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
they are to be condemned for such and to forfeit their estates Coke in Nevils case lib. 7. fol. 34. Ceux que sont countees ount office de graund trust confidence sont create pur 2. purposes 1. ad consulendum regi tempore pacis 2. ad defendendum regem patriam tempore belli Et pur c. antiquitie ad done eux 2. ensignes a resembler ceux deux duties car primeremt lour teste est adorn ove un capoe de honor coronet lour corps ove unrobe in resemblance de counsel secundmt ilz sout succinct ove un espee in resemblans q. ilz serr Foiall loyal a defender lour Prince pays Donques quant tiel person encout le dutie fine de son dignitie prist non solemt counsel mes armes auxi eneout le Roy a luy de destroyer et de c. est attaint per due course del ley per ceo il ad forfeit son dignitie per un condition tacite annexe al estate de dignitie i. e. They which are Earles have an office of great trust and confidence and are created for two purposes first to counsell the King in time of peace secondly to defend the King and their Country in time of war and for this cause Antiquity hath given them two ensignes to represent these two duties for first their head is adorned with a cap of honour and a coronet and their body with a robe in resemblance of counsell secondly they are girt with a sword in resemblance that they shall be faithfull and loyal to defend their prince and countrey when such a person then against his outy and end of his dignitie take not onely counsell but armes against the King to destroy him and be attainted thereof by due course of law He hath thereby forfeited his dignitie by a tacite condition annexed unto it Fourthly the Parliament is one of the Kings courts as is apparent both by our Statutes and law books 1. Iac. cap 1. Bracton lib. 2. cap. 16. Fieta lib 2. cap. 2. the two Houses therefore must derive all their authority from him for the King is a full sea of anthority from whom all power and jurisdiction by commissions writs letters pattents c. as through so many channells run into all his courts if the two houses have authority radically in themselves by fundamentall constitution or if they derive their authority from any other then the King the court is none of his Answer The Treatiser having made divers suppositions which he telleth the Reader are the lawes of the land or to use his own words the modell and platform of the English Monarchy out of the said suppositions frameth this answer It is his Parliament because an assembly of his subjects convocated by his writ to be his counsell to assist him in making lawes for him to govern by yet not his as his other courts are altogether deriving their whole authority from the fulnesse which is in him Reply Whereas he calls the Parliament an assembly of his subjects whereas he faith they make lawes for him to govern by and that there is a fulnesse of power in him he doth but complement with his Majesty his suppositions and principles agrees not with such expressions for if the two Houses derive not their authority from his Majesty but have it radically in themselves how is there a fulnesse of power in him if the jura Majestatis be divided amongst them he hath not a fulnesse but his share onely of power or how do they assist him to make lawes to govern by they assist not him alone but all the three estates are mutually assistant to one another in making lawes to govern jointly where their joint concurrence is necessary or to govern in their severall charges where they may act severally Or lastly how can they be called his subjects subjection is due to the three estates acting together or to either of them in their severall places and jurisdictions as well as to him for it is due to him in the administration of that power which belong to him alone so is it likewise to them by his principles in things within the verge and composse of their authority And yet all that he saith if it were consistent with reason is not sufficient to make the Parliament his Majesties court except it deriveth all authority and jurisdiction from him it is not enough that they are an assembly of his subjects for in divers forrain Nations Ecclesiastical persons are subjects to the princes they live under yet Ecclesiastical courts belong not to those Princes but to the Sea of Rome nor is it enough which he addeth that they are summoned by his writ for the Judges of divers courts but chiefly of courts Christian have sent out citations and summons in their own name as the King doth by writ and yet they are not the proprietaries of those courts nor yet is it sufficient that they are his Councell for his Counsellours make it not his Court but his Authority It is authority that constitutes a court and inables it to proceed judicially he which ownes that is owner and Master of the Court. Fiftly Parliaments as they are now established consisting of three estates the King the Lords and the Commons are but of late existence and therefore such a composition and mixture of the said estates as is pretended can not be by originall constitution It is granted that Parliaments otherwise are of a long continuance and may plead the prescription of many hundred years for although the word Parliament hath been introduced as is probable since the Norman conquest yet a convention of that nature was in use in the time of the Saxon Kings who did seldom make lawes without the counsell and assent of their wise men and this assembly was called in the Saxon language 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Councell and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Synode It is granted also that the Commons were sometimes called to such consultations but that was a thing not necessary or frequent but rare aibitrary and contingent There were no certaine persons designed by law whose concurrence was required to constitute a Parliament but the King used the advice of those onely which he pleased to call unto himself which were alwayes such as he thought most able to counsell and direct him in the matters that were to be consulted of and whose assent was likely to adde most credit and estimation to the lawes that were to be divulged Sometimes he made lawes without the assent of others for offa King of the Mercians In vita Offae 2. as Matthew Paris relateth being at Rome ordained that every Houshoulder in all his dominions which were three and twenty Provinces or Shires that had above thirty penny-worth of goods in the field should every year pay a Penny to the maintenance of the English School that then florished at Rome which in those times was a great taxation His igitur auditis
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-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
