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
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
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
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
England to be an absolute Monarchy the King alone to be the only supreme head and Governour of the whole body that is of all the people as well collectively as severally taken And hence it is namely in regard of the Kings Supremacy he being the only head of the Kingdome having no equal or Superiour but God alone whose Vicegerent he is upon earth that the Common law doth by way of fiction and similitude attribute unto him the Divine perfections 1. H. 7.10 Finch lib 2. del ley bap 1. Roy est le test del bien publike immediate desoubs Dieu desuis touts persons en touts causes Et pur ceo entant que il resemble le person del Dien port son image enter homes le Ley attribute a lui en un similitudinarie manner 7. E. 4.17 21. H. 7.2 Coke 7. f. 7. B. 43. El. Coke 5. fol. 114. B. 4. E. 6.31 5. E. 4.7 2. H. 4.7 1. H. 7.19 bombre del excelleneies que sont en Dien cest ascavoir SOVERAIGNTIE tout terre est tenu de de luy nul action gist vers luy car quis commandra le Roy POYAR il poit commaunder ses subjects daler hors de Realm en guerr poet faire ascune foreine coine currant icy per ses Proclamations MAJESTY ne poet prend ne departer ove oscune chose forsque per matter de record si non soit chattell ou tiel quia de minimis non curat lex INFINITENES en un manner 35. H. 6.26 esteant present en touts ses courts si come home poet dire en chescun lieu PERPETVITY ayant perpetuell succession ne unque mor. 10. El. 331. 35. H. 6.61 4. El. 246. PERFECTION car nul laches follie infancie ou corruption del sank est judge en lui VERITY ne serra unque estoppe JUSTICE ne poet esse disseisor ne faire ascun tort id est The King is head of the Common-wealth immediately under God over all persons and in all causes and therefore because he represents the person of God and bears his image the law attributeth unto him in a similitudinary manner a shadow of Divine excellencies namely SOVERAIGNTIE all lands are holden of him no action lyeth against him for who shall command the King POWER he may command his Subjects to go out of the Realm to War He may make any forraign coyn currant here by his Proclamations MAJESTY he can neither take nor part with any thing without matter of Record except it be chattel or such like because the law regards not such small matters INFINITENESSE after a Manner being present in all his courts and as it were in all places PERPETUITIE having perpetual succession and being not subject to dye PERFECTION for no laches folly infancy or corruption of blood can be judged in him TRUTH he cannot be estopped JUSTICE he cannot be a disseisor or do any wrong There are also divers prerogatives and priviledges by the Common law belonging to the King and divers Acts which the King may do or not do by reason of his Supremacy The King shall not in his writ give any man the style or title of Dominus because it is unbeseeming his Majesty to use that tearm to any he being himself omnium subditorum supremus Dominus the supream and soveraign Lord of all his subjects and in this case although there be variance between the Writ and Obligation 8. E. 6.23 B. 11. E 4.2 8. E. 4.2 or other specialty yet the Writ shall not abate which it shall in other cases as if they vary in the name or sirname or if they vary in the surn The King can hold land of no man As p. 1.18 Elizab. 498. because he can have no superiour but on the other side all lands either immediately or mediately ate holden of him as Soveraign Lord for although a man hath a perpetual right in his estate yet he hath it in the nature of a fee and whether it cometh to him by descent or purchase he oweth a rent or duty for it and therefore when in pleading a man would signifie himself to have the greatest right in his estate Littleton f. 3. he saith Que il est ou fuit seise de ceo en son demesne come de fee that he is or was seised thereof in his demeasne as of fee and if a man holds his estate immediately of the King as of his Crown or person this tenure is called a tenure in capite because he holds it of the supreme head of the Common-wealth If a man holdeth land both of the King and other inferiour Lords whereby his heir becometh a Ward the King alone shall have the custody both of the heir and land the reason which is rendered in law is because the King can have none coordinate with him or superiour to him Glanvil lib. 7. cap. 10. Si quis in Capite de Domino Rege tenere debet tunc ejus custodia ad Dominum Regem plene pertinet sive alios Dominos habere debeat ipse haeres sive non quia Dominus Rex nullum habere potest parem multo minus superiorem i. e. If any man houldeth land of our Lord the King in capite then his wardship shall wholly belong to our Lord the King whether he hath other Lords or not because the King can have no equal much less a superiour Bracton lib. 2. cap. 37. Si aliquis haeres terram aliquam tenuerit de Domino Rege in Capite sive alios Dominos habuerit sive non Dominus Rex aliis praefertur in custodia haeredis sive ipse haeres ab aliis prius fuerit feofatus sive posterius cùm Rex parem non habeat