of good right and equity it appertaineth any grants usages prescription act or acts of Parliament or any other thing to the contrary hereof notwithstanding Secondly the power of appointing subordinate judges is declared and determined to be in the King by the same Statute And be it also enacted by authority aforesaid that no person or persons of what estate degree or condition soever they be from the said first day of July shall have any power or authority to make any justices of Eire justices of assize Justices of peace or justices of Goale delivery but that all such Officers and Ministers shall be made by Letters Patents under the Kings great Seal in the name and by authority of the Kings highnesse and his Heirs Kings of this Realm in all Shires Counties Counties Palatine and other places of this Realm Wales and the marches of the same or in any other his Dominions at their pleasure and wills in such manner and form as justices of Eire justices of Assise and justices of peace and justices of Goale delivery be commonly made in every shire of this Realm any grants usages prescription allowance act or acts of Parliament or any other thing or things to the contrary thereof notwithstanding Thirdly the power of making leagues with forraign Princes and States is declared to be in the King by a Statute made in the fourteenth year of Edward the fourth which begins thus 14. E. 4. cap. 4. Whereas divers and great offences and attempts have now of late been done and committed against the amities and leagues made betwixt our said soveraign Lord the King and strange Prince By this beginning of the Statute it is manifest that the power of making leagues and contracting alliance with forraign estates is a right belonging onely to the crown I could yet add divers other acts of Parliament to confirm this and all the other particulars above named but I suppose these which are already alledged are more then sufficient there are also other rights of Soveraignty which I could shew by the statutes to be in the King but because there is no contestation about them I will not fight with a shadow those above mentioned are the chiefest and inseparable from Majesty CHAP. IV. The Kings Supremacy in general shewed by the Common Law HAving shewed the Kings Supremacy from the Statutes I come now to the Common law which is the ground and foundation of it for Statutes are but declarations of the royal power the power it self with the several modifications and qualifications of it is more ancient then any statute and cannot be limited or restrained by an Act of Parliament in any thing that tends to the derogation or diminution of Majesty for the English Monarchy by the common law is an absolute Monarchy susceptible of no alteration in the rights and preheminences of Majesty First I say the English Monarchy is an absolute Monarchy by the Common Law admitting no mixture in the rights of Soveraignty the King alone being the onely supreme head and governour having none superiour to him or coordinate with him either singly or collectively taken this is expresly determined in Sir Edward Cokes reports If that Act of the first year of the late Queen had never been made it was resolved by all the judges that the King or Queen of England for the time being may make such an Ecclesiastical Commission as is before mentioned by the ancient prerogative and Law of England Coke lib. 5. in Caudreys case And therefore by the ancient Laws of the realm this Kingdom of England is an absolute Empire and Monarchy consisting of one head which is the King and of a body politick compact and compounded of many and almost infinite several and yet agreeing members all which the law divideth into two general parts that is to say the Clergy and the laitie both of them next and immediately under God subject and obedient to the head also the King head of this Politick body is instituted and furnished with plenary and iutire power prerogative and jurisdiction to render justice and right to every part and member of this body of what estate degree or calling soever in all causes Ecclesiastical or Temporal otherwise he should not be head of the whole body This is further proved by Sir Edward Coke by divers Precedents and Acts of Parliament who concludeth his report after this manner Fol. 40.6 Thus hath it appeared as well by the ancient common lawes of this Realm by the resolutions and judgements of the judges and sages of the Lawes of England in all succession of ages as by authority of many acts of Parliament ancient and of later times that the Kingdome of England is an absolute Monarchy and that the King is the only supream governour as well over Ecclesiastical persons and in Ecclesiastical causes as temporal within this Realm to the due observation of which Laws both the King and Subject are sworn In the second year of King James in Hillary Terme letters being directed to the judges to have their resolution concerning the validity of a grant made by Queen Elizabeth under the great seal of the benefit of a penal Statute in which grant power was given to the Lord Chancelour or Keeper of the great Seal to make dispensations when and to whom he pleased after great deliberation it was resolved that when a Statute is made by Act of Parliament for the publick good the King could not give the power of dispensation to any Subject or grant the forfeitures upon penal lawes to any before the same be recovered and vested in his Majesty by due and lawful proceeding and the reason there alledged is because the King as head of the Common-wealth and the fountain of justice and mercy ought to have these rights of Soverainty annexed only to his Royal person Coke lib. 7. tit penall Statutes Car quant un statute est fait pro bono publico le Rey come le teste del bien publique le fountaine de justice mercie est par tout le realme trust ove ceo cest considence trust est cy inseparablement adjoyne annexe al Royal person del Roy in cy haut point de soveraigntie que il ne poit transferre ceo al disposition on poiar d'ascune privat person ou al ascune privat use that is For when a Statute is made for the publick good and the King as head of the Common-wealth and the fountain of justice and mercy is by all the Realm trusted with it that confidence and trust is so inseperably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transfer it to the disposition or power of a private person or to any private use I shall not need to explain and amplifie the matter by arguments and inferences drawn from these reports for the words are clear of themselves and do expresly declare and resolve the Monarchy of
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
chiefly to purge themselves from the murders and injustice which they have committed by the authority of the people whose supremacy they say is sufficient to warrant their proceedings At the first they denied not the supremacy of the King but as the keepers and guardians of it they raised an army against him by vertue of his own authority but having seised upon his person and imprisoned him it was then more conducible to their ends to avouch the supremacy of the people But whosoever have the title they exercise the power themselves and as before they rebelled against the King so now they murder and oppress the people by pretence of their own authority which as their Deputies in Parliament they intend to manage as long as they can finde means to defend and uphold their tyranny Now although this pretended Parliament are no more deputies of the people of England then the Bantiti are deputies of the people of Italy who if they had as great a power would soon have as great a right as these to govern under that pretence yet for the present we will suppose them such and examine onely their Principle by which they labour to support their cause that is the Supremacy of the People And first I will shew that the people and their deputies in Parliament are neither supreme nor coordinate with the King by the lawes of the land as some of them say secondly that they are not supreme by the laws of nature as others thirdly that the people never had in them any authority or jurisdiction at all which they could give or resume again upon occasion as they generally affirm And these particulars I intend to handle in three questions The first question shall be Whether the people and their deputies in Parliament be supreme and above the King or coordinate with him by the laws of the land The second Whether the people and their deputies in Parliament be supreme by the laws of nature and have alwayes reserved a juridical power of judging their magistrates whether their actions be just and of resuming authority in case they be not The third Whether authority be originally in the people and translated by them to Kings and other supreme magistrates or in the Kings and other supreme magistrates themselves immediately from God tanquam in primo subjecto creato as in the first created subject The KINGS Supremacy asserted 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 THE first Question that shall come into consideration is Whether the people and their Deputies in Parliament be supreme and above the King or coordinate with him by the Laws of the Land The pretended Parliamentarians affirm the two Houses to be coordinate with the King in the rights of Soveraignty for the Monarchy of England they say is a mixed Monarchy and this mixture is in the power and rights of Majesty themselves so that the King alone hath not full and plenary authority to perform all acts requisite to Government but there is in the Monarchy a concurrence of several powers belonging to several estates which being mixed together make up one whole and entire power and those several estates one supreme head of the Common-wealth And although some of them are so liberal as to allow the King a primity of share in this coordination yet others say that the superiority belongs to the two Houses the King being greater then any one of the Members of Parliament but lesse then the two houses collectively taken who in the legislative power which is one of the principal rights of Soveraignty have a greater Interest then He in whose breasts alone remaineth the final determination of Law for they deny the King to have a negative voice as if his sitting in Parliament were a ceremony and meer formality and not an act of Majesty and Jurisdiction This foundation as I think was first laid by the fuller Answerer but the Treatiser the Reverend Divines and divers others have added a superstructure to it of many fine and new inventions of their own which are not needful to be here related because they alter not the state of the Question for they all affirm the two Houses to be coordinate with the King in the rights of Soveraignty and the mixture of the English Monarchy to be in the power it self I will set down their assertions in the fuller Answerers own words Before we judge saith he of what a Parliament can do in England it will be needful to know what kind of Government this of England is we are therefore to know that England is not a simply subordinative and absolute but a coordinative and mixt Monarchy this mixture or coordination is in the very supremacy of power it self otherwise the Monarchy were not mixt all Monarchies have a mixture or composition of subordinate and under officers in them but here the Monarchy or highest power it self is compounded of three coordinate estates a King and two Honses of Parliament And again a little after he saith But you 'l say what is not the Parliament subordinate to the King Are they not all Subjects I answer the Parliament cannot be said properly to be a Subject because the King is a part and so he should be subject to himself no nor are the two Houses without him subjects every Member seorsim taken severally is a Subject but all collectim in their House are not In his Answer to Doctor Ferns Reply he addeth further Although every one and all the Members are Subjects the Houses cannot properly be said to be subject and coordinate too they are the two membra dividentia which must at no hand admit coincidence nay tho' all the Members as parts and put them together too are Subjects yet all the parts of a whole taken all together are not equal to the whole the order site relation union of the parts whence the formality of the whole results being still yet wanting These are the phantasies of the pretended Parliamentarians which are so grosse and contrary to Law that the fuller Answerer seems to me to have been in a dream when his head was first impregnated with such conceptions And although I cannot but acknowledge that both the liberty and safety of the Nation consists in Free-Parliaments yet I cannot forbear to declare the Truth in such a time as this wherein Parliaments are abolished and yet their Authority and Supremacy pretended to maintain Tyranny and Rebellion I say therefore in opposition to these phantasies first that the King alone is by the Lawes of the Land the only Supreme head and Governour of England and that the people and their Deputies in Parliament taken both collectim and seorsim as well collectively as severally are his Subjects and not coordinate with him there is no mixture at all in the rights of Soveraingty for in
