And in another of the same Kings it is called The most Royal Estate of your Imperial Crown of this Realm and the same word Imperial made use of ten other times in the same Statute to the same purpose And with this agrees the Statute of Ireland where in express words also the Kings of England are entituled Kings and Emperors of the Realm of England and of the Land of Ireland and that too five years before the Title of Lord of Ireland was altered into King And by the Act that so alter'd it it is called The Majesty and State of a King Imperial And so in the first of Qu. Eliz. English in which the Oath of Supremacy was enacted the Crown of this Realm is three times called Imperial And in the third Chapter of the same year as often And in the 5th of the same Queen that requires all Ecclesiasticks Graduates in any University or Common-Laws Officers of Court Attorneys every Member of Parliament under the degree of a Baron to take the said Oath of Supremacy before he enter the House or such Election to be deemed void calls it The Dignity of the Imperial Crown And the Act of Recognition of King James uses the same expression of Imperial four times And upon a like ground of mere Supremacy was that Act of Scotland before the Union of the Crowns wherein 't is said Our Sovereign Lord his full Jurisdiction and free Empire within this Realm Scotland And the late Oath or Test prescribed to be taken by all persons in Publick Trust in that Kingdom declares the Kings Majesty the only Supreme Governor of that Realm over all persons as well Ecclesiastical as Civil And the Act of acknowledging and asserting the right of Succession in that Kingdom calls it the Imperial Crown of Scotland In all which matters I have been the more particular that I might the better evince my Reader that this Independent Sovereignty and Supremacy of the Kings of England c. has not been the opinion of any one time but the general consent of all and that our Kings hold their Crowns in chief from God and owe no precarious acknowledgments to the courtesie of the People Nor is the Kings Immediate Personal Originary Inherent Power which he executes or may execute Authoritate Regiâ Supremâ Ecclesiastica as King and Sovereign Governor of the Church of England to be less consider'd it being one of those flowers which make up his Crown and preserve it in verdure And here I question not but it will be granted that the King is the Supreme Patron of all the Arch-Bishopricks and Bishopricks of England as being all founded by the Kings of England to hold Christi Baroniam excepting that of Soder in the Isle of Man which was instituted by Pope Gregory the Fourth and may perhaps be the reason why the Bishop thereof hath neither Place nor Voice in the Parliament of England and so were at first donative Per traditionem annuli baculi Pastoralis by the delivery of a Ring and the Pastoral Staff or Crosier And the Bishop of Rome persuading Henry the First to make them Elective by their Chapters refused it But King John by his Charter recognising the Custom and Right of the Crown in former times by the common consent of his Barons granted that they should be eligible as least doubting he had so far lockt up himself as that he might not be receiv'd to disapprove or allow for before that I find That when he had given a Conge d' eslier to the Monks of Canterbury to Elect an Arch-Bishop and Pope Innocent the Third notwithstanding the Kings desires of promoting the Bishop of Norwich to it whom also they had Elected had under a Curse commanded them to choose Stephen Langton with which for fear of Excommunicacation they comply'd the King banishes the Monks as Traytors and writes to the Pope that he had subverted the Liberties of his Crown by which it appears that he lookt upon himself as the Supreme Governor of the Church of England and that no Arch-Bishop or Bishop could be put upon him without his consent and what advantage the Kingdom got by this Usurpation may be gather'd from the effects when after a more than six years Jurisdiction the King Depos'd and a free Crown put in Vassalage it only open'd a way to those future Broils between him and his Barons which lasted all his time and wanted no fuel to feed 'em till towards the latter end of his Son men began to stand at gaze and as infatuated or startled at they knew not what thought it more safety to look on than lend a hand to master it nor had they fully resolv'd what to do until the Pope having demanded Homage of Edw. 3. and the Arrears of one thousand Marks per ann for the Kingdoms of England and Ireland which had been also demanded in the 3 of Edw. 1. and in case of non-performance threatned to make out Process against the King and Kingdom then at last the scales fell from their eyes and as men got out of a dream they began to consider what they had startled at and as an argument of their recovered Senses the Lords Spiritual by themselves the Lords Temporal by themselves and the Commons by themselves unanimously resolv'd and declar'd That the King could not put Himself his Realm or his People in subjection without their Assent and albeit it might it is as saith Sir Edw. Coke Contra Legem consuetudinem Parliamenti contrary to the order and custom of Parliament because it is a disherison of the King and his Crown after which to avoid all further dispute the manner and order of Election of Arch-Bishops and Bishops and all things relating thereunto is setled by Statute viz. 1. Negatively That no one thereafter be Presented Nominated or Commended to the Sea of Rome for the Dignity or Office of any Arch-Bishop or Bishop within this Realm or any other the Kings Dominions 2 Affirmatively That at every avoidance of any Arch-Bishoprick or Bishoprick as before the King our Sovereign Lord his Heirs and Successors may grant to the Dean and Chapter of the Cathedral Churches where the Sea of such Arch-bishoprick or Bishoprick shall happen to be void a License under the Great Seal as of old time hath been accustomed to proceed to Election of an Arch-Bishop or Bishop of the Sea so being void with a Letter missive containing the name of the person which they shall Elect or Choose by virtue of which they elect the said person c. or in case of refusal incur the Penalties of a Premunire So that upon the whole the Election in effect is but a matter of form it is the Kings meer Grant which placeth and the Bishops Consecration which maketh a Bishop Neither do the Kings of this Land use herein any other than such
