he would correct and amend what he had done Which if he do not it is sufficient for his punishment that he must expect God to be the Avenger of it Not a word of the Courts avenging or rectifying of the iniurie or of their enforcing the King to do it himselfe Again speaking of Earles though with little iudgement he would seem to derive their Office from the Etymologie of the Latine name Comes which was but a late borrowed translation brought in use by the Conquerour and would so make them a kinde of Companions with the King yet does he not make them Companions thrust upon the King by Law but the Kings saith he do associate such to themselves for advice and government Every one truly is under him and he under none but God and he hath no Peer in his Kingdom for then he should loose the Command when as one Peer hath no command over another much lesse hath any one command over his superiour for so he should be inferiour to his own Subjects and the King ought not to be under man but under God and the Law now these words of Bracton tell us that the other are neither his assertion nor approbation And whereas by those words of Bracton that The King ought to be under the Law he would inferre a direct Soveraignitie over the King he very much corrupts the meaning of Bracton for it is one thing to be subiect to Law and to the administration of Law and another thing to be a Subiect to those that have the administration of Law as to his Soveraignes Our Saviour Christ was subiect to the Law and to the administration of the Law in the hands of them that were the Ministers of it yet was not Christ the Subject of those Ministers nor they his Soveraignes but contrary he theirs he being Borne King of the Iewes And Bracton's reason that the King must be under the Law is because he is Christs Vicar on earth And Christ himselfe was under the Law so as plainly Bracton meanes not the King otherwise under the Law then as our Saviour Christ was who did subject himselfe to the just execution of the positive Lawes of the Kingdom of which he himselfe was the Head and Fountain not that he should be subject to the administration of any arbitrary Law residing in the people who should in the last resort be Soveraignes over their own King for that was not sutable to one that should be Vicar of Christ but to a Vicar of the people Neither is the King more subject to any judgement that can be given in Parliament than He is to judgements given in inferiour Courts to which if you will say the Parliament is superiour to those Courts and the superioritie that is but subordinately in them is soveraignely in the Parliament truly the superioritie if it may so be call'd that is subordinately in the inferiour Courts is but more superiourly in the House of Lords than them but it is not soveraignely neither in the Lords House nor any other part of Parliament till we come to the judgement of all the three Estates where the Kings will is the efficient formall of the Law and there you may see that the Vicar of Christ the King like Christ His Lord whom He representeth in being subject to the Law of which He is Soveraigne becomes at last subject to none but Himselfe for that high Court of Parliament speaketh not without Him But ere we give over his citation of Bracton we must not forget his unfaithfull application of it For as for those words The King hath a superior that is to say God also the Law also His Court to wit the Earles and Barons He would not onely have them Bracton's words and have them understood to carry Soveraignitie over the King but would have that Soveraignitie placed in the two Houses when as Bracton expresly expounds that the Court which he meanes is the Earles and Barons that is to say the House of Lords onely and not the Commons too plainly shewing that he meanes no other superioritie than such as is incident to the regular course of Justice in the way of legall suit and processe which in that course never goes further than the House of Lords there is no forme of prosecution in that kinde in the two Houses and therefore neither Soveraignitie nor Superioritie in that kinde can be ascribed to them Neither may we passe over his falshood and shuffling to extenuate the Oath of Supremacie that securitie may make men swallow their perjurie and never know it for though it be true that the Oath was pricipally intended against Papacie because the Papacie was the first that ever pretended Soveraignitie over Kings and the clause of renouncing runnes against Forraigne powers onely as those that then were onely feared to be pretenders under the Papacie yet the recognition it selfe that The King is the onely Supreme Governour And the Oath it selfe to beare faith and true Alleageance to the King His Heires and Successours and to assist and defend all jurisdictions priviledges preheminences and authoritie belonging to them c. are clearly generall absolute and unrestrained to any particularitie of Papacie Forraigners or any thing else whatsoever But to come to that that is