of good right and equity it appertaineth any grants usages prescription act or acts of Parliament or any other thing to the contrary hereof notwithstanding Secondly the power of appointing subordinate judges is declared and determined to be in the King by the same Statute And be it also enacted by authority aforesaid that no person or persons of what estate degree or condition soever they be from the said first day of July shall have any power or authority to make any justices of Eire justices of assize Justices of peace or justices of Goale delivery but that all such Officers and Ministers shall be made by Letters Patents under the Kings great Seal in the name and by authority of the Kings highnesse and his Heirs Kings of this Realm in all Shires Counties Counties Palatine and other places of this Realm Wales and the marches of the same or in any other his Dominions at their pleasure and wills in such manner and form as justices of Eire justices of Assise and justices of peace and justices of Goale delivery be commonly made in every shire of this Realm any grants usages prescription allowance act or acts of Parliament or any other thing or things to the contrary thereof notwithstanding Thirdly the power of making leagues with forraign Princes and States is declared to be in the King by a Statute made in the fourteenth year of Edward the fourth which begins thus 14. E. 4. cap. 4. Whereas divers and great offences and attempts have now of late been done and committed against the amities and leagues made betwixt our said soveraign Lord the King and strange Prince By this beginning of the Statute it is manifest that the power of making leagues and contracting alliance with forraign estates is a right belonging onely to the crown I could yet add divers other acts of Parliament to confirm this and all the other particulars above named but I suppose these which are already alledged are more then sufficient there are also other rights of Soveraignty which I could shew by the statutes to be in the King but because there is no contestation about them I will not fight with a shadow those above mentioned are the chiefest and inseparable from Majesty CHAP. IV. The Kings Supremacy in general shewed by the Common Law HAving shewed the Kings Supremacy from the Statutes I come now to the Common law which is the ground and foundation of it for Statutes are but declarations of the royal power the power it self with the several modifications and qualifications of it is more ancient then any statute and cannot be limited or restrained by an Act of Parliament in any thing that tends to the derogation or diminution of Majesty for the English Monarchy by the common law is an absolute Monarchy susceptible of no alteration in the rights and preheminences of Majesty First I say the English Monarchy is an absolute Monarchy by the Common Law admitting no mixture in the rights of Soveraignty the King alone being the onely supreme head and governour having none superiour to him or coordinate with him either singly or collectively taken this is expresly determined in Sir Edward Cokes reports If that Act of the first year of the late Queen had never been made it was resolved by all the judges that the King or Queen of England for the time being may make such an Ecclesiastical Commission as is before mentioned by the ancient prerogative and Law of England Coke lib. 5. in Caudreys case And therefore by the ancient Laws of the realm this Kingdom of England is an absolute Empire and Monarchy consisting of one head which is the King and of a body politick compact and compounded of many and almost infinite several and yet agreeing members all which the law divideth into two general parts that is to say the Clergy and the laitie both of them next and immediately under God subject and obedient to the head also the King head of this Politick body is instituted and furnished with plenary and iutire power prerogative and jurisdiction to render justice and right to every part and member of this body of what estate degree or calling soever in all causes Ecclesiastical or Temporal otherwise he should not be head of the whole body This is further proved by Sir Edward Coke by divers Precedents and Acts of Parliament who concludeth his report after this manner Fol. 40.6 Thus hath it appeared as well by the ancient common lawes of this Realm by the resolutions and judgements of the judges and sages of the Lawes of England in all succession of ages as by authority of many acts of Parliament ancient and of later times that the Kingdome of England is an absolute Monarchy and that the King is the only supream governour as well over Ecclesiastical persons and in Ecclesiastical causes as temporal within this Realm to the due observation of which Laws both the King and Subject are sworn In the second year of King James in Hillary Terme letters being directed to the judges to have their resolution concerning the validity of a grant made by Queen Elizabeth under the great seal of the benefit of a penal Statute in which grant power was given to the Lord Chancelour or Keeper of the great Seal to make dispensations when and to whom he pleased after great deliberation it was resolved that when a Statute is made by Act of Parliament for the publick good the King could not give the power of dispensation to any Subject or grant the forfeitures upon penal lawes to any before the same be recovered and vested in his Majesty by due and lawful proceeding and the reason there