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
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
Fol. 125. the Kings alwayes most gravely and considerately repelled that sort of attempt The Kings supremacy then is inherent in his Person not in his Courts as the pretended House affirm for his politique capacity can not be seperated from his naturall but what power soever he maketh over unto his Courts the same and greater remaineth in Himself His authority is not separated from him by such a concession privitivè but Cumulativè onely as Civilians distinguish in Concessions of like nature made by the Emperour that is He loseth no authority by Communicating it to others but others hould that which is communicated together with himself As God loseth no authority by communicating it to Kings so Kings loseth it not by communicating of it to their Courts The Civilians give these reasons for the ground of their law not much different from those alleadged by Lambart out of Bracton and others Credendum non est Imperatorem ita fontes suos derivasse foras ut nihil penes se remanserit sed in quavis concessione semper authoritas persona ejus excepta censetur quis enim tam stolidus ut alii benefaciendo seipsum consumere velit cum etiam Principis sit ad offitium ejus proprie pertineat jus dicere Knichen d. superiorit territ cap. 1. num 518. Wurms evercit 3. num 15. Rosental d. feud cap. 5. conclus 13. Pruckman d. Regal cap. 1. num 17. Leipold d. Concurrent jurisdict quaest 1. i. e. It is not to be imagined that the Emperour should so empty his fountaines as to leave nothing in himselfe but it is to be conceived that in every concession his own person and authority is excepted for who is such a fool to consume himself by doing good to others it is also the essentiall property and office of a prince to doe justice The pretended House proceed And to speak properly only his high court of Parliament wherein he is absolutely supreme head and governour from which there is no appeale Reply They speak not more properly as they say but much more improperly then they did before it is the same authority that is in all his courts in his person too though not all the same authority for it is limited restrained in his courts by commission writ or law and according as as those limitations and restrictions are more or lesse so may courts be said to have a greater or lesse jurisdiction but not the King to be more or lesse supreme nor is their expression improper onely but also full of falshood and deceit for whereas they say there can be no appeale from the high court of Parliament they desire the people should so construe their words as to think the two Houses could jointly by reason of the Kings virtual presence take cognizance of a plea and give judgement upon it from which there could be no appeale which had they spoke out their falshood had been transparent for onely the Lords House is a court of judicature and from thence appeales may be made to the King who may and have reformed the undue proceedings of that Court Lambarts Archeion sol 133. for anno 18. Edward 1. Bogo de Clare being discharged of an accusation put against him in Parliament for some imperfections of form that were discovered in the complaint the King commanded him neverthelesse to appeare before himselfe ad faciendum recipiendum quod per Regem ejus confilium fuerit faciendum and so proceeded to are-examination of the whole cause Neither is the former part of their words truer then the latter the Kings supreamacy they say to speak properly is onely in his high court of Parliament This in their sense is false the supreamacy of the King is no more in his high Court of Parliament by reason of his virtual presence or politique capacity then in his other Courts when he is personally there his supreamacy then together with his Person is in the Court not otherwise For I have shewed already in divers places that the rights of Soveraigntie are not onely individually inherent in his Person but so inseperably also annexed unto it that they can not be communicated to others by any grant or concession made by himself in private or by an act of Parliament I shall now adde Lib. 7. in Calvinet case that their conceit is called in Cooks reports a damnable and damned opinion and hath been at large confuted and condemned by all the judges as is there related it was first invented by the Spencers who to cover their treason said that homage and the oath of ligeance was more by reason of the Kings Crown that is by reason of his politique capacity then by reason of the Person of the King from which opinion they inferred these detestable consequences 1. If the King doe not demeane himself by reason his Leiges are bound by oath to remove him 2. Seeing the King could not be reformed by suit of law that ought to be done per aspertee 3. That his Lieges are bound to govern in ayd of him all which were condemned by two parliaments one in the Reign of Edward the second called exilium Hugonâ—s le Spencer And the other anno 1. E. 3. cap. 1. And indeed their conceit is so irrationall that it might easily be prognosticated they would never make good Statsmen For when the King is not personally present in his Courts he can be there by reason of his politique capacity no other wayes but by virtuall emanation there can be in them no more authority then is delegated and committed to his judges now it is a common conception as evident as the first principles that a delegate power can not be supreme The exercise of supreme authority in some Commonwealths may but the power it selfe can not be delegated Kings may also abdicate and resigne up supreme authority but they can not delegate it In how generall tearmes soever say Civilians authority be granted by the Concessour to the concessary supreame authority can not be comprised under those termes Quocuuque modo Regalium concessio fiat nihilominus superius illud Majestaticum imperium ea largitione nunquam censeatur comprehensum sed potius major semper quam est concessa reservata retenta putetur potestas cap. Dudum ¶ Hoc igitur de praebend in 6. l. inquisitio Et ibi De c. de solut Periginus de jure sisci lib. 1. tit ult num 33. Kniken de jure territorii cap. 1. num 315. i. e. Which way soever Regalities are granted it may not be supposed that supreame authority is comprehended under such a grant but rather that a greater power then is granted is reserved to the Prince Object 2 Their second objection is If the Parliament may take an accompt what is done by his Majesty in his inferiour courts much more what is done by him without authority in any court Reply This if is well put in they say not
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
