dignities gifts offices fees or annuities are bound to assist the King in his wars against all rebellions insurrections and powers raised against him And by the Parliament holden the fourth and fifth years of Queen Mary an Act was made wherein it was acknowledged that the Queen and her progenitors had power and authority to oppoint commissioners to muster and array the people and subjects and to levy such a number as they should think fit to serve them in their wars and a remedy provided against the abuses that had formerly been committed by divers who absented themselves from such musters and brought not their best furniture and array with them Coke lib. 7.7 B. I will omit the statutes made in the 11. H. 7. cap. 1. and the 2. E. 6. cap. 2. by which it appeareth that the subjects of England are bound to go with the King in his wars as well within the Realm as without I will also omit the act not printed made in the fifth year of Henry the fourth concerning the commission of array as also divers other acts and statutes made to that effect and purpose because so much hath been said about that subject already by his Majesty in his answer to the declaration of both houses of Parliament concerning the commission of array Secondly the legislative power is another right of soveraignty whereby Kings and supreme Magistrates are enabled by just and necessary laws to provide for the peace and safety of their people and this is wholely and entirely in the King although he be limited in the exercise of his power so as he can not make laws without the assent of the Lords and Commons assembled in Parliament And this is that whith the pretended house have stood so much upon because the Kings of England desiring to rule their people by lenity have out of princely clemency condiscended so far as not to impose upon them which they anciently did as I shall shew hereafter any new law or alter and repeal the old without their own consent they from the premises would make the people believe that their authority is equal to the Kings and that themselves as their deputies are coordinate with him and not content with the share which they unjustly challenged at first they afterwards layd claime to all wholely excluding the King and denying him his negative voyce usurping and taking upon themselves the whole power of making laws whereas they have no other interest or authority but what they derive from him the Statutes declare this in expresse tearms 5. R. 2. cap. 2. for their ordinary style is The King doth will and command and it is assented in the Parliament by the Prelates 7. H. 4. cap. 15. Lords and Commons Our Soveraign Lord the King by the assent of the Lords spiritual and temporal and the Commons in this present Parliament hath ordained And that the meaning and true intention of these expressions is such as I have said 22. E. 3. will appear by the resolution of the Judges of which I shall speak hereafter Now that the King hath a negative voyce in making laws and that nothing can or ought to be esteemed an Act of Parliament without him is evident by divers Statutes In the first year of King James a Statute was made wherein the two Houses petitioning the King that the recognition of their duty and obedience as also of his Majesties right unto the Crown of England might be published in High Court of Parliament to remain as a memorial to all posterity conclude after this manner which if your Majesty shall be pleased as an argument of your gracious acceptation to adorn with your Majesties Royal assent without which it can neither be compleat and perfect nor remain to all posterity according to our humble desire as a memorial of your Princely and tender affection towards us we shall add this also to the rest of your Majesties unspeakable and inestimable benefits But in the fifteenth year of Edward the third a Statute was made on purpose to make voyd an Act whereunto the King had promised to set his Seal and seemed to assent which by some for that reason was esteemed a Statute because he had not actually assented and set to his seal Edward by the grace of God c. to the Sheriff of Lincoln greeting whereas at our Parliament summoned at Westminster in the 15. of Easter last past certain Articles expresly contrary to the lawes and customes of our Realm of England and to our Prerogatives and rights Royal were pretended to be granted by us by the manner of a Statute we considering how that by the bond of our Oath we be tyed to the observance and defence of such laws customes rights and prerogatives and providently willing to revoke such things to their own state which be so improvidently done upon conference and treatise thereupon had with the Earls Barons and other wise men of our said Realm and because we never consented to the making of the Statute but as then it behoved us we dissimuled in the premisses by protestations of revocation of the said statute if indeed it should proceed to eschew the dangers which by the denying of the same we feared to come forasmuch as the said Parliament otherwise had been without dispatching any thing in discord dissolved and so our earnest business had likely been ruinated which God prohibite and the said pretensed statute we promised then to be sealed It seemed to the said Earls Barons and other wise men that sithence the statute did not of our free will proceed the same be void and ought not to have the name nor strength of a statute and therefore by their counsell and assent we have decreed the said statute