alledged is because the King as head of the Common-wealth and the fountain of justice and mercy ought to have these rights of Soverainty annexed only to his Royal person Coke lib. 7. tit penall Statutes Car quant un statute est fait pro bono publico le Rey come le teste del bien publique le fountaine de justice mercie est par tout le realme trust ove ceo cest considence trust est cy inseparablement adjoyne annexe al Royal person del Roy in cy haut point de soveraigntie que il ne poit transferre ceo al disposition on poiar d'ascune privat person ou al ascune privat use that is For when a Statute is made for the publick good and the King as head of the Common-wealth and the fountain of justice and mercy is by all the Realm trusted with it that confidence and trust is so inseperably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transfer it to the disposition or power of a private person or to any private use I shall not need to explain and amplifie the matter by arguments and inferences drawn from these reports for the words are clear of themselves and do expresly declare and resolve the Monarchy of
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
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
or ligeance is due Now that allegiance or ligiance is due to the King and onely to the King will appear by several Acts of Parliament In the first year of King James the Lords and Commons declared that both the ancient and famous Realms of England and Scotland were united in allegiance and loyal subjection in his royal person 1. Jac. cap. 2. to his Majesty and his posterity for ever In 34. H. 8. cap. 1. and 35. H. 8. cap. 3. c. the King is called the liege Lord of his subjects and in the Acts of Parliament of 13. R. 2. cap. 5. 11. R. 2. cap. 1. 14. H. 8. cap. 2 c. subjects are called the Kings liege people By other Acts of Parliament divers oaths have been framed and given to the people the contents and effects whereof were that they should bear all faith and allegiance to the King and his heirs In the six and twenty year of Henry the eighth an oath was taken by all the Kings subjects for the surety of the succession of the crown of England 26. H. 8. cap. 2. the oath was this Ye shall swear to bear faith truth and obedience all onely to the Kings Majesty and to the heirs of his body of his most dear and intirely beloved lawful wife Queen Anne begotten and to be begotten and further to the heirs of our said Soveraign Lord according to the limitation in the statute made for surety of his succession in the crown of this Realm mentioned and conteined and not to any other within this Realm nor forrain authority or Potentate and in case any oath be made or hath been made by you to any person or persons that then ye repute the same as vain and adnihilate and that to your cunning wit and utmost of your power without guile fraude or other undue mean ye shall observe keep maintain and defend the said act of succession and all the whole effects and contents thereof and all other acts and statutes made in confirmation or for execution of the same or for any thing therein conteined And this ye shall do against all manner of persons of what estate dignity degree or condition soever they be And in no wise do or attempt nor to your power suffer to be done or attempted directly or indirectly any thing or things privately or apertly to the let hinderance damage or derogation thereof or of any part of the same by any manner of means or of any manner of pretence so help you God and all Saints and the holy Evangelists There are two things observable in this oath first that they swear inclnsivè to bear all faith truth and obedience to the Kings Majesty and his heirs and onely to them Secondly that they swear exclusivè to bear faith truth and obedience to no other either within the realm or without not to other persons nor to other authority by both which clauses of the oath it appears that the King 28. H. 8. cap. 7. and none but the King can challenge faith and allegiance from the people Afterwards in the eight and twenty year of King Henry the eighth the like oath was injoyned to be taken by all his subjects touching his succession by Queen Jane for the former Act touching his succession by Queen Anne was repealed but the oath injoyned was otherwise the same And in the five and thirty year of his reign an other oath was framed wherein besides the contents of the former touching allegiance due to the King and his heirs some other additions were inserted touching his Supremacy in Ecclesiastical causes because the former oaths were not thought full enough to that effect and purpose And these oaths were extraordinary and imposed by special appointment l. 35. But besides these there is another ordinary oath of Allegiance which was first instituted by King Arthur l. 59. and is mentioned amongst the laws of King Edward and confirmed by the laws of William the Conquerour this oath cominueth still in force and should by the law be given in every Leer The order and form of it appeareth in Britton who wrote in the reign of Edward the first and compiled a book of the Statutes and lawes which were then in use the effect of it is this Coke lib. 7. in Calvins case You shall swear that that from this day forward you shall be true and faithful to our soveraign Lord the King and his heirs and truth and faith shall bear of life and member and terrene honour and you shall neither know nor hear of any ill or damage intended unto him that