are Mixed in the exercise of power but one of the estates alone hath the dominion and propriety of it Now touching the Government of England I have shewed already that it is Monarchicall that the Monarchie is Absolute in respect of the power that the King alone hath perfect Absolute full and intire jurisdiction able if put in action to effectuate and bring to passe all the ends of Government and that all other persons of all estates and degrees whatsoever both Nobles and Commons move in their severall circuits and spheres of activity by virtuall emanation from him and not by force of any power authority or jurisdiction inherent in themselves And indeed all Monarchies are Absolute in this respect that is in respect of the power for when the limitation is in the essence and being of power Monarchie is destroyed not limited But yet the English Monarchie is Limited in respect of the use and exercise of power the King being obliged to govern according to the laws of the land which although they doe not diminish Majesty in essentialibus yet they do diversly qualifie and modificate it It is also Mixed in the same respect the King being obliged in some cases not to use his power without the assent and concurrence of the two other estates The pretended Parliamentarians on the other side deny the English Monarchie to be Absolute in any respect and affirm it to be Limited and Mixed as well in respect of the power it self as in respect of the use and exercise thereof the two Houses of Parliament being coordinate with the King not only in the administration of power but in the possession of it Yet they are not able to alledge one syllable of law to make good these strange novelties but strive by indirect inferences to decieve the people Howsoever I will bring their objections such as they are and answer them in order and first I will bring their objections whereby they indevour to prove their pretended limitation and then those whereby they endevour to prove their pretended mixture Object touching li ∣ mitation 1 I conceive and in my judgement perswaded saith the Treatiser that the Soveraignty of our Kings is radically and fundamentally limited and not only in the use and exercise of it and am perswaded so on these grounds and reasons First because the Kings Majesty himself who best knowes by his Councel the nature of his own power sayes that that the Law is the measure of his power Declar. from Newmarket Mart. 9. 1641. Which is as full a concession of the thing as words can expresse If it be the measure of it then his power is limited by it for the measure is the limits and bounds of the thing limited And in his answer to both the Houses concerning the Militia Speaking of the men named to him says If more power shall be thought fit to be granted to them then by law is in the crown it self his Majesty holds it reasonable that the same be by some law first vested in him with power to transfer it to those persons In which passage it is granted that the powers of the Crown are by law and that the King hath no more then are vested in him by law Object 2 Secondly because it is in the very constitution of it mixed as I shall afterwards make it appear then it is radically limited for as I shewed before every mixed Monarchy is limited though not on the contrary For the necessary connexion of the other power to it is one of the greatest limitations a subordiuation of causes doth not ever prove the supreme cause of limited virtue a coordination doth alwayes Object 3 Thirdly I prove it from the ancient ordinary and received Denominations For the Kings Majesty is called our Liege that is legal Soveraign and we his liege that is legal Subjects What do these names argue but that his Soveraignty and our Subjection is legall that is restrained by law Object 4 Fourthly had we no other proof yet that of prescription were sufficient in all ages beyond record the Lawes and customes of the Kingdome have been the rule of Government liberties have been stood upon and grants thereof with limitations of Royal power made and acknowledged by Magna Charta and other publick solemn acts and no obedience acknowleded to be due but that which is according to law nor claimed but under some pretext and title of law Object 5 Fifthly the very being of our Common and Statute lawes and our Kings acknowledging themselves bound to govern by them doth prove and prescribe them limited For those Lawes are not of their sole composure nor were they established by their sole authority but the concurrence of the other two estates so that to be confined to that which is not meerly their own is to be in a limited condition Reply Before I come to answer his objections out of his own mouth will I condemn him for if he be perswaded as he saith in his first objection that the King by his Councell knew the nature of
ordinances not a bridle of force but a bridle of admonitions counsel and advice they have no other means but such by Law to bridle the King if at any time he breaks out into violent and illegal courses This is the Scope of Bracton as is evident by the whole coherence and connexion of the matter who was so far from allowing such fond conceits and imaginations as they seem to suppose that the contrary runs in one constant veine through all his book if they regarded the authority of Bracton they would soon lay down their arms and sue to his Majesty for a Pardon Thirdly they alledge the testimony of Fortescue who speaking of the King of England Fol. 25. saith Prinipatu ne dum Regali sed Politico suo populo dominatur That is He governeth his People not only by Kingly but also by Politique power Reply Fortescue implyeth in these words that the King ought not to make his Will but the Lawes the rule of his power not that others are coordinate with him in the rights of Soveraingty Arist Pol. l. 1. c. 1. 3. For power is either Despotical or Politick Despotical power is Kingly power not moderated nor restrained by humane Laws and constitutions Politick power is Kingly power limited and restrained by humane and politick Laws Now Fortescue saith that the Kings power is not meerly Despotical and Regal but Politick and tempered by law and his intention is to shew the difference between the Common Laws of England and the Civill Laws The Emperour after the power was translated to him from the Common-wealth by that Law which in the Digest is called lex regia until the custome of making Laws by the assent of the people took place again might command what he pleased Quod Principi placet legis habet potestatem is a part of that Law but the King of England he saith cannot altogether govern his people by such a power but is obliged to rule them according to the tenour of the Politick Laws and Constitutions of the Kingdome so that Politique power is here opposed to Kingly power taken in its greatest latitude and not to Kingly power moderated and restrained by Law But how doth this concern the case in hand Object 4 Fourthly they alledge Precedents Parliaments they say have exercised a supreme power over the Crown of England it self to transfer it from the right Heir and setled it upon whom themselves thought meet to elect for their King They cite two Kings which were deposed Edward the second and Richard the second and then conclude that those Parliaments which have exercised such jurisdiction over them must certainly be above them and the highest Soveraigne power Reply The deposition of those Kings hath been resolved Treason by all the Judges of England and yet if it had been legall Coke institut part 2. tit treason the Precedents are impertinent for those acts were confirmed by the Kings themselves and could never have been esteemed Acts of Parliament without their own assent CHAP. X. Objections made against the KINGS supremacy in Particular by Mr. Bridge the reverend Divines and Others answered THey have yet other Objections whereby