Prerogatives as Forein Nations have been accustomed unto Or otherwise what made Pope Boniface solicit the Emperor Honorius to take order that the Bishops of Rome might be created without ambitious seeking of the Place A needless Petition if so be the Emperor had no right in placing of Bishops there Of which there are several other instances in a piece of Mr. Hookers touching the Kings Power in the advancement of Bishops In short if before that Act of Hen. 8. a Bishop in England had been made a Cardinal the Bishoprick became void but the King should have nam'd the Succsseor because the Bishoprick is of his Patronage And as to the Arch-Bishops and Bishops in Ireland the respective Chapters of ancient time upon every avoidance sued to the King in England to go to the Election of another and upon certificate of such Election made and the Royal Assent obtain'd a Writ issued out of the Chancery here to the Lord Chief Justice of Ireland or the Lieutenant rehearsing the whole matter and commanding him to take fealty of the Bishop and restore him to his Temporalties But now the course is that such Writs are made in Ireland in the name of the King who nominates the Arch Bishops and Bishops there as he doth in England and then the Chapter choose him whom the King names to them and thereupon the Writs are made of course Nor were the Kings of England even in those times excluded but still acknowledg'd to have Power of Dispensation and other Ecclesiastical Acts. And therefore as he first gave Bishopricks and Abbeys and afterward granted the Election to Deans and Chapters and Covents so likewise might he grant Dispensation to a Bishop Elect to retain any of his Dignities or Benefices in Commendam and to take two Benefices and to a Bastard to be a Priest And where the Statute 25 H. 8. c. 21. says That all Dispensations c. shall be granted in manner and form following and not otherwise yet the King is not thereby restrain'd but his Power remains full and perfect as before and he may still grant them as King for all acts of Justice and Grace flow from him and on this account also he can pardon any Ecclesiastical Offence as Heresie for example is a cause merely Spiritual or Ecclesiastical and yet the King may pardon one convict of Heresie And as the King may dispense or pardon so also does that Supreme Power enable him to several other things relating to Church-matters which pertain not to another He may found a Church Hospital or Free Chappel Donative and whether he specially exempt the same from ordinary Jurisdiction or not his Chancellor and not the Ordinary shall visit it and he may by his Charter license a Subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof Common Persons were Patrons So he shall visit Cathedral Churches by Commissioners Sede vacante Archiepiscopalii He may also revoke before Induction by presenting another for the Church is not full against the King till Induction And therefore if a Bishop Collates and before Induction dies by which means the Temporalties come into the Kings hands the King shall present to the avoidance for the same reason In short He is the Supreme Ordinary and on that account may take the resignation of a Spiritual Dignity Neither did the Abbots and Priors in Edward the Fourths time think him less when they stile him Supremus Dominus noster Edwardus 4. Rex which agrees with the Laws before the Conquest in which the King is called Vicarius summi Regis The Vicar of the highest King And albeit Ecclesiastical Councils consisting of Church-men did frame the Laws whereby the Church Affairs were ordered in Ancient times yet no Canon no not of any Council had the force of Law in the Church unless it were ratifi'd and confirmed by the Emperor being Christian In like manner our Convocations that assemble not of themselves but by the Kings Writ must have both Licence to make new Canons and the Royal Assent to allow them before they can be put in Execution and this by the Common Law for before the Statute 25 H. 8. c. 19. A Disme i. e. the Tenths of all Spiritual Livings in ancient times paid to the Pope granted by them did not bind the Clergy before the Royal Assent In a word the King may make orders for the Government of the Clergy without Parliament and deprive the Disobedient And the Act for suppressing Seditious Conventicles has a saving to his Majesties Supremacy in Ecclesiastical Affairs And so I hope I have clear'd this point That the Kingdom of England c. is a Sovereign Imperial Monarchy of which the King is the only Supreme Governor as well in all Spiritual or Ecclesiastical Things or Causes as Temporal It remains now that I shew That however the Emperors of the West and East have so much striven about that great Title of Emperor or Basileus that yet the Kings of England as Supreme within their Dominions have also justly used it and that from ancient Ages as no less proper to their own independent greatness And here amongst many others we have Edgar frequently in his Charters stiling himself Albionis Anglorum Basileus King of Britain and the English And in one of his to Oswald Bishop of Worcester in the year 964. and of his Reign the sixth Ego Edgarus Anglorum Basileus omniumque Regum Insularum Oceanique Britanniam circumjacentis cunctarumque Nationum quae infra eam includuntur Imperator Dominus c. I Edgar King of the English and of all the Kings of the Isles and the Ocean lying round Britain i. e. England Scotland and Wales and of all the People therein Emperor and Supreme Lord for the word in this place bears no less as I have shewn it before in the Word Lord of Ireland Wherein it is observable that as long since as it is that yet the King of England or Britain was Lord and Emperor of the British Sea which agrees with that of one of his Successors Canutus when sitting in a Chair by the South Shore he used these words to the Sea Tumeae ditionis es terra in qua sedeo mea est Thou art of my Dominion or Empire and the Land whereon I sit is mine as taking it clearly that he was the Supreme Lord and Emperor of both whence also it is affirm'd by Belknap one of the Justices of the Kings Bench 5 R. 2. That the Sea is of the King Ligeance as of the Crown of England So that Edward his Son in a Charter to the Abbey of Ramsey Ego Edwardus totius Albionis Dei moderante gubernatione Basileus I Edward by the Guidance or
Assistance of God King of Britain And Edwine in a Charter of his to the Abbey of Crowland is stiled Edwinus Anglorum Rex totius Britanniae telluris Gubernator Rector Edwine King of the English and of all the British Land Director and Governor In like manner Ethelred in a Charter of his to the Church of Canterbury stiles himself Angligenum Orcadarum necne in gyro jacentium Monarchus Monarch or sole Governor of the English the Isles of Orkeney and all that lie within that Circuit but subscribes it Ego Aethelredus Anglorum Induperator c. I Ethelred Emperor of the English And besides what I said before of King William Rufus that said he had the same Prerogatives in his Kingdom as the Emperor claim'd in the Empire in a Charter of his to the Monastery of Shaftsbury he says Ego Willielmus Rex Anglorum anno ab incarnatione 1089. secundo anno mei Imperii I William King of the English in the year of our Lord 1089. and of my Empire the second And now having brought it thus far I shall in the next place examin the unreasonableness of that new Notion that the King is one of the three Estates and doubt not but to prove the contrary to any man but him who will not be persuaded tho you shall have persuaded him SECTION VI. That the King is none of the Three Estates in which two preliminary Objections are examin'd by Reason and answered by the manner of the Three Estates applying to him What the Three Estates are To presume him one of them were to make him but a Co-ordinate Power The King cannot be said to Summon or Supplicate himself How will the Three Estates