you shall not defend so help you almighty God By this it is clear enough that allegiance is due to the King the pretended house on the other side is so far from having authority to exact allegiance from the people that they were all bound themselves by law to take the oath of Allegiance before they were admitted to sit in the house and having every one taken the said oath how they should be absolved none but themselves can understand whose common practice hath been to play with oaths as children play with toyes and trifles seeming rather to make them their pastime then to esteem them religious acts or sacred obligations Fourthly to pardon the transgression of the laws to remit treason murder felony man-slaughter to appoint subordinate Judges to make leagues with forraign Princes and States all these are rights of soveraignty and all these are declared and determined by the Statutes of the land to belong to the Kings Majesty First the power of pardoning the transgressions of the law and of remitting treason murder felony manslaughter and such like offences is declared and determined to be in the Kings Majesty by a Statute made in the twenty seventh year of Henry the eighth 27. H. 8. c. 24. Where divers of the most ancient prerogatives and authorities of Justice appertaining to the imperial crown of this realm have been severed and taken from the same by sundry gifts of the Kings most noble progenitors Kings of this realm to the great diminution and detriment of the Royal estate of the same and to the hinderance and great delay of justice for reformation whereof be it enacted by authority of this present Parliament that no person or persons of what estate or degree soever they be of from the first day of July which shall be in the year of our Lord God 1536. shall have any power or authority to pardon or remit any treasons murders manslaughters or felonies or any utlaries for any such offences aforesaid committed perpetrated done or divulged or hereafter be committed done or divulged by or against any person or persons in any part of this Realm Wales or the marches of the same but that the Kings highness his heirs and successors Kings of this Realm shall have the whole and sole power and authority thereof united and knit to the imperial crown of this realm as
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
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
been then so moulded as they are at this this time for all their friends must needs be contained under one of those degrees and in case his supposition were true should not have been distinguished from their wise men which in all good construction they must for the words do evidently imply that besides their wise men they called such other of their friends as they thought by reason of their prudence or power and prevalency with the people were most like to assist them and further their designs But whosoever their wise men were although they were frequently called yet they were not all of them called alwayes to make laws for in the time of Ethelstane divers Lawes were made by the Counsel and assent of the Clergy alone which we find amongst his other laws Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 minum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 binnon mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. i. e. I Ethelstane K. signifie to all my Governours within my Kingdome that by the advice of Wulfhelmus my Arch-bishop and all my other Bishops and servants of God for the forgivenesse of my sins I have ordained c. And although lawes were frequently made Polydor. Virgil. lib. 11. Hist and Parliaments holden in the Reigns of the Saxon Kings yet the people had been so seldome called to such conventions in the time of Henry the first that Polydore Virgil saith that institution may seem to have sprung from him At illud appositè habeo dicere Reges ante haec tempora non consuevisse populi conventum consultandi cansa nisi perraro facere adeo ut ab Henrico id institutum jure manasse dici possit i. e. But this I can speak appositively that Kings before these times were not accustomed except very seldome to call the people to their consultations so that this institution may be said to have had its first beginning from King Henry This is certain the House of Commons hath been accustomed now a long time to give their consent in making Lawes but how long is not certain their opinion is most likely which think this custome began to take place about the time of Edward the first For there are probable reasons which confirme that Laws were made without the Concurrence of the Commons long after the time of the abovesaid Henry the first who although he did call them more frequently then any of his predecessors had done yet he did not bind himself to make laws alwayes by their assent But because it would requite anintire treatise to speak sufficiently of this subject and because it can no way prejudice the cause in hand if we grant Parliaments as they are now molded to be by fundamental agreement seeing the K. by the laws of the land and the said sundamental agreement is invested as hath been shewed with all the rights of Soverainty I will lay by many advantages and omit many reasons and passages which I could alledge touching this matter Sixthly if the Nobility and people be then and only then coordinate with the King when they are in their site relation order and union in Parliament as the fuller Answerer affirmeth in time of Parliament the