they are not Indicta or promulgata but enacted Statuta facta or Constituta by the King and both Houses of Parliament In which the chiefest consideration and ponderation of the reasons of making of them are most in the debate and Voting of both Houses and the Royall assent is onely left to the King with a le Rey la veult or his disassent stayeth them yet not peremptorily but with a modest answer Il Rey se advisera Neither is the abrogation or remission of any penall Law received left to the King though it bee only malum prohibitum not malum in se But His Majestie may dispence with or remit the penâ—â—ty of a Statute and that not meerely and perpetually but only Ad tempus and that not de jure but by his prerogative Royall upon collaterall or accidentall event happening ex post facto after the making of the Statute yet not without cause or consideration and for experience of some further or more weighty cause or consideration of benefit or conveniency to the Common-wealth which being discovered to be prejudiciall to the Common-wealth then the Letters Patents of the dispensation becommeth voyd in Law and frustrate and vanisheth again or is made utterly voyd and condemned for ever at the next Parliament The third question 3. What power or prerogative the King hath Supra legem prater legem or contra legem terrae ALthough it was anciently said by a King of this land H. 4 Nolumus praerogativam nostram disputari yet that was answered againe by the Peeres and Barons in Parliament with another Nolumus Nolumus leges Angliae mutari So that with favour and good manners and duty the Kings Prerogative may bee talked of in respect of the law of the Land and of the naturall right liberty and prosperity of the Subject And thus it is resolved That the King hath in some cases a regall power or prerogative supra legem and in some cases praeter or ultra legem But in no case hath his Majestie power or prerogative contra legem Terrae or Statuta Regni The cases of example wherein his Majesty may by his great Seale doe something supra legem 〈◊〉 diverse but especially those of his mercy and Grace extended to delinquent Subjects that fall into some offences and danger of Law by trespasses or felonies Although the Law be positive and penall condemning the offenders yet his Majestie may pardon them the trespasse or felony and the punishment fine or forfeiture thereupon Quo ad interesse suum but therein also the Law doth stay or restraine the Kings power that he cannot by his pardon remit or give away Interesse partis But that the party grieved or wronged may and ought to have his action And the son or wife may have and prosecute the Appeale de morte patris or viâ—i and the King by no power Imperiall can take it from them The cases praeter legem are some dispensative Proclamations or grants of experience whether something be pro bono publico or not as for importation or exportation of some or other forrein or native commodity or the exercise or practise of some new invented Art Science or Mystery among the people which having most commonly the specious shew of good yet no sooner that it bee discovered to be hurtfull to the Common-wealth or deragatory to the liberty or property of the Subject or that it bring on any burden tax or charge or doe secretly exhaust or diminish the rightfull profits of any Trade Mystery or Science before lawfully used or belonging to any of the Kings Liege people or Subjects then the same is to be abhorred condemned and suppressed as an odious project monopely or unwarrantable thing And the Rule and Reason of common Law which is that In omnibus salus populi suprema Lex esto hindereth that no regall or Prerogative power can uphold or maintaine it though the case be praeter Legem and not provided for by any Statute or if it be provided for and the King hath dispensed by a Non obstante The cases of example Contra Legem are either when the King doth grant Authorize or permit any thing whatsoever against the common Law of the Land or the rule or reason thereof such His Majesties grant by Letters Patents Prâ—clamations or other commands or such licence or permission cannot be nor is of any orce or can or ought to stand or be used practised or suffered in this Land And this is first to be understood of the common Law of this Land in point of commutative justice that concerneth the right and interest of every Subject vâ—z Ius personarum rerum actionum of everyman whereof the first is expressely preserved by the great charter of England Nullus liber homo capietur imprisonetur c. The second is secured to every man by the Law of property wherein it is said Quod nostrum est fine furto aut assensu nostro a nobis tolli non potest upon which no Regall Power or Prerogative can trench And the third both by the words of the great Charter Nulli negabimus c. justitiam and by the Statute Ordaining that every man should enjoy the benefit of the Law and Courts of Iustice for his Free-hold Lands goods or Chattels And that neither the great Seale nor Privie Seale should hinder the due course of Law Secondly in point of distributive justice either in paena or prae mio for good or evill behaviour in the publike conversation or actions of one towards another And in this part of common Law of the Land Malum in se is most concerned that vice should be punished and ought not to be spared by any Regall power leave or licence in any case whatsoever for it were improper that the King being Gods