dignities gifts offices fees or annuities are bound to assist the King in his wars against all rebellions insurrections and powers raised against him And by the Parliament holden the fourth and fifth years of Queen Mary an Act was made wherein it was acknowledged that the Queen and her progenitors had power and authority to oppoint commissioners to muster and array the people and subjects and to levy such a number as they should think fit to serve them in their wars and a remedy provided against the abuses that had formerly been committed by divers who absented themselves from such musters and brought not their best furniture and array with them Coke lib. 7.7 B. I will omit the statutes made in the 11. H. 7. cap. 1. and the 2. E. 6. cap. 2. by which it appeareth that the subjects of England are bound to go with the King in his wars as well within the Realm as without I will also omit the act not printed made in the fifth year of Henry the fourth concerning the commission of array as also divers other acts and statutes made to that effect and purpose because so much hath been said about that subject already by his Majesty in his answer to the declaration of both houses of Parliament concerning the commission of array Secondly the legislative power is another right of soveraignty whereby Kings and supreme Magistrates are enabled by just and necessary laws to provide for the peace and safety of their people and this is wholely and entirely in the King although he be limited in the exercise of his power so as he can not make laws without the assent of the Lords and Commons assembled in Parliament And this is that whith the pretended house have stood so much upon because the Kings of England desiring to rule their people by lenity have out of princely clemency condiscended so far as not to impose upon them which they anciently did as I shall shew hereafter any new law or alter and repeal the old without their own consent they from the premises would make the people believe that their authority is equal to the Kings and that themselves as their deputies are coordinate with him and not content with the share which they unjustly challenged at first they afterwards layd claime to all wholely excluding the King and denying him his negative voyce usurping and taking upon themselves the whole power of making laws whereas they have no other interest or authority but what they derive from him the Statutes declare this in expresse tearms 5. R. 2. cap. 2. for their ordinary style is The King doth will and command and it is assented in the Parliament by the Prelates 7. H. 4. cap. 15. Lords and Commons Our Soveraign Lord the King by the assent of the Lords spiritual and temporal and the Commons in this present Parliament hath ordained And that the meaning and true intention of these expressions is such as I have said 22. E. 3. will appear by the resolution of the Judges of which I shall speak hereafter Now that the King hath a negative voyce in making laws and that nothing can or ought to be esteemed an Act of Parliament without him is evident by divers Statutes In the first year of King James a Statute was made wherein the two Houses petitioning the King that the recognition of their duty and obedience as also of his Majesties right unto the Crown of England might be published in High Court of Parliament to remain as a memorial to all posterity conclude after this manner which if your Majesty shall be pleased as an argument of your gracious acceptation to adorn with your Majesties Royal assent without which it can neither be compleat and perfect nor remain to all posterity according to our humble desire as a memorial of your Princely and tender affection towards us we shall add this also to the rest of your Majesties unspeakable and inestimable benefits But in the fifteenth year of Edward the third a Statute was made on purpose to make voyd an Act whereunto the King had promised to set his Seal and seemed to assent which by some for that reason was esteemed a Statute because he had not actually assented and set to his seal Edward by the grace of God c. to the Sheriff of Lincoln greeting whereas at our Parliament summoned at Westminster in the 15. of Easter last past certain Articles expresly contrary to the lawes and customes of our Realm of England and to our Prerogatives and rights Royal were pretended to be granted by us by the manner of a Statute we considering how that by the bond of our Oath we be tyed to the observance and defence of such laws customes rights and prerogatives and providently willing to revoke such things to their own state which be so improvidently done upon conference and treatise thereupon had with the Earls Barons and other wise men of our said Realm and because we never consented to the making of the Statute but as then it behoved us we dissimuled in the premisses by protestations of revocation of the said statute if indeed it should proceed to eschew the dangers which by the denying of the same we feared to come forasmuch as the said Parliament otherwise had been without dispatching any thing in discord dissolved and so our earnest business had likely been ruinated which God prohibite and the said pretensed statute we promised then to be sealed It seemed to the said Earls Barons and other wise men that sithence the