Kingdome should be a Head without a Body For if the King be part of the Head and the whole Nobility part of the Head and all the people part of the Head too where is the Body And on the other side in the vacancy of Parliaments the Kingdome should be a body without a Head For if the Nobility and people be only coordinate when they are in their site relation order and union in Parliament after a Parliament be broken up where is the Head For as the preservation of the whole consist in the order and union of its parts so the dissolution of it followeth their seperation and divorce If this opinion then were true the Common-wealth should be a strange deformed Monster for in time of Parliament when all the Body were a Head it should be monstrous by too much perfection and our of Parliament when two parts of the Head were fallen into the Body it should be monstrous by too little In both cases it should want that beauty and comlinesse which consists in the harmony and proportion of several parts Seventhly if we descend into particulars we shall find Parliaments to be so molded that their frame and composition rendereth the two houses an unmeet subject for supreamacy for the Militia the power of making warre or peace with forrain princes and most of the other rights of Soveraigntie require a subject perpetually existent many occasionall accidents may arise that may call for present and sudden use of the supreame power for which there can be no provision made by bodies not existent Lastly if the people collectively taken be Supreme and above their King there should be in every Kingdome of the world many Millions of Kings namely All the Subjects and these many Millions of Kings should have but one Subject amongst them all namely Their King I could adde much more both from the statutes Common law and reason as well concerning the Kings Supremacy in general as concerning the particular rights of Soveraignty But I presume that which hath been said is more then sufficient not only to satisfie all that are indifferent and neutral but to convince those that are most interessed who shall not easily find shifts and distinctions plausible enough to illude such clear testimonies of law But God only is able to change their hearts and to make such impressions there as can cause them to repent and turn from their evil wayes I shall pray continually he would do it as well in regard of the peace and happinesse of the Kingdome as of their own salvation which I cannot otherwise hope they should obtain For whatsoever deceives them and bears up their spirits for a time repentance at last if God give them grace will prove their best fortune CHAP. VII Divers Objections made by the pretended House answered The Kings Supremacy shewed to be in His Person not in His Courts THE Kings Supremacy being made apparent I shall now proceed to answer their objections which yet are of that nature that they deserve more to be contemned then answered for in stead of Law they alleadge Bedas axioms their own fancies and such other impertinencies as one would think should sooner move a man to laughter then to be of their opinion But because they shall not complain that their objections are concealed and because in answering them I shall further confirm the Kings Supremacy I will bring them all in order not suppressing or omitting any thing that hath but the face of an objection how slight and impertinent soever I will begin with that which is alleadged by them in several declarations the summe and substance whereof is that which followeth Object 1 The Kings Supremacy is meant in curia non in Camera in
constitution of the government is mixed in some respect namely in respect of the exercise of some acts of power which happeneth not in Common-wealths where the government is arbitrary Object 2 Besides that which is here alleadged the treatiser bringeth other objections in his reply to Doctor Fern against mixture in the use and exercise of power Aristocracy and Democracy saith he are powers not Persons as well as Monarchy Pag. 38. therefore a composition of these three must be all of powers and endeed this Chimera of a mixture in the exercise of power is plain non sense for a mixture in the acts or exercise supposeth a mixture in the principles of action that is in the very powers a mixt act proceeding from a simple power is such Stuffe that I never heard before Reply First he saith that Aristocracy and Democracy are powers not persons as well as Monarchy and this he takes for granted which is both an apparent falsity and a Solecisme for Monarchie Aristocratie and Democratie are neither powers nor persons but formes of government equally relating to both the words according to their etymologies noting persons as well as powers and when these are mixed together it is the mixture of persons not of powers that denominate a mixed form of Government as I shall shew immediately Secondly he saith that a mixture in the exercise of power is plain non fence for a mixture in the acts or exercise supposeth a mixture in the principles of action a mixt act proceeding from a simple power is such stuffe that I never heard Here in stead of law he bringeth an Axiome either of his own coyning or taken out of some Author that writeth De causa causato to confirm his mixture such axioms are no authenticall proofs were they genrally true which for the most part they are not but admit of divers limitations it is a very difficult matter to prove what kind of Government is established