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
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
is it may be inherent in his own Person and yet be in others too as the light of the Sun is inherent in its own body and yet multiplyed and diffused through the world Now when it is separated from him after that manner it is commonly called their authority to whom it is committed because they are the seat and subject of it That light which the Stares derive from the Sun is usually called the light of the Stars and the Stars are said by the means thereof to concurre with the Sun and to have a causality and operation upon inferiour bodies it is no impropriety to say The light of the Sun and the light of the Stars inlightneth all the world although the light of the Stars be derived from the Sun But secondly what if it be granted that the Lords and Commons have authority of their own distinct from the Kings authority To speak my own opinion freely I think they have a distinct authority I mean not Supreme authority but an authority derived from the King yet distinct from his He that hath but a delegate power if it be committed to him for term of years term of life or perpetuity he doth by such a grant acquire an estate in the said power and an authority distinct from his that gave it him As in an Estate of lands wherein a man hath a perpetuall right in fee simple or in fee taile his right is distinguished from the Kings right of whom he holds it the King having the demeane of the Land and the other the demeane of the Fee so it is in an estate of power and authority if the King granteth an estate of power authority and jurisdiction in fee simple or in fee taile for term of years term of life or perpetuity their rights in the said authority are distinct the King hath the demean of the Power the other the demean of the use the King hath Dominium directum the other Dominum utile And this is the present case the Legislative power is wholely and intirely the Kings yet the Lords and Commons have a perpetual right in the use and exercise of some part thereof so that the King cannot actually make a law except they will also use the authority committed to them it being in their power to assent or not assent to use or not to use the said authority There is an authority then in the Lords and Commons distinct from the Kings authority which must necessarily be put forth in the making of lawes yet not supreme but subordinate to the King derived from him and depending upon him But this is more then can be forced out of the foresaid clause and I think more then is intended in it Object 4 Fourthly that Monarchy in which three estates are constituted to the end that the power of the one should moderate and restrain from excesse the power of the other is mixed in the root and essence of it but such is this as is confessed in the answer to the said propositions Reply The Antecedent and Consequent are both false The erection of Courts wherein the Judges have authority to proceed according to law notwhitstanding the personall and arbitrary Commands of the King hath alwayes been esteemed a strong and effectuall means to restrain and moderate the excesses of Monarchie Yet the Judges cannot be inferred from hence to be coordinate with the King in the rights of Soveraigntie or to have a mixed power with him in the Government of the Kingdome But the Consequent hath neither apparence nor shadow of truth Parliaments were ordained that the other estates might consult with the King about the weighty affairs of the Kingdome as often as he thought it needfull and agree to such laws as should be found profitable and expedient not that they should quarrell and contest with him It is true the two Houses do for the most part in time of Parliament gain an opportunity to have grievances redressed because they may otherwise deny the King the assistance he desire but they have no authority radically in themselves to redresse them or to restrain and moderate his excesses by force of armes nor were they constituted for that end If it should be granted that Parliaments are by originall constitution and agreement and that the People have alwayes given what lawes they pleased to the Conquerour as often as the Crown hath been obtained by conquest yet in probability they could have no such end as this Treatiser imagineth or to abuse the people seemeth to imagine had they purposed the three estates should moderate the excesses of one another in Parliaments they would never have granted the King authority to dissolve them at his pleasure whereby he might easily avoyd and frustrate their intention Besides Parliaments are so tempered as it is imposible to attain to that end by such a mixture one of the estates or any two of them having no authority to make an act of Parliament without the third which way can they moderate the excesses of one another by such acts further then the exorbitant estate shall be willing to be moderated Nor doth his Majesty as he imputeth to him any where confesse that three estates are constituted in this Monarchie to the end that the power of one should moderate and restrain from excesse the power of the other he should therefore have cited his words that the Reader might have judged of their sense These are the objections brought by the Author of the Treatise of Monarchy which are partly taken out of the fuller Answerer and partly invented by himself In answering them to avoyd needlesse Controversies I have granted that a mixed form of government is possible although I be not ignorant that a mixed government is but the invention of later times and reputed impossible by authors of chiefest note I have admitted also that the King the Nobility and Commons are the three estates of Parliament although I know this contrary to the Statutes wherein the three Estates of Parliament are declared to be the Clergy the Nobility and the Commons I have insisted the longer upon these Objections because the Author of the foresaid Treatise is esteemed by some the chief Advocate of that side I intend not to derogate from the Author who I presume would have written more substantially had the case been capable of defence yet if a man may guesse at his humour by that Treatise he seemeth to be much more inclined to assert new principles then to shew reasons how they should be maintained That he might illude the Laws wherein the government of England is declared Monarchical he layeth down divers positions to this effect that where a transcendent interest Part 1. cap. 4. or primity of share is in one man it is sufficient to constitute a Monarchy although the other estates have their shares also in the rights of Soveraignty and supreme Authority but he doth not so much as offer to prove this either by law or