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-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
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
his Courts not in his private capacity and to speak properly only in his high Court of Parliament wherein he is absolutely supreme Head and Governour from which there is no appeal Object 2 And if the Parliament may take account what is done by by his Majesty in his inferiour Courts much more what is done by him without authority in any Court Object 3 And it is preached to the people in the Kings Declarations that by the Supremacy is meant a power inherent in the Kings person without above against all his Courts the Parliament not excepted whereby the excellent Lawes are turned into an arbitrary Government Reply Argus Eyes will scarce be able to discover a word of Law or truth in all this every sentence seemeth rather to be a Sarcasme then to contain matter of serious importance wherein they deal with his Majesty as the Jews did with our Saviour Christ who having stripped him of his apparrel and used all the spiteful and opprobrious tearms they could devise against him added at last a mock to their other incivilities bowing unto him and saying HARLE KING OF THE JEWES The pretended House having likewise seized upon all his Majesties Revenues and rights of the Crown and offered him all the indignities they could invent do yet style him their King and supreme Head and Governour but in such a manner as they may seem like the Jews rather to do it by way of derision then in earnest The Kings Supremacy they say is meant in Curia non in Camera in his Courts not in his private capacity As they fancy the people to have conveyed all authority to the King so they fancy the King to have poured it out again into his Courts as if he had no power authority or jurisdiction adherent in his person but had committed all to his delegate Judges or rather which they say is to speak properly unto themselves Manwood of sorrest lawes part 1. whereas he hath by law a royal and supiremenent jurisdiction above all his courts and may call causes out of them before himself or hear appeals and reform their abuses when occasion require Lambart Archaion fol. 95. I shall not need to repeat that which I have before this time opened touching the beginning of the Kingly power and authority for the delivery of justice to all the sorts and in all the suits of his subjects but I will confirm by proofes drawn out of our country lawes and lawyers that the self same generall jurisdiction is appropriated to all the Kings of this realm of England Master Henry Bracton that lived in the time of King Henry the third hath in the ninth and tenth chapter of his book these words following Rex non alius debet judicare si solus ad id sufficere possit cum ad hoc per veritatem Sacramenti teneatur astrictus exercere igitur debet Rex potestatem juris sicut Dei Vicarius minister in terra Sin Dominus Rex ad singulas causas determinandas non sufficiat ut levior sit illi labor in plures personaspartito onere eligere debet viros sapientes timentes Deum ex illis constituere justiciarios The words do prove two things serviceable to this purpose first that the K. onely is to be the judge of his people if he alone were able to performe that office as well because he is within his own Kingdome the vice-Roy of God the supream judge of the world as also for that he is thereunto bound by oath taken at the Coronation The second that albeit he doe for the multitude of causes substitute others underneath him yet is he not thereby discharged himself for it is done ut levior sit illi labor that his labour be the lighter not that he should sit unoccupied and least you should doubt that so much is not comprised in that oath of his one question therein amongst others is this Facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in misericordia veritate secundum vires tuas To which he answereth faciam wherein the words judiciis tuis vires tuas doe more properly denote his own doing then the doing of his subalterne justices albeit their judgment be after a certain manner the judgement of the King himself also from whence their authority is derived Much like the words of Bracton speaketh King Edward the first in the beginning of his book of law commonly called Britton where after he had shewed that he is the Vicar of God and that he hath distributed his charge into sundry portions because he alone is not sufficient to heare and determine all complaints of his people theu he addeth these words Nous volons que nostre jurisdiction so it sur touts jurisdictions en nostre realm issent que in touts manners de felonies trespas contracts en touts maners de autres actions personals on real ayons poer a rendre faire rendre les jugements tiels come ils afferont sans a uter processe par la ou nous scavons la droit verite come judges We Will saith the King that our own jurisdiction be above all the jurisdiction of our realm so as in all manner of felonies trespasses contracts and in all other actions personalls or realls we have power to yeild or cause to yeild such judgements as do appertaine without other processe wheresoever we know the right truth as judges Neyther may this be taken to be meant of the Kings bench where there is onely an imaginary presence of his person but it must necessarily be understood of a jurisdiction remaining and left in the Kings Royall bodie and breast distinct from that of his Bench Marshalsey Common pleas Exchequer and the other ordinary courts because he doth immediatly after in the same place severally set forth by themselves as well the authority of the Kings Bench as of the rest of those his ordinarie Courts of justice And that this was no new made law or first brought in by the Normin conquest I must put you in mind of that which I touched before out of tho Saxon lawes of King Edgar where you did read it thus Nemo in lite Regem appellato nisi quando domi jus consequi non poterit sin juris summi onere domi prematur ad regem ut is id oneris allevet provocato Let no man in suit appeale to the King unlesse he may not get right at home but if that right be to heavy for him goe to she King to have it eased By which it may evidently appeare that even so many years agoe there might appellation be made to the Kings Person whensoever the cause should inforce it Hitherto Mr. Lambart who doth afterwards further prove this supreame and supereminent jurisdiction of the King by divers precedents and acts of Parliament And although the Commons in some other Parliaments have seemed to impugne this prerogative yet here as he saith
categorically they may take an accompt what is done by his Majesty in his inseriour courts yet they would have the people think them to have such a power and therefore they lay it down as a supposition which they seem to take for granted although they know it to be false If they were a full and legal Parliament they might indeed take an accompt what is done in his Courts by subordinate Officers but not what is done by his Majesty who as King can do no wrong His authority is from God and if injustice be committed in his Courts his Kingly authority is not the cause thereof but the corruption of his judges who abuse it and his Majesty may take an accompt of them either privately or in his Parliament but is not himself accountable for their abuses For although the judgement of his courts may and is termed in law the judgement of the King yet that is to be understood of the act it self which cannot be effected without his influence and concurrence K. H. 7.4 not of the obliquity and deviation from justice which is in it Nor is he yet accomptable to any but God for his perfonal actions by the lawes of the land he cannot be obnoxious to any guilt had he committed treason or any other crime before he was King by taking the Crown upon him all attainder of his person is purged ipso facto Enough hath been said already to prove both the Houses and the Members thereof as well collectively as severally taken to be his inferiour delegate and subordinate ministers that derive their authority from him and in case of grievance are to sue unto him by petition which is all the help the law giveth in such exigencies for they are so far from having any jurisdiction over him in matters of misdemeanour that they cannot take knowledge of those cases wherein Majesty without disparagement may submit it self to a legal triall as in controversies of right or of title to land c. except he be pleased to have the businesse decided in that Court. In Haedlows case before mentioned it is resolved by all the Justices that controversies which concetn the King cannot be determined in Parliament 22. E. 3.6 and it is there added above what hath been cited that Kings may not be judged by others then themselves and their justices unques Roys ne serra adjuge si non per eux mesmes lour justic And this is true as it was resolved by Scrope in the Bishop of Winchesters case not only in respect of others but in respect of the Members of Parliament themselves for although they are to be tryed by their own respective houses in things which concern the Parliament if the fact touch not the King yet if it touch the King and the case be prosecuted by him they cannot then take cognisance of it except he thinks it expedient who hath power if he please to try it in any of his other Courts Fitz. tit coron p. 3. E. 3. p. 161. Ceux queux sount judges in Parliament sount judges de lour Pieres mes le Roy naver Piere in sa terre demesne per que il ne doit per eux estre judge ne ailours faire son suite vers cestui qui luy trespassa quam la ou luy pleist i. e. They which are judged in Parliament are judged of their Peers that is the Lords by the House of Lords and the Commons by the House of Commons bur the King can have no Peer in in his own Land and therefore he ought not to be judged by them nor to make his processe against him that offends but where he please himself Object 3 Last of all they charge the King for atttibuting too much power and authority to himself And it is preached to the People in the Kings Declarations that by the Supremacy is meant a power inherent in the Kings person without above against all his Courts the Parliament not exceped whereby the excellent Lawes are turned into an Arbitrary Government It is no wonder if the Members of the Pretended House were more inclined to hear what their own seditious Divines preached in Saint Margarets then what the King preached in his Declarations yet I believe it had been better for them if they had entertained his Majesties Person and Declarations with more respect and duty However for the present may seem to have ruined him and his people too yet they which have mounted to places of dignity and profit upon the dead bodies of the King and People may find in the end that Rebellion and Murder sit not so high but that vengeance and divine Justice sit above them As for the charge which they bring against his Majesty it is partly false his Majesty never used such expressions as they pin upon him where doth he say that he hath a personal power above and against the Parliament let any man produce the words out of which he can force such a sense Their Charge is also partly vain and frivolous for whereas they accuse him for saying his Supremacy was inherent in his Person they might as well accuse him for saying he was King Supremacy is an essential attribute of Majesty and cannot be seperated without the corruption of its Subject to say the Kings Supremacy is in his Courts and not in his person is not only to contradict the Lawes but the Common principles of reason This hath been demonstrated in divers places yet because occasion is offered again I will hear adde the resolution of all the Judges made in the first year of Henry the seventh concerning this matter for a Parliament being then called and both the King himself and divers of the Members being attainted of high Treason it was resolved by the Judges that the Attainder of the Members ought to be adnulled before they could sit in the house but touching the King it was resolved that his attainder was adnulled upon his admittance to the crown because the King is personable that is because his Kingly authority was inherent in his Person by reason whereof he was discharged of all guilt against the Laws 1. H. 7.4 Et donques fuit move un question que serra dit pur le Roy mesme pur ceo que il fuit atteint puis communication ew entor eux touts accordront que le Roy fuit Personable discharge de ascune atteind eo facto qil prist sur luy le Reigne ee Roy. i. e. And then a Question was moved what shall be said of the King himself for he was also attainted and after communication had amongst them all agreed that the King was Personable and discharged from all attainder in the very act that he took the Kingdome upon him and became King Nor is the other part of their charge lesse frivolous and vain wherein they accuse his Majesty as if he had committed a great crime in saying his Supremacy was a power inherent