in any common-wealth by Bedas Axiomes or the Axiomes of any other Author it had been more seasonable whilst he he was mixing the rights of Majesty if in making his assertion good he had mixed a little Law with his Philosophy and Logick But as his Axiome is not authenticall so without divers restrictions it is not true A mixed act may proceed from a simple cause the Sun doth by the same power heat resolve and harden at the same time for the vertue of naturall Agents is diversly modificated of the subject wherein it is received and acteth variously according to the severall dispositions thereof And yet if his Axiome were authenticall or true it is not pertinent the question is whether the mixture of severall estates in the exercise of some acts of power be not a true mixture sufficient to denominate a mixed Government how doth it follow now that it is no true mixture because a mixed act can not proceed from a simple power If that were true yet a mixed form of Government may proceed from the mixture of several persons and estates for forms of government are no acts Besides the Division of Government into simple and mixed is made in respect of the Persons and Estates not of the power which remains the same under all formes and changes of Government and cannot properly per se but improperly per accidens be said to be mixed for it is mixed onely ad mixtionem subjecti when it is seated in a mixed subject being otherwise the same that it is in a simple and when a simple form of Government is changed into a mixed or a mixed into a simple the power suffereth not the least alteration but is denominated simple or mixed according as it is seated in a simple or mixed subject This is the Common assertion of all Authors who do generally teach the diversity of Common-wealths to arife from the diversity of Persons their simplicity and mixture from the simplicity and mixture of Persons and estates not from the diversity or from the simplicity and mixture of powers Quoad imperium haud discriminamus species rerum publicarum Siquidem in qualibet Rep. deprehendere est summam legibusque solutam potestatem verum quoad eos pene quos imperium est differentia reipublicae formarum fieri debet coque nomine aut Monarchicus aut Polyarchicus status est Polyarchicus status aut simplex aut vero mixtus existit Besold tit de Reg. legit Frederic Tileman Disp Digest 2. hes 8. i. e. We distinguish not the formes of Common-wealths by power for there is a supreme power above the lawes in every Commonwealth but the difference ariseth from the persons in whom the power is seated and in that respect the state of a Commonwealth is either Monarchiall or Polyarchicall the Polyarchicall state is either simple or mixed Now where the severall forms of government are totally mixed that is where the mixture of the three Estates is both in the power and in the exercise of it there the simple forms of government are corrupted and that which results out of their mixture and corruption is another form distinct from them all which by authors is generally called a mixed Common-wealth this kind of government is always Polyarchicall such a mixture being incompatible to Monarchie But where they are but partially mixed that is where the mixture of the three Estates is in the exercise of power alone there the simple forms of government are not destroyed by such a mixture but suffer onely an accidentall change This is a light mixture in comparison of the other but as great as is consistent with any of the simple forms of government and as true a mixture as the former which although it doth not totally corrupt yet it doth manifestly allay the simplicity of a government for where severall estates have interest by the constitution of a government in the exercise of power the government is not so simple as where one of the estates alone have all the interest Object 3 Thirdly that power where the legislative power is in all three is in the very root and essence of it compounded and mixed of those three for that is the height of power to which the other parts are subsequent and subservient so that where this resideth in a mixed subject that is in three distinct concurrent estates the consent and concourse of all most free and none depending on the will of the other that Monarchy is in the most proper sense and in the very modell of it of a mixed constitution but such is the state of this Monarchie as appears in the former question and is self-apparent Reply This objection is soon answered by that which hath been said in the fifth chapter but because it is their principall objection I will more at large shew the invalidity of it first therefore I answer to the antecedent that the concurrence of one or both the other estates with the monarch in the making and promulgation of laws