to be void and the same in as much as it proceeded of deed we have agreed to be adnulled willing nevertheless that the articles conteined in the said pretensed statute which by other of our statutes or of our progenitors Kings of England have been approved shall according to the form of the said statute in every point as convenient is be observed and the same we do onely to the conservation and reintegration of the rights of our crown as we be bound and not that we should in any wise grieve or oppress our subjects whom we desire to rule by lenity and gentleness And therefore we do command thee that all these things thou cause to be openly proclaimed in such places within thy Bailiwick where thou shalt see expedient witness my self at Westminster the first day of October the fifteenth year of our reign Thirdly allegiance or ligeance is another right of soveraignty due onely to Supreme Rulers and Governours A coordinate Magistrate who hath but a parcel and share of authority can not alone challenge all obedience from the people for all that are coordinate and have their shares in the rights of Soveraignty joyntly taken together make up one supreme head to whom only allegiance
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
respect of the power it self the Monarchy is absolute simple pure independent without profanation of outward mixture the King alone without further influence from the two Houses having ful power and authority to do or cause to be done all acts of Justice The King alone makes Laws by the asscent of the two Houses and if the two Houses are said at any time to make Lawes it is by a delegate power and authority communicated to them from him and not by any power and authority which they have radically in themselves Secondly I say that the King alone is not onely invested with all the rights of Soveraingty but hath them also so inseperably annexed to hs Royal person by the Lawes of the Land that they cannot be separated from him by any Act of Parliament by any civil constitution or pragmattical Sanction by any Law or Ordinance whatsoever but in case the King himself should improvidently by Act of Parliament agree to any thing tending to the diminution of his Royal Dignity it is then in the power of the Common-law to controul such a Statute to make voyd all such acts as tend to the degradation much more such as tend to the annihilation of Majesty Having thus opened the state of the Question I will now proceed to demonstrate the truth by Statutes by Common-Law and by reasons depending upon the laws and customes of the land CHAP. II. The Kings Supremacy in general shewed by the Statutes of the land I Could both from Saxon and divers other lawes and antiquities shew the Kings of England to have ruled more absolutely and to have anciently exercised a larger Jurisdiction then hath of later years been exercised or challenged by their Successors but because many immunities and priviledges have been granted to the Subjects since their times I will therefore confine my self to such statutes as have been made since the giving of the great Charter And to avoyd tediousnesse I will omit many statutes wherein the King is by both Houses collectively taken acknowledged to be supreme for they frequently in the statutes style him Our gracious Soveraign Lord the King Our dreadful Soveraign Lord the King I will likewise omit many others wherein they acknowledge themselves to be his Subjects and that when they were in their site relation order and union in which posture the fuller Answerer fancies them to be coordinate for such expressions run through divers statutes Most humbly beseech your most excellent Majesty your faithful and obedient subjects the Lords spiritual and temporal and the Commons in this your present Parliament assembled In their most humble wise shewen unto your Royal Majesty your loving subjects the Lords spiritual and temporal and the Commons of this present Parliament assembled I will only alledge such statutes as have been made on purpose to declare to whom Supremacy and all power and jurisdiction belong for there hath been divers acts of Parliament made to that end upon several occasions wherein the Kings Supremacy hath been acknowledged and confirmed unto him In the four and twenty year of Henry the eighth an Act was made that no Appeals should be used but within the Realm the Reason alledged in the Statute is because the King alone is the onely Supreme head of the Realm and is furnished with plenary and entire power to do all acts of justice Where by divers sundry old authentick Histories and Chronicles it is manifestly declared and expressed that this Realm of England is an Empire and hath so been accepted in the world governed by one supreme head and King having the dignity and Royal estate of the imperial Crown of the same unto whom a body politick compact of all sorts and degrees of people divided in tearms and by names of spiritualty and temporalty been bounden and owen to bear next to God a natural and humble obedience he being also institute and furnished by the goodnesse and sufferance of Almighty God with plenary whole and entire power preheminence authority prerogative and jurisdiction to render and yield justice and final determination to all manner of folk resiants or subjects within this his Realm This clear testimomy of the Kings Supremacy is thus eluded by the fuller Answerer saith he Answer what is meant by governed by one supreme head such a one as is able to do all acts of needful