nec superiorem in regno suo i. e. If an Heir holdeth land of our Lord the King whether he hath other Lords or not our Lord the King shall have the wardship of the heir whether the heir were first or last infeoffed by others because the King hath no equal or superiour in his Kingdom The law is the same as well for whole Societies Incorporated and collective bodies as for Particular men if a man should make the two houses his heir leaving them lands holden of them by Knights service if the same persons held also of the King in capite by Knights service the King alone should have the wardship and custody of the heir and land though first infeoffed by the others and the reason in law of this prelation is saith Bracton and Glanvil because the King hath neither equall nor Superiour By the common law there lieth no action or writ against the King but in case he seiseth his subjects lands 21. H. 7.2 or taketh away their goods having no title or order of law petition is all the remedy the subject hath Stanford in his exposition of the Kings Prerogative c. 22. and this petition is called a petition of right The reason which is
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
authority and power is originally in the people from whence he inferreth that they may translate as much and as little as they please to their governours and so limit their power in its being and essence But because they speak not de facto but de possibili and because I shall handle these things ex proposito in the third question I will referr them them to their due place Object touching mixture 1 I come now to the objections whereby they endevour to prove the English Monarchy to be a mixed Monarchy I conceive it saith the Treatiser a clear and undoubted truth that the authority of the land is of a compounded and mixed nature in the very root and constitution thereof and my judgement is established on these grounds First it is acknowledged to be a Monarchy mixed with Aristocracy in the House of Peers Answer to the 19. Propositions and Democracy in the House of Commons Now as before was made appear in the first part it is no mixture which is not in the root and supremacy of power For though it hath a subordination of inferiour officers and though the powers inferiur be seated in a mixed Subject yet that makes it not a mixed Government for it is compatible to the simplest in the world to have subordinate mixtures Reply His Majesty acknowledgeth Monarchy to be so mixed with Aristocracy and Democracy in the exercise of some part of his power that the conveniencies of all those forms of Government without the inconveniencies of any of them are obtained by such a mixture But he denyeth the mixture to be in the power it self for the convenience which he saith it hath from Monarchy is that it is Governed by one Head Where by one Head he meaneth not one by mixture but one single Person one pure and unmixed subject that hath all power and authority alone The Treatiser I conceive hath purposely omitted his words that his sense might not appear but I shall cite them in the next chapter and shew the true intention and meaning of them Now whereas his Majesty hath acknowledged a mixture to infer from thence that he granted the mixture to be in the power it self because the other kind is not a true but an improper kind of mixture is a strange and unusual way of argumentation If his Majesty was in an errour and apprehended that to be a true mixture which is not all that can be concluded thereupon is that he misunderstood the true nature of mixture not that he granted the mixture to be such as they contend for when it is evident that a man deny a thing in terminis there is neither candor nor ingenuity in those which will by consequences argue him to affirm it Some accuse the Romane Catholiques of Idolatry because they affirm such things as in their conceit seem by way of consequence to allow it but no man was ever so void of ingenuity as to dispute the question whether Idolatry be lawful and then cite them for Authors that maintain it to be lawful In like manner some accuse Calvine of Turcisme because he affirm such things as in their conceit seem by way of consequence to justifie the practise and religion of the Turks but no man was ever so unreasonable as to dispute the Question whether the Turkish religion be the true Religion and then cite him for an Author that maintained it to be true because it is evident that if those questions were propounded in terminis the Romane Catholicks would deny Idolatry to be lawful and Calvine if he were alive the Turkish religion to be the true religion what consequences soever other men draw from their words Yet the Treatiser dealeth in this manner with his Majesty for although it be evident that his Majesty denyed in terminis the mixture of the English Monarchy to be in the power it self yet he argues him by consequences to affirm it this to the Antecedent But secondly the consequent is also false the mistake is in himself not in his Majesty why is it no mixture which is not in the root and supremacy of power he answereth Though it hath a subordination of inferiour officers and though the powers inferiour be seated in a mixed subject yet that makes it not a mixed