statute did not of our free will proceed the same be void and ought not to have the name nor strength of a statute and therefore by their counsell and assent we have decreed the said statute to be void and the same in as much as it proceeded of deed we have agreed to be adnulled willing nevertheless that the articles conteined in the said pretensed statute which by other of our statutes or of our progenitors Kings of England have been approved shall according to the form of the said statute in every point as convenient is be observed and the same we do onely to the conservation and reintegration of the rights of our crown as we be bound and not that we should in any wise grieve or oppress our subjects whom we desire to rule by lenity and gentleness And therefore we do command thee that all these things thou cause to be openly proclaimed in such places within thy Bailiwick where thou shalt see expedient witness my self at Westminster the first day of October the fifteenth year of our reign Thirdly allegiance or ligeance is another right of soveraignty due onely to Supreme Rulers and Governours A coordinate Magistrate who hath but a parcel and share of authority can not alone challenge all obedience from the people for all that are coordinate and have their shares in the rights of Soveraignty joyntly taken together make up one supreme head to whom only allegiance
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
THE Kings Supremacy ASSERTED OR A REMONSTRANCE OF The Kings Right AGAINST The PRETENDED PARLIAMENT By ROBERT SHERINGHAM M.A. and Fellow of Gunvill and Caius-Colledge in Cambridge C R HONI SOIT QVI MAL Y PENSE Printed formerly in Holland and now Reprinted by W. Godbid and are to be sold by Richard Skelton and Richard Head at 〈…〉 TO HIS MOST EXCELLENT MAJESTIE CHARLES II. By the Grace of God KING of England Scotland c. Defender Of the Faith Most Gracious and Dreadfull Soveraign THE Pretended Parliament of England having their Agents lately in the Low Countryes treating with the United Provinces about conditions of an offensive and defensive war my resolution was to have set out this Remonstrance in the Dutch tongue for the satisfaction of those Provinces but the treaty ended almost as soone as I began to actuate my resolution whereupon I altered my purpose and have now set it out in English for the satisfaction of your own Subjects hoping the truth being here clearly illustrated may have some effect upon their Consciences which cannot but have great sway over them in ordering and directing their Actions Experience teacheth that most men act lesse boldly and resolutley especially where their lives must be engaged when they act against their Conscience then when they are perswaded of the lawfullnesse and justice of their cause There hath been more blood spilt by civill war in your Majesties dominions within the space of ten years since those pernicious principles touching the Supremacy of the People and lawfulnesse of resistance have been instilled into mens mindes by some who fetched their doctrine from Hell to furnish the world with tragedies then formerly in an Hundred I conceive the nearest and readiest way to reform such un-christian practises is to reform the Conscience although I deny not but more sharp and violent remedies must also be applyed for some have lost all sense of Conscience whom your Majesty I hope assisted by the almighty providence of God shall reform by the Sword This is that which Religion calls for at your hands now oppressed by such a multitude and confused swarm of Sectaries that I should think it impossible for so many men of severall Religions to live together in unitie did not the Likenesse of their Nature and Manners reconcile their affections as much as their differences in Religion can alienate and estrange them And this is that which all your faithfull Subjects pray for who desire nothing more in this world then to see your Majesty seated in your Royall Throne and able to protect them from the insolencies of the Rebells who make their will their law disposing as freely of mens lives and fortunes as if they had created them and given them their Being It is a rule in Opticks when a dark body is greater then a light to which it is directly opposed it casteth a shadow in infinitum Such a shadow if the continent were capable of an infinite shadow will the dark body of the Rebells cast upon the Kingdome of England whilst it is interposed between your Majesty and your loyall Subjects depriving them both of your favourable Aspect and of your Light and Influence without which they can look for nothing but a continuation of their present miseries for should the Rebells prevaile and prosper in their designes what else can be expected but that which is wrested from others by Force and Violence should be maintained by Tyranny and Injustice But whilst they wade in blood to places of preferment and command the Lord shall overthrew them in the middest of their course as he overthrew the Aegyptians in the Red-sea I usurp not the name of a Prophet but I speak as one believing God to be a faithfull observer of his promises He will not always be deafe to the prayers and complaints of those that are oppressed but send them diliverance in his due time and supply your Majesty with all things necessary both to