convenient for the better carrying on of the war at that time if the King had undertaken and managed it by their advice and assent but claimed no right in the said power But supposing all that they say true and all their Presidents pertinent I shall make these two generall Answers first I say that if the King as in conscience he was bound did at the request of the Houses discharge divers corrupt Officers and substitute others into their places or if upon just reasons and motives in the vacancy of an office he disposed of it by the assent and approbation of the two Houses or ordered his war by their advice and direction or if the two Houses had challenged such a power as is pretended this doth not argue them to have a right in the Election of the said Officers or that the carriage and conduct of the war depended upon their assent it might be in the King a free and voluntary Act of grace not an obligation of law or he might doe it out of politique respects to have their concurrence in some other matter for although He cannot be forced by law to grant all their desires yet in wisdome policy and conscience He ought to yeild unto them when their desires are just legall and Prudentiall it hath ever been dammageable to the King and for the most part to the Kingdome also when differences between himself and his two Houses have not been fairely appeased Secondly I say that if they were able to alledge an act of Parliament wherein such a Right were placed in them such acts by the common Law of the Land were voyd for the Rights of the Crown are settled upon it by the fundamentall Lawes as hath been shewed and cannot be separated by Act of Parliament These are all the Objections which could without violence be referred to this place The rest which depend not upon Law shall be answered in the other Questions if any thing be omitted that seemeth to justify their cause let any man undertake to answer me and give me notice of it and I doubt not but I shall be able through the assistance of God to make a full and satisfactory reply unto him And this I shall desire of my Adversary that when he maketh use of any authority he would cite the words at large as I my self have done in all materiall points and not make references onely in the margent that the Reader may judge of the scope and intention thereof and be able to discern which of us dealeth faithfully and which of us ingaged by faction strive to elude the Lawes and wrest them from their genuine and native sence And thus by the Grace and Mercy of God I have in part discharged my Conscience being bound by all the bonds both of divine and humane lawes to oppose and withstand as far as I am able the false doctrine and principles which Wolves in Sheeps Clothing indeavour dayly to infuse into mens minds I shall easily avoyd I presume the usuall calumny incident to those which write upon this Subject as namely that under the pretext of promoting the Apostles doctrine of obedience they intend by flattering Princes to promote their own private interest I would to God the condition of his Majesty and the Kingdome were such as they might have some colur to lay that imputation upon me But I am not ignorant that I might soone have advanced my own interest by adoring the pretended Parliament who dispose of all mens estates and fortunes at their pleasure pretending as much right to all his Majesties Kingdomes and to all the power and glory thereof as the Divell did to all the Kingdomes of the world For that Luk. 4.6 say the Members is delivered unto us and to whomsoever we will we give it And I know they use to distribute their favours liberally to those that will fall down and worship them But how poor soever my condition is I have no inclination to buy my interest at so dear a rate I had rather perish in the performance of my duty then be confederate to their Sacriledge and other Impieties or not render my country that service which I owe it for whose liberty I would willingly Sacrifice not onely my own interest but my Life I should be no good English-man if I did not desire a better subject to discourse upon then the miseries of the Kingdome and if by being silent and turning a way mine eyes I could help to quench the Flame that audacious and factious Spirits have kindled in it I should have abstained from writing at this time But the Danger and miserable condition thereof calls for action to all those which had not rather see all things managed according to the appetit of those Incendianies and Firebrands of the Common-wealth then hazard themselves and their own interest for the Rights and Liberties of the Kingdome I could wish that all whom it concerns would seriously consider that the Fat and Riches of the the Land was the Patrimony and Inheritance of their Ancestours and may be of their Posterity if their own feares and negligence gives it not their enemies I could wish also that the pretended Parliamentarians would seriously consider their own condition whom I esteem of all men most miserable To speak my desires I wish unfainedly the Salvation of them all but to speak my thougths I conceive more hopes of the honest Heathen then of any man that shall dye a Rebell or not make Restitution of all that he hath gained by oppression and injustice Soli DEO Gloria FINIS
own confession In the first year of Queen Elizabeth another Act was made wherein she is declared supream head of the Realm in all causes as well Ecclesiastical as Temporal and an Oath injoyned to be taken by divers both Ecclesiastical and Lay persons wherein they were to acknowledge her supremacy and to promise faith and true Allegiance the Oath was this I A. B. do utterly testifie and declare in my conscience that the Queens Highnesse is the only supreme Governour of this Realm and of all other her Highnesse dominions and countries as well in all Spiritual or Ecclesiastical things or causes as Temporal and that no forraign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power superiority preheminence or authority Ecclesiastical or Spiritual within this Realm and therefore I do utterly renounce and forsake all forrain jurisdictions powers superiorities and authorities and do promise that from henceforth I shall bear faith and true Allegiance to the Queens Highnesse her Heirs and lawful successors and to my power shall assist and defend all jnrisdictions priviledges preheminences and authorities granted or belonging to the Queens Highness her Heirs and Successors or united annexed to the imperial Crown of this Realm so help me God and the Contents of this Book Answer 1 They answer first That this Statute was made to exclude a forraign power and therefore all that can be collected out of it is that the Queen was above all forraigners but not above the People and their Deputies in Parliament Reply It is no matter wherefore the Statute was made the Queen is there positively declared to be the only supreme Governour of the Realm the words of a Statute whatsoever the end was are alwayes supposed to be true and are pleadable in their usual and Gramatical sense to all purposes But was the Oath framed onely to exclude a forraign power are they sure of that When God shall make inquisition for blood and call the Reverend Divines the fuller Answerer the Treatiser and the rest of their Complices to account for all the murders oppressions and injustice whereof they have been the Authors and Abettors by stirring up the people to Rebellion and teaching them lies they will be found to have broken the oath of Allegiance now his Majesties rights have been invaded by the pretended Parliament as well as if they had been invaded by a forreigner For the Statute was made as well to declare who was the Supream Governour of the Realm as to declare who was not The Pope challenged no Superiority over the Queen in Temporal matters and yet in the Oath the Queen is acknowledged the supreme Governour of the Realm as well in Temporal as in Ecclesiastical causes This had been very superfluous if it had been composed and given only to exclude the Pope and was neither true nor a fit expression if the two Houses had been coordinate with her neither had they sufficiently excluded a forraign power by this Act which they say was the only end was aimed at for the Pope claimed supreme jurisdiction over all in Ecclesiastical causes as well over the two houses as over the Queen yet in this act provision is made for none but the Queen by the title of the Statute all ancient jurisdictions are restored to the Crown but there is no restantation of dignity or jurisdiction to the people or to their substitutes in Parliament Answer 2 Secondly they answer That the Queen is declared to be supreme in respect of particular persons but not in respect of the people collectively taken or their Substitutes in Parliament Reply The Queen is declared in the oath to be supreme Governour of the Realm and the Realm includes the People collectively taken Besides supremacy cannot admit of that distinction for they that have any above them or coordinate with them are not supreme although they be greater then any one in particular Answer 3 Thirdly they answer That the Queens supremacy was to be understood in curia non in camera in her Courts and not in her private capacity Reply The Queen by communicating her authority to her courts did not part with it her self Mr. Lambert in his Discourse upon the high Courts of Justice almost at the end of his Book speaks punctually to this exception Thus have I saith he run along our Courts of all kinds and have said as I was able severally of these lay and mixed Courts of record deriving them from the Crown their Original and drawing by one and one as it were so many roses from the garland of the Prince leaving nevertheless the garland it self un-despoiled of that her soveraign vertue in the administration of justice or as Bracton saith well Rex habet ordinariam jurisdictionem omnia jura in manu sua quae nec ita delegari possunt quin ordinaria remaneant cum ipsc Rege And therefore whatsoever power is by him committed over unto other men the same nevertheless remaineth still in himself in so much as he may take knowledge of all causes unless they be felony treason or such other wherein because he is a party he cannot personally sit in judgment but must perform it by his delegates The Kings authority then is as well in his person in regard of his private as in his Courts in regard of his politique capacity and according to the Acts of Soveraignty and Majesty onely in his person for a delegate power can not be Supreme not but that it is the same authority whereby he acts himself in person and his judges in his courts but because it is not all the same authority but restrained in his Judges by commission writ or law In the first year of Edward the sixt an Act was made wherein the King is acknowledged to be the Supreme head of the Church and Realm and that all power and authority was derived from him Whereas the Archbishops and Bishops and other Spiritual persons in this Realm do use to make and send out their summons 1 E. 6. cap. 2. citations and other processe in their own names in such form and manner as was used in the time of the usurped power of the Bishop of Rome contrary to the form and order of the summons and process of the common law used in this Realm 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 and so justly acknowledged by the cleargy of the said Realms and that all courts Ecclesiastical within the said two Realms be kept by no other power or authority either forraine or within the Realm but by the authority of his most excellent Majesty Be it therefore further enacted c. Is it not evident from hence that the two houses of Parliament are subordinate to the King and that they have their power by derivation from him who is the fountain of all authority These
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
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