they endevour to prove that the Particular Rights of Soveraigntie are divided from the King and placed in the two Houses And first touching the Militia Mr. Bridge and the reverend Divines have found a device how the Parliament may make use of that and levy war against the King by his own authority They say as Judges they may send out Messengers or Sergeants at Arms for his evill Counsellours and in case they refuse to appear before them fetch them in as Delinquents by force of arms this is the sum of their Objection but I will set it down in their own terms Suppose saith Mr. Bridge a man be complained of to the Parliament for some notorious crime it is granted by all that the Parliament hath a power to send a Sergeant at Arms for him Mr. Bridges Objection and if he refuse to come that Sergeant at arms hath a power to call more and if the Delinquent shall raise twenty or thirty or an hundred men to reskue him then the Parliament hath power to send down more messengers by force to bring up the Delinquent and if they may raise an hundred why may they not upon the like occasion raise a thousand and so ten thousand And again in his answer to Doctor Ferns reply If the Parliament may send one Serjeant at Arms then twenty then an hundred then a thousand Reply This I confesse is a subtile invention for there can be by Law but thirty Serjeants at Arms at the same time within the Realm now if Mr. Bridge can shew a way how out of thirty Serjeants at Arms an Army of a thousand 13. R. 2. Cap. 6. or ten thousand may be raised he shall be worthy to have a Statue erected to his Memory The reverent Divines have in substance the same objection The reverent Divines objection saving onely they are not so punctuall for point of Law as to have their Army consist of Serjeants at Arms and they alledge a case in Law to justifie that way of proceeding Supposing say they the power of calling and dissolving Parliaments wholly in the King ordinarily yet there may be such power in them so long at they do sit to command arms to be raised for the suppressing of any Delinquents maintaining themselves with Arms even under the colour of the Kings authority which I thus make good If there be any such kind of power in the very judges in their Courts at Westminster for the whole Kingdome and in their several circuits for the shires they sit in although themselves are made Judges at the Kings will merely and put out ordinarily at his pleasure and they can neither keep assizes at any time nor keep any term any where but when and so long as the King pleases to give commission If I say there be such a power in the Judges and even in one of them then much more in the whole Parliament which is unquestionably and undoubtedly the highest judicature in the Kingdome and hath most power during their sittings now that such a kind of power is in the Judges I appeale to experience in the case following A private man hath a suit with the King about land or house and the like the King hath possession and some officer or tenant of his holds it for the King the Judges having heard the cause give sentence for the subject adjudge him to have the possession delivered him by the Kings Tenant or Officer he refuses and Arms himself to keep possession still upon this after due summons and processe of Law a writ of rebellion shall go out against the Officer af the Kings even though he should pretend to keep possession still by a command and warrant from the King and the Sheriffe shall be commanded to raise arms oven the whole
convenient for the better carrying on of the war at that time if the King had undertaken and managed it by their advice and assent but claimed no right in the said power But supposing all that they say true and all their Presidents pertinent I shall make these two generall Answers first I say that if the King as in conscience he was bound did at the request of the Houses discharge divers corrupt Officers and substitute others into their places or if upon just reasons and motives in the vacancy of an office he disposed of it by the assent and approbation of the two Houses or ordered his war by their advice and direction or if the two Houses had challenged such a power as is pretended this doth not argue them to have a right in the Election of the said Officers or that the carriage and conduct of the war depended upon their assent it might be in the King a free and voluntary Act of grace not an obligation of law or he might doe it out of politique respects to have their concurrence in some other matter for although He cannot be forced by law to grant all their desires yet in wisdome policy and conscience He ought to yeild unto them when their desires are just legall and Prudentiall it hath ever been dammageable to the King and for the most part to the Kingdome also when differences between himself and his two Houses have not been fairely appeased Secondly I say that if they were able to alledge an act of Parliament wherein such a Right were placed in them such acts by the common Law of the Land were voyd for the Rights of the Crown are settled upon it by the fundamentall Lawes as hath been shewed and cannot be separated by Act of Parliament These are all the Objections which could without violence be referred to this place The rest which depend not upon Law shall be answered in the other Questions if any thing be omitted that seemeth to justify their cause let any man undertake to answer me and give me notice of it and I doubt not but I shall be able through the assistance of God to make a full and satisfactory reply unto him And this I shall desire of my Adversary that when he maketh use of any authority he would cite the words at large as I my self have done in all materiall points and not make references onely in the margent that the Reader may judge of the scope and intention thereof and be able to discern which of us dealeth faithfully and which of us ingaged by faction strive to elude the Lawes and wrest them from their genuine and native sence And thus by the Grace and Mercy of God I have in part discharged my Conscience being bound by all the bonds both of divine and humane lawes to oppose and withstand as far as I am able the false doctrine and principles which Wolves in Sheeps Clothing indeavour dayly to infuse into mens minds I shall easily avoyd I presume the usuall calumny incident to those which write upon this Subject as namely that under the pretext of promoting the Apostles doctrine of obedience they intend by flattering Princes to promote their own private interest I would to God the condition of his Majesty and the Kingdome were such as they might have some colur to lay that imputation upon me But I am not ignorant that I might soone have advanced my own interest by adoring the pretended Parliament who dispose of all mens estates and fortunes at their pleasure pretending as much right to all his Majesties Kingdomes and to all the power and glory thereof as the Divell did to all the Kingdomes of the world For that Luk. 4.6 say the Members is delivered unto us and to whomsoever we will we give it And I know they use to distribute their favours liberally to those that will fall down and worship them But how poor soever my condition is I have no inclination to buy my interest at so dear a rate I had rather perish in the performance of my duty then be confederate to their Sacriledge and other Impieties or not render my country that service which I owe it for whose liberty I would willingly Sacrifice not onely my own interest but my Life I should be no good English-man if I did not desire a better subject to discourse upon then the miseries of the Kingdome and if by being silent and turning a way mine eyes I could help to quench the Flame that audacious and factious Spirits have kindled in it I should have abstained from writing at this time But the Danger and miserable condition thereof calls for action to all those which had not rather see all things managed according to the appetit of those Incendianies and Firebrands of the Common-wealth then hazard themselves and their own interest for the Rights and Liberties of the Kingdome I could wish that all whom it concerns would seriously consider that the Fat and Riches of the the Land was the Patrimony and Inheritance of their Ancestours and may be of their Posterity if their own feares and negligence gives it not their enemies I could wish also that the pretended Parliamentarians would seriously consider their own condition whom I esteem of all men most miserable To speak my desires I wish unfainedly the Salvation of them all but to speak my thougths I conceive more hopes of the honest Heathen then of any man that shall dye a Rebell or not make Restitution of all that he hath gained by oppression and injustice Soli DEO Gloria FINIS