be made out before the Commons came in With a short Series during the Saxons to the latter end of Henry III. in all which time they are not so much as nam'd as any constituent part of a Parliament And the time when probably they first came in to be as they are at this day one of the three Estates That the Lords Temporal were never doubted but to be an Estate Four reasons offer'd that the Lords Spiritual are one other Estate distinct from the Lords Temporal and one Act of Parliament in point With other Authorities to prove the Assertion THose that would have the King one of the Three Estates say That our Government is a kind of mixt Monarchy inasmuch as in our Parliaments the Lower House as representing the Commons bear a semblance of a Democracy and the Lords of Aristocracy And others That the King Lords and Commons who as Assembled joyntly to the end of Legislation as one Corporation and no otherwise are the Law-giver We 'll examin it by reason which Neque decipitur nec decipit usquam and only commands belief when all things else beg it And here to come as near the wind as I can that I may the better get up with them admitting the semblance but not granting the thing what does this make for them or serve to prove that yet the Government is not a free Monarchy because the Supreme Authority as I said ere while resteth neither in the one House or the other either joyntly or severally but solely in the King at whose pleasure they are assembled and without whose Royal Assent they can make no Law to oblige the Subject And therefore not denying Bodin's distinction of a Lordly Monarch a Royal Monarch and a Tyrannical Monarch which relateth only to the Power and Practice of the Monarch yet the distinction of a Supreme and mixt Monarchy which designeth the manner of the Government is a contradiction in Terminis because that Government which extendeth it self to more than one can never be a Monarchy as is obvious to every one that understandeth the word Monarchy and was never heard of in our Land till the men of our late times instead of suppressing Idolatry c. had fram'd a new Idol of their own and having made it as gay as they could set it up to be ador'd by the Multitude always prone to admire every thing they least understand And what must the consequence of it be but that the Government must be partly Monarchical partly Aristocratical and partly Democratical which are in themselves contrary and to be governed by contrary Laws and if it be impossible to make any good out of two extremes as Monarchy and Democracy are what then shall be made of three confounded among themselves or how can it be that Sovereignty a thing indivisible can at one and the same time be divided between one Prince the Nobility and the People in common and not to be altogether a State Popular or at best a Venetian Republick wherein albeit there be but one Duke and He for life yet his person being not invested with the Supreme Power of Government he is in effect but Magni nominis umbra And as to the other That the King Lords and Commons as one Corporation and no otherwise are the Law-giver here I take the King to be in a worse condition for tho to the making of an Act the concurrence of both Houses is necessary yet of no effect if the King disapprove yet the Case of a Mayor Aldermen and Burgesses or whatever other the stile of the Corporation be is wholly different for they meeting together by the Princes grant in a kind of Democratical Common Council for the better Government of the place where they reside order every thing by most Voices wherein the Mayor himself has but one and is concluded by the greater number but the King having no Voice nor any one to represent him in the discussive part of any Act cannot be said to give his Royal Assent as one of the Corporation but by his inherent Legislative Prerogative and how improper the contrary is will further appear in that a Common-Council put what By-Laws they please upon the Mayor as long as they are not contrary to the Law of the Land because he has no negative upon them But in case of a Sovereign the first mark of it as I have shewn before is the Power of making Laws now who should those Subjects be that should yield Obedience to that Law if they also had the Power to make Laws or who should that Prince be that could give the Law being himself constrain'd to receive it of his Subjects unto whom also he gave it A thing not only incompatible but even absurd from every days Practice and Experience for do not the Three Estates of this Kingdom upon the passing of all Bills address themselves to his Majesty in the most humble Stile As that of the Petition of Right Humbly shew unto our Sovereign Lord the King the Lords Spiritual and Temporal and Commons in Parliament Assembled c. So to King James Most dread and most gracious Sovereign We your most Loyal and Humble Subjects the Lords c. So to Queen
and then thus altered viz. By the Assent of the Lords Spiritual and Temporal and at the special instance and request of the Commons and in the fifth of the same King By the Advice and Assent of his Lords Spiritual and Temporal and at the request of the Commons which so continued without any variation in substance until the 18th of Henry 6. at what time it became as we have it now viz. By the Advice and Assent of the Lords Spiritual and Temporal and the Commons Besides if the Lords Spiritual were not a third Estate what is the reason that at the making of the Statute of Praemunire that the Commons having declared that they would stand to the King in the defence of his Liberties and praying that all the Lords as well Spiritual as Temporal severally and all the Estates of Parliament might be examined how they thought of that matter The Lords Temporal being so demanded answered every one by himself and in like manner the Lords Spiritual severally examin'd answered by themselves which affords me a double Argument 1. That by all the States of Parliament there must be necessarily intended more than two if it were for no other reason than mere propriety of Speech 2. That the King could not make up that other or third Estate because he is desired to examin all the States severally which he could not do if he had been one of them himself so in the 40th of Edw. 3. which I should have named first when the King asks advice of his Parliament Whether King John could have subjected the Realm as what in him lay he did The Prelates by themselves the Dukes Earls and Barons by themselves and the Commons by themselves answered That he could not From which nothing seems clearer to me than that the Lords Spiritual are one Estate distinct from the Lords Temporal or otherwise what needed they have been examin'd by those several names of Spiritual and Temporal or as severally answer'd by the same appellations 5. And now if yet there remain'd any doubt we have one Act of Parliament clear in point where the question being whether the making of Bishops had been duly and orderly done according to Law the Statute says which is much tending to the slander of all the State of the Clergy being one of the greatest States of this Realm And so having found Three Estates without the King I think in good