Vicegerent might or ever should connive at or leave unpunished any crime or offence contrary to the Commandements of God or the Law of Nature For His Majestie is said to be like God Dixi Dii estis and the Schoole men say Deus non potest malum agere quia non vult non vult quod non potest according to which the Lawyers say Id possumus quod de jure possumus and that Le Rey ne poit faire tort And for the malum prohibitum by Statutes or Ordinances of Parliament His Majesty cannot nor will goe against them but in Tutiorem partem to pardon where there is hope of amendment Otherwise see the Statute of Northampton wherein some odious crimes are denyed the King to pardon Wherefore so it is that if the King through that naturall propensity of King spoken of by God Himselfe doe more than he should doe toward the people or that by his omission some enormities are crept in then it behoveth him to call together his great Councell in Parliament to advise with them for his own better direction and for Reformation of abuses and corrections of such as have abused and
misled His Majesty whereupon the fourth question ensueth The fourth Question 4. What power or priviledge the High Court of Parliament hath when they are assembled together and are become the representative Body of the Kingdome IT is resolved that they with the Kings assent may as cause shall require make new Lawes or abrogate any former Statutes but the maine common Law and the Ancient Rites Vsages and Native Customes of the Land they themselves cannot alter For as the Lawyers phrase is to say it is Oppositum in objecto that they that sit by the Common Lawes and by the ancient Rites Vsages and Customes of the Land should alter and change that which gave them their Authority to be a representative body Also the two Houses of Peeres and Commons Rege absente non consentiente may declare the Common Law in Cases where doubt is or ambiguity or difficulty but they can make no Law without the King to stand as a Law and Statute Onely they can make temporary Ordinances of Parliament like Orders or Sentences interlocutory seden e Parliamento and they may censure and and punish Delinquents But in case the King will not call a Parliament as in Richard the second his time when the urgent occasions of the Common-wealth required it The Peeres called the Parliament Then the Peeres and Commons can doe all things as a compleate Parliament without the King And at this time the Kings Majesty having called a Parliament and so far proceeded as he hath done already in making some good and wholesome Lawes for Reformation of the greatest errors and abuses that ever were in this Common-wealth And especially having condescended to a Trienniall Parliament to be for ever hereafter and neither this present Parliament nor any Parliament hereafter assembled to be dissolved without the consent of both Houses Yet now his Majesty being seduced by evill instruments doth dissever himselfe from his Parliament and by his absence doth as they say hinder their proceedings to the making of good and wholesome Lawes for the kingdom and Common-wealth What in this case may be done is not to be resolved by any wit or judgement but by the absolute Wisedom and Authority of that high Court consisting of both Houses to whom in all humblenesse the Writer hereof leaveth it Neverthelesse with the like humility and awfull feare of offence against the Publike and with a faithfull zeale to the Common-wealth he offereth these considerations scrutative of the matter or cause of the variances betweene his Majesty and his great Councell of Parliament viz. What is the very true cause of his Majesties absence and severance from his Parliament sitting at Westminster whither they were first summoned and which is the most convenient place of their assembly and sitting The King alledgeth that it was the tumultuous riot of the disordered Londoners rash and young Prentices and of furious and fanaticke Brownists Anabaptists and Sectaries of the City and Suburbes pretending to cry out against Bishops but intending and offering affront and disloyalty to His Majesty His Regall authority whereby His Royall Person was indangered at Whitehall had he not had a Guard about him and so His Majestie saith they were like to do again if he were at LONDON The Parliament saith it was a malignant party of Cavaliers and others not well affected to peace and enemies to the Common wealth who by flattery and false insinuations did disswade His Majesty from concurring with the grave advise of his great Councell And the Papists and papall affected Bishops dreading that their plots were discovered and like to bee prevented and the delinquents punished by the more severe Lawes or Orders of the Parliament did incite his Majesty to proceed in that ill advised Course And further that such the Malignant party seducing his Majesty endevoured to bring in imperiall power and arbitrary rule for his Majesty to over rule the laws and ancient usages and customs of Eng and the priviledges of Parliament and abridge the liberty and property of the Subjects The evidence whereof hath beene partly shewne forth by some Declarations divulged and Printed by Order of both Houses of Parliament expressing the precedent attempts of forraign force and domestick and coercive power of Armes which late before the Parliament was plotted and put in way of constraint upon the Common-wealth And that moved the Parliament to carve and assume