confident the last Parliament had been as great as blessing to the land as ever any was in former ages had not the ambition avarice and malice of some interrupted the course of the lawes But for this assembly of Traitors which hath a long time called themselves a Parliament sitting without the house of Lords and secluding from the house of Commons all that would not be as cruel barbarous and wicked as themselves it is a disturber of the Kingdoms peace an enemy and destroyer of the people and if we look upon their actions in their beginning in their raise and in their progress they may seem to have had alwayes a formal opposition to justice and to have acted by some occult and specifical quality not common to other Christians There was indeed at the first beginning of the Parliament much murmuring and discontent amongst the people partly caused by the monopolies and unusual taxation of Ship-mony and partly occasioned by the abuses of divers Courts Here the enemies of the Common-wealth finding a spacious overture to enter into this Rebellion began to act their parts and being too provident to loose such an advantage laboured to exasperate the minds of the people and to stir up those evil humours which began already to appear And although his Majesty offered all just satisfaction for what was past and the best securitie themselves should in reason require that the like Disorders might for ever after be prevented yet these turbulent and factious spirits being for the most part men of broken fortune and hoping to heal themselves by the ruin of others opposed all such motions and would needs themselves become Chyrurgions to the state and as Chyrurgions are wont to smooth and stroak the parts which they resolve shall bleed so they began to smooth and stroak the people promising them a new light in matters of Religion and that they would remove the grievances and sweeten the evils which affected the Common wealth although in stead of removing and sweetning them they have almost made them incurable By these perswasions mixed with many pretences of Religion they procured the people to meet together in great multitudes and in a tumultuous manner to assault divers of the Lords as they were going to the Parliament and to drive them back again not permitting them to speak in the house when their speech was most necessary for the service of the Kingdome Although it was easy for his Majesty to discover their intentions yet the love he bare his people made him to dissemble it and to give way to their proceedings hoping they might in time be brought by his favours to mitigate and correct their furious practises but finding at last that his patience served for nothing else but to fortifie and encourage them in their malice he thought himself obliged to take such wayes as he judged most convenient to stop the course of their proceedings the continuation whereof was like to bring so many mischiefs to the Commonwealth and seeing it was like to be prejudicial to the safety of the people as well as to his own to stay longer in a place where there was neither security for his person nor liberty for any other then those factious persons to vote according to the dictats of their own reason he was forced to withdraw himself from the Parliament to avoid the pernicious effects of those mens counsels which were resolved the whole commonwealth should sink rather then themselves not obtain those places of command and profit which they aimed at The King being gone it was not to be wondred if they which in his presence had the boldness to weave such pernicious designes against the state should in his absence endevour to corrupt the fidelity of his subjects for having the city of London wholy at their command they neither wanted means nor opportunity to draw the people to their faction who by such artificial devices as they used were easie to be insnared They tould them that by resisting the King they should not be rebels but an army authorised by those which were depositaries of the Kings authority that this resistance was an inspiration from heaven which promised the restauration of their ancient liberties which they said had been so often violated by the King They made them believe that the authority of the King and the whole commonwealth would be brought into confusion if they did not vigourously oppose those disorders were growing upon them and remove those evill counsellors from the King that did mislead and seduce him and withall they set out a Declaration promising to preserve and defend the Kings Majesties person and authority together with the liberties of the Kingdom assuring them they had no thoughts or intentions to diminish his Majesties just power and greatness or any way to alter the constitution of the government or of Parliaments consisting of a King a house of Lords and a house of Commons But now we see the effects contrary to those words and promises which were so solemnly made to the whole Kingdome for they have not onely diminished his Majesties just power and greatness overthrown the nature and very being of Parliaments but most traiterously deprived his Majesty of his life and that afte he had condescended so far as to satifie all their unreasonable demands which fact of theirs although it hath been masked with many specious pretences and coloured with the fairest shews of justice yet was it the most execrable murder that ever was committed next that of our Saviour Christ and his ambitious judge hath gained this that next PILATE BRADSHAW of all such judges shall by posterity be esteemed the chief This murder of the King as it was most unjust so was it also most unseasonable considering the present disposition of the Kingdome whose strength being already too much weakened and attenuated ought not to have been further wasted and consumed by renewing the war which the death of the King did threaten But such motions could work nothing upon those which had long before resolved to make all other considerations give place to profit and ambition the people abused themselves whilst they thought this factious assembly would be more careful and tender of them then of the King for they have not onely brought a new war upon them which might have been avoided dashing them all against one another but have also themselves many wayes barbarously afflicted and destroyed them they have made the scaffold the Gibbet the prison and the grave the common places of their rendezvous and those which they have not devoured by their cruelty they devour by their unsatiable avarice whilst they declaim against Kings for oppressing the people by unjust taxations they have themselves as hath been computed by many squeesed more in one year from the Commonwealth then all the Kings of England have done since the conquest The lawful Magestrates are deprived of the liberty and honour of their functions and such as are the