manners we ought to spare him I have hitherto offered some Reasons nor without their Authorities I come now to somewhat more direct if yet those of the 40th of Edw. 3. the 16th of Rich. 2. and the 8th of Qu. Eliz. last mentioned could be thought otherwise I 'll begin with the Statute of H. 8. where this Kingdom is called an Empire governed by one Supreme Head and King unto whom a Body Politick compact of all sorts and degrees of People divideth in Terms and by names of Spiritualty and Temporalty been bounden and who can believe that the Authority of a Parliament should utter any thing in Parables or under double meanings contrary to the common sense of the express words or that there was ever intended by the words divided in Terms and by names of Spiritualty and Temporalty so many mere words and no more However to take off all doubt Sir Edw. Coke says The High Court of Parliament consisteth of the Kings Majesty sitting there as in his Royal Politick Capacity and of the Three Estates of the Realm viz. the Lords Spiritual the Lords Temporal and the Commons And so Cowel The word Parliament in England we use it for the Assembly of the King and the Three Estates viz. the Lords Spiritual Lords Temporal and the Commons And Title Statute he saith it signifieth a Decree or Act of Parliament made by the Prince and the Three Estates unto whom as I said before they are subordinate in the Legislation and of no Power of themselves but joyned to their Figure have the full strength of their places which in short we may thus farther demonstrate under the familiar instance of a Dean and Chapter of whom the Dean is no part but Caput Capituli the Head of them And now if any one shall demand why this term of the Three Estates does not so frequently occur to us of Ancient time I answer That before the Commons were brought in there was no thought of it and since that time no dispute of it until of late where many a worse twig was even learnedly made use of to stilt and bolster a Ricketed Cause· However it is not too late that the Point is cleared now And so we have it in the Act for Unifermity of Publick Prayers made the 14th of this King where the Form of Prayer for the Fifth of November is thus entitled A Form of Prayer with Thanksgiving to be used yearly on the Fifth day of November for the happy deliverance of the King and the Three Estates of the Realm c. And with this agrees the Kingdom of Scotland of which Mr. Cambden in his History of Britain says That their Supreme Court is their Parliament which consisteth of Three Estates The Lords Spiritual the Lords Temporal and the Commons for Cities and Burghs of which the King is Directus totius Dominus And so a Parliament of that Kingdom reckons them It is ordained by the King by Consent and Deliverance of the Three Estates And the Act of asserting the Kings Supremacy over all Persons and in all Causes Ecclesiastical and the late Indictment against Argile and the Acts for the Acknowledging and Asserting the Right of Succession to the Imperial Crown of Scotland And that other for ratifying all former Laws for the security of the Protestant Religion agree in point with it Nor is it strange they should inasmuch as neither their Langue nor their Laws especially such as are criminal as may be seen by comparing their Regiam Majestatem with our Glanvil De Legibus written in Henry the Second's time much differ from ours And the Union of the two Crowns in the Person of King James is called An Union or rather a re-uniting of two Mighty Famous and Ancient Kingdoms yet anciently but one And that the Laws of Ireland a distinct Realm or Kingdom from both say nothing of this matter I take it to be for the same reason that the Romans made no Law against Parricide They never dreamt it SECTION VII Admitting what has been before offer'd wherein has our present King merited less than any of his Royal Ancestors with a short recapitulation of Affairs as they had been and were at his Majesties most happy Restauration and that he wanted not the means of a just Resentment had he design'd any I Have hitherto shewn that the Crown of England c. is Supreme Sovereign and Imperial nor will it be from the purpose now to demand Wherein has our present King less merited than
to the known Laws of the Land for Omnis sub Rege ipse sub nullo nisi tantum sub Deo Every man is in subjection to the King and he to none but God and so the Oath of Supremacy declares him the onely Supreme Governor of this Realm of which more hereafter when I come to speak of the Statute-Law and therefore if the King refuse to do right seeing no Writ can issue against him there is a place for Petition and if that prevail not Satis ei erit ad poenam saith the same Bracton quod Dominum habeat ultorem And with this agreeth that of Horace Regum timendorum in proprios greges Reges in ipsos imperium est Jovis And in this respect a Prince is not loosed from the Law for as much as concerneth the directive Power of it but having not the Law becomes a Law to himself as well knowing Observantior aequi Fit Populus nec ferre negat cum viderit ipsum Auctorem parere sibi 2. As to the Power of Peace and War It is the right of the King saith Fitzherbert to defend his Kingdom as well against the Sea as against Enemies which implies that it is his right to defend it against Enemies and how can he do it without the right of his Sword when if he should be oblig'd to pray in Aid of others perhaps they may be of another mind or take up so much time in the Debate that the Kingdom may be lost ere they resolve what to do And this I take to be one of the effects of Con-si-de-ra-ti-on in those matters whose good or ill fortune solely depends on Expedition and Secresie for Dangers as the Lord Bacon saith are better met half way than by keeping too long a watch upon their approaches for if a man watch too long 't is odds he will fall asleep But to proceed Sir Edw. Cooke says no Subject can levy War within the Realm without Authority from the King unto whom it only belongeth and that it was High-Treason at the Common Law before the Statute De proditionibus And in Calvin's case he makes it clear That to make Leagues or denounce War only belongs to the King who without his Subjects may grant Letters of safe Conduct and Denization and that this high point of Prerogative Royal cannot be conferred upon any other it being a right of Majesty and among the badges of Supreme Power And now one would think this were enough and yet a late Statute of this Kingdom makes it yet clearer it being thereby declared That the sole Supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all Forces and places of Strength is and by the Law of England ever were the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can nor lawfully may raise or levy War Offensive or Defensive against his Majesty his Heirs and lawful Successors c. all which is not introductive of a new Law but declaratory of the old as may be further seen by the penning thereof And now what can be added more but the Purse without which what 's the Sword but as the Greek Proverb has it A Bow without a Bow-man For in as much as Mony is the Sinews of War and Peace firmamentum belli ornamentum pacis