vindicate your own Rights and free your People from their oppression THE CONTENTS AN INTRODVCTION The beginning rayse and progresse of the Rebellion raysed by the pretended Parliament The Principles whereby they endevour to justifie their proceedings The Questions that shall be discussed 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 CHAP. II. The Kings Supremacy in generall shewed by the Statutes of the Land CHAP. III. The Kings Supremacy in particular shewed by the Statutes of the Land CHAP. IV. The Kings Supremacy in generall shewed by the Common Law That the English Monarchy is susceptible of no alteration That fundamentall Laws ought not to be changed CHAP. V. The Kings Supremacy in particular shewed by the Common Law CHAP. VI. The Kings Supremacy both in generall and particular shewed by Reasons depending upon the Lawes and Customes of the Land CHAP. VII Divers objections made by the pretended House answered The Kings Supremacy shewed to be in his Person not in his Courts CHAP. VIII Divers generall objections made by the Authour of the treatise of Monarchy touching the limitation and mixture of the English Monarchy and coordination of the two Houses answered The nature of absolute limited and mixed Government explained CHAP. IX Divers generall objections taken from the testimony of his Majesty Bracton and Fortescue together with the Presidents of Edward the second and Richard the second answered CHAP. X. Objections made against the Kings Supremacy in particular by Mr. Bridge the Reverent Divines and Other answered AN INTRODUCTION The Beginning Rayse and Progresse of the Rebellion raised by the pretended Parliament The Principles whereby they endevour to justifie their proceedings The Questions that shall be discussed I Look upon the government of England if the Laws might be restored to their ancient dignity and authority as inferiour to none in the world Parliaments whilst the King and Parliament have acted in their several spheres not invaded the rights and priviledges of one another have alwayes been the surest means under God to unite their affections together and to prevent those dangers which by their mutual discord must of necessity have ruined both Some are so rash as to affirm that all Transactions Negotiations and accords between Kings and Subjects ought to be interdicted not onely depriving subjects of the light and favours which they should receive from their Prince but Princes also of many commodities which they may receive by capitulating with their subjects in Parliaments where the whole kingdome being present either in person or by representation may give the King and receive from him again such reciprocal testimonies of love that he may be assured his people seek nothing more then the preservation of his life honour and Royal dignity and they that their King endeavoureth no less to encrease and maintain the liberty riches and prosperity of his people And I am
greatest enemies to justice are set up in their places some are bereft of their estates others are driven out of the Kingdome and forced to seek a forraign ayre where they may breath more freely then in their own The whole Nobility Clergy Commonalty walk desolately mournfully up and down being no more like the men they were then the skinnes of sacrificed beasts are like their living bodies And after all these indignities offered to the King and people they endevour contrary to the lawes to alter the government and to pull up the very foundation of the Kingdome calling their new frame and structure a Free Estate and themselves the keepers of the freedome of England Thus having guilt over this Idol of their own fancy they force all men to fall down and worship it they whose vertue oblige them to refuse are cast into a furnace hotter then that of Babylon Seeing the body of the Kingdome devoured thus to the very entrails I could not withont horrour behold such a miserable carkasse so rent and torn in every part nor could I satisfie mine own conscience if I should not endevour according to my poor abilities to oppose the rage and sury of these men which are grown so fat with the blood and spoile of others My intention therefore is reserving matters of fact to speak here of matters of right and to shew the injustice of their cause and discover the falshood of all those Principles whereby they endevour to justifie their proceedings not doubting but I shall so far convince the understanding of all those that shall read this insuing discourse that they shall not hereafter enter into any combination with the rebels or continue with them in them in case they be already engaged except their hearts be hardened so far as they dare act in matters of such concernment contrary to their consciences The Principles and grounds whereby they endevour to justifie this present war against the King are two First they say that it is lawful for the people to resist their soveraign and supreme governours by force of arms in case they be Tyrants and bent to subvert the laws and religion established or by illegal proceedings invade the lives estates or liberties of their subjects But there is some disagreement amongst them in the restriction and limitation of their Principle for some give free scope and liberty to all private persons to resist and with their swords in their