Government for it is compatible to the simplest in the world to have subordinate mixtures What if no government in the world be so perfectly simple as to exclude all subordinate mixtures it doth not follow from thence that a subordinate mixture is no mixture I shall also deny the very ground and foundation of his argument such subordinate mixtures as are in the English Monarchy are not compatible to the simplest government in the world for where the government is arbitrary and absolute both in respect of power and in respect also of the use and exercise of it supreme governours can put forth all the acts of power and jurisdiction alone they can make lawes raise taxes and exercise their whole power according to the full activity of it without the concurrence of the other estates and although they do often make use of their direction and assistance yet this mixture in the exercise of power proceeds not from the constitution of government but from their own voluntary election choosing this as the most conducible means to obtain the ends of government For although they may act according to the full activity of their power yet they cannot act in person at all times and in all places nor is one mans wisdome sufficient to meet with all the Events and accidents of government by reason whereof they are driven to seek a remedy against such inconveniencies as would arise frm these and the like causes and if when they find no better they substitute others and give them authority to act with them in the exercise of power this voluntary mixture cannot have such an effect as to denominate a government mixed because it depend upon the immediate will of the supreme governour who may act without them where and when he please and whether he acts with them or without them the frame of government is still the same for it is the constitution of a government that specificate it and causeth it to be denominated mixed or simple There is a great difference then between such subordinate mixtures and the subordinate dinate mixture that is in the English Monarchie those are mutable uncertain depending upon the will of the Supreme Governour this immutable certain depending upon the constitution of the Government for whether it was effected by originall contract with the people at the first foundation of the Monarchy or whether it was established afterward by the voluntary grant and concession of some of our Kings or whether it was introduced by custome the Government is now so constituted that the King can not make lawes raise subsidies or exercise some other acts of his power without the assent of the two other estates So that the very
constitution of the government is mixed in some respect namely in respect of the exercise of some acts of power which happeneth not in Common-wealths where the government is arbitrary Object 2 Besides that which is here alleadged the treatiser bringeth other objections in his reply to Doctor Fern against mixture in the use and exercise of power Aristocracy and Democracy saith he are powers not Persons as well as Monarchy Pag. 38. therefore a composition of these three must be all of powers and endeed this Chimera of a mixture in the exercise of power is plain non sense for a mixture in the acts or exercise supposeth a mixture in the principles of action that is in the very powers a mixt act proceeding from a simple power is such Stuffe that I never heard before Reply First he saith that Aristocracy and Democracy are powers not persons as well as Monarchy and this he takes for granted which is both an apparent falsity and a Solecisme for Monarchie Aristocratie and Democratie are neither powers nor persons but formes of government equally relating to both the words according to their etymologies noting persons as well as powers and when these are mixed together it is the mixture of persons not of powers that denominate a mixed form of Government as I shall shew immediately Secondly he saith that a mixture in the exercise of power is plain non fence for a mixture in the acts or exercise supposeth a mixture in the principles of action a mixt act proceeding from a simple power is such stuffe that I never heard Here in stead of law he bringeth an Axiome either of his own coyning or taken out of some Author that writeth De causa causato to confirm his mixture such axioms are no authenticall proofs were they genrally true which for the most part they are not but admit of divers limitations it is a very difficult matter to prove what kind of Government is established in any common-wealth by Bedas Axiomes or the Axiomes of any other Author it had been more seasonable whilst he he was mixing the rights of Majesty if in making his assertion good he had mixed a little Law with his Philosophy and Logick But as his Axiome is not authenticall so without divers restrictions it is not true A mixed act may proceed from a simple cause the Sun doth by the same power heat resolve and harden at the same time for the vertue of naturall Agents is diversly modificated of the subject wherein it is received and acteth variously according to the severall dispositions thereof And yet if his Axiome were authenticall or true it is not pertinent the question is whether the mixture of