posse Comitatus if need be to expell this Officer of the Kings and bring him to condigne punishment for resisting the Kings authority in his Lawes Here now is raising of Arms by the Kings legal authority against the Kings Title and the Kings Officer notwithstanding any pretended authority from the Kings personall command and that Officer hath a Writ of Rebellion sent against him and shall be punished by Law for offering to resist the Law upon any pretence ask the Lawyers whether in sence this be not the Law and ordinarily practised save that the King do not command the contrary but whether that would hinder Law or not the Parliament may then in case of necessity raise arms against the Kings personall command for the generall safety and keeping possession which is more necessary then the hope of regaining of the Houses Lands Goods Liberties Lives Religion and all and this by the Kings legall Authority and resisters of this are the Rebells in the Lawes account and not the instruments so imployed legally though with Arms by the Parliament Reply For matter of fact it was themselves that withheld Delinquents from a legall tryall the King detained none but when divers Members of the Parliament were assaulted in the streets driven from the house defamed by Libells and Justice not permitted to take place it was the office of the King to protect them in their Rights and Liberties and to force the due execution of the Lawes and if he refused to yield up those to their injustice which assisted him this was not to keep Delinquents from their tryall but to protect his loyall subjects according to law this for matter of fact But for matter of Right suppose the King had taken up arms unjustly the Law doth not permit his Courts to oppose him or to call any in question that are assistant to him when the King taketh up arms they which attend upon his Person or are imployed in other places about the same service may not be molested or troubled by processe of Law either in Parliament or in any of his Courts as is declared and enacted by a Statute made the eleventh year of Henry the seventh The King our Soveraign Lord calling to his remembrance the duty of Allegiance of his Subjects of this his Realm 11. H. 7. cap. 1. and that they by reason of the same are bound to serve their Prince and Soveraign Lord for the time being in his wars for the defence of Him and the Land against every rebellion power and might reared against him and with him to enter and abide in service in battail if case so require and that for the same service what fortune ever fall by chance in the same battail against the mind and will of the Prince as in this Land sometime passed hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Soveraign Lord in Wars attending upon him in his Person or being in other places by his Commandement within this Land or without any thing should lose or forfeit for doing their true duty and service of Allegiance It be therefore ordained enacted and established by the King our Soveraign Lord by the advice and assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upon the King and Soveraign Lord of this Land for the time being in his person and do him true and faithful service of Allegiance in the same or be in other places by his Commandement in his Wars within this Land or without that for the said deed and true duty of Allegiance he or they be in no wise convict or attaint of high treason ne of other offences for that cause by Act of Parliament or otherwise by any processe of Law whereby he or any of them shall lose or forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chattels or any other things but to be for that deed and service utterly discharged of any vexation trouble or losse As for the case that is put by them it is very impertinent and the whole Objection made both by Mr. Bridge and themselves full of erronious passages and mistakes first they assume the two Houses to be the whole Parliament Secondly they assume them to be a Court of judicature Thirdly they assume the Judges to have a power of suppressing any Delinquents and maintaining themselves by arms The two former assumptions are absolutely false and the latter true only in some cases so far as they have order of Law and no man deny such a power to be in either of the Houses they may force Delinquents to appear before them in such cases and in such a manner as the Law hath provided for what is so done is done by the Kings Command in Law which is to be obeyed before his personal commands But they must proceed no further nor after any other manner then the King commands in Law And first although the Kings bare Command be not sufficient to warrant his Tenant or others to resist the sentence of his Courts yet if the King in Person taketh up arms and granteth Commissions to any to assist him his Courts must then forbear all processe of Law and desist from all further opposition as is provided in the foresaid statute And secondly although the King doth not authorize the fact in person or by Commission yet neither the two Houses in Parliament nor the Judges can make what Ordinances they please to raise arms or imploy their own instruments to bring in Delinquents but must proceed according to order of Law and commit the whole carriage of the businesse to such of the Kings Officers as are appointed for that purpose which are chiefly the high Sheriffs of Counties who are also confined by Law and may not exceed their Commission For both in the case put by the reverent Divines and also in all cases whatsoever if Delinquents grow so strong that they be able to resist the posse Commitatus and cannot be suppressed but by a War and by the Militia of the Kingdom the Sheriffe ought then to certifie the Court thereof and the prosecution of the matter must be left to the King to whom only it is reserved to preserve the peace of the Kingdome in such cases Object 2 Secondly against the Kings Negative voyce they urge the Oath taken at his Coronation whereby they say he is bound to give his assent to all Bills offered him by the Lords and Commons They have found out a form in Latin which they say was anciently used and ought now to be taken the Form is this Concedis just as leges consuetudines esse tenendas promittis pro te eas esse protegendas ad hónorem Dei corroborandas quas vulgus elegerit secundum vires tuas Resp Concedo