hands to defend their lives and estates against the unjust invasion of all Kings and governours whatsoever Others do a little stint the people and limit the bounds of resistence permitting none to have that power but subordinate Magistrates or the people collectively taken and their subsistutes in Parliament Yet these content themselves with the same particular instances brought by others alledging little besides particular examples as the example of David who as they say would have resisted Saul if occasion had been offered The example of the Priests who as they say assaulted Uzziah and such like examples of particular men which were neither the people collectively taken nor their substitutes in Parliament nor yet the greater part subordinate Magistrates But some have thought upon an other way how to make good their rebellion confessing the former assertion to tend directly to the ruine and subversion of government and to be also contrary to the law of God these proceed upon another Principle namely that supreme jurisdiction belongs to the people the King they say is major singulis but minor universis greater and hath more authority then any one of his subjects taken by retaile but taken in the gross his subjects are greater and have more authority then he and these agree altogether in this that they teach all authority to be originally in the people tanquam in primo subjecto creato as in the first subject immediately under God and from them translated to Magistrates Yet these are also divided amongst themselves about the extent latitude of the power that may be translated for some of them say that the rights of soveraignity belong to the people by the law of nature and are so essential to them that they cannot be seperated or divided from them they cannot be taken away by conquest they cannot part with them by consent but under what form of government soever they live by what means soever established and set up they have still reserved in them a supreme jurisdiction over all Magistrates by which they are authorised to give a legal judgment upon all their actions and to resume again their whole authority when they shall see occasion making a circle in government and granting a power in Magistrates to judge and govern the people and also in the people to judge and govern their Magistrates Others on the contrary side say that the people may lose the rights of soveraignty by conquest or part with them by consent so that they shall not reserve to themselves supreme jurisdiction over their Magistrates to judge juridically whether their actions be legal or illegal but the people of England they say have not de facto parted with their authority in such a full degree but are supreme by the laws of the land or at least coordinate with the King for at the first coalition of the government by paction and agreement made with the King they reserved to themselves a part in the rights of soveraignty which they still hold by law This is their other Principle as destructive to government as the former and the authors and maintainers of them both agree well enough in their end that is to stir up the people to rebellion only they of the first rank would perswade them they may lawfully do it by way of self preservation and they of the second by way of jurisdiction I intend now by Gods assistance to examine these mischievous Principles and to discover as well the falsity of them as the dangerous consequences that flow from them which I hope to perform with such clearness and evidence that the most harc-brain'd sectaries amongst them shall be convinced if they will but read that which shall be alledged against them Now that I may proceed in opening and clearing the truth with the better method I will divide the matter I am to handle into two parts In the first part I will speak of Supremacy and here I will shew that the King alone is the only supreme head and governour of the Kingdom of Englan and that all the people and their deputies in Parliament as well collectively taken as severally are his subjects and not coordinate with him In the second part I will speak of Resistance and there I will shew that the supreme Magistrates and governours of any Kingdom or Commonwealth may not by their subjects be resisted by force of armes upon pretence of tyranny or misdemeanour or upon any other cause or pretence whatsoever I will begin with Supremacy because they endevour now
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
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