England to be an absolute Monarchy the King alone to be the only supreme head and Governour of the whole body that is of all the people as well collectively as severally taken And hence it is namely in regard of the Kings Supremacy he being the only head of the Kingdome having no equal or Superiour but God alone whose Vicegerent he is upon earth that the Common law doth by way of fiction and similitude attribute unto him the Divine perfections 1. H. 7.10 Finch lib 2. del ley bap 1. Roy est le test del bien publike immediate desoubs Dieu desuis touts persons en touts causes Et pur ceo entant que il resemble le person del Dien port son image enter homes le Ley attribute a lui en un similitudinarie manner 7. E. 4.17 21. H. 7.2 Coke 7. f. 7. B. 43. El. Coke 5. fol. 114. B. 4. E. 6.31 5. E. 4.7 2. H. 4.7 1. H. 7.19 bombre del excelleneies que sont en Dien cest ascavoir SOVERAIGNTIE tout terre est tenu de de luy nul action gist vers luy car quis commandra le Roy POYAR il poit commaunder ses subjects daler hors de Realm en guerr poet faire ascune foreine coine currant icy per ses Proclamations MAJESTY ne poet prend ne departer ove oscune chose forsque per matter de record si non soit chattell ou tiel quia de minimis non curat lex INFINITENES en un manner 35. H. 6.26 esteant present en touts ses courts si come home poet dire en chescun lieu PERPETVITY ayant perpetuell succession ne unque mor. 10. El. 331. 35. H. 6.61 4. El. 246. PERFECTION car nul laches follie infancie ou corruption del sank est judge en lui VERITY ne serra unque estoppe JUSTICE ne poet esse disseisor ne faire ascun tort id est The King is head of the Common-wealth immediately under God over all persons and in all causes and therefore because he represents the person of God and bears his image the law attributeth unto him in a similitudinary manner a shadow of Divine excellencies namely SOVERAIGNTIE all lands are holden of him no action lyeth against him for who shall command the King POWER he may command his Subjects to go out of the Realm to War He may make any forraign coyn currant here by his Proclamations MAJESTY he can neither take nor part with any thing without matter of Record except it be chattel or such like because the law regards not such small matters INFINITENESSE after a Manner being present in all his courts and as it were in all places PERPETUITIE having perpetual succession and being not subject to dye PERFECTION for no laches folly infancy or corruption of blood can be judged in him TRUTH he cannot be estopped JUSTICE he cannot be a disseisor or do any wrong There are also divers prerogatives and priviledges by the Common law belonging to the King and divers Acts which the King may do or not do by reason of his Supremacy The King shall not in his writ give any man the style or title of Dominus because it is unbeseeming his Majesty to use that tearm to any he being himself omnium subditorum supremus Dominus the supream and soveraign Lord of all his subjects and in this case although there be variance between the Writ and Obligation 8. E. 6.23 B. 11. E 4.2 8. E. 4.2 or other specialty yet the Writ shall not abate which it shall in other cases as if they vary in the name or sirname or if they vary in the surn The King can hold land of no man As p. 1.18 Elizab. 498. because he can have no superiour but on the other side all lands either immediately or mediately ate holden of him as Soveraign Lord for although a man hath a perpetual right in his estate yet he hath it in the nature of a fee and whether it cometh to him by descent or purchase he oweth a rent or duty for it and therefore when in pleading a man would signifie himself to have the greatest right in his estate Littleton f. 3. he saith Que il est ou fuit seise de ceo en son demesne come de fee that he is or was seised thereof in his demeasne as of fee and if a man holds his estate immediately of the King as of his Crown or person this tenure is called a tenure in capite because he holds it of the supreme head of the Common-wealth If a man holdeth land both of the King and other inferiour Lords whereby his heir becometh a Ward the King alone shall have the custody both of the heir and land the reason which is rendered in law is because the King can have none coordinate with him or superiour to him Glanvil lib. 7. cap. 10. Si quis in Capite de Domino Rege tenere debet tunc ejus custodia ad Dominum Regem plene pertinet sive alios Dominos habere debeat ipse haeres sive non quia Dominus Rex nullum habere potest parem multo minus superiorem i. e. If any man houldeth land of our Lord the King in capite then his wardship shall wholly belong to our Lord the King whether he hath other Lords or not because the King can have no equal much less a superiour Bracton lib. 2. cap. 37. Si aliquis haeres terram aliquam tenuerit de Domino Rege in Capite sive alios Dominos habuerit sive non Dominus Rex aliis praefertur in custodia haeredis sive ipse haeres ab aliis prius fuerit feofatus sive posterius cùm Rex parem non habeat nec superiorem in regno suo i. e. If an Heir holdeth land of our Lord the King whether he hath other Lords or not our Lord the King shall have the wardship of the heir whether the heir were first or last infeoffed by others because the King hath no equal or superiour in his Kingdom The law is the same as well for whole Societies Incorporated and collective bodies as for Particular men if a man should make the two houses his heir leaving them lands holden of them by Knights service if the same persons held also of the King in capite by Knights service the King alone should have the wardship and custody of the heir and land though first infeoffed by the others and the reason in law of this prelation is saith Bracton and Glanvil because the King hath neither equall nor Superiour By the common law there lieth no action or writ against the King but in case he seiseth his subjects lands 21. H. 7.2 or taketh away their goods having no title or order of law petition is all the remedy the subject hath Stanford in his exposition of the Kings Prerogative c. 22. and this petition is called a petition of right The reason which is
the common law made void Stanford lib. 2.101 because they cut off part of the Kings prerogative So likewise to grant letters patents of Denization is esteemed by the common law inter jura Majestatis insignia summae potestatis Coke in Calvins case and is so inseparably and individually annexed to the Royal person of the King as it cannot be divided from it That which I have hitherto said of the rights and preheminences of Majesty is to be understood of those rights and preheminences that are so essential to it as they cannot be separted without the diminution or destruction of Majesty As the power of the Militia the power of making laws the power of appointing Judges and such like Acts of jurisdiction as also the power of dispensing with penal Statutes the power of pardoning the transgressions of the Law the power of prosecuting the law and such like supreme acts of justice and mercy some of which rights and preheminences cannot be taken away without giving a wound others not without bringing death and dissolution to Majesty yet there are other rights and preheminences that are called priviledges which are not so essential to Majesty but that they may by special grace of the King be separated Bracton lib. 2. cap. 24. Ea vero quae jurisdictionis sunt pacis ea quae sunt justitiae paci annexa ad nullum pertinent nisi ad Coronam dignitatem Regiam nec à Corona separari poterunt cum faciant ipsam Coronam Ea vero quae dicuntur Privilegia licet pertineant ad Coronam tamen à Corona separari possunt ad privatas personas transferri sed de gratia ipsius Regis speciali id est Those things which belong to jurisdiction and peace and those which are annexed to justice and peace pertain to none but the Crown neither can they be separated from it because they make the Crown But those which are called Priviledges although they pertain to the Crown yet they may be separated from it and transferred to private persons but not without the special favour of the King It may seem strange that the King and the Lords Spiritual and Temporal and the House of Commons which are virtually the whole kingdome should not have power to make what Laws they please and to bind themselves and the whole kingdome by them in things not repugnant to the law of God yet if we consider the ground of this restraint we shall find it reasonable for they which lay the first foundation of a Common-wealth have authority to make lawes that cannot be altered by posterity in matters that concern the rights both of King and people for foundations cannot be removed without the ruin and subversion of the whole building As for example the division of things which is made at the first foundation of a Commonwealth whether the people took the countrey they divide from the Inhabitants by conquest in a just war or whether they did first actually possesse it themselves as being before emptie and vacant cannot be altered by posterity and a new division made without manifest injustice The Laws which they then make for the preservation of their right and propriety in the said division can not be disannulled by succeeding Parliaments nor can any particular man be deprived of his inheritance which descends unto him by virtue of that division or of any part or parcel or appurtenances thereof by any contrary law which shall be made by them I speak not what Parliaments may do by force but what they may justly do for they have not such an arbitrary power but that they are alwayes in a morall subjection to the rules of justice and natural equity And in this case the Kings condition ought not to be worse then the peoples but his share and rights in the said division are as firmly and unchangeably to be preserved as the share and rights of particular men And both the King and people are obliged to this not only by the rules of Justice and natural equity but by oath and by the municipal Lawes of the Land l. 17. to which they are both sworn That the King is bound to this appears by the Lawes of King Edward Debet vero de jure Rex omnes terras honores omnes dignitates jura libertates coronae regni hujus in integrum cum omni integritate sine diminutione observare defendere dispersa dilapidata amissa regni jura in pristinum statum debitum viribus omnibus omnibus revocare i. e. The King ought by right to maintain and defend all the Lands honours dignities rights and liberties of the Crown entirely without diminution and by all means to recall again those rights which are lost and separted from the Crown That the people are bound to this l. 35. l. 56. appears likewise by the Lawes of King Edward and of William the Conquerour who did a little inlarge the Lawes of King Edward in this particular Statuimus etiam firmiter praecipimus ut omnes liberi homines totius regni nostri praedicti sint fratres conjurati ad Monarchiam ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servandum pacem dignitatem coronae nostrae integram observandam ad judicium rectum justitiam constanter omnibus modis pro posse suo sine dilatione faciendam Hoc decretum sancitum est in civitate London i. e. we will and command that all free men of our Kingdom be sworn Brothers to defend and keep our Monarchy and Kingdome according to their power against the Enemies of the same and to maintain the peace and dignity of our Crown entire and to exercise right judgement and justice according to their power without deceit and delay This Decree was enacted in the City of London By the civil law also the rights of Soveraignty cannot be separated from the Prince and the reason alleadged is because they are essential to Majesty Suprema jurisdictio potestas regia etsi Princeps velit se separari non possunt sunt enim ipsa forma substantialis essentia Majestatis ergo manente ipso Rege ab eo abdicari non possunt Cabedo practic observ par 2. decis 40. n. 8. Io. Andr. in addit ad specul tit de jurisdict c. Cum Marthae de celebrat Missar i. e. Supreme jurisdiction and Kingly power cannot be separated from the Prince although he would himself for they are essential to Majesty and cannot be abdicated whilst he remaineth King CHAP. V. The Kings Supremacy in particular shewed by the Common Law I Come now to the particular rights of Soveraignty which are all by the Common law wholly in the power of the King First 19 E. 4.6 Coke 7.25 B. the Militia is his by the Common Law and to him it only pertaineth to make War with