words seeing that all authority of jurisdiction Spiritual and Temporal is derived and deducted from the Kings Majesty as Supreme head of these Churches and Realms of England and Ireland do clearly intimate the two houses to have no authority radically in themselves and to be no way coordinate with the Kings Majesty in the rights of soveraignty For conclusion of this Chapter I will add one Act more made in the first year of King James wherein the two houses of Parliament collectively taken made an humble recognition of their faith and obedience to him We your most humble and loyal Subjects the Lords Spiritual and Temporal and the Commons in this present Parliament assembled do from the bottome of our hearts yield to the Divine Majesty all humble thanks and praises not onely for the said inestimable benefit and blessings above mentioned but also that he hath further inriched your Highness with a most Royal progeny of most rare excellent gifts and forwardness and in his goodness is like to encrease the happy number of them and in most humble and lowly manner do beseech your most excellent Majesty that as a memorial to all posterities amongst the records of your high court of Parliament for ever to endure of our loyalty obedience and hearty and humble affection it may be published and declared in this high court of Parliament and enacted by authority of the same that we being bounden thereunto both by the laws of God and man do recognize and acknowledge and thereby express our unspeakable joys that immediately upon the dissolution and decease of Elizabeth late Queen of England the imperial crown of the Realm of England and of the Kingdomes Dominions and Rights belonging to the same did by inherent birthright and lawful and undoubted possession descend and come to your most excellent Majesty as being lineally justly and lawfully next and sole heir of the blood Royal of this Realm as is aforesaid and that by the goodness of Almighty God and lawful right of discent under one imperial crown your Majesty is of the Kingdomes of England Scotland France and Ireland the most potent and mighty King and by Gods goodness more able to protect and govern us your loving subjects in all peace and plenty then any of your noble Progenitors And thereunto we most humbly and faithfully do submit and oblige our selves our heirs and posterities for ever until the last drop of our bloods be spent And do beseech your Majesty to accept the same as the first fruits of this high court of Parliament of our loyalty and faith to your Majesty and your Royal progeny and posterity for ever This is a far different strain from that which the present pretended Parliament have used to his Majesty who although bound both by oath and duty to have been as respectful and obedient towards him yet have they themselves after many insolences cōmitted against his person most audaciously and unadvisedly taken away his life and procured others by defamatory libels to blast his credit who according to the trust reposed in them cease not to traduce him and by malicious aspersions to stain his chiefest vertues creeping like Snailes over the sweetest flowers and leaving behind them their slime and filthiness CHAP. III. The Kings supremacy in particular shewed by the Statutes of the Land THe Kings supremacy in general being thus confirmed by several Acts of Parliament I will now descend into particulars and shew his Majesty to be legally invested with all the particular rights of soveraignty I will beginne with the Militia which is a right so essential to Majesty that it can not nor ought not to be separated from it For Majesty consists not in a bare and empty title but in the rights of soveraignty which he cannot be said to possesse who wants the Sword to protect the Scepter It was confessed by the pretended Parliament at the beginning of these dissentions that the Militia by right pertained to his Majesty and therefore at the first they laboured to have it assigned to them by his own assent but he opposing their unjust desires as knowing both his own and the ruin of his posterity would be the necessary consequences of such a grant they resolved seeing they could not gain it by surrender to take it by assault and assisted by men of like natures and inclinations they seised upon his Majesties forts and Magazins and have since exercised an arbitary and tyrannical power over the lives and estates of all that pleased them not and none could ever please them but such as are of the same humour and disposition with themselves I must confess I am amazed when I consider how confidently and desperately they have carried on their designs in a case so contrary to law and justice for they could not have begun a war or contested with his Majesty about a matter more clear then that of the Militia which is a right so inherent in the crown setled upon it by the fundamental Laws of the Land and confirmed by so many several acts of Parliament that although the pretended Parliamentarians have a great dextetity in coyning distinctions to elude the laws yet they will not easily coyn such as shall serve their turn in this particular In the seventh year of Edward the first a Statute was made to injoyn all men to go to Parliaments Treatises and general Assemblies without force and armes wherein the Kings power over the Militia is acknowledged The King to the justices of his bench sendeth greeteng Whereas of late before certain persons deputed to treat upon sundry debates had between us and certain great men of our Realm amongst other things it was accorded that in our next Parliament after provision shall be made by us and the common assent of the Prelates Earls and Barons that in all Parliaments Treaties and other Assemblies which should be made in the Realm of England for ever that every man shall come without all force and armour well and peaceably to the honour of us and the peace of us and our Realm And now in our next Parliament at Westminster after the said Treatise the Prelates Earls Barons and the Commonalty of our Realm there assembled to take advice of this business have said that to us it belongeth and our part is through our Royal seigniory straitly to defend force of armour and all other force against our peace at all times when it shall please us and to punish them which shall do contrary according to our laws and usages of our Realm and hereunto they are bound to aid us as their Soveraign Lord at all seasons when need shall be We command ye that ye cause these things to be read afore you in the said bench and there to be inrolled Given at Westminster the thirtieth day of October In another Statute made the eleventh year of Henry the seventh it is declared that all subjects of the Realm but especially those that have by the King any
England to be an absolute Monarchy the King alone to be the only supreme head and Governour of the whole body that is of all the people as well collectively as severally taken And hence it is namely in regard of the Kings Supremacy he being the only head of the Kingdome having no equal or Superiour but God alone whose Vicegerent he is upon earth that the Common law doth by way of fiction and similitude attribute unto him the Divine perfections 1. H. 7.10 Finch lib 2. del ley bap 1. Roy est le test del bien publike immediate desoubs Dieu desuis touts persons en touts causes Et pur ceo entant que il resemble le person del Dien port son image enter homes le Ley attribute a lui en un similitudinarie manner 7. E. 4.17 21. H. 7.2 Coke 7. f. 7. B. 43. El. Coke 5. fol. 114. B. 4. E. 6.31 5. E. 4.7 2. H. 4.7 1. H. 7.19 bombre del excelleneies que sont en Dien cest ascavoir SOVERAIGNTIE tout terre est tenu de de luy nul action gist vers luy car quis commandra le Roy POYAR il poit commaunder ses subjects daler hors de Realm en guerr poet faire ascune foreine coine currant icy per ses Proclamations MAJESTY ne poet prend ne departer ove oscune chose forsque per matter de record si non soit chattell ou tiel quia de minimis non curat lex INFINITENES en un manner 35. H. 6.26 esteant present en touts ses courts si come home poet dire en chescun lieu PERPETVITY ayant perpetuell succession ne unque mor. 10. El. 331. 