Vicecomites alios Ballivos Ministros suos quibus referantur tam quaestiones super dubiis quam querimoniae super injuriis i. e. And if our Lord the King be not sufficient to determine all controversies himself he ought to select wise men fearing God and hating coveteousness and out of them constitute Justices Sheriffs Bailies and other officers to whom controversies and complaints may be referred The practice of the law hath alwayes been the same since Bracton's time and all Judges and chief officers appointed by writ patent or commission from the King Hence it is that all patents and commission of Judges and other such officers are determined by the common law at the Kings death Coke tit discontinue de proces c. part 7.30 Al common ley per demise le Roy le plea fuit discontinue le proces que fuit agard nient returne devant le mort le Roy fuit perde Car per le breve del predecessor rien poit estre execute in le temps del novel Roy si non que il soit in especial cases car le mort le Roy non solement les justices de lū Bank de laūt Barons del exchequer mes les viconts auxi eschetors touts commissions de Oyer Terminer Goale delivery justices de peace sont determine per le mort le predecessor qui eux fist i. e. By the Common law all pleas were discontinued by the death of the King and process awarded and not returned before his death was lost for by the writ of the predecessour nothing can be executed in the time of the new King except it be in some special causes for by the death of the King not onely the justices of both the benches and the Barons of the exchequer but Sheriffs also and Escheatours and all commissions of Oyer and Terminer Goal delivery and Justices of peace are determined by the death of the predecessor that made them Fifthly the power of making leagues and contracting alliance as also of making war with foraign States is in the King alone Coke lib. 7.25 Leagues between our Soveraign and others are the means to make aliens friends foedera percutere to make leagues onely and wholly pertaineth to the King wars do make aliens enemies and bellum indicere belongeth onely and wholly to the King and not to the subject as appearath in 19. E. 4. fol. 6.6 It hath been resolved by the Judges 19. E. 4.46.22 E. 4. Fitz. jurisdiction last placite Judge Jenkins fol. 17. that if all the people of England collectively taken should break the league made with a forraign Prince without the Kings consent the league holds and is not broken There are yet other rights of Majesty as the power of Coynage the power of granting letters patents of Denization the power of dispensing with such laws as are dispensable and the power of pardoning the transgression of them with divers others all which belong to the King by the Common law but because they are not called in question I will pass them over CHAP. VI. The Kings Supremacy both in general and particular shewed by reasons depending upon the laws and customes of the Land ALthough I esteem positive Laws and customes more demonstrative then deductions and inferences yet these have also their weight and importance I will therefore in the last place add such reasons as shall sufficiently confirm the Kings Supremacy although the laws had positively declared or the Judges resolved nothing concerning it First that power which is so under controul that it can be annihilated at the will of another must needs be inferiour to that power which doth so overrule and master it Now such is the condition of Parliaments that the King by law can annihilate them at his pleasure for they depend upon him quoad existentiam for their existence and continuance If it should be granted that Parliaments are in actu signato by original constitution yet the precise time of their existence and continuance hath alwayes been at the Kings appointment it being in his power to call them and dissolve them when he please so that they must needs be subordinate to him and depend upon him for their operation when they depend upon him for their existence Answer To this the reverent Divines answer for the convention of Parliaments the State hath authority in some eases to meet together in Parliament without a legal warrant from the King as if the King be a prisoner in the enemies hands or distracted and have done it de facto in the infancy and minority of some Kings and for the dissolution of Parliaments they say that they have heard wise men affirm that by law a Parliament can not be dissolved whilst there are any petitions of grievances or such matters of importance depending and unfinished Reply What needed the reverent Divines to have cited these wise men Could they not as easily have said themselves that Parliaments could not be dissolved by the Kings command as they said they might be called without it Perhaps they thought that such notorious falsities would never pass currently amongst the people if they were not confirmed by the authority of wise men as well as by their owne yet I beleeve the wise men they speak of were not so wise as Thales Milesius but whatsoever they were their magisteriall dictates must not passe for law for both that which these wise men affirm and that which they affirm themselves is manifestly opposit to law and truth There was never yet since the first foundation of the Monarchie a Parliament called without a legall warrant from the King nor can a Parliament be called without it for the cases put by them are altogether impertinent and can not be supposed the King according to his politique capacity can not be a prisoner or an infant or distracted but in case his condition be such as make him uncapable to guide and manage his charge in person as in case of infancy or distraction the law hath made sufficient provision who shall exercise the regall power in such occurrencies if he be prisoner in the enemies hands he may substitute others or if he be so closely kept as that can not be permitted in such events also the law is not deficient but in all these cases nothing can be acted by authority inherent in the people but by the Kings authority which can never be in prison nor is it subject to infancy or distraction and Parliaments called at such time by those that have authority by law to exercise the Royall power are called by a legall warrant from the King and without such a legall warrant they never were nor can be called It there have been any generall Conventions without it as the reverent Divines who should have done well to have quoted their authors and their words assure us their acts were never esteemed lawes nor such Conventions Parliaments And that the King