forrain Princes and Estates as also to maintain the peace to suppresse Rebellions and to see justice executed at home within his own Kingdome Fleta lib. 1 cap. 17. Habet Rex in manu sua omnia jura quae ad Coronam Laitalem pertinent potestatem materialem gladium qui pertinet ad Regni gubernaculum i. e. The King hath all the rights in his hand which belong to the Crown and to Temporal jurisdiction and the power of the sword which belong to the Government of the Kingdome So likewise saith Bracton lib. 1. cap. 8. Sunt alii potentes sub Rege qui dicuntur Barones hoc est robut belli sunt alii qui dicuntur Vavasores viri magnae dignitatis vavasor enim nihil melius dici poterit quam vas fortium ad valetudinem sunt sub Rege milites s ad militiam exercendam electi i. e. There are other great men under the King which are called Barons and other which are called Vavasours men of great dignity There are also soldiers under the King chosen to exercise the Militia And in the beginning of his Book he saith that it is necessary this power should be in the King In rege quirecte regit necessaria sunt duo haec arma videlicet Leges quibus utrumque tempus bellorum pacis recte possit gubernari utrumque enim istorum alter us indiget auxilio quo tam res militaris possit esse tuta quam ipsae Leges usu armorum praesidio possint esse servatae Si autem arma defecerint contra hostes rebelle indomitos sic erit regnum indefensum Si autem Leges sic exterminabitur justitia i. e. In a King that governeth well two things are necessary armes and lawes by which he may be enabled to rule both in times of peace and war and both these help the need of one another whereby both armes and lawes may be preserved If arms be wanting against enemies and rebells the Kingdome shall be without defence if Lawes be wanting without justice This is also evident from the Tenures whereby most of the chief men in the Kingdome hold their estates for all that hold in capite by Knights service are bound for their fee to assist the King in his wars whensoever they shall be summoned by him whether it be to suppresse rebellion or to resist a forraign invasion And this hath been the known Law of the Land ever since the time of William the Conquerour in the fourth year of whose reign this right was confirmed unto him by Act of Parliament The words of the Statute are these Statuinus firmiter pracipimus ut omnes Comites Barones Milites Servientes universi liberi homines totitu regni nostri praedicti habeant teneant se semper bene in armis in equis ut decet oportet quod sint semper prompti parati ad servitium suum integrum nobis explendum peragendum cum semper opus adfuerit secundum quod nobis debent de feodis tenementis suis de jure facere sicut illis statuimus per commune consilium totius Regni nostri praedicti illis dedimus concessimus in feodis jure hereditario i. e. We will and command that all Earls Barons Knights Villeins and all Freemen of out whole kingdom be alwayes well provided with horse and armes as it behoveth them and that they be alwayes in a readinesse to serve us as often as need shall require according as they are bound by their Lands and Tenements and as we have appointed them to do by the Common-Councell of our whole Kingdome and for that consideration have given and granted them lands in Fee for ever Secondly The Legislative power belongs to the King alone by the Common Law the two Houses have authority granted them by the King to assent or dissent but the power that makes it a law the authority that animates it and makes it differ from a dead Letter is in the King who is the life and soul of the law by whose authority alone the lawes command and forbid and vindicate and punish offenders So saith Bracton lib. 1. cap. 2. Hujusmodi verò Leges Anglicanae consuetudines Regum authoritate jubent quandoque quandoque vetant quandoque vindicant puniunt transgressores i. e. These Lawes and customes of England by the Kings authority do sometimes command sometimes sorbid and sometimes chastise and punish transgressors This was also resolved by divers Earls and Barons and by all the justices in the time of Edward the third For one Haedlow and his wife having a controversy with the King and desiring to have it decided in Parliament a reference being made to divers Earls and Barons and to all the justices to consider of the businesse it was resolved that the two houses were not coordinate with the King in the Legislative power but that the King alone made lawes by the assent of the two Houses that he had none equal or coordinate with him in his Realm and that he could not be judged by the Parliament 22. E. 3.6 Fuit dit que le Roy fist les leis per assent des peres de la Commune non pas les peres le Commune Et que il ne avera nul pere en sa terre demesne que le Roy per eux ne doit estr ajuge i. e. It was resolved that the King makes lawes by the assent of the Lords and Commons and not the Lords and Commons and that he could have no Peer in his own land and that he could not be judged by them The Common practice of the law confirms this as well as the resolution of the Judges for the breach of any Statute whether it be by treason murder felony perjury or by any other way is an offence against the Kings authority alone and pleas made against such offences are called the pleas of the crown because they are done encounter la corone dignitie le Roy Stanford les plees del corone lib. 1. cap. 1. against the crown and dignity of the King So that it is not the dignity and authority of the Lords and Commons which is violated by contempt of the law but the dignity and authority of the King He may dispense also with such laws as forbid a thing which is not malum in se and pardon the transgression of others as Treason Felony and the like which in reason he ought no more to do then to dispense with the laws of Germany Spain or France or pardon the transgressours thereof if they were not made by his own authority Again it is an uncontroulable Maxime of Law Ejusdem est leges interpretari cujus est condere None can interpret the laws but the same power that makes them Now that the King calling the Judges to him hath this power is evident by his exposition
upon the Statute of Glocester made in the sixt year of Edward the first extant amongst the printed Statutes and following immediately after the said Statute in these words After by the King and his Justices certain expositions were made upon some of the articles above mentioned that is to wit to the first article for entries by disseisin damages shall run from the time of the Statute published In the same wise in writs of entre upon disseisin in all writs of Mortdauncester Cousenage Aiel or Befaiel of intrusion by one act by any manner of writ damages shall run after the writ purchased against them that held by Statute albeit their ancestors died seised thereof c. Here we see to whom the interpretation of the law belongeth the Judges by themselves have a power to interpret it judicialiter they could not otherwise proceed to judgement but being called by the King with him and under him they have a power to interpret it authoritative as hath been the practice and is the known law of the Land But for the two houses besides that they can do nothing joyntly together unless the King doth actually concurre with them their structure is such that they are altogether uncapable and unfit to interpret law For the power that interprets law must be always existent to act as new occasions shall arise which requires the exercise of that power which the two houses are not And yet were they alwayes existent both houses having a negative voyce upon any disagreement between them the interpretation of the law must be retarded and all controversies depending thereupon undecided and this disagreement might perhaps endure for ever and so a final determination in such suites would be impossible Now these are inconveniences which ought not to be admitted in any common-wealth for it derogates both from the honour and wisdome of a Nation to be so moulded and framed that justice cannot have a free passage in all contingencies I will yet adde for the further clearing of this point that not only the legislative power it self but the very exercise of the power also so far as it is essential to government is in the King alone for he can by edicts and proclamations provide for all necessary occasions and special emergencies not provided for by fixed and certain laws which is one of the most excellent and eminent acts of the legislative power and a sufficient remedy against all mischiefs in case the two houses should refuse to concur with him in those things which concern the benefit of the Kingdome He may also grant immunities liberties and priviledges to any colledge town city or incorporation and authorise the said communities to make such local Statutes as shall oblige every member thereof so far as they contradict not the general Statutes of the Land which are all acts of the legislative power that he can exercise without the concurrence of the two houses Now concerning the Kings negative voice 12. H. 7.10 4. H. 7.18 7. H. 14. Judge Jenkins fol. 18. it is the known law that the King hath a power of dissenting and that no act of Parliament can have any authority except either in person or under his seal he signifies his assent Thirdly allegeance or ligeancy is due to the King and none but the King by the Common law as Sir Edward Coke sheweth at large in Calvins case from the resolution of the Judges By that which hath been said appeareth saith he that this ligeance is due onely to the King so as therein the question is not now cui sed quomodo debetur It is true that the King hath two capacities in him one a natural body being discended of the blood Royal of the realm and this body is of the creation of almighty God and is subject to death infirmity and such like The other is a politick body or capacity so called because it is framed by the policy of man and in the 21. E. 4.39 B. is called a mystical body and in this capacity the King is esteemed to be immortal invisible not subject to death infirmity infancy nonage c. Vide Pl. Com. in le Case de Seigmor Barclay 238. Et in the case del duchie 213. vide 6. E. 3.291 26. ass pl. 54. Now seeing the King hath but one person and several capacities and one politick capacity for the realm of England and another for the realm of Scotland it is necessary to be considered to which capacity ligeance is due and it was resolved that it was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural capacity and is not due to the politick capacity onely that is to the crown or Kingdome distinct from his natural capacity In the same case a little after it followeth And where divers books and Acts of Parliament speak of the ligeance of England as the 31. E. 3. tit Cosinage 5.42 E. 3.2.13 E. 3. tit Bre. 677.25 E. 3. Statut. 2. De natisultra mare All these and divers other spenking briefly in a vulgar manner for loquendum ut vulgus and not pleading for sentiendum ut docti are to be understood of the ligeance due by the people to the King For no man will affirm that England it self taking it for the continent thereof doth owe any ligeance or faith or that any ligeance of faith should be due to it but it manifestly appeareth that the ligeance or faith of the subject is proprium quarto modo to the King omni soli semper Fourthly the power of making Judges and all such State officers as exercise any jurisdiction is in the King alone by the Common law and can not nor ought not to be separated from him for it is not reasonable that delegate Judges should be substituted by any but those whose delegates they are nor can a King execute justice according to his oath which next the Glory of God is the chief end of Government by a naked title onely His subjects may be vexed by the rapine and exactions of unjust Judges they may be wearied by delayes exhausted by insupportable fees opprest many several ways and the King in the mean time must stand still and look on if his hands be bound and he disabled from punishing their delinquencies deputing others into their places And therefore this power cannot be disunited from the crown but ought to be de jure as it hath alwayes been de facto a part of the Kings prerogative Bracton lib. 3. tit de actionibus cap. 10. Et si ipse Dominus Rex ad singulas causas terminandas non sufficiat ut levior sit illi labor in plures personas partito onere eligere debet de regno suo viros sapientes timentes Deum in quibus sit veritas eloquiorum qui ederunt avaritiam quae inducit cupiditatem ex illis constituere Justiciarios
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