to themselves the Militia at home for the securing of the Coasts of the Sea and of guarding and fortifying the Ports and other places at land That though his Majestie were seduced and misled by the malignant partie and their complices yet his royall Person Crown and dignitie should be preserved in peace and safety and the Common-wealth and people should be defended and kept in peace and prosperitie maugre the divellish plots abroad and within the bowels of the Land by papists priests papall Bishops bloody and rapinous military men Captaines and Cavaliers whose disposition was and is properly bent to war and bloodshed and to rapine and spoil and to make their pray on the wealth of the rich Citizens and other the quiet people of the Land The King contrariwise taking high displeasure at that part or point of the Parliaments Demand for and touching the Militia Alledged that the right of militia or Command of Armes within the Land belongeth properly to his Regalitie and as a flower of his Crowne not to bee assayed or attempted by any Subject no not the high Court of Parliament though they bee the Representative body of the people no more then it could be lawfull for the people themselves to rise and take Armes against their Soveraigne King Wherein as by some Written and Printed discourse or Declaration It hath beene already avowed and maintained that the Militia was not improperly desired of and from his Majestie nor unlawfully assumed by them for a certaine convenient time They perceiving more than the King or people doe know of the eminent danger both of his Royall person Crowne and dignitie and to the priviledges of Parliament and to the Lawes of the Land and liberties of the people like to beene subverted and most especially the whole honour and true worship of God and true protestant Religion to be overthrowne may and will by and through Gods grace and and assistance prevent and pervert or quell and subdue the evill and wicked attempts of all the malignant opposites It is therefore by all true and sound reason of all lawes Divine Lawes of Nature and nations Civill policy and the provinciall rites Vsages and Custome which are the Lawes of his land resoâ—ved that the Militia is to be distinguisht of and the point defined and determined thus viz. The King of this Land no lesse but as muâ—h and as amply as any other forraigne Christian King hath in himselfe and pertaining to his Regaltie Crown and Dignitie the Ius militiae at all times to use and to lead and to command by his Lievtenant
ignorant of the true stare and qualitie of the Kingdome of England after the old triple distinction of Empire written by Bartolus and Baldus the best Civilian Doctors viz. That there is imperium merum and imperium mixtum cum Iurisdictione and that in some places tacre is only Iurisdictio sine imperio as is the state of the Low Countries and other Aristocraticall and Democraticall Governments whereof the first i. e Merum Imperium was the Romaâ—e Empire meerely gotten by the sword and for the most part kept by the sword according to the saying of Iustine the Historian in the beginning of his booke Imperiam lisdem modis tenetur quibus paratur And by that Empire Principis placitum legis habet vigorem As Iustinian in the first of his institutes mentioneth The second i. e. Mixtum imperium cum Iurisdictione is the Crowne or Kingly power of England Monarchicall indeed for Rex in solio is sine pari But in Parliamento or Concilio Regendi he hath pares Regni i. e. peeres so dignified by him and honoured from the fountaine of his Maiesties honour And he hath also the communitatem populi which the blessed and ever prosperous Queene Elizabeth accounted sibâ— preciosessimam And all these three estates of King peeres and commons were happily coniunct and preserved together by the ligaments of the ancient lawes of the land and priviledges of parliament which lawes and priviledges were never subiugated by any conquest but ever over-lived the change of Kings and appeased force and induced Kings into their setled reignes here According as that learned chiefe Iustice sir Edward Coke was bold in presence to tell his maiestie the late King Iames of famous memorie that the Law set the Crowne upon his head Whereat his maiestie seemed angry but was so prudent and wise as not to bee so And the old learned Bracton that wrote like as he was a studied Civilian as well as a Iudge of the Common law in King Henry the second his time adviseth every King of this land in these words Id tâ—ibuat Rex legi quod lex attribuit ei Which two maine points or principles in this present state of England that is to say the Church government established with the true protestant faith and religion and the free regall power qualified with the naturall and nationall lawes of this land the untouched priviledges of parliament and the rites and liberties of the people being not only cordially professed and protested by his maiestie but seucred by the high wisewome and care of the peeres and commons and his maiestie ioyously returning to his beloved Parliament May it please the Almighty God of his infinite goodnesse so to inspire both King and peeres and commons with his Divine grace that Anarchie and dissolution of Church government bee avoided and prevented by due restraint and correction of all Sectaries and Schismatickes Brownists Anabaptists c. Who in truth if they might obtain their fanatike intents would have no King a all over