35. H. 6.61 4. El. 246. PERFECTION car nul laches follie infancie ou corruption del sank est judge en lui VERITY ne serra unque estoppe JUSTICE ne poet esse disseisor ne faire ascun tort id est The King is head of the Common-wealth immediately under God over all persons and in all causes and therefore because he represents the person of God and bears his image the law attributeth unto him in a similitudinary manner a shadow of Divine excellencies namely SOVERAIGNTIE all lands are holden of him no action lyeth against him for who shall command the King POWER he may command his Subjects to go out of the Realm to War He may make any forraign coyn currant here by his Proclamations MAJESTY he can neither take nor part with any thing without matter of Record except it be chattel or such like because the law regards not such small matters INFINITENESSE after a Manner being present in all his courts and as it were in all places PERPETUITIE having perpetual succession and being not subject to dye PERFECTION for no laches folly infancy or corruption of blood can be judged in him TRUTH he cannot be estopped JUSTICE he cannot be a disseisor or do any wrong There are also divers prerogatives and priviledges by the Common law belonging to the King and divers Acts which the King may do or not do by reason of his Supremacy The King shall not in his writ give any man the style or title of Dominus because it is unbeseeming his Majesty to use that tearm to any he being himself omnium subditorum supremus Dominus the supream and soveraign Lord of all his subjects and in this case although there be variance between the Writ and Obligation 8. E. 6.23 B. 11. E 4.2 8. E. 4.2 or other specialty yet the Writ shall not abate which it shall in other cases as if they vary in the name or sirname or if they vary in the surn The King can hold land of no man As p. 1.18 Elizab. 498. because he can have no superiour but on the other side all lands either immediately or mediately ate holden of him as Soveraign Lord for although a man hath a perpetual right in his estate yet he hath it in the nature of a fee and whether it cometh to him by descent or purchase he oweth a rent or duty for it and therefore when in pleading a man would signifie himself to have the greatest right in his estate Littleton f. 3. he saith Que il est ou fuit seise de ceo en son demesne come de fee that he is or was seised thereof in his demeasne as of fee and if a man holds his estate immediately of the King as of his Crown or person this tenure is called a tenure in capite because he holds it of the supreme head of the Common-wealth If a man holdeth land both of the King and other inferiour Lords whereby his heir becometh a Ward the King alone shall have the custody both of the heir and land the reason which is rendered in law is because the King can have none coordinate with him or superiour to him Glanvil lib. 7. cap. 10. Si quis in Capite de Domino Rege tenere debet tunc ejus custodia ad Dominum Regem plene pertinet sive alios Dominos habere debeat ipse haeres sive non quia Dominus Rex nullum habere potest parem multo minus superiorem i. e. If any man houldeth land of our Lord the King in capite then his wardship shall wholly belong to our Lord the King whether he hath other Lords or not because the King can have no equal much less a superiour Bracton lib. 2. cap. 37. Si aliquis haeres terram aliquam tenuerit de Domino Rege in Capite sive alios Dominos habuerit sive non Dominus Rex aliis praefertur in custodia haeredis sive ipse haeres ab aliis prius fuerit feofatus sive posterius cùm Rex parem non habeat nec superiorem in regno suo i. e. If an Heir holdeth land of our Lord the King whether he hath other Lords or not our Lord the King shall have the wardship of the heir whether the heir were first or last infeoffed by others because the King hath no equal or superiour in his Kingdom The law is the same as well for whole Societies Incorporated and collective bodies as for Particular men if a man should make the two houses his heir leaving them lands holden of them by Knights service if the same persons held also of the King in capite by Knights service the King alone should have the wardship and custody of the heir and land though first infeoffed by the others and the reason in law of this prelation is saith Bracton and Glanvil because the King hath neither equall nor Superiour By the common law there lieth no action or writ against the King but in case he seiseth his subjects lands 21. H. 7.2 or taketh away their goods having no title or order of law petition is all the remedy the subject hath Stanford in his exposition of the Kings Prerogative c. 22. and this petition is called a petition of right The reason which is
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
been then so moulded as they are at this this time for all their friends must needs be contained under one of those degrees and in case his supposition were true should not have been distinguished from their wise men which in all good construction they must for the words do evidently imply that besides their wise men they called such other of their friends as they thought by reason of their prudence or power and prevalency with the people were most like to assist them and further their designs But whosoever their wise men were although they were frequently called yet they were not all of them called alwayes to make laws for in the time of Ethelstane divers Lawes were made by the Counsel and assent of the Clergy alone which we find amongst his other laws Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 minum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 binnon mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. i. e. I Ethelstane K. signifie to all my Governours within my Kingdome that by the advice of Wulfhelmus my Arch-bishop and all my other Bishops and servants of God for the forgivenesse of my sins I have ordained c. And although lawes were frequently made Polydor. Virgil. lib. 11. Hist and Parliaments holden in the Reigns of the Saxon Kings yet the people had been so seldome called to such conventions in the time of Henry the first that Polydore Virgil saith that institution may seem to have sprung from him At illud appositè habeo dicere Reges ante haec tempora non consuevisse populi conventum consultandi cansa nisi perraro facere adeo ut ab Henrico id institutum jure manasse dici possit i. e. But this I can speak appositively that Kings before these times were not accustomed except very seldome to call the people to their consultations so that this institution may be said to have had its first beginning from King Henry This is certain the House of Commons hath been accustomed now a long time to give their consent in making Lawes but how long is not certain their opinion is most likely which think this custome began to take place about the time of Edward the first For there are probable reasons which confirme that Laws were made without the Concurrence of the Commons long after the time of the abovesaid Henry the first who although he did call them more frequently then any of his predecessors had done yet he did not bind himself to make laws alwayes by their assent But because it would requite anintire treatise to speak sufficiently of this subject and because it can no way prejudice the cause in hand if we grant Parliaments as they are now molded to be by fundamental agreement seeing the K. by the laws of the land and the said sundamental agreement is invested as hath been shewed with all the rights of Soverainty I will lay by many advantages and omit many reasons and passages which I could alledge