the maine Authoritie scope and drift of his book and which he would by all meanes inculcate though but under the shew of telling what popish Parliaments have done lest otherwise his horrible intention might appear he brings us precedents that the two Houses of Parliament have upon all occasion soveraignely disposed of the Crown and of all the rights that do belong unto it and that even our Kings themselves have submitted their soveraigne rights to the determination of the two Houses Good God! How Evill men and Seducers wax worse and worse deceiving and being deceived He that writ the Observations upon His Maiesties Answers and Expresses had so much ingenuitie left him as to acknowledge that There was never King deposed by any Parliament lawfully assembled and that the Acts of the Parliament R. 2. were not so properly the Acts of the two Houses as of H. 4. and His victorious Armie But this man being not ashamed to licke up what his fellow vomited out presents the world with a cull of all the irregular times of our unfortunate Princes in which by the consent of all men the Acts of neither side are to be drawn into example and bring us for judiciall Authorities the horrid facts of irregular power in the Times of King Iohn R. 2. H. 4. H 6. c. And is so supine in his purpose that with the factious Parliaments in the Times of H. 3. E 2. and R. 2. which he cites to have exercised authoritie over Kings he stickes not to couple the Rebellions in the North against H. 4. and the rebellious Insurrections of Iacke Cade Iacke Straw Wat Tyler Doctour Mackerell Ket and others as Acts that made equall proofe
The Case of our Affaires IN LAW RELIGION And other Circumstances briefly Examined and Presented to the CONSCIENCE Printed in the Yeare 1643. The Case of our Affaires in Law Religion and other Circumstances briefly examined c. THough the Bonds of all Dutie are originally and principally founded in God and tied by Religion yet seeing all civill Duties relate to the particularitie of the humane Ordinance and according to the nature of it is with more or lesse importance to be exacted What Subject soever would finde the true rule and bond of his obedience must in the first place look what the State is wherein he lives and in whom the Soveraignitie is to which his obedience and faith is inevitably bound Our State of England even by the declaration of our Lawes is a Kingdom an Empire a well regulated Monarchie the Head thereof a Supreme Head a Soveraigne a King whose Crown is an Imperiall Crown the Kingdom His Kingdom His Realme His Dominion the People His People the Subject His Subject not onely as they are single men but even when being in Parliament assembled they make the Bodie Representative of the whole Kingdom considered apart without the King so that the very Parliament it selfe is also by our Lawes called His Parliament the King alone by Law hath power to call together in Parliament that Representative Bodie and at His pleasure to dissolve it He personally hath Homage and Oath of fidelitie of all the Peeres as of His Barons and all the Commons in Parliament do by Law swear Alleageance to Him as to the Onely Supreme Governour and to assist and defend all Jurisdictions Priviledges Preheminences and Authorities belonging to Him His Heires and Successours or annexed to the Imperiall Crown of the Realme By the same Oath also is every Officer of considerable trust in Church and Common-wealth assured to His Majestie and not onely they but every single man of twelve yeares of age ought by Law in some or other of His Majesties Leetes to swear Alleageance to His Majestie and never in our Law have we known an Oath of obedience to be made unto the Parliament or any other Power in any case either of mis-government or danger how extraordinary soever This Soveraignitie in the King appeares not onely by that Oath of Supremacie but by the constant acknowledgement of our Acts of Parliament both antient and moderne which alwayes stile the King Our Soveraigne Lord the King that is not Soveraigne Lord to every single man onely as the Observer traiterously and foolishly would make it but the universalitie of us even to our Bodie Representative in Parliament For we must note that though we have among us many that are called Lords even by our Acts of Parliament themselves yet being Lords without relation to the communitie or publique they are never called Our Lords but The Lords with addition of such or such place or Office and they indeed are Lords singulis not universis for every particular man may call such a Lord My Lord but the Communitie may not call him Our Lord for to be Our Lord is to be Lord of the Communitie and that belongeth onely to Our Soveraigne Lord the King Our very Acts of Parliament declaring this State to be a right Imperiall Kingdom a Kingdom we know consisteth of no more than two formall parts onely that is to say a Soveraigne Head and a Subject Bodie and then it clearly followeth that what cooperation soever there be of any of the Members