justice which the King in his natural capacity cannot do he cannot make a law it must therefore be understood in his full and intire politick capacity which takes in Law and Parliament nor can it be said that by those words a body politick compact of all sorts and degrees the Parliament is properly meant but the Kingdome at large Reply The sum of his Answer is this that in this Statute by the King not the King alone but the King and the two Houses of Parliament are to be understood and so although he would have the Kings power to be lesse yet to make him amends he will have his name to signifie more then it did before But this is nothing else but the evaporation of his own brain for if in any place the word King could signifie the King and the two Houses of Parliament yet in this it must of necessity signifie the King alone 35. H. 8. cap. 1. these words having the dignity and Royal estate of the Imperial Crown of the same can have reference to no other Besides in this Answer he contradicts his own Principles for if the two Houses be coordinate with the King and have power radically in themselves not derived from him they cannot be comprehended under his politick capacity Whereas he saith the King cannot make a Law and infer from thence that the King alone without taking in the two Houses hath not intire and plenary jurisdiction his inference is very infirm for it doth not diminish Majesty but redounds to the glory of it Argum. l. 8. c. de legibus to give lawes to the people by the counsel and assent of wisemen It hath been and is for the most part the practise in absolute Monarchies to make Lawes that shall bind posterity by general consent and agreement which yet doth not deprive the Monarch of his power or derogate any way from the plenitude and intirenesse thereof But I shall speak more of this when I come to answer their objections Whereas he saith that by a body politick compact of all sorts and degrees not the Parliament but the Kingdome at large is properly meant I know no man will contradict him yet I say the two Houses are comprehended under the Kingdome at large and are representative thereof in Parliament and representatives cannot be the head when the Kingdome at large whose Representatives they are is but the body And therefore here the fuller Answerer hath a little overshot himself for if by the body politick the Kingdome at large be understood then is the King major universis greater then all the people collectively taken by his
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
or ligeance is due Now that allegiance or ligiance is due to the King and onely to the King will appear by several Acts of Parliament In the first year of King James the Lords and Commons declared that both the ancient and famous Realms of England and Scotland were united in allegiance and loyal subjection in his royal person 1. Jac. cap. 2. to his Majesty and his posterity for ever In 34. H. 8. cap. 1. and 35. H. 8. cap. 3. c. the King is called the liege Lord of his subjects and in the Acts of Parliament of 13. R. 2. cap. 5. 11. R. 2. cap. 1. 14. H. 8. cap. 2 c. subjects are called the Kings liege people By other Acts of Parliament divers oaths have been framed and given to the people the contents and effects whereof were that they should bear all faith and allegiance to the King and his heirs In the six and twenty year of Henry the eighth an oath was taken by all the Kings subjects for the surety of the succession of the crown of England 26. H. 8. cap. 2. the oath was this Ye shall swear to bear faith truth and obedience all onely to the Kings Majesty and to the heirs of his body of his most dear and intirely beloved lawful wife Queen Anne begotten and to be begotten and further to the heirs of our said Soveraign Lord according to the limitation in the statute made for surety of his succession in the crown of this Realm mentioned and conteined and not to any other within this Realm nor forrain authority or Potentate and in case any oath be made or hath been made by you to any person or persons that then ye repute the same as vain and adnihilate and that to your cunning wit and utmost of your power without guile fraude or other undue mean ye shall observe keep maintain and defend the said act of succession and all the whole effects and contents thereof and all other acts and statutes made in confirmation or for execution of the same or for any thing therein conteined And this ye shall do against all manner of persons of what estate dignity degree or condition soever they be And in no wise do or attempt nor to your power suffer to be done or attempted directly or indirectly any thing or things privately or apertly to the let hinderance damage or derogation thereof or of any part of the same by any manner of means or of any manner of pretence so help you God and all Saints and the holy Evangelists There are two things observable in this oath first that they swear inclnsivè to bear all faith truth and obedience to the Kings Majesty and his heirs and onely to them Secondly that they swear exclusivè to bear faith truth and obedience to no other either within the realm or without not to other persons nor to other authority by both which clauses of the oath it appears that the King 28. H. 8. cap. 7. and none but the King can challenge faith and allegiance from the people Afterwards in the eight and twenty year of King Henry the eighth the like oath was injoyned to be taken by all his subjects touching his succession by Queen