touching this matter Sixthly if the Nobility and people be then and only then coordinate with the King when they are in their site relation order and union in Parliament as the fuller Answerer affirmeth in time of Parliament the Kingdome should be a Head without a Body For if the King be part of the Head and the whole Nobility part of the Head and all the people part of the Head too where is the Body And on the other side in the vacancy of Parliaments the Kingdome should be a body without a Head For if the Nobility and people be only coordinate when they are in their site relation order and union in Parliament after a Parliament be broken up where is the Head For as the preservation of the whole consist in the order and union of its parts so the dissolution of it followeth their seperation and divorce If this opinion then were true the Common-wealth should be a strange deformed Monster for in time of Parliament when all the Body were a Head it should be monstrous by too much perfection and our of Parliament when two parts of the Head were fallen into the Body it should be monstrous by too little In both cases it should want that beauty and comlinesse which consists in the harmony and proportion of several parts Seventhly if we descend into particulars we shall find Parliaments to be so molded that their frame and composition rendereth the two houses an unmeet subject for supreamacy for the Militia the power of making warre or peace with forrain princes and most of the other rights of Soveraigntie require a subject perpetually existent many occasionall accidents may arise that may call for present and sudden use of the supreame power for which there can be no provision made by bodies not existent Lastly if the people collectively taken be Supreme and above their King there should be in every Kingdome of the world many Millions of Kings namely All the Subjects and these many Millions of Kings should have but one Subject amongst them all namely Their King I could adde much more both from the statutes Common law and reason as well concerning the Kings Supremacy in general as concerning the particular rights of Soveraignty But I presume that which hath been said is more then sufficient not only to satisfie all that are indifferent and neutral but to convince those that are most interessed who shall not easily find shifts and distinctions plausible enough to illude such clear testimonies of law But God only is able to change their hearts and to make such impressions there as can cause them to repent and turn from their evil wayes I shall pray continually he would do it as well in regard of the peace and happinesse of the Kingdome as of their own salvation which I cannot otherwise hope they should obtain For whatsoever deceives them and bears up their spirits for a time repentance at last if God give them grace will prove their best fortune CHAP. VII Divers Objections made by the pretended House answered The Kings Supremacy shewed to be in His Person not in His Courts THE Kings Supremacy being made apparent I shall now proceed to answer their objections which yet are of that nature that they deserve more to be contemned then answered for in stead of Law they alleadge Bedas axioms their own fancies and such other impertinencies as one would think should sooner move a man to laughter then to be of their opinion But because they shall not complain that their objections are concealed and because in answering them I shall further confirm the Kings Supremacy I will bring them all in order not suppressing or omitting any thing that hath but the face of an objection how slight and impertinent soever I will begin with that which is alleadged by them in several declarations the summe and substance whereof is that which followeth Object 1 The Kings Supremacy is meant in curia non in Camera in
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
in his person without and above his Courts for as hath been shewed the King hath not only an extraordinary jurisdiction where cases can have remedy no where else but ordinary also above all his courts wherein he is but virtually present Bracton Sicut Dominus Papa in spiritualibus super omnibus habeat Lib. 5. cap 15. ordinariam jurisdictionem ita haber Rex in Regno suo ordinariam in temporalibus pares non habet neque superiores That in Fleta is also to be understood of the Kings ordinary jurisdiction Lib. 1. cap. 17. Potentia Rex omnes in Regno suo praecellere debet quia parem habere non debet nec multo fortius superiorem in justitia exhibenda The King ought to have a superimenent power above all the rest in his Kingdome because he ought to have no equal much lesse a superiout in exhibiting justice CHAP. VIII Divers general objections made by the Author of the Treatise of Monarchy touching the limitation and mixture of the English Monarchy and coordination of the two Houses answered The Nature of Absolute Limited and Mixed Government Explained THE Author of the Treatise of Monarchy the fuller Answerer and other Pretended Parliamentarians have invented a new form of Government to delude the People which they tell them is the Government established in England namely a mixed Monarchy consisting of three Estates independent for their authority upon one another all of them being coordinate and having several shares in the rights of Soveraignty by the fundamental lawes of the land A strange kind of Monarchie not so much as heard of until these times much lesse established in England for a Monarchy is the Government of one alone as the Etymologie of the word importeth now to say the Government of three Estates is the Government of one alone doth not sound half handsomely Other Authors have spoken of mixed Government and mixed Common-wealths but of mixed Monarchy in that sense which they do none but themselves have treated For according to the Verdict of other Authors Besol Synops polit doct lib. 1. cap. 6. when Monarchy Aristocracy and Democracy are melted and allayed together that which resulteth can take its name from none of the simple species or kinds of Government although the chief authority or primity of share belong to any one of the estates Yet if they will needs have a mixed Government to be denominated from that kind that hath predominancy they might with better reason have called their new frame a mixed Democratie this denomination besides that it is not so improper as the other Democratie implying the Government of the people but not of the people only as Monarchy doth of the Monarch alone is more agreeable to the quality and nature of their platforme for the Kings authority being so inconsiderable as they make it the people in this mixture must needs be the predominant Element The Author of the Treatise of Monarchy who seemeth to give most to the King although in terms he grants him a primity of share in the supreme powet yet in substance he would have it placed in the two Houses attributing unto them such authority as they may thereby make him deprivable at their pleasure Now although the said Treatiser seemeth to be a Poet rather then a Lawyer having many new fictions but scarcely a word of law in all his treatise yet because I cannot conveniently reduce his objections to any of the other Questions that are hereafter to be discussed I will answer them in this place But before I come to examine them that all things may be clear and better understood I will for perspicuity sake speak a word or two of the division and several kinds of Absolute Limited and Mixed Government I will begin with Absolute Government of which there be three kinds the first is Absolute both in respect of power and also in respect of the use and exercise of it In this kind of Government the Supreme Governours have perfect Absolute full and intire power and in the exercise of it are subject to no limitation made by any humane law paction or agreement