in his person without and above his Courts for as hath been shewed the King hath not only an extraordinary jurisdiction where cases can have remedy no where else but ordinary also above all his courts wherein he is but virtually present Bracton Sicut Dominus Papa in spiritualibus super omnibus habeat Lib. 5. cap 15. ordinariam jurisdictionem ita haber Rex in Regno suo ordinariam in temporalibus pares non habet neque superiores That in Fleta is also to be understood of the Kings ordinary jurisdiction Lib. 1. cap. 17. Potentia Rex omnes in Regno suo praecellere debet quia parem habere non debet nec multo fortius superiorem in justitia exhibenda The King ought to have a superimenent power above all the rest in his Kingdome because he ought to have no equal much lesse a superiout in exhibiting justice CHAP. VIII Divers general objections made by the Author of the Treatise of Monarchy touching the limitation and mixture of the English Monarchy and coordination of the two Houses answered The Nature of Absolute Limited and Mixed Government Explained THE Author of the Treatise of Monarchy the fuller Answerer and other Pretended Parliamentarians have invented a new form of Government to delude the People which they tell them is the Government established in England namely a mixed Monarchy consisting of three Estates independent for their authority upon one another all of them being coordinate and having several shares in the rights of Soveraignty by the fundamental lawes of the land A strange kind of Monarchie not so much as heard of until these times much lesse established in England for a Monarchy is the Government of one alone as the Etymologie of the word importeth now to say the Government of three Estates is the Government of one alone doth not sound half handsomely Other Authors have spoken of mixed Government and mixed Common-wealths but of mixed Monarchy in that sense which they do none but themselves have treated For according to the Verdict of other Authors Besol Synops polit doct lib. 1. cap. 6. when Monarchy Aristocracy and Democracy are melted and allayed together that which resulteth can take its name from none of the simple species or kinds of Government although the chief authority or primity of share belong to any one of the estates Yet if they will needs have a mixed Government to be denominated from that kind that hath predominancy they might with better reason have called their new frame a mixed Democratie this denomination besides that it is not so improper as the other Democratie implying the Government of the people but not of the people only as Monarchy doth of the Monarch alone is more agreeable to the quality and nature of their platforme for the Kings authority being so inconsiderable as they make it the people in this mixture must needs be the predominant Element The Author of the Treatise of Monarchy who seemeth to give most to the King although in terms he grants him a primity of share in the supreme powet yet in substance he would have it placed in the two Houses attributing unto them such authority as they may thereby make him deprivable at their pleasure Now although the said Treatiser seemeth to be a Poet rather then a Lawyer having many new fictions but scarcely a word of law in all his treatise yet because I cannot conveniently reduce his objections to any of the other Questions that are hereafter to be discussed I will answer them in this place But before I come to examine them that all things may be clear and better understood I will for perspicuity sake speak a word or two of the division and several kinds of Absolute Limited and Mixed Government I will begin with Absolute Government of which there be three kinds the first is Absolute both in respect of power and also in respect of the use and exercise of it In this kind of Government the Supreme Governours have perfect Absolute full and intire power and in the exercise of it are subject to no limitation made by any humane law paction or agreement but are limited ab externo by the lawes of God and nature onely being otherwise left to the free determination of their owne wills This is also called Arbitrary government not because such governours as have the free use of their power may doe what they please for their power is bounded by the lawes of God and nature and may not transgresse and goe beyond its limits but because it is not bounded by any humane positive law made to restraine and regulate it The ends of Government may be attained severall wayes in many particulars without breach of the Lawes of God and nature now when a Governour is not directed to his end in any of those particulars by humane constitution and appointment but hath an open and free passage to act which way he please his Government is Absolute and Arbitrary Amongst all the severall kindes of Government this onely is jure Divino as being more ancient then any humane law that could be made to direct it by virtue and authority whereof humane lawes were at first enacted all other sorts were introduced by the policy of men yet lawfull humane Constitutions serving to conduct power to its end making as it were a furrow for it to passe in and to contain it which otherwise is apt to overflow its bounds and to degenerate into tyranny The second is Absolute in respect of the power alone In this kind of Government the Supreme Governours have as perfect Absolute full and intire power as the former their authority have the same latitude and all the same dimensions but they are limited ab externo in the use and exercise of it either by originall and fundamentall constitution or else by lawes made afterwards by speciall grace and condescention so that although their power be perfect Absolute full and intire in all respects and able to produce all the effects of Government yet they can not put it forth and act by it according to their own free election or according to the full activity of it but must act according to those limitations made and granted by law The third is Absolute in respect of the exercise onely In this kind of Government the exercise of the supreme authority is committed for a certain time but the supreme authority it self not translated to one or more who by virtue of the said commission may exercise the power in an arbitrary manner during the time assigned them Such were the Dictators of the Romane Commonwealth who ruled as arbitrarily all the time of their Dictatorship as the most Absolute Monarchs in the world yet the supreme authority remained in the Senate And such are they who exercise Royal power in the minority of Princes whose Government is Absolute and Arbitrary There are also three kindes of Limited Government answereable to Absolute the first is Limited both in
respect of Power and also in respect of the use and exercise of it In this kind of Government there are alwayes more Governours then one which are all Limited in the very essence and being of their power having none of them perfect absolute full and intire authority but onely their severall shares and proportion neither can they act in an arbitrary manner according to the full extent of that power which they have but have a certain rule set them by law The second is Limited in respect of the power alone In this kinde of Government as in the former there are alwayes more Governours then own which have all their Limited shares yet may all act arbitrarily either joyntly together or every one within the pale and limits of his own authority The third is Limited in respect of the exercise onely In this kind of Government the Governours are absolute in regard of power but circumscribed and Limited in the Acts of it As of absolute and limited so there are likewise three kinds of Mixed Government sutable to the other the first is Mixed both in respect of power and also in respect of the use and exercise of it In this kinde of Government there is a mixture of severall powers which compound and make up one perfect absolute full and intire power and also of severall persons and estates to whom the said powers do radically and fundamentally pertain which do jointly concurre in the administration and exercise of them The Second is Mixed in respect of the power alone In this kind of Government severall persons and estates are mixed together in the possession of power but one alone do exercise all the acts of Soveraigntie In this manner was the Roman Commonwealth governed by Sylla and by Dictators in the time of exigence and necessity The third is Mixed in respect of the exercise onely In this kind of Government severall persons and estates are Mixed in the exercise of power but one of the estates alone hath the dominion and propriety of it Now touching the Government of England I have shewed already that it is Monarchicall that the Monarchie is Absolute in respect of the power that the King alone hath perfect Absolute full and intire jurisdiction able if put in action to effectuate and bring to passe all the ends of Government and that all other persons of all estates and degrees whatsoever both Nobles and Commons move in their severall circuits and spheres of activity by virtuall emanation from him and not by force of any power authority or jurisdiction inherent in themselves And indeed all Monarchies are Absolute in this respect that is in respect of the power for when the limitation is in the essence and being of power Monarchie is destroyed not limited But yet the English Monarchie is Limited in respect of the use and exercise of power the King being obliged to govern according to the laws of the land which although they doe not diminish Majesty in essentialibus yet they do diversly qualifie and modificate it It is also Mixed in the same respect the King being obliged in some cases not to use his power without the assent and concurrence of the two other estates The pretended Parliamentarians on the other side deny the English Monarchie to be Absolute in any respect and affirm it to be Limited and Mixed as well in respect of the power it self as in respect of the use and exercise thereof the two Houses of Parliament being coordinate with the King not only in the administration of power but in the possession of it Yet they are not able to alledge one syllable of law to make good these strange novelties but strive by indirect inferences to decieve the people Howsoever I will bring their objections such as they are and answer them in order and first I will bring their objections whereby they indevour to prove their pretended limitation and then those whereby they endevour to prove their pretended mixture Object touching li ∣ mitation 1 I conceive and in my judgement perswaded saith the Treatiser that the Soveraignty of our Kings is radically and fundamentally limited and not only in the use and exercise of it and am perswaded so on these grounds and reasons First because the Kings Majesty himself who best knowes by his Councel the nature of his own power sayes that that the Law is the measure of his power Declar. from Newmarket Mart. 9. 1641. Which is as full a concession of the thing as words can expresse If it be the measure of it then his power is limited by it for the measure is the limits and bounds of the thing limited And in his answer to both the Houses concerning the Militia Speaking of the men named to him says If more power shall be thought fit to be granted to them then by law is in the crown it self his Majesty holds it reasonable that the same be by some law first vested in him with power to transfer it to those persons In which passage it is granted that the powers of the Crown are by law and that the King hath no more then are vested in him by law Object 2 Secondly because it is in the very constitution of it mixed as I shall afterwards make it appear then it is radically limited for as I shewed before every mixed Monarchy is limited though not on the contrary For the necessary connexion of the other power to it is one of the greatest limitations a subordiuation of causes doth not ever prove the supreme cause of limited virtue a coordination doth alwayes Object 3 Thirdly I prove it from the ancient ordinary and received Denominations For the Kings Majesty is called our Liege that is legal Soveraign and we his liege that is legal Subjects What do these names argue but that his Soveraignty and our Subjection is legall that is restrained by law Object 4 Fourthly had we no other proof yet that of prescription were sufficient in all ages beyond record the Lawes and customes of the Kingdome have been the rule of Government liberties have been stood upon and grants thereof with limitations of Royal power made and acknowledged by Magna Charta and other publick solemn acts and no obedience acknowleded to be due but that which is according to law nor claimed but under some pretext and title of law Object 5 Fifthly the very being of our Common and Statute lawes and our Kings acknowledging themselves bound to govern by them doth prove and prescribe them limited For those Lawes are not of their sole composure nor were they established by their sole authority but the concurrence of the other two estates so that to be confined to that which is not meerly their own is to be in a limited condition Reply Before I come to answer his objections out of his own mouth will I condemn him for if he be perswaded as he saith in his first objection that the King by his Councell knew the nature of