Jane for the former Act touching his succession by Queen Anne was repealed but the oath injoyned was otherwise the same And in the five and thirty year of his reign an other oath was framed wherein besides the contents of the former touching allegiance due to the King and his heirs some other additions were inserted touching his Supremacy in Ecclesiastical causes because the former oaths were not thought full enough to that effect and purpose And these oaths were extraordinary and imposed by special appointment l. 35. But besides these there is another ordinary oath of Allegiance which was first instituted by King Arthur l. 59. and is mentioned amongst the laws of King Edward and confirmed by the laws of William the Conquerour this oath cominueth still in force and should by the law be given in every Leer The order and form of it appeareth in Britton who wrote in the reign of Edward the first and compiled a book of the Statutes and lawes which were then in use the effect of it is this Coke lib. 7. in Calvins case You shall swear that that from this day forward you shall be true and faithful to our soveraign Lord the King and his heirs and truth and faith shall bear of life and member and terrene honour and you shall neither know nor hear of any ill or damage intended unto him that you shall not defend so help you almighty God By this it is clear enough that allegiance is due to the King the pretended house on the other side is so far from having authority to exact allegiance from the people that they were all bound themselves by law to take the oath of Allegiance before they were admitted to sit in the house and having every one taken the said oath how they should be absolved none but themselves can understand whose common practice hath been to play with oaths as children play with toyes and trifles seeming rather to make them their pastime then to esteem them religious acts or sacred obligations Fourthly to pardon the transgression of the laws to remit treason murder felony man-slaughter to appoint subordinate Judges to make leagues with forraign Princes and States all these are rights of soveraignty and all these are declared and determined by the Statutes of the land to belong to the Kings Majesty First the power of pardoning the transgressions of the law and of remitting treason murder felony manslaughter and such like offences is declared and determined to be in the Kings Majesty by a Statute made in the twenty seventh year of Henry the eighth 27. H. 8. c. 24. Where divers of the most ancient prerogatives and authorities of Justice appertaining to the imperial crown of this realm have been severed and taken from the same by sundry gifts of the Kings most noble progenitors Kings of this realm to the great diminution and detriment of the Royal estate of the same and to the hinderance and great delay of justice for reformation whereof be it enacted by authority of this present Parliament that no person or persons of what estate or degree soever they be of from the first day of July which shall be in the year of our Lord God 1536. shall have any power or authority to pardon or remit any treasons murders manslaughters or felonies or any utlaries for any such offences aforesaid committed perpetrated done or divulged or hereafter be committed done or divulged by or against any person or persons in any part of this Realm Wales or the marches of the same but that the Kings highness his heirs and successors Kings of this Realm shall have the whole and sole power and authority thereof united and knit to the imperial crown of this realm as
given in law for this is because the King is supreme and accountable to none but God Bracton lib. 1. cap. 1. Non debet esse major eo I. e. Rege in regno suo in exibitione juris minimus autem esse debet vel quasi in judicio suscipiendo si petat Si autem ab eo petatur cum breve non currat contra ipsum locus erit supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ei ad poenam quod Dominum expectet ultorem Nemo quidem de factis suis praesumat disputare multo fortius contra factum suum venire i. e. There ought not to be in his Kingdom a greater then he that is then the King in the exhibition of law but he ought to be the least or as it were the least in receiving judgment if he desire it But if it be desired of him because no writ lyeth against him there shall be place for petition that he would correct and amend his deed which if he refuse to do it is sufficient for his punishent that he may expect God a revenger for no man must presume to dispute of his fact much lesse oppose and resist it And again lib. 4. cap. 10. Item inter caetera videndum est quis sit ille qui deijcit Princeps s ex potentia vel aliquis pro eo vel Iudex qui male judicaverit vel privata persona Si autem Princeps vel Rex vel alius qui superiorem non habuerit nisi Dominum contra ipsum non habebitur remedium per assisam immo tantum locus erit supplicationi ut factum suum corrigat emendet quod si non fecerit sufficient ei propoena quod Dominum expectet ultorem i. e. It is also to be considered who it is that disseiseth whether the King by his power or some other in his name or a Judge who judgeth unjustly or a private person If it be the King or any other who hath no superiour but God there shall be no remedy had against him by assise onely there shall be place for petition that he would correct and amend his deed which if he refuseth to do it is sufficient for his punishment that he may expect God a revenger This is