but are limited ab externo by the lawes of God and nature onely being otherwise left to the free determination of their owne wills This is also called Arbitrary government not because such governours as have the free use of their power may doe what they please for their power is bounded by the lawes of God and nature and may not transgresse and goe beyond its limits but because it is not bounded by any humane positive law made to restraine and regulate it The ends of Government may be attained severall wayes in many particulars without breach of the Lawes of God and nature now when a Governour is not directed to his end in any of those particulars by humane constitution and appointment but hath an open and free passage to act which way he please his Government is Absolute and Arbitrary Amongst all the severall kindes of Government this onely is jure Divino as being more ancient then any humane law that could be made to direct it by virtue and authority whereof humane lawes were at first enacted all other sorts were introduced by the policy of men yet lawfull humane Constitutions serving to conduct power to its end making as it were a furrow for it to passe in and to contain it which otherwise is apt to overflow its bounds and to degenerate into tyranny The second is Absolute in respect of the power alone In this kind of Government the Supreme Governours have as perfect Absolute full and intire power as the former their authority have the same latitude and all the same dimensions but they are limited ab externo in the use and exercise of it either by originall and fundamentall constitution or else by lawes made afterwards by speciall grace and condescention so that although their power be perfect Absolute full and intire in all respects and able to produce all the effects of Government yet they can not put it forth and act by it according to their own free election or according to the full activity of it but must act according to those limitations made and granted by law The third is Absolute in respect of the exercise onely In this kind of Government the exercise of the supreme authority is committed for a certain time but the supreme authority it self not translated to one or more who by virtue of the said commission may exercise the power in an arbitrary manner during the time assigned them Such were the Dictators of the Romane Commonwealth who ruled as arbitrarily all the time of their Dictatorship as the most Absolute Monarchs in the world yet the supreme authority remained in the Senate And such are they who exercise Royal power in the minority of Princes whose Government is Absolute and Arbitrary There are also three kindes of Limited Government answereable to Absolute the first is Limited both in
is it may be inherent in his own Person and yet be in others too as the light of the Sun is inherent in its own body and yet multiplyed and diffused through the world Now when it is separated from him after that manner it is commonly called their authority to whom it is committed because they are the seat and subject of it That light which the Stares derive from the Sun is usually called the light of the Stars and the Stars are said by the means thereof to concurre with the Sun and to have a causality and operation upon inferiour bodies it is no impropriety to say The light of the Sun and the light of the Stars inlightneth all the world although the light of the Stars be derived from the Sun But secondly what if it be granted that the Lords and Commons have authority of their own distinct from the Kings authority To speak my own opinion freely I think they have a distinct authority I mean not Supreme authority but an authority derived from the King yet distinct from his He that hath but a delegate power if it be committed to him for term of years term of life or perpetuity he doth by such a grant acquire an estate in the said power and an authority distinct from his that gave it him As in an Estate of lands wherein a man hath a perpetuall right in fee simple or in fee taile his right is distinguished from the Kings right of whom he holds it the King having the demeane of the Land and the other the demeane of the Fee so it is in an estate of power and authority if the King granteth an estate of power authority and jurisdiction in fee simple or in fee taile for term of years term of life or perpetuity their rights in the said authority are distinct the King hath the demean of the Power the other the demean of the use the King hath Dominium directum the other Dominum utile And this is the present case the Legislative power is wholely and intirely the Kings yet the Lords and Commons have a perpetual right in the use and exercise of some part thereof so that the King cannot actually make a law except they will also use the authority committed to them it being in their power to assent or not assent to use or not to use the said authority There is an authority then in the Lords and Commons distinct from the Kings authority which must necessarily be put forth in the making of lawes yet not supreme but subordinate to the King derived from him and depending upon him But this is more then can be forced out of the foresaid clause and I think more then is intended in it Object 4 Fourthly that Monarchy in which three estates are constituted to the end that the power of the one should moderate and restrain from excesse the power of the other is mixed in the root and essence of it but such is this as is confessed in the answer to the said propositions Reply The Antecedent and Consequent are both false The erection of Courts wherein the Judges have authority to proceed according to law notwhitstanding the personall and arbitrary Commands of the King hath alwayes been esteemed a strong and effectuall means to restrain and moderate the excesses of Monarchie Yet the Judges cannot be inferred from hence to be coordinate with the King in the rights of Soveraigntie or to have a mixed power with him in the Government of the Kingdome But the Consequent hath neither apparence nor shadow of truth Parliaments were ordained that the other estates might consult with the King about the weighty affairs of the Kingdome as often as he thought it needfull and agree to such laws as should be found profitable and expedient not that they should quarrell and contest with him It is true the two Houses do for the most part in time of Parliament gain an opportunity to have grievances redressed because they may otherwise deny the King the assistance he desire but they have no authority radically in themselves to redresse them or to restrain and moderate his excesses by force of armes nor were they constituted for that end If it should be granted that Parliaments are by originall constitution and agreement and that the People have alwayes given what lawes they pleased to the Conquerour as often as the Crown hath been obtained by conquest yet in probability they could have no such end as this Treatiser imagineth or to abuse the people seemeth to imagine had they purposed the three estates should moderate the excesses of one another in Parliaments they would never have granted the King authority to dissolve them at his pleasure whereby he might easily avoyd and frustrate their intention Besides Parliaments are so tempered as it is imposible to attain to that end by such a mixture one of the estates or any two of them having no authority to make an act of Parliament without the third which way can they moderate the excesses of one another by such acts further then the exorbitant estate shall be willing to be moderated Nor doth his Majesty as he imputeth to him any where confesse that three estates are constituted in this Monarchie to the end that the power of one should moderate and restrain from excesse the power of the other he should therefore have cited his words that the Reader might have judged