they that hang the Sword on one side and the Purse on the other seem to me to hazard both for neither can any sudden danger of which the King was ever thought the Judg be stav'd off nor War carried on nor the Publick Peace be long preserv'd without it And therefore on such occasions have Parliaments advis'd and assisted the King in supplying his Wants without directing him it seeming hard that he should have Power to Proclaim War and not be able to maintain it and be bound to defend his Subjects but deny'd the means Qui dirimit medium destruit finem 3. As to the creation and appointing Magistrates and Officers especially such as are not under the command of others this also resides solely in the King for besides what I have said in the last Paragraph touching his sole Power in the ordering and disposing the Militia and all Forces by Sea and places of Strength by Land His is the appointing all the great Officers and Ministers of the Realm whether Spiritual or Temporal the highest immediately by himself the inferior mediately by Authority derived from him and as it were De lumine lumen So the King appoints the Lord Commissioner and all other the grand Ministers and Officers of Scotland and the Lord Lieutenant Lord Deputy Lords Justices and all other the grand Ministers and Officers of Ireland who also but in his Kings name appoint under him according to the extent of their respective Commissions so the Kings of England have and may at this day by Letters Patents make a Prorex Locum tenens or Guardian of the Realm before whom in their absence in remotis a Parliament may be held And such was Edward Duke of Cornwal 13 Edw. 3. Lionel Duke of Clarence 21 Edw. 3. John Duke of Bedford 5 Henry 5. And the Test of the Writ of Summons shall be in the Guardians name or by Commission under the great Seal to certain Lords of Parliament authorise them to hold a Parliament the King being then in the Realm but indisposed and such was that 3 Edw. 4. to William Lord Arch-Bishop of York and that other 28 Eliz. to John Lord Arch-Bishop of Canterbury and others ad inchoandum c. ad Procedendum c. ad faciendum omnia singula c. nec non ad Parliamentum adjournandum Prorogandum c. And so are Parliaments held in Scotland and Ireland before the Lords Commissioners Lord Lieutenant Lord Deputy c. of the respective Kingdoms 4. The Power of the last Appeal i. e. from whose Sentence no Appeal lies The only person besides the Kings of England that ever pretended to it here was the Pope tho yet the first attempt ever made that way was by Anselme Arch-Bishop of Canterbury in the Reign of King William Rufus but it took no effect And the Arch-Bishop concerning himself too much touching the Jurisdiction of the Pope in England the King told him Ad Officium Imperatoris spectat c. That it belong'd to the Emperor to make whom he pleas'd Pope and that for the same reason no Arch-Bishop or Bishop within his Realm should yield any subjection to the Court or Pope of Rome and chiefly in this respect cum ipse omnes libertates haberet in regno suo quas Imperator vindicabat in Imperio That he had the same Prerogative in his Kingdom that the Emperor claim'd in the Empire And
when Pope Innocent the Third had against the declar'd will of King John caused Stephen Langton to be Elected Arch-Bishop of Canterbury and after that confirm'd him and wrote to the King to receive him the King returns that he the Pope had subverted the Liberties of his Crown and that therefore he would prohibit all People going to Rome and from making appeals thither which confirms my former instance and that this Power was always in the King however for a time it might have happen'd to be neglected for otherwise it had been a vain thing in him to have expell'd the Monks of Canterbury as Traytors which he actually did or to have imagin'd that a Bigotted Seditious Clergy as at that time they were and to be headed by that Arch-Bishop at least no friend to the King if not his Enemy should be frighten'd with an empty Bug bear touching a matter whereof he had no cognisance had he not been satisfi'd it was in his Power to do it as well as his Father before him had done it And having thus occasionally nam'd him let me with all submission offer this to the memory of that unfortunate Prince that his designs in order to the freeing the Crown from Forein usurpation were mighty and that he came short in what Henry the Eighth afterwards effected was not that he was less able but his times worse for considering the unsettled condition of those times and at what disadvantages he came in what wonder if he were oppress'd by a Faction when deserted by his Subjects who otherwise had never suffer'd him to have made that Crown to the defence of which they had all sworn tributary which many years afterward when the Arrears of that Tribute were demanded was too late tho effectually enough declar'd in Parliament he could not do nor they consent to the doing it But to proceed When after this the Sea of Rome would be yet intermedling it was by all the States of Parliament severally examin'd and answering each State one by one personally for it self unanimously Declar'd That the Pope's awarding any Processes or Sentences of Excommunication c. against any Bishops or other Spiritual Persons for executing Judgments given in the Kings Courts was clearly in derogation of the Kings Crown and Regality used and approved of the time of all his Progenitors and which they would maintain as they were bound by their Liegance and thereupon Enacted That the purchasing any Bulls from Rome or elsewhere shall be a Premunire In which it is observable That as the Judges before that time were for the most part Church-men the Laity being not yet come up to Letters or where they were Rari nantes in gurgite vasto The Lords Temporal and the Commons of this Parliament were all Romanists and of what Persuasion the Lords Spiritual and their Assistants the then Judges were I leave to every man the question at that time being not matter of Religion but right of Superiority not the Church but Court of Rome And so Sir E. Cooke speaking of the first Article of the Statute of 25 H. 8. concerning the Prohibition of Appeals to Rome saith it is but declaratory of the ancient Law of this Realm And in another place The same Authority that the Pope ever exercised in this Kingdom by Usurpation was always in the King de jure With which also agrees the Lord Chief Justice Hobart That whatsoever the Pope did in this Kingdom even then when he was in his greatest height and strength was of no better force in right and justice than at the first when he was but simple Bishop of Rome which was coram non Judice and so Jus non habenti tuto non paretur 5. The Power of conferring Honors on which account he may also enable a man to assign his Surname Arms and Barony to another For as by the Laws of England all Lands within the same were originally derived from the Crown and holden of the King either mediately or immediately as Lord Paramount so also by the same Laws were all degrees of Nobility and Honor derived from the King as the Fountain of Honor. So H. 6. granted to H. Beuchamp Ut esset primus praecipuus Comes Angliae and that he