all the help which a subject hath against the King because he is supreme and bound to give an account of his actions to none but God and this is the course which the two houses of Parliament are to take by law in case the King infringeth or is supposed to infringe the rights and liberties of the people as will appear by divers petitions of right exhibited in former Parliaments Secondly I say the English Monarchy by the common law is susceptible of no alteration in the rights and preheminences of Majesty I mean by any Act of Parliament or by any agreement of King and people what a conqueror in a just war or what the people may do in case the blood Royal which God prohibit should be extinct is not now disputable but so long as there remains a King or heir apparent to the crown the rights and preheminences of Majesty can by no act agreement stipulation or covenant made between King and people be severed and taken from the crown should the King unwarily by Act of Parliament consent to any thing prejudicial and derogatory to his Royal prerogative such Acts are void by the common law and the Judges being bound by oath to assent to nothing that may turn to the Kings hinderance or damage are bound to declare them so 23. H. 6. cap. 8. and have done it de facto upon several occasions By a Statute made in the twenty third year of Henry the sixt it is ordained that no man shall continue Sheriff of a Shire above one year and that all patents from the King of that office for term of years of life in fee simple or in fee taile should be void any clause or word of non obstante in any wise put or to be put into such patents to be made notwithstanding 2. H. 7. Coke lib. 7. fol. 14. now this Statute so far as it strikes at the Kings prerogative is by the Judges of the land declared to be void contrary to the express purview of that Act and all Kings since might with a clause of non obstante against the manifest sence and words of that Statute have granted that office for life in tail or in fee. 11. H. 7.11 B. Finch lib. 2 fol. 22. Roy poet licencer choses prohibite per statute come a coyner argent que est fait felonie per un estatute devant ceo fuit loyall a fair car ceo est forsque malum prohibitum mes malum in se come a levier un nusance en le haut chemine Roy ne poet licence home a faire mes apres que est fait il poet ceo pardoner Mes si lestatute dit que son licence sera void la le licence aver ' un clause de non obstante cest assavoir dire non obstante ascune estatute al contrarie ou auterment nest bone come le Statute 33. H. 6. cap. 18. est que grant del Roy deste vicount del ascun countie pluis longement quam per un an serra void nient obstant que son patent aver un clause de non obstante uncore ove un cause de non obstante tiel patent serra bone i. e. The King may licence things prohibited by Statute as to coyn silver which is made felony by Statute but was lawful before for that is evil onely because it is forbidden but that which is evil in it self as to levy a nusans in the high way the King cannot licence a man to do that but he may pardon it after it be done But if the Statute say his licence shall be void there the license shall have a clause of non obstante viz. it shall say any Statute to the contrary notwithstanding or otherwise it is not good As the Statute 23. H. 6. c. 18. is that the grant of the King to be Sheriff of a Shire longer then a year shall be void notwithstanding his patent shall have a clause of non obstante and yet with a clause of non obstante such a patent shall be good So likewise the King hath a power to dispense with penal Statutes and if such dispensations should be prohibited or made void by Act of Parliament Coke lib 7.37 yet with a clause of non obstante they shall be good although it should be provided in express terms that such dispensations notwithstanding the said clause should be of none effect By divers Statutes it hath been enacted 2. E. 3. cap. 2. 4. E. 3. cap. 13. 14. E. 3. c. 14. that no charter of pardon of the death of a man nor of other felony should be granted yet all these Statutes are by
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
Vicecomites alios Ballivos Ministros suos quibus referantur tam quaestiones super dubiis quam querimoniae super injuriis i. e. And if our Lord the King be not sufficient to determine all controversies himself he ought to select wise men fearing God and hating coveteousness and out of them constitute Justices Sheriffs Bailies and other officers to whom controversies and complaints may be referred The practice of the law hath alwayes been the same since Bracton's time and all Judges and chief officers appointed by writ patent or commission from the King Hence it is that all patents and commission of Judges and other such officers are determined by the common law at the Kings death Coke tit discontinue de proces c. part 7.30 Al common ley per demise le Roy le plea fuit discontinue le proces que fuit agard nient returne devant le mort le Roy fuit perde Car per le breve del predecessor rien poit estre execute in le temps del novel Roy si non que il soit in especial cases car le mort le Roy non solement les justices de lū Bank de laūt Barons del exchequer mes les viconts auxi eschetors touts commissions de Oyer Terminer Goale delivery justices de peace sont determine per le mort le predecessor qui eux fist i. e. By the Common law all pleas were discontinued by the death of the King and process awarded and not returned before his death was lost for