severall estates in the exercise of some acts of power be not a true mixture sufficient to denominate a mixed Government how doth it follow now that it is no true mixture because a mixed act can not proceed from a simple power If that were true yet a mixed form of Government may proceed from the mixture of several persons and estates for forms of government are no acts Besides the Division of Government into simple and mixed is made in respect of the Persons and Estates not of the power which remains the same under all formes and changes of Government and cannot properly per se but improperly per accidens be said to be mixed for it is mixed onely ad mixtionem subjecti when it is seated in a mixed subject being otherwise the same that it is in a simple and when a simple form of Government is changed into a mixed or a mixed into a simple the power suffereth not the least alteration but is denominated simple or mixed according as it is seated in a simple or mixed subject This is the Common assertion of all Authors who do generally teach the diversity of Common-wealths to arife from the diversity of Persons their simplicity and mixture from the simplicity and mixture of Persons and estates not from the diversity or from the simplicity and mixture of powers Quoad imperium haud discriminamus species rerum publicarum Siquidem in qualibet Rep. deprehendere est summam legibusque solutam potestatem verum quoad eos pene quos imperium est differentia reipublicae formarum fieri debet coque nomine aut Monarchicus aut Polyarchicus status est Polyarchicus status aut simplex aut vero mixtus existit Besold tit de Reg. legit Frederic Tileman Disp Digest 2. hes 8. i. e. We distinguish not the formes of Common-wealths by power for there is a supreme power above the lawes in every Commonwealth but the difference ariseth from the persons in whom the power is seated and in that respect the state of a Commonwealth is either Monarchiall or Polyarchicall the Polyarchicall state is either simple or mixed Now where the severall forms of government are totally mixed that is where the mixture of the three Estates is both in the power and in the exercise of it there the simple forms of government are corrupted and that which results out of their mixture and corruption is another form distinct from them all which by authors is generally called a mixed Common-wealth this kind of government is always Polyarchicall such a mixture being incompatible to Monarchie But where they are but partially mixed that is where the mixture of the three Estates is in the exercise of power alone there the simple forms of government are not destroyed by such a mixture but suffer onely an accidentall change This is a light mixture in comparison of the other but as great as is consistent with any of the simple forms of government and as true a mixture as the former which although it doth not totally corrupt yet it doth manifestly allay the simplicity of a government for where severall estates have interest by the constitution of a government in the exercise of power the government is not so simple as where one of the estates alone have all the interest Object 3 Thirdly that power where the legislative power is in all three is in the very root and essence of it compounded and mixed of those three for that is the height of power to which the other parts are subsequent and subservient so that where this resideth in a mixed subject that is in three distinct concurrent estates the consent and concourse of all most free and none depending on the will of the other that Monarchy is in the most proper sense and in the very modell of it of a mixed constitution but such is the state of this Monarchie as appears in the former question and is self-apparent Reply This objection is soon answered by that which hath been said in the fifth chapter but because it is their principall objection I will more at large shew the invalidity of it first therefore I answer to the antecedent that the concurrence of one or both the other estates with the monarch in the making and promulgation of laws
Promitto The word Elegerit they say may and ought to be taken in the future tense and doth obleige the King to agree to all acts that shall be thought convenient by the Houses And to confirm this they alledge a Heraulds Book wherein they say the Oath is found so Englished They alledge also an ancient French Form wherein they say it is so taken The Form is this Sire grantes vous a tener garder les leis customes naturelles les quels la communaute de vostre Royaume aur ' eslue les defenderer efforceeer a l' honeur de Dieu a vostre poiare Resp je le grante promitte Reply In all the authentical Records of the Exchequer the word Elegerit is Englished in the Preterperfect tense and not in the future tense proposing no more unto the King but that he would uphold and maintain the Lawes and Customes only which are actually then in use when he taketh the said Oath not such as shall be offered him by the Houses The words in the oath taken by his Majesty following the usual presidents were these BISHOP Sir will you grant to hold and keep the Lawes and rightful Customes which the Commonalty of this your Kingdome have and will you uphold them to the honour of