should use the Title of Henricus Praecomes totius Angl c. ibid. 361. First Earl of all England c. And to the name Count or Earl which was the most ancient name of Dignity among the Saxons Edw. 3. Ang. Greg. 11. created the Title of Duke as distinct from that of Earl for in elder times they were oft synonimous with us and created his eldest Son the Black Prince then Earl of Chester into the Title of Duke of Cornwal which he created into a Dutchy and about the 18th of his Reign the most noble Order of the Garter And in the 9th of R. 2. Robert de Vere Earl of Oxford was created Marquess of Dublin And H. 6. the 18th of his Reign created John Lord Beaumont Viscount Beaumont of which Titles we find no mention in the Magna Charta 9. H. 3. for they were not at that time in being And to this yet further the Kings of England have and may at this day create a County-Palatine which none but the Emperor or a Supreme Monarch may do for whoever is owner thereof hath in that County Jura Regalia as fully as the King in Palatio Par curis solo diademate dispar So Hugh Lupus Nephew of King William the Conqueror was by him created Earl of Chester and the County given him Tenendum sibi haeredibus ita libere ad gladium sicut ipse Rex tenebat Angliam ad Coronam by which general words he had Jura Regalia within the said County and consequently a County-Palatine without express words and by force thereof he created eight Cheshire Barons So not long after his time was the County-Palatine of Durham raised And in the 10th of H. 1. the Royal Franchise of Ely In the 13th of Edw. 3. the County-Palatine of Pembroke And in the 50th year of his Reign the County of Lancaster was by him erected into a County-Palatine and by him given to his fourth Son John of Gaunt then Duke of Lancaster for life to which if any one shall say that it was De assensu praelatorum procerum Sir Edw. Coke answers for me That the King may make a County-Palatine by his Letters Patents without Parliament Add to this the three first Counties-Palatine created in Ireland by Henry the Second viz. Leinster which he granted to Earl Strongbow who had married the Daughter and Heir of M. Morough Prince of Leinster 2. Meath to Sir Hugh Lacy the Elder 3. Ulster to Sir Hugh Lacy the younger and had their Barons under them answerable to the Barons created by H. Lupus of which before Of which you may read excellent Learning
assembled the Elders of Israel and all the rulers of the Tribes and the heads of the families of the children of Israel to Jerusalem And here too not a word of the People and yet Sir Edw. Coke calls them both Parliaments and so no doubt but they were somewhat like it or otherwise so many succeeding Centuries had never took pattern from them Not to run so far from home What was our Saxon Witenage mote Micel Synods Micel Gemotes or Great Councils but so many Assemblies of the Wise men concerning whom it is not to be presumed but that they were of the first rate the lump of the People as I so lately toucht it being for many Ages before and after not bred to Letters and consequently more apt for Blows than Arguments and readier to cut the knot in two with their Swords than unty it with their Tongues and in all the Saxon Annals we find the principal or chief Wites or Wise men of the Nation the Assembly of Gods Servants the Clergy then so called Aldermen or Earls Great men Chiefest men Noblemen the constituent parts of those great Councils but no Commons to be found or any that represented them Neither does Sir Edw. Coke in any Authority of his before the latter years of Henry 3. prove any where that the Commons at that time were any such part of those Parliaments for if they had there is no question but he would have nam'd them also as he doth those others that made up those Parliaments Rex Eldredus convocavit Magnates Episcopos Proceres Optimates ad tractandum de publicis negotiis regni King Eldred saith he call'd together his Earls Bishops Barons and Chief men but not a word again of the Commonalty And with this agrees the learned Mr. Selden where we have several other instances to the same purpose but not one word in any of them touching the Commons And as the Saxon Great men were only present in their Great Councils so were only the Norman Barons and their Great men in those of the Conqueror for we often meet Arch-Bishops Bishops Earls Barons but no where find the least mention of the Commons neither is it to be believ'd that his new acquest would yet suffer him to trust a People he had so lately conquer'd or that he made to himself other measures than what he took from his Sword And as to William Rufus his time we find it the same for in the sixth year of his Reign there was a Great Council held at Winchester and in the seventh another at Rockingham and in the tenth De statu regni acturus Episcopos Abbates quosque regni Proceres in unum praecepti sui sanctione egit Being to order some Affairs of the Realm he commanded together the Bishops Abbats and all the Nobility of the Kingdom and yet all this while not a word of the Commons In like manner albeit in the first of Henry 1. Clerus Angliae Populus universus c. the Clergy and all the People were Summon'd to Westminster yet here the word Populus is used as contradistinct to the Clergy to which it is opposed and denotes not any distinct State or Order among Secular men or Laicks but an Order and Estate of men distinct from the Ecclesiasticks or Clergy these two words of Clerus and Populus being the two general States or Orders into which all mankind is divided And so he cites it as quoted by Sir Will. Dugdale touching the Coronation of King Egbert Veniunt Wintoniam Clerus Populus The Clergy and People came to Winchester To which also Mr. Selden gives a great light when of the same Council he saith Ad commune concilium Baronum meorum is mentioned in it Or what means that other of the third of the same King wherein they are call'd Primates utriusque ordinis The Chiefs of both Orders i. e. of the Clergy viz. the Lords Spiritual and of Laity viz. the Nobles who are also called Principes Regni The Chief or Head men of the Kingdom of which also we have several instances in that beloved Physician 's ingenuious learned Answer to Mr. Petit. Neither does it appear that the Great Councils in King Stephen's time consisted of any other than the Clergy and the Nobility there being not the least mention of the Milites or Liberi homines Knights or Free-men or that they acted in them But from these Usurpations we come to Hen. 2. who Robert Duke of Normandy being dead came in upon a rightful Title from his Grand-father Henry 1. and yet the Great Council at Clarendon which was the 10th of his Reign consisted only of Arch-Bishops Bishops Abbats Priors Earls and Chief men of the Kingdom and albeit Mr. Selden as himself from Hoveden says That Clerus and Populus Regni the Clergy and People of the Land were then Assembled it appears not that any other Estate was meant by the word Populus than the Lay Nobles For at the great Council of Northampton which was the following year Rex Statuens celebrare solenne Concilium omnes qui tenebant de Rege in Capite mandari fecit The King having resolv'd to hold a Great