with the Head for the doing of any necessary Act of State whatsoever necessitie there be of the concurrence of those Members and howsoever they may seem to be Parties Orders or States co-equally authorised in the power of acting with the Head yet plainly there neither is nor can be any co-ordination nor co-equalitie of any Estate Order or Degree of the Subject with the Soveraigne nor any competition of the Subjects power in his concurrence with the virtuall and primary influence of the Soveraignes power but a plain subordination and subjected ministration of the one under the Soveraignitie of the other as in the further examination of their differing interests will manifestly appear We see the Soveraignitie of this State clearly vested in the King by Law established in Him and inseparably annexed to His Person by which He hath also inseparably both the Soveraigne power and Soveraigne judgement but as in judging and determining matters of private interest His power is not absolute but is restrained to judgement not judgement arbitrary in His owm Person but judgement to be administred by the proper sworne Judges of His Courts of Law so in matters of publique affaire for so much as concernes the making of Law His power and judgement are so restrained to the concurrence of the Nobles and Commons in Parliament as that He cannot make any settled Law without their consent but then in all other things that are not expresly restrained by any Law as in providing for the present safetie against suddain danger which Senates are so unapt to do as that the famous Roman Senate was ever fain to choose a Dictator to do it for them likewise in levying of Armes suppressing of tumults and rebellions convoaking of Parliaments and dissolving of them making of Peeres granting libertie of sending Burgesses to Parliament treating with Forraigne States making of War League and Peace granting safe conduct and protection indenizing giving of Honour rewarding pardoning coyning and the like in all these and divers other points of Regalitie the Soveraignitie both of judgement and power ever hath been and still is in the King alone freely and at his own discretion is secured to him by tâ—â— Oath of Supremacie whereby as aforesaid the vvhole Representative of Commons all Magistrates and men in place both in Church and Common-vvealth svvear To assist and defend all jurisdictions priviledges preheminences and authorities belonging to the Kings For it is plain that seeing that by the Lavv of God and Nations to be King is to be Supreme Judge and Lavv-giver vvhosoever is King is supreme in every thing vvherein he is not especially restrained and his restraint being by the peculiar Lavves of his Kingdome he can be no further restrained than the knovvn Lavves thereof expresly manifest The great restraint of regall absolutenesse in our State is in the tvvo points of declaring and making of Lavv in neither of vvhich doth the King depart vvith any vvhit of his Soveraignitie In the point declaring of Lavv the King is restrained ordinarily to the mediation of his Judges vvho to declare the Lavv by deliverie of the genuine sense and interpretation of Lavv according to to art and rules of science are in their respective Courts the proper and authorised Judges and Interpreters of Law and do by their interpretation and judgement then binde both the King and Subject Next above them upon errour supposed in their judgement the House of Lords who anciently were exercised
of the soveraigne power of the Peeres and Commons indeed in both there were much what the same pretences and both had much what the same warrant But all those Parliaments as they were called in the troublesome Times of Faction and Civill War so were they ever swayed by those that were the Heads of the most potent Faction and while they alwayes acted in favour of them and their Designe they are so farre from being instances of the power and authoritie of the two Houses as that cleane contrary they are plain instances of the weaknesse and unsteadinesse of them when forsaking the moderation and guidance of their naturall Head they suffered themselves to be lead by the private conduct of every popular pretender and so even among the precedents which he citeth we see that when Canutus prevailed by his Armes he could have a Parliament resolve that his Title was the best When Hen. 4. had an Armie of 60000. he could have a Parliament depose R. 2. and conferre the Crown upon himselfe When Edw. Duke of Yorke grew potent he could have a Parliament be the instrument of determining the Raigne of H. 6. and leave him onely the name of King for his life but give the Duke the very Kingdom under the names of Protectour and Regent Edw. 4. could by Parliament procure H 4. H. 5. H. 6. to be declared Kings in fact but not in right R. 3. though an Usurper could procure a Parliament to declare him a lawfull King Henry 7. could procure the forementioned Acts in favour of Edw. 4. R. 3. to be adnulled Hen. 8. could have a Parliament