God so much as in you lyeth KING I grant and promise so to doe The ancient Oath which is upon record used in the time of Henry the eight in whose reign they say the Herauld whose Book they speak of lived was this That he shall keep and maintain the Liberties of the Holy Church Book of Oath Fol. 1. of old time granted by the righteous Kings of England and that he shall keep all the Lands honours and dignities righteous and free of the Crown of England in all manner holy without any manner of minishments and the rights of the Crown hurt decay or losse to his power shall call again into the ancient estate and that he shall keep the peace of the holy Church and of the Clergy and of the people with good accord and that he shall do in his judgement equity and right justice with discretion and mercy and that he shall grant to hold the Lawes and Customes of the Realm and to his power keep them and affirm them which the flock and people have chosen and the evil Laws and Customes wholly to put out and stedfast and stable peace to the people of his Realm keep and cause to be kept to his power As for the French Form I cannot but wonder they should alledge it for it doth manifestly contradict that which they say and indevour to prove by it word for word it is thus to be rendered in English Sir do you grant to hold and keep the rightful Laws and Customes which the Commonalty of your Reaelm shall have chosen and to defend them and give them force to your power Answ I grant and promise it Who is there that understands the French Tongue which sees not that these words aur ' eslue shall have chosen which are put in the future tense can have reference to no other Lawes and Customes but those only which the Commonalty shall have chosen when the King taketh the Oath for the Form should have run thus quels la Communaute de vostre Royaume eslirà that is which the Commonalty of your Realm shall choose if Laws which were afterwards to be made had been intended in the Oath But let it be granted that Elegerit ought to be taken is the future tense yet leges consuetudines cannot relate to the Laws which shall be presented to the King by the two Houses in Parliament for the word vulgus cannot be applyed to the Lords Yet let that also be given them the Oath binds him to protect and corroborate only just Lawes not all which they shall say are just for it is evident whether Elegerit be taken in the preter perfect tense or in the future tense that by justas leges consuetudines it is implied that he is not bound to protect and corroborate all Laws and Customes but only those which are just whereof he himself assisted by his Justices and Council at Law who ought to inform him were he wanteth information is to be the Judge To conclude let the word Elegerit and all the other words signifie what they please it is not much important to their cause for the said Latin Form was never used to be taken In the time of Henry the third the Kings Oath contained only these three things Bracton l. 3. Cap. 9. 1. Se esse praecepturum pro viribus opem impensurum ut Ecclesiae Dei omni populo Christiano vera pax omni suo tempore observetur 2. Ut rapacitates omnes iniquitates omnibus gradibus interdicat 3. Vt in omnibus judiciis aequitatem praecipiat misericordiam In later times the English Form above mentioned without any alteration importing their sense hath been used to be taken many ages together Now if they could shew which I believe they cannot that divers Kings have taken the Latin Form they speak of yet that is not sufficient to prove a Custome seeing the practise was formerly and is at the present otherwise Object 3 Thirdly some infer that the King hath not a power of dissenting from the usual answer which he giveth when he refuseth to passe a Bill Le Roy s'adviserâ wherein they say he doth not peremptorily deny his assent but only craveth time to deliberate upon it Reply To what purpose should he crave time to deliberate about that which cannot be avoided there is no consultation to be used de necessariis Yet he may answer otherwise if he please a Judge Jenkins Fol. 32. Roy ne veult or b Hollinsh vol. 1. Fol. 108. il ne plaist are usuall forms as well as that Object 4 Fourthly they alledge Presidents The Militia and the chief Officers of the Kingdome they say have been disposed of in Parliament Reply If I should give a particular Answer to all their Presidents I should weary the Reader with such impertinencies sometimes they alledge a seditious speech of some of the Members for an Act of Parliament sometimes they say such or such a thing was done by Act of Parliament and and cite an Authour in the margin whereas no such thing is to be found in the said Authour Sometimes they urge a President wherein the Houses denied to give the King such subsidies and assistance as he required to his wars because the said wars were undertaken without their assent and conclude from thence that the power of making war and treating with forain states belong to the two Houses when the reason of their deniall was the miscarriages of the war and the mis-imployment of former subsidies not that they challenged the power of making war or treating with forrain states to pertain unto them They thought it would have been more