Council he Summon'd thither all those that held of him in Capite i. e. in Chief Now to hold in Chief of the King is to hold of him immediately and merely as King and of his Crown as of a Seigneury in Gross and in Chief above all other Seigneuries and not as of or by means of some Honor Castle or Mannor belonging to the Crown And in the preceding leaf Mr. Selden says Tenere de Rege in Capite habere possessiones sicut Baroniam are Synonimies and to hold in Chief and to have their Possessions as Baronies was to have the right of sitting in Councils with the rest of the Barons concerning which it does not yet appear that the Commonalty at that time had any From thence and during the Reign of King Richard the First and until the 15th of K. John we find it the same only at that time the King being at Rochel in France commits the custody of England to the Bishop of Winchester then Chief Justice and writes to his Barons Knights and to all his Feudataries or Vassals thro England That he had received the Popes Letters touching the release of the Interdict under which the Kingdom then lay and of which I toucht before which he had sent to the said Bishop and therefore requires them as of whose kindness and fidelity he had full confidence that according to what the said Bishop should then say unto them they would effectually give their advice and aid as in like manner he writes to several other Cities and Burroughs thereby earnestly requiring them that according to what the said Bishop shall give them to understand that they effectually apply themselves to give him a supply towards the relaxation
of the said Interdict and thereby also promises them a re-payment with thanks so that He only borrows Mony of them on that particular occasion but does not in the least hint or direct them to send their Proxies or Representatives to any Great Council to be then call'd as we have it and the History of that time more at large in the said Answer to Mr. Petit. And now having offer'd thus far to this matter I shall go on with the reason of those times which I take to be thus William the Conqueror having subdu'd England began now to consider the way of securing it and to that purpose as it is in the Proverb cut large thongs out of other mens hides and as a reward of the Service done him granted a certain compass or circuit of Land unto such of his Chief men as had assisted him in the acquisition to them and their Heirs to dwell on and exercise such Jurisdiction therein as he thought good to grant performing also such Services and paying him such yearly Rent as the Grant required they again parcell'd this Land to such other meaner men as had follow'd them in the Expedition under such Services and Rents as they thought fit and by this means as those Great men became Tenants to the King in Chief so the Inferiors became Tenants to them who as Superiors exercised a kind of little Kingship over them The King and his Successors being Supreme Lords of the whole and imposing from time to time such Laws as by the advice and assent of those his Barons were thought expedient and unto which Consentire inferior quisque vis us est in persona Domini sui capitalis prout hodie per Procuratores Comitatus vel Burgi quos in Parliamentis Knights and Burgesses appellamus to which every inferior saith he was presum'd to consent in the person of his Chief Lord from whom he held as at this day by the Representatives of Counties and Burroughs in Parliament whom we call Knights and Burgesses and certainly there is no doubt to be made but that if there had been any such privilege of ancient time belonging to the People that the Historians of those times would not have pass'd so material a thing in silence especially considering how many of lesser account are every where found among them Polidor Virgil would have the Commons to have been brought into those great Councils in the 16th of Henry I. Sir Walter Raleigh about the 18th of that King but Sir Henry Spelman will not allow it his words are these Sine ut sodes dicam collegisse me centenas reor conciliorum edictiones tenoresque ipsos plurimorum ab ingressu Guilielmi 1. ad excessum Hen. 3. existentium nec in tanta multitudine de plebe uspiam reperisse aliquid nil in his delituerit Give me leave saith he to speak frankly I believe I have collected an hundred Acts of Councils and the forms of most from the coming in of William the First to the going off of Henry the Third nor in so great a number have I any where found any thing of the Commonalty nothing of it lies in them And yet it may be probable that Henry the Third toward the end of his long but troublesome Reign brought them in to counterpoise the Factions of his seditious Barons for tho at the making of the Statutes of Merton there is not the least mention of the Commons yet in those at Marleborough they are thus named The more discreet men of the Realm being called together as well of the higher as of the lower Estate And in the Title of the Statute of Westminster the first made in the third of Edw. 1. who as he was first of his name after the Conquest so he was the first that setled the Law and State and freed this Kingdom from the Wardship of the Peers it is thus said These be the Acts of King Edward Son to King Henry made at Westminster at his first Parliament c. by his Council and by the Assent of Arch-Bishops Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm being thither Summoned c. And so that word Parliament which as Sir Henry Spelman says in King John's time nondum emicuit was not yet got up other than by the name of Commune Concilium Regni The Common-Council of the Kingdom came in use as it is now taken and the Commons as they are at this day an essential and constituent part of the same and a third Estate 6. That the Lords Temporal are one Estate of the Realm was never doubted Mr. Selden begins his Privilege of Baronage with it and when the Commons came in to be another I question not but I have fully prov'd and if now I shall make it appear that the Lords Spiritual are one other Estate of the Realm distinct and separate from the Lords Temporal I hope I shall have gain'd my point and that the King is not one of the Three Estates In order to which 1. The Lords Spiritual sit in Parliament by a different Right from the Lords Temporal viz. by Succession in respect of their Counties or Baronies parcel of their Bishopricks and the others by reason of their Dignities which they hold by Descent or Creation 2. They sit in Parliament in a different Robe and on a different side of the House from the Lords Temporal and are commanded thither by a different form in the Writ viz. In fide dilectione c. And the Lords Temporal In fide ligeancia c. 3. They have a Convocation by themselves consisting of an Upper House viz. Arch-Bishops and Bishops and a Lower House viz. the Procuratores Cleri called together by the Kings Writ and have the same Privilege for themselves their Servants and Familiars as other Members of Parliament and grant their Subsidies apart and distinct from the Lay Nobles as may be seen by the respective Acts by which they have been granted as also ratifi'd and confirmed 4. The general stile of all Acts of Parliament hath been such that sometimes the Ecclesiastical Lords are respectively named as Arch-bishops Bishops Abbots Priors as well as the Temporal Lords and sometimes by the inclusive name of the Prelates and so to the 10th of Richard 2. where it is said By the Assent of the Lords and Commons under which general words of the Lords they seem at first to be included as if they were but one Estate with them were it not in the 13th of the said King again said Of the Assent of the Prelates and Lords Temporal and Commons And in another of the 20th By the Assent of the Prelates Lords and Commons and in the 14.15.16 and 17. of the same King By the Assent of his Parliament and the Parliament and none of them named apart from which time till the 4th of Henry 4. the word Prelates was again continued