authorise his Divorces And Queen Elizab. could by Parliament make it High Treason to say that the Queen could not by Act of Parliament binde and dispose the rights and Titles which any person whatsoever might have to the Crown when yet we know that no Act of Parliament no not an Attainder by Parliament can disable the right Heire to the Crown because the descent of the Crown upon Him purges all disabilities whatsoever and makes Him capable of it This is the summe and true estimate of all the Authorities which he cites in which if the Acts could be granted to be the meer Acts of the two Houses yet did they no more prove the soveraigne power to be in the two Houses than the Popes deposing of Kings proves the right of deposing them to be in him that the things were done is no proofe that they were lawfully done and yet as idle and vile a collection of examples not to be imitated as he hath made he is fain to belie them to makem seem to serve his turne for truly though he affirmes that the popish Parliaments c challenged or claimed greater jurisdiction over Kings than any ever since yet his instances prove no more claime of Soveraignitie than a robber claimes when he exercises an arbitrary power over a mans person and fortunes what they did they did de facto upon some inferiour reasons not upon claime of the Soveraignitie they neither taught nor ever learn'd that Jesuitique depth of Sathan that the Soveraignitie over the Soveraigne is placed in the Bodie Representative of the Subject All claime therefore of either the Soveraignitie it selfe or of the rights thereof by any Representative of the Subject is a transcendent impietie beyond the parallell of all his unimitable examples in which I cannot but the more wonder that he should ascribe the Acts unto the two Houses when by making the Acts theirs he makes all the long miserie and bloodshed that ensued upon those Acts to have been brought upon the Land by the meer Act of the two Houses Considering therefore the every way faulty Argument of that Book both in citing and applying I am forced to conclude with the same words that in the frontispice of his Book he begins with The treacherous dealers have dealt treacherously yea the treacherous dealers have dealt exceeding treacherously As for the second part of the same Author that came since forth under a title that pretends to shew the lawfulnes of a defensive war that answers it selfe that it comes nothing to the case in question where the War is acknowledged to be an Invasive War to take from His Majestie certain Counsellours pretended to be evil Counsellours If possibly therefore he should prove what he undertakes to maintain that Subjects may make a Defensive War against their Soveraigne yet being nothing to our case deserves at all no answer here I therefore returne again unto my purpose That the Soveraignitie with all the rights claimed by His Majestie is in the King inseparably inherent in the person of His Majestie we have not onely the forementioned testimonies and reasons but we have the witnesse of the two Houses themselves for whom our deceiving Pamphlets do now make all the new arguments of pretence For first we have as I have said the whole current and bodie of our very Acts of Parliament acknowledging it in these very termes Our Soveraigne Lord the King We have the Parliament 25. H. 8 declaring thus This Your Graces Realme recognizing no Superiour under God but Your Grace The Parliament 16. R. 2.5 affirming The Crown of England hath been so free at all times that it hath been in no earthly subjection but immediately to God in all things touching the regalitie of the said Crown and to none other In the 25. H. 5. both Houses declare That it belongeth to the Kings regalitie to grant or denie what petitions in Parliament he pleaseth In the 15. E. 3. The King being unwillingly drawn to consent to certain Articles prejudiciall to the Crown and to promise to seale the Statute thereupon made least otherwise his affaires in hand might have been ruinated Another Statute the same year reciting the matter enacted in these words It seemed to the said Earles Barons and otherwise men that since 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 counsaile and assent We have decreed the said Statute to be void c. In the Statute of Banishment of H. Spencer the first Article against him is for making a Bill wherein he affirmed Homage and alleageance to the King is more by reason of their own than of the person of the King The word hath a note of a Parliament roll Diarie of H. 4. The Commons in Parliament pray the King that They may not be made parties to any judgement in Parliament but where in rei veritate they are parties for that the judgement belongs onely to the King except where it is given by Statute As for the Militia the Shippes and Forts of the Kingdom The King and His Predecessours have not onely been ever in possession of them commanded and disposed of them even during the sitting of Parliaments but have enjoyed that possession