authority and power is originally in the people from whence he inferreth that they may translate as much and as little as they please to their governours and so limit their power in its being and essence But because they speak not de facto but de possibili and because I shall handle these things ex proposito in the third question I will referr them them to their due place Object touching mixture 1 I come now to the objections whereby they endevour to prove the English Monarchy to be a mixed Monarchy I conceive it saith the Treatiser a clear and undoubted truth that the authority of the land is of a compounded and mixed nature in the very root and constitution thereof and my judgement is established on these grounds First it is acknowledged to be a Monarchy mixed with Aristocracy in the House of Peers Answer to the 19. Propositions and Democracy in the House of Commons Now as before was made appear in the first part it is no mixture which is not in the root and supremacy of power For though it hath a subordination of inferiour officers and though the powers inferiur be seated in a mixed Subject yet that makes it not a mixed Government for it is compatible to the simplest in the world to have subordinate mixtures Reply His Majesty acknowledgeth Monarchy to be so mixed with Aristocracy and Democracy in the exercise of some part of his power that the conveniencies of all those forms of Government without the inconveniencies of any of them are obtained by such a mixture But he denyeth the mixture to be in the power it self for the convenience which he saith it hath from Monarchy is that it is Governed by one Head Where by one Head he meaneth not one by mixture but one single Person one pure and unmixed subject that hath all power and authority alone The Treatiser I conceive hath purposely omitted his words that his sense might not appear but I shall cite them in the next chapter and shew the true intention and meaning of them Now whereas his Majesty hath acknowledged a mixture to infer from thence that he granted the mixture to be in the power it self because the other kind is not a true but an improper kind of mixture is a strange and unusual way of argumentation If his Majesty was in an errour and apprehended that to be a true mixture which is not all that can be concluded thereupon is that he misunderstood the true nature of mixture not that he granted the mixture to be such as they contend for when it is evident that a man deny a thing in terminis there is neither candor nor ingenuity in those which will by consequences argue him to affirm it Some accuse the Romane Catholiques of Idolatry because they affirm such things as in their conceit seem by way of consequence to allow it but no man was ever so void of ingenuity as to dispute the question whether Idolatry be lawful and then cite them for Authors that maintain it to be lawful In like manner some accuse Calvine of Turcisme because he affirm such things as in their conceit seem by way of consequence to justifie the practise and religion of the Turks but no man was ever so unreasonable as to dispute the Question whether the Turkish religion be the true Religion and then cite him for an Author that maintained it to be true because it is evident that if those questions were propounded in terminis the Romane Catholicks would deny Idolatry to be lawful and Calvine if he were alive the Turkish religion to be the true religion what consequences soever other men draw from their words Yet the Treatiser dealeth in this manner with his Majesty for although it be evident that his Majesty denyed in terminis the mixture of the English Monarchy to be in the power it self yet he argues him by consequences to affirm it this to the Antecedent But secondly the consequent is also false the mistake is in himself not in his Majesty why is it no mixture which is not in the root and supremacy of power he answereth Though it hath a subordination of inferiour officers and though the powers inferiour be seated in a mixed subject yet that makes it not a mixed Government for it is compatible to the simplest in the world to have subordinate mixtures What if no government in the world be so perfectly simple as to exclude all subordinate mixtures it doth not follow from thence that a subordinate mixture is no mixture I shall also deny the very ground and foundation of his argument such subordinate mixtures as are in the English Monarchy are not compatible to the simplest government in the world for where the government is arbitrary and absolute both in respect of power and in respect also of the use and exercise of it supreme governours can put forth all the acts of power and jurisdiction alone they can make lawes raise taxes and exercise their whole power according to the full activity of it without the concurrence of the other estates and although they do often make use of their direction and assistance yet this mixture in the exercise of power proceeds not from the constitution of government but from their own voluntary election choosing this as the most conducible means to obtain the ends of government For although they may act according to the full activity of their power yet they cannot act in person at all times and in all places nor is one mans wisdome sufficient to meet with all the Events and accidents of government by reason whereof they are driven to seek a remedy against such inconveniencies as would arise frm these and the like causes and if when they find no better they substitute others and give them authority to act with them in the exercise of power this voluntary mixture cannot have such an effect as to denominate a government mixed because it depend upon the immediate will of the supreme governour who may act without them where and when he please and whether he acts with them or without them the frame of government is still the same for it is the constitution of a government that specificate it and causeth it to be denominated mixed or simple There is a great difference then between such subordinate mixtures and the subordinate dinate mixture that is in the English Monarchie those are mutable uncertain depending upon the will of the Supreme Governour this immutable certain depending upon the constitution of the Government for whether it was effected by originall contract with the people at the first foundation of the Monarchy or whether it was established afterward by the voluntary grant and concession of some of our Kings or whether it was introduced by custome the Government is now so constituted that the King can not make lawes raise subsidies or exercise some other acts of his power without the assent of the two other estates So that the very
constitution of the government is mixed in some respect namely in respect of the exercise of some acts of power which happeneth not in Common-wealths where the government is arbitrary Object 2 Besides that which is here alleadged the treatiser bringeth other objections in his reply to Doctor Fern against mixture in the use and exercise of power Aristocracy and Democracy saith he are powers not Persons as well as Monarchy Pag. 38. therefore a composition of these three must be all of powers and endeed this Chimera of a mixture in the exercise of power is plain non sense for a mixture in the acts or exercise supposeth a mixture in the principles of action that is in the very powers a mixt act proceeding from a simple power is such Stuffe that I never heard before Reply First he saith that Aristocracy and Democracy are powers not persons as well as Monarchy and this he takes for granted which is both an apparent falsity and a Solecisme for Monarchie Aristocratie and Democratie are neither powers nor persons but formes of government equally relating to both the words according to their etymologies noting persons as well as powers and when these are mixed together it is the mixture of persons not of powers that denominate a mixed form of Government as I shall shew immediately Secondly he saith that a mixture in the exercise of power is plain non fence for a mixture in the acts or exercise supposeth a mixture in the principles of action a mixt act proceeding from a simple power is such stuffe that I never heard Here in stead of law he bringeth an Axiome either of his own coyning or taken out of some Author that writeth De causa causato to confirm his mixture such axioms are no authenticall proofs were they genrally true which for the most part they are not but admit of divers limitations it is a very difficult matter to prove what kind of Government is established in any common-wealth by Bedas Axiomes or the Axiomes of any other Author it had been more seasonable whilst he he was mixing the rights of Majesty if in making his assertion good he had mixed a little Law with his Philosophy and Logick But as his Axiome is not authenticall so without divers restrictions it is not true A mixed act may proceed from a simple cause the Sun doth by the same power heat resolve and harden at the same time for the vertue of naturall Agents is diversly modificated of the subject wherein it is received and acteth variously according to the severall dispositions thereof And yet if his Axiome were authenticall or true it is not pertinent the question is whether the mixture of severall estates in the exercise of some acts of power be not a true mixture sufficient to denominate a mixed Government how doth it follow now that it is no true mixture because a mixed act can not proceed from a simple power If that were true yet a mixed form of Government may proceed from the mixture of several persons and estates for forms of government are no acts Besides the Division of Government into simple and mixed is made in respect of the Persons and Estates not of the power which remains the same under all formes and changes of Government and cannot properly per se but improperly per accidens be said to be mixed for it is mixed onely ad mixtionem subjecti when it is seated in a mixed subject being otherwise the same that it is in a simple and when a simple form of Government is changed into a mixed or a mixed into a simple the power suffereth not the least alteration but is denominated simple or mixed according as it is seated in a simple or mixed subject This is the Common assertion of all Authors who do generally teach the diversity of Common-wealths to arife from the diversity of Persons their simplicity and mixture from the simplicity and mixture of Persons and estates not from the diversity or from the simplicity and mixture of powers Quoad imperium haud discriminamus species rerum publicarum Siquidem in qualibet Rep. deprehendere est summam legibusque solutam potestatem verum quoad eos pene quos imperium est differentia reipublicae formarum fieri debet coque nomine aut Monarchicus aut Polyarchicus status est Polyarchicus status aut simplex aut vero mixtus existit Besold tit de Reg. legit Frederic Tileman Disp Digest 2. hes 8. i. e. We distinguish not the formes of Common-wealths by power for there is a supreme power above the lawes in every Commonwealth but the difference ariseth from the persons in whom the power is seated and in that respect the state of a Commonwealth is either Monarchiall or Polyarchicall the Polyarchicall state is either simple or mixed Now where the severall forms of government are totally mixed that is where the mixture of the three Estates is both in the power and in the exercise of it there the simple forms of government are corrupted and that which results out of their mixture and corruption is another form distinct from them all which by authors is generally called a mixed Common-wealth this kind of government is always Polyarchicall such a mixture being incompatible to Monarchie But where they are but partially mixed that is where the mixture of the three Estates is in the exercise of power alone there the simple forms of government are not destroyed by such a mixture but suffer onely an accidentall change This is a light mixture in comparison of the other but as great as is consistent with any of the simple forms of government and as true a mixture as the former which although it doth not totally corrupt yet it doth manifestly allay the simplicity of a government for where severall estates have interest by the constitution of a government in the exercise of power the government is not so simple as where one of the estates alone have all the interest Object 3 Thirdly that power where the legislative power is in all three is in the very root and essence of it compounded and mixed of those three for that is the height of power to which the other parts are subsequent and subservient so that where this resideth in a mixed subject that is in three distinct concurrent estates the consent and concourse of all most free and none depending on the will of the other that Monarchy is in the most proper sense and in the very modell of it of a mixed constitution but such is the state of this Monarchie as appears in the former question and is self-apparent Reply This objection is soon answered by that which hath been said in the fifth chapter but because it is their principall objection I will more at large shew the invalidity of it first therefore I answer to the antecedent that the concurrence of one or both the other estates with the monarch in the making and promulgation of laws