some may I could not be content to do but I must over-do and yet permissu Superiorum I conceive not for besides that my design in it is plain and honest as only tending to the continuance of that peace which his Exclusion may probably endanger it is none of the non disserenda nor is there that I know any Law against it And therefore I shall without further Apology put my self upon the favourable interpretation of my Reader as placing more assurance in the innocence of my own meaning than the most reserv'd caution or wariness of words He that would hit the mark must take his level before he part with his Arrow and he that would not be cheated had need see the Scales try'd as well as weigh the Commodity In like manner he that will give a true judgment of this matter must begin with the end that by viewing the advantage and disadvantage of either hand his judgment and election may be the more clear and the less apt to slide into error We 'l take the case then as it has been of late in relation to his Royal Highness the Duke of York The People were upon a pin and nothing will satisfie them but he must be Excluded The advantage propos'd by it not a little plausible The security of the Protestant Religion and very well Depositum custodi was the advice of S. Paul to Timothy and 't is a good account of a Steward that he has lost nothing But here the question will arise Whether the Protestant Religion profess'd at this time in this Kingdom may not be sufficiently secured against Popery albeit the right Heir should happen to be of that Persuasion himself And with submission I conceive it may for if such a person could be excluded it must be done by Act of Parliament and if so where lies the difference that an Act of Parliament for the security of the now Establish'd Religion against any Popish Successor may not be of the same force as an Act of Parliament for excluding him in as much as the Authority is the same to which because I seem to hear some one more than whispering that in the one case he will not have the opportunity in the other he may I answer That it is morally impossible to introduce the Romish Religion into this Kingdom albeit the Prince were of that Persuasion for tho the Kingdom follow'd Edw. 6. his Reformation and Queen Mary tackt them about to the Church of Rome and Queen Elizabeth bore up again for Edw. 6. yet it will not be the same at this day for as to Edw. 6. it was no great wonder that the Kingdom follow'd his Reformation for besides that it was in the hurry of a Change Henry 8. who tho he forsook not the Church but Court of Rome had yet shaken it out of its Authority and by dispersing the Abby Lands among such as help'd him put it out of a condition of recovering suddenly And now Religion being not the only question who can tax the Politicks of that time for not standing to the Pope when by setting up that Authority again they must infallibly have hazarded if not lost their new interests whereas by complying with the Reformation they were certain of keeping what they had already and in a fair way of getting more And withal considering there were several Opinions at that time boiling up what mighty matter was it to bring them to cry Erravimus cum patribus nostris And as to the Kingdoms tacking again with Queen Mary that also is not so much to be wonder'd at for considering that under Edw. 6. the Harvest was as yet small and the Laborers many and those too not altogether knit among themselves and that he liv'd not long enough to see the last stone laid and that the Queen coming in so near after her Father Henry 8. found ribs and planks enough of the old Ship left to patch up another for the present occasion or till a better could be had And the main obstacle of securing the Abby Lands in the hands of the Temporalty as they lay then dispers'd among them being first reconciled no wonder I say if the Kingdom footed it to the Queens measures and that the note was chang'd to Super vias antiquas In like manner that the Kingdom follow'd Queen Elizabeth in the Reformation begun by her Brother Edw. 6. it is not so strange for considering also how short a time Queen Mary reign'd and an inexcusable fault in Musick that she began a Note too high and by that means was forc'd to run it up even to cracking the strings and that the Reformation had by that time gotten some face and credit in the world and therefore the violent Persecution of it like Winds to young Trees not overthrowing it had but fasten'd its Roots and withal that such as had gotten any Church Lands knew not what another Parliament might do or what flaws in after times might be found in the former and that the probable way of making all sure was to order it so that it should not be in the Popes power to hurt them if he would neither here also was it a wonder that the Kingdom joyn'd with Queen Elizabeth and alter'd the Carol to a Canticum novum But the case will not be the same at this day for besides that we have the Authority of a Church confirm'd by several Acts of Parliament even the People now pronounce Schibboleth without lisping Fox his Martyrs are not yet forgotten and tho the Writ De Haeretico combruendo be taken away the crackling of the Faggots still rattle in their ears Nor of less concern are the Loaves than the Doctrin the Land on which the Faggots grew than the Faggots themselves It is now 150 years since those Abby Lands were given out and by this time they are assimulated in Succum Sanguinem and the fear of losing them has begot more ill blood than the first grant of them did good I have heard of one Impropriation given back to the Church but the Lands remain much as they were tho not altogether in the same hands they yield good Rent and many men are of Vespasian's mind That all Gold has the same scent Sell all thou hast and give it the poor lost our Saviour a Disciple and would be thought as hard a saying now Men are loath to part with their Wedding garment especially where it may so happen to be the best to their backs Add to this the vast improvements made upon them in so many years and the several exchanges intanglements and dispositions from hand to hand that it would puzzle even the Church it self to say which were her Sons Coat from whence I close this That let the Rabbies talk what they will of Venient Romani Nay till they lay the way half plain before them it will be yet morally impossible for them to