convenient for the better carrying on of the war at that time if the King had undertaken and managed it by their advice and assent but claimed no right in the said power But supposing all that they say true and all their Presidents pertinent I shall make these two generall Answers first I say that if the King as in conscience he was bound did at the request of the Houses discharge divers corrupt Officers and substitute others into their places or if upon just reasons and motives in the vacancy of an office he disposed of it by the assent and approbation of the two Houses or ordered his war by their advice and direction or if the two Houses had challenged such a power as is pretended this doth not argue them to have a right in the Election of the said Officers or that the carriage and conduct of the war depended upon their assent it might be in the King a free and voluntary Act of grace not an obligation of law or he might doe it out of politique respects to have their concurrence in some other matter for although He cannot be forced by law to grant all their desires yet in wisdome policy and conscience He ought to yeild unto them when their desires are just legall and Prudentiall it hath ever been dammageable to the King and for the most part to the Kingdome also when differences between himself and his two Houses have not been fairely appeased Secondly I say that if they were able to alledge an act of Parliament wherein such a Right were placed in them such acts by the common Law of the Land were voyd for the Rights of the Crown are settled upon it by the fundamentall Lawes as hath been shewed and cannot be separated by Act of Parliament These are all the Objections which could without violence be referred to this place The rest which depend not upon Law shall be answered in the other Questions if any thing be omitted that seemeth to justify their cause let any man undertake to answer me and give me notice of it and I doubt not but I shall be able through the assistance of God to make a full and satisfactory reply unto him And this I shall desire of my Adversary that when he maketh use of any authority he would cite the words at large as I my self have done in all materiall points and not make references onely in the margent that the Reader may judge of the scope and intention thereof and be able to discern which of us dealeth faithfully and which of us ingaged by faction strive to elude the Lawes and wrest them from their genuine and native sence And thus by the Grace and Mercy of God I have in part discharged my Conscience being bound by all the bonds both of divine and humane lawes to oppose and withstand as far as I am able the false doctrine and principles which Wolves in Sheeps Clothing indeavour dayly to infuse into mens minds I shall easily avoyd I presume the usuall calumny incident to those which write upon this Subject as namely that under the pretext of promoting the Apostles doctrine of obedience they intend by flattering Princes to promote their own private interest I would to God the condition of his Majesty and the Kingdome were such as they might have some colur to lay that imputation upon me But I am not ignorant that I might soone have advanced my own interest by adoring the pretended Parliament who dispose of all mens estates and fortunes at their pleasure pretending as much right to all his Majesties Kingdomes and to all the power and glory thereof as the Divell did to all the Kingdomes of the world For that Luk. 4.6 say the Members is delivered unto us and to whomsoever we will we give it And I know they use to distribute their favours liberally to those that will fall down and worship them But how poor soever my condition is I have no inclination to buy my interest at so dear a rate I had rather perish in the performance of my duty then be confederate to their Sacriledge and other Impieties or not render my country that service which I owe it for whose liberty I would willingly Sacrifice not onely my own interest but my Life I should be no good English-man if I did not desire a better subject to discourse upon then the miseries of the Kingdome and if by being silent and turning a way mine eyes I could help to quench the Flame that audacious and factious Spirits have kindled in it I should have abstained from writing at this time But the Danger and miserable condition thereof calls for action to all those which had not rather see all things managed according to the appetit of those Incendianies and Firebrands of the Common-wealth then hazard themselves and their own interest for the Rights and Liberties of the Kingdome I could wish that all whom it concerns would seriously consider that the Fat and Riches of the the Land was the Patrimony and Inheritance of their Ancestours and may be of their Posterity if their own feares and negligence gives it not their enemies I could wish also that the pretended Parliamentarians would seriously consider their own condition whom I esteem of all men most miserable To speak my desires I wish unfainedly the Salvation of them all but to speak my thougths I conceive more hopes of the honest Heathen then of any man that shall dye a Rebell or not make Restitution of all that he hath gained by oppression and injustice Soli DEO Gloria FINIS
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