hath a power by law of dissolving Parliaments when he shall think it fit hath been alwayes without controversy The two houses in the last Parliament though thrifty managers of their priviledges Modus tenendi Parliamentum 4. pars instit fol 3.4 never claimed an arbitrary power of sitting without the Kings assent It is a known Maxime of the law Rex est Principium Caput Finis Parliamenti The King is the Beginning the Head and the End of Parliament Secondly he that last fashioned and reformed the English Monarchie obtained the crown by conquest he had it not by election as a gift and gratuity of the people but made his passage by the Sword and Conquerours are not wont to allow of such coordinations or admit so many sharers in the rights of Soveraigntie as it is phantasied Answer 1 Some answere that conquest is no good title Reply I shall speak of this at large in the second question where I shall shew that conquest in a just war undertaken by those that have authority is a lawfull and just title Answer 2 Others answer that the conquest was not full and entire but a partiall conquest occasioning a composition and agreement and so the government is specificated according to that finall composition and agreement which was made Reply I deny not a composition and agreement but I say there was none such as is pretended for the composition and agreement was made after a victory and it is not probable that the conquerour having been at such expence of blood in gaining the crown and rights of Soveraignty should after his victory give them away again and agree to such a mixture as is pleaded for And although it may be justly exacted from them to prove that there was such a composition and agreement as they speak of made between them yet I will take the burden of proving upon my self and shew there was not for all the composition and agreement which was made or reported to be made by any author was a grant from the conquerour that the Kingdom should injoy the ancient lawes and customes whereby it had been formerly governed which were called the lawes of King Edward this he performed being moved by the petitions and instances of the people in the fourth year of his reign wherin he confirmed unto them the said lawes and customes Now amongst the lawes of King Edward there is nothing to be found that can give the least colour or pretence for such a coordination as is conceited but on the other side the Kings supremacy is chiefly established by the ancient lawes of the land for the common law was the same it is now before the conquest and is the base and pillar of Royall power as hath already been shewed sufficiently To which I could adde many other things out of the lawes of King Edward wherein the King is declared to be a Monarch and to be Gods vicegerent constituted and ordained to govern the Kingdome which includes the people collectively taken and his Church and to protect and defend them which is an act belonging onely to supreame authority and which can not be performed without it from injuries and oppression 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fol. 142. Rex autem quia Vicarius summi Regis est ad hoc est constitutus ut regnum terrenum super omnia sanctam veneretur Ecclesiam ejus et regat ab injuriosis defendat etc. Vniversa vero terra et tota et insulae omnes usque Norwegiam et usque Daciam pertinent ad coronam regni ejus et sunt de appendicijs et dignitatibus regis et una est Monarchia et unum est Regnum et vocabatur quondam Regnum Britanniae modo autem vocatur Regnum Anglorum i. e. The King because he is the vicar of God is ordained that he may govern the Church and his Kingdom and the people of God and defend them from all injuries c. But the whole continent and all the Islands ar far as Norway and Denmark belong to his crown and are the appurtenances and dignities of the King and are one Monarchy and one Kingdome and it was anciently called the Kingdome of Brittain now the Kingdome of England By an other law of King Edward all men within the Realm are oblieged to take an oath of Allegiance and to promise fidelity to the King a Besold de jurib Majestat cap. 2. num 36. Bornit de Majest c. 17. which is a duty to be payed onely to supreme authority b L. 35. Ita debent facere omnes Principes Comites simul jurare coram Episcopis Regni in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 similiter omnes proceres regni milites liberi homines universi totius regni Britanniae facere debent in pleno 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fidelitatem Domino Regi ut praedictum est coram Episcopis Regni i. e. So ought all Princes to do that is to take the Oath of Allegiance and Earls and swear together before the Bishops of the Kingdome in a publick assembly in like manner all the great men of the Kingdome and Knights and all the