is no good colour or pretence much lesse a sufficient ground for such a coordination and mixture as is pressed by them Although their assents be free and not depending upon the will of the Monarch yet that makes them not coordinate with him in the rights of Soveraigntie It is the common assertion of a Pannormit cap. gravem de fententia excommun Canonists b Bertol. in L. omnes populi ff de justitia jure q. 2. princip quoestiunc 5. num 20. Civilians and c Suarez lib. 1. de legibus lib. 1. cap. 8. num 9. Schoolmen nor is it to my knowledge contradicted by any that the Legislative power is delegable d Besold de jurib Majest cap. 2. that such a concurrence is no argumeni of Supremacy or of such a mixture as they would inferre out of it e Arnisae doct polit lib. 1. cap. 8. Some call it therefore apparens mixtura because it seemeth to destroy a simple form of government and to make a mixture in the power it self but doth not though otherwise they acknowledge it to be such a mixture as doth remit the simplicity thereof Grotius affirmeth to this purpose Istam legislationem quae alii quam summae potestati competit nihil imminuere de jure summae potestatis quod in Scholis dicunt cumulativè datam censeri non privativè He speaketh this of lawes made by generall conventions whose concurrence he saith doth not in the least manner diminish the rights of Majesty Such a mixture of the three estates hath been in other monarchies which all men acknowledge to have been absolute in respect of power In the Persian monarchie how absolute soever the other Estates had interest with the monarch in the legislative power as appeareth by that passage of Daniel wherein the Princes Governours and other officers of Darius sought to betray him by a law Then these Presidents and Princes assembled together to the King Dan. cap. 6. vers 7 8 9. and said thus unto him King Darius live for ever all the Presidents of the Kingdome the Gevernours and the Princes the Counsellours and the captaines have consulted together to Establish a Royall Statute and to make a firm decree that whosoever shall aske a petition of any God or man for thirty dayes save of thee O King he shall be cast into the den of Lyons Now O King Establish the decree and sign the writing that it be not changed according to the law of the Medes and Persians which altereth not wherefore King Darius signed the writing and the decree These Princes Governors and Officers of Darius had the same authority in making laws that the Lords and Commons have in England yet were not coordinate with the King They had votum Consultivum and Decisivum these words have consulted to establish a Royal Statute include both an act of Counsel and an act of Authority and Jurisdiction Grotius saith they signed the Decree as well as the King and that they had this authority by the constiution of the Government And the sequele of the History doth imply as much In Dan. cap. 6. for had the act been his alone had he set out his Decree by way of Edict or Proclamation he might have altered it himself as Ahasuerus did the Decree he set out touching the destruction of the Jewes Esther 3.12 13. 8.10 13. but being made by the assent of others who had a concurrent authority with him by Law he could not alter it I shall not need to instance in the Roman Empire or in other Kingdomes for it is generally known that such a mixture was in that and hath been and is in most other Monarchies And not only whole representative bodies but divers particular free Cities have the same priviledge yet have not supreme authority In our own Kingdome the Common-Councill of every Incorporation have authority to make ordinances and constituions within their own Liberties for the good order and government of their body The Inhabitants of every Parish have authority to make Bylawes and Ordinances amongst themselves for their own profit where they have custome for it and for the publick good where they have no custome Coke part 5. in the Chamberlain of Londons Case tit Cases de Bilawes ordinances Inhabitants dun ville sauns auscun custome poyent faire ordinances ou Bylawes pur reparation del Eglise ou dun haut voy ou dascun tiel chose que est pur le bien publique generalmēnt in tiel case le greinder part lier touts sauns ascun custome Vide 44. E. 3.19 Mes si soit pur lour private profit dem comme pur le bien ordering de lour Common de pasture ou semblables la Sauns custome ils ne poient faire Bylawes i. e. The Inhabitants of a Parish without any custome may make Ordinances and Bylawes for the reparation of a Church or of the high way or any other thing that is for the publick good in general and in such a case the greater part shall bind the lesse But if it be for their own profit as for the ordering of their Common or the like there without Custome they cannot make Bylawes Why doth not the Treatiser and the Pretended Parliamentarians conclude from hence that every man is coordinate with the King in the rights of Soveraignty for this is done by the Legislative power and this authority they have by the constitution of the Government But secondly I answer to the consequent that the Legislative power is not radically in the three estates but in the King alone for although their assent be free and dependeth not upon his will yet their authority is derived from him he should have proved his consequent which he saith appeareth in the former question where indeed he doth confidently affirm the whole latitude of the Nomothetical power to be jointly in the three estates yet offereth not to prove it But there is scarcely any man in the Kingdom so much a stranger to the Laws but knows that the King alone hath power to dispence with the Statutes and to abate their rigour where a mischief would otherwise insue that he alone hath power by edicts and Proclamations to order all affairs for which there is no order taken by certain and perpetual laws that he with his Judges hath power to declare the meaning of the Law and to give an authentick interpretation to statutes of ambiguous and doubtful sense The King can exercise these and all other parts of the Nomothetical power which are of absolute necessity to government without the assent of the two houses whose concurrence is only necessary in making laws which shall bind posterity and may not be repealed without the consent of the people as well as of the King The whole latitude therefore of the Nomothetical power is not jointly in the three Estates but the power only of making certain and perpetual Lawes and when such laws are made it is the Kings
authority that gives life unto them they having otherwise no power to obleige the conscience then as they are his Commands This hath been sufficiently confirmed already yet I will here further illustrate the truth by the testimonies of a Lib. 3. cap. 9. Bracton and the Author of b Lib. 1. cap. 17. Fleta who applying that passage of the Civil Law Quod Principi placet legis habet potestatem to the King of England say That clause ought not to be understood of every thing that is rashly presumed to be his will but of that which is justly determined upon good advice and deliberation by the Councel of his Magistrates Rege Authoritatem praestante the King giving it Authority and confirming it for a law and from hence by an argument ab indecoro they shew that the King ought not to do unjustly Cum ipse sit Author juris non debet inde Injuriarum nasci occasio unde jura nascuntur When he himself is the Author of the Law injustice ought not to spring from the same fountain from whence the Law doth spring The Legislative power is in the King therefore as in its spring and fountain and in the other estates by derivation they have right and interest in the use and exercise of some parts of the power and may assent or dissent what shall be made a Law but the power it self is radically in him Now the Legislative power is either Architectonical or preceptive the Architectonical power is that which layeth the materials of a Law and it consisteth in two things First in determining what is just convenient or necessary they to whom this power is committed have no jurisdiction granted them but only and office and imployment to deliberate and consult Secondly in declaring and promulgating that to be actually made a law and enacted which upoo consultation is thought to be just convenient or necessary they to whom this power is committed have a jurisdiction granted them to define authoritatively what shall be a law The preceptive power is that which maketh the law sacred and inviolable and which giveth it force to oblige the conscience It is evident by that which have bin said that not the preceptive but the exercise only of the Architectonical power is committed to the two houses they have votum consultivum decisivum both authority to consult what is just convenient or necessary and also to decree what shall be made a law but this authority is derived from the King Pag. 39. The Treatiser in his reply to Dr. Fern seemeth to be unsatisfied with this answer doth there dispute against it after this manner my second argument saith he for radicall mixture is from the Legislative power being in all three He answers that phrase is satisfied and explained by that conncurrence and consent in the exercise of supreme power It seems that invention of his must serve all turns is a legislative power satisfied by a bare powerlesse consent I demand is that consent causal and authoritative or meerly consiliarie and unauthoritative And whereas I prove that they have an enacting authority by that received and set clause in the beginning of acts Be it enacted by the Kings most excellent Majesty and the authority of the Lords and Commons assembled in Parliament He tell us a vote and power of assenting is a great authority I enquire not how great it is I aske whether that be all whether that clause which as expressely as words can asscribes an enacting authority to them be satisfied by such a power of assenting Here are many words heaped together yet not so much as one that toucheth the present controversie the question is not whether the two Houses have authority nor yet whether they have an enacting authority it is evident they could not sit as Judges in the court without authority nor enact without an enacting authority but the question is first whether their enacting authority spoken of in the foresaid clause be onely a power of assenting that such or such a law shall be established or a power that Commandeth and giveth life and vigour to the laws Secondly whether this power be radically in themselves or derived from the King To the first I say that it is onely a power of assenting 7 H. 7.14 11. H. 7.25 for it hath bin resolved by the judges that this clause which he alledgeth Be it enacted by the Kings most excellent Majesty and the authority of the Lords and Commons assembled in Parliament Lambarts Archeion f. 271. is no more in substance and effect then that which was used anciently The King with the assent of the Lord and Commons establisheth the words assenteth enacteth being equivalent in this case And to the second I say that their authority is derived from the King not radically in themselves For although this Treatiser knows not or will not seem to know how to put a difference between having an enacting authority and having the Legislative authority radically in themselves yet the Judges did and others doe For they may enact by a delegate authority that is by having the use and exercise of the Legislative power committed to them so far as is necessary to that act although it be not radically in them as their own But now the Treatiser Speaketh not a word to either of these points but sheweth onely that they have an enacting authority which is a point not controverted For their power of assenting and laying the materialls of a law is an enacting power although their activity be not equall to the Kings Subordinate Agents that are but Instruments of an other and work by a derived power when they concurre with the principall and supreme agent have their causality in producing the effect And therefore whereas he demandeth whether their consent be causall and authoritative or meerly consiliary and unauthoritative I answer that it is as causall and authoritative as if the legislative power were radically in themselves for he that worketh with an other mans tools is as much the cause of the work as if the tools he useth were his own whether the authority by which they enact be the Kings or radically in themselves the effect will be the same It may be further objected that these words Be it enacted by the Kings most excellent Majesty and the authority of the Lords Commons assembled in Parliament do imply distinct authorities the authority of the K. and the authority of the Lords and commons for theadition of these words And the authority of the Lords Commons is improper if lawes be enacted by the Kings authority alone To this I answer first that there is nothing more frequent when the K. acteth jointly with his subordinate Ministers then to ascribe a concurrent authority to those that act with him although their authority be derived from him for although his authority cannot be seperated from him privativè as hath been said yet cumulativè it may that