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
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
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