of their sense These are the objections brought by the Author of the Treatise of Monarchy which are partly taken out of the fuller Answerer and partly invented by himself In answering them to avoyd needlesse Controversies I have granted that a mixed form of government is possible although I be not ignorant that a mixed government is but the invention of later times and reputed impossible by authors of chiefest note I have admitted also that the King the Nobility and Commons are the three estates of Parliament although I know this contrary to the Statutes wherein the three Estates of Parliament are declared to be the Clergy the Nobility and the Commons I have insisted the longer upon these Objections because the Author of the foresaid Treatise is esteemed by some the chief Advocate of that side I intend not to derogate from the Author who I presume would have written more substantially had the case been capable of defence yet if a man may guesse at his humour by that Treatise he seemeth to be much more inclined to assert new principles then to shew reasons how they should be maintained That he might illude the Laws wherein the government of England is declared Monarchical he layeth down divers positions to this effect that where a transcendent interest Part 1. cap. 4. or primity of share is in one man it is sufficient to constitute a Monarchy although the other estates have their shares also in the rights of Soveraignty and supreme Authority but he doth not so much as offer to prove this either by law or
posse Comitatus if need be to expell this Officer of the Kings and bring him to condigne punishment for resisting the Kings authority in his Lawes Here now is raising of Arms by the Kings legal authority against the Kings Title and the Kings Officer notwithstanding any pretended authority from the Kings personall command and that Officer hath a Writ of Rebellion sent against him and shall be punished by Law for offering to resist the Law upon any pretence ask the Lawyers whether in sence this be not the Law and ordinarily practised save that the King do not command the contrary but whether that would hinder Law or not the Parliament may then in case of necessity raise arms against the Kings personall command for the generall safety and keeping possession which is more necessary then the hope of regaining of the Houses Lands Goods Liberties Lives Religion and all and this by the Kings legall Authority and resisters of this are the Rebells in the Lawes account and not the instruments so imployed legally though with Arms by the Parliament Reply For matter of fact it was themselves that withheld Delinquents from a legall tryall the King detained none but when divers Members of the Parliament were assaulted in the streets driven from the house defamed by Libells and Justice not permitted to take place it was the office of the King to protect them in their Rights and Liberties and to force the due execution of the Lawes and if he refused to yield up those to their injustice which assisted him this was not to keep Delinquents from their tryall but to protect his loyall subjects according to law this for matter of fact But for matter of Right suppose the King had taken up arms unjustly the Law doth not permit his Courts to oppose him or to call any in question that are assistant to him when the King taketh up arms they which attend upon his Person or are imployed in other places about the same service may not be molested or troubled by processe of Law either in Parliament or in any of his Courts as is declared and enacted by a Statute made the eleventh year of Henry the seventh The King our Soveraign Lord calling to his remembrance the duty of Allegiance of his Subjects of this his Realm 11. H. 7. cap. 1. and that they by reason of the same are bound to serve their Prince and Soveraign Lord for the time being in his wars for the defence of Him and the Land against every rebellion power and might reared against him and with him to enter and abide in service in battail if case so require and that for the same service what fortune ever fall by chance in the same battail against the mind and will of the Prince as in this Land sometime passed hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Soveraign Lord in Wars attending upon him in his Person or being in other places by his Commandement within this Land or without any thing should lose or forfeit for doing their true duty and service of Allegiance It be therefore ordained enacted and established by the King our Soveraign Lord by the advice and assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upon the King and Soveraign Lord of this Land for the time being in his person and do him true and faithful service of Allegiance in the same or be in other places by his Commandement in his Wars within this Land or without that for the said deed and true duty of Allegiance he or they be in no wise convict or attaint of high treason ne of other offences for that cause by Act of Parliament or otherwise by any processe of Law whereby he or any of them shall lose or forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chattels or any other things but to be for that deed and service utterly discharged of any vexation trouble or losse As for the case that is put by them it is very impertinent and the whole Objection made both by Mr. Bridge and themselves full of erronious passages and mistakes first they assume the two Houses to be the whole Parliament Secondly they assume them to be a Court of judicature Thirdly they assume the Judges to have a power of suppressing any Delinquents and maintaining themselves by arms The two former assumptions are absolutely false and the latter true only in some cases so far as they have order of Law and no man deny such a power to be in either of the Houses they may force Delinquents to appear before them in such cases and in such a manner as the Law hath provided for what is so done is done by the Kings Command in Law which is to be obeyed before his personal commands But they must proceed no further nor after any other manner then the King commands in Law And first although the Kings bare Command be not sufficient to warrant his Tenant or others to resist the sentence of his Courts yet if the King in Person taketh up arms and granteth Commissions to any to assist him his Courts must then forbear all processe of Law and desist from all further opposition as is provided in the foresaid statute And secondly although the King doth not authorize the fact in person or by Commission yet neither the two Houses in Parliament nor the Judges can make what Ordinances they please to raise arms or imploy their own instruments to bring in Delinquents but must proceed according to order of Law and commit the whole carriage of the businesse to such of the Kings Officers as are appointed for that purpose which are chiefly the high Sheriffs of Counties who are also confined by Law and may not exceed their Commission For both in the case put by the reverent Divines and also in all cases whatsoever if Delinquents grow so strong that they be able to resist the posse Commitatus and cannot be suppressed but by a War and by the Militia of the Kingdom the Sheriffe ought then to certifie the Court thereof and the prosecution of the matter must be left to the King to whom only it is reserved to preserve the peace of the Kingdome in such cases Object 2 Secondly against the Kings Negative voyce they urge the Oath taken at his Coronation whereby they say he is bound to give his assent to all Bills offered him by the Lords and Commons They have found out a form in Latin which they say was anciently used and ought now to be taken the Form is this Concedis just as leges consuetudines esse tenendas promittis pro te eas esse protegendas ad hónorem Dei corroborandas quas vulgus elegerit secundum vires tuas Resp Concedo