them on earth nor Church or material Churches but in rapture of the Spirit would fly up to heaven for the Iudaicke King and in the meane time would hold their Church and Conventicles in the aire or woods or barnes or Stables or intheir owne holy breasts whereas though Christ himselfe said his Kingdome was not of this World yet he taught his Disciples that in this world they should obey Kings as of Gods ordinance and be tributary to them Date Saesari quae suâ—t Saeâ—aris And that no conceit of any popular or plebeiansway in this land be in any true English heart But that the members of both Houses may so prepaire good and wholesome lawes for the Church as may quite extirpate popcry and prevent Schismes and all rendings or divisions of Christ his seamelesse garment of unitie of the spirit to be fast girt with the bond of peace And for the common wealth that never hereafter there be any more inrodes upon the lawes priviledges or liberties of free English men That finally God may be truly honoured and purely served and worshiped his holy word rightly dispensed and his Sacraments duely and decently administred And then his heavenly blessings will undoubtedly showre downe upon this little Isle of Great Britaine and the words and wishes of an ingenious Votary may be fulfilled Long live king Charles and leave brave Britaine to his Son And he to his and they to theirs Vntill the world be done In this treatise may be discovered and noted six sorts of malignant parties against this unity of King and Parliament and the happy effects and fruit thereof Whose corrections or Reformation if it so please God the King and parliament may be as followeth 1. All Papists Priests and Lay who certainly in their secret dispositions whatsoever they make shew of are against King and Church of England and doe plot and practise the advancement of popish religion and Church and to bring in againe that forraigne usurped power of the Pope Supra Reges which is banished and abolished by the Statute 1 Eliz. These may and ought to have the Law and Statutes of the Realme put in execution against them and more severe if need be to compell them to come to Church and receive the Communion which if they will doe then let them not be branded with a name of Church papist so to deterre them and drive them out againe 2. All papall affected Bishops and Clergie who though they contrariwise to the papist priests profer to obey Kings yet in their hearts could wish the Clergie to bee separate from the Kingly Authoritie and temporall Law but to beat downe Law and priviledge of parliament doe Hyperbolically exalt the monarchicall arbitrary power of the King as above and solute of all Law and responsall only to God These must know their errour and ignorance in their Tenets of Kingly power and government within this Realme and be told by sir Edward Cook if he were living that never any man in England kicked his heele against the lawes of the Land but in fine the Law brake his neck and let these Hierarchicall Bishops be corrected of their superbity and reformed in their superioritie and domination in the Church and their worldly mindednesse in countrey and Common wealth as please the King and parliament 3 All court flatterers and Royalists who daily in their affections and discourses maintaine absolute and prerogative power in the King to grant by his letters Patents what and how he wiâ—l above the Lawes and statutes and would have Proclamations to be laws that so they might have Monopolies and projects to serve their turne These weake men of learning for the most part in the deepe points of Law and policie must be taught to wait on the King their Master with all diligent service and attendance and leave of their discourses of Kingly authoritie and of Parliamentiall privoledges and force of Lawes and content themselves henceforth with the King their Masters reward of their service without peeling or preying on the people with their Monopolies and projects 4 All cavaliers captains and Martlâ—â—â— men who desire warre and tumult and disturbance in the Land and commonwealth that so they may have rapine and spoyle These must be sent into forraigne parts where they may freely have and take their rapine and spoile upon forraigne Enemies and not to take the bowels and baggs of their own countrey men And there also they may gaine honour by valour which here is not to be used 5 All Sectaries and Schismatickes of the Church who disaffect government either Royall or Ecclesiastique These must learne to conforme themselves to the uniformitie of the Church and to obey and submit themselves to their lawfull King who is the Lords Anointed and set over them by his divine Ordinance 6 All popular and plebeian Humorists who doe affect and desire Democracy which they terme or call a free state and by their leaves be it said they would have neither this King nor his posteritie nor any King to sit on the Throne These must be put in minde or made to know that Monarchy qualified by law is the best government As the old poet Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so all the best learned Authors writing of States and policie doe affirme and conclude and the ancient Historians of England do shew that here was ever one or more Kings But this Land never more flourished then since it hath beene now these six or seven hundred yeares under one Christian King ruling according to the ancient Lawes Vsages and Customes of the Land FINIS