by the writ of the predecessour nothing can be executed in the time of the new King except it be in some special causes for by the death of the King not onely the justices of both the benches and the Barons of the exchequer but Sheriffs also and Escheatours and all commissions of Oyer and Terminer Goal delivery and Justices of peace are determined by the death of the predecessor that made them Fifthly the power of making leagues and contracting alliance as also of making war with foraign States is in the King alone Coke lib. 7.25 Leagues between our Soveraign and others are the means to make aliens friends foedera percutere to make leagues onely and wholly pertaineth to the King wars do make aliens enemies and bellum indicere belongeth onely and wholly to the King and not to the subject as appearath in 19. E. 4. fol. 6.6 It hath been resolved by the Judges 19. E. 4.46.22 E. 4. Fitz. jurisdiction last placite Judge Jenkins fol. 17. that if all the people of England collectively taken should break the league made with a forraign Prince without the Kings consent the league holds and is not broken There are yet other rights of Majesty as the power of Coynage the power of granting letters patents of Denization the power of dispensing with such laws as are dispensable and the power of pardoning the transgression of them with divers others all which belong to the King by the Common law but because they are not called in question I will pass them over CHAP. VI. The Kings Supremacy both in general and particular shewed by reasons depending upon the laws and customes of the Land ALthough I esteem positive Laws and customes more demonstrative then deductions and inferences yet these have also their weight and importance I will therefore in the last place add such reasons as shall sufficiently confirm the Kings Supremacy although the laws had positively declared or the Judges resolved nothing concerning it First that power which is so under controul that it can be annihilated at the will of another must needs be inferiour to that power which doth so overrule and master it Now such is the condition of Parliaments that the King by law can annihilate them at his pleasure for they depend upon him quoad existentiam for their existence and continuance If it should be granted that Parliaments are in actu signato by original constitution yet the precise time of their existence and continuance hath alwayes been at the Kings appointment it being in his power to call them and dissolve them when he please so that they must needs be subordinate to him and depend upon him for their operation when they depend upon him for their existence Answer To this the reverent Divines answer for the convention of Parliaments the State hath authority in some eases to meet together in Parliament without a legal warrant from the King as if the King be a prisoner in the enemies hands or distracted and have done it de facto in the infancy and minority of some Kings and for the dissolution of Parliaments they say that they have heard wise men affirm that by law a Parliament can not be dissolved whilst there are any petitions of grievances or such matters of importance depending and unfinished Reply What needed the reverent Divines to have cited these wise men Could they not as easily have said themselves that Parliaments could not be dissolved by the Kings command as they said they might be called without it Perhaps they thought that such notorious falsities would never pass currently amongst the people if they were not confirmed by the authority of wise men as well as by their owne yet I beleeve the wise men they speak of were not so wise as Thales Milesius but whatsoever they were their magisteriall dictates must not passe for law for both that which these wise men affirm and that which they affirm themselves is manifestly opposit to law and truth There was never yet since the first foundation of the Monarchie a Parliament called without a legall warrant from the King nor can a Parliament be called without it for the cases put by them are altogether impertinent and can not be supposed the King according to his politique capacity can not be a prisoner or an infant or distracted but in case his condition be such as make him uncapable to guide and manage his charge in person as in case of infancy or distraction the law hath made sufficient provision who shall exercise the regall power in such occurrencies if he be prisoner in the enemies hands he may substitute others or if he be so closely kept as that can not be permitted in such events also the law is not deficient but in all these cases nothing can be acted by authority inherent in the people but by the Kings authority which can never be in prison nor is it subject to infancy or distraction and Parliaments called at such time by those that have authority by law to exercise the Royall power are called by a legall warrant from the King and without such a legall warrant they never were nor can be called It there have been any generall Conventions without it as the reverent Divines who should have done well to have quoted their authors and their words assure us their acts were never esteemed lawes nor such Conventions Parliaments And that the King
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
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
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
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
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