free men ought to do fealty to our Lord the King in a full assembly before the Bishops of the kingdome To conclude this point by the Laws of King Edward the Crown hath legibus solutam potestatem c Iohan. Corvin Breviar cap. 11. Bisol cap. 2. de jur Maiest Special num 41. Morla in Empocio juris tit 1. quaest 2. Petra cap. 25. which is a prerogative competible to none but supreme powers by them the King may dispence with the Statutes pardon the transgression of them and loose whom he please from imprisonment wheresoever he goeth by his bare word alone d L. 19. Habet etiam Rex alterius modi potestatem misericordiae super captivos ubieunque enim venerit in civitatem vel burgum vel castellum vel villam vel etiam in via si captivus fuerit potest eum solo verbo solvere à captione Solutus tamen satisfaciat cui foris secit Murdrator vero vel traditor hujusmodi criminosus quamvis Rex iis condonaverit vitum membra secundum legem nullatenus in patria remanebunt i.e. The King hath also another kind of power of pardoning such as are in prison for wheresoever he goeth into any City Borrough Castell or Village or also in the high way if any prisoner be there he may by his word alone release him from imprisonment yet he that is so released must satisfie those to whom he hath made the forfeiture but a Murderer Traytor or any such notorious Delinquent although the King hath given him his pardon of life and Member may not by Law remain in his Country The lawes then granted by William the Conquerour did not deprive him of the rights of Soveraignty but did rather strengthen his Title joyning law to conquest for lest he might inconsiderately suffer his
wings to be clipt before he made the said grant he caused all the Lawes and Customes that were in force in the time of King Edward to be written out and then after good deliberation finding nothing in them prejudicial to his Crown and Royal authority he ratified and confirmed them For whereas some of them say the Fundamental Lawes are not written that so they might cover their fraud and deceit who pretending fundamental Laws are able to alledge nothing out of them this is contrary to all the Histories and Records of those times which testifie that Willam the Conquerour commanded twelve of the wisest men to be chosen in every County who did upon oath declare all the Lawes and Customes which they knew not adding or omitting any thing Aldered Arch-bishop of York who had crowned him and Hugo Bishop of London as Chronicon Lichfieldense relateth writ them out with their own hands Yet he granted not these Lawes without some emendations Leges H. 1. c. 2. as appears by the Laws of Henry the first Lagam Regis EDWARD I vobis reddo cum illis emendationibus quibus eam Pater meus emendavit Consilio Baronum suorum i. e. I restore unto you the Laws of King Edward with those emendations which my father by the advice of his Barons added unto them For although he let the old foundation stand yet he inlarged it and added divers new dignities and preheminencies to the Crown 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fol. 151. not wholely relinquishing the rights he had gained by conquest as some without ground or reason affirm but joyning the rights of law and conquest together And this was all done by consent and agreement of the people and confirmed by Act of Parliament Thirdly the two Houses of Parliament are but the Kings Counsell according to their usual style both in our Statutes and Law Books at first the Members of the Pretended Parliament gave themselves no other name and in propability would have been longer content with it upon condition his Majesty would have observed their counsells as Laws and have acknowledged himself bound to obey them for they were willing then he should have had the title of a King so themselves might have had all the power and authority belonging to the Crown But the truth is there is a great distance between Counsels and Commands Counsellours are but subordinate officers and may not impose their Counsells for Lawes upon those which they serve in that employment Answer 1 To this it is answered first That the two Houses are called the Counsel of the Realm as well as the Kings Counsell and are trusted by the People as well as by the King Reply Although in some respects they be trusted by the people yet as touching the office of Councellours they are trusted by the King and when they are called the Councel of the Realm it is all one as if they were called the Councel of the King for under divers phrases the same thing is signified it being an usual custome in law in expressions of this kind to take the Realm or kingdome for the King himself Coke lib. 7.12 And oftentimes in the reports of our Book cases and in acts of Parliament also the Crown or Kingdom is taken for the King himself as in FITZ NATVR BRE FOL 5. tenure IN CAPITE is a tenure of the Crown and is Signory in grosse that is of the person of the King and so is the 30. H. 8. Dyer fol. 44 45. a tenure in chief as of the Crown is meerly a tenure of the person of the King and therewith agreeth 28. H 8. tit tenure Br. 65. The Statute of the 4. Hen. 5. cap. ultimo gave Priors aliens which were conventual to the King and his heirs by which gift saith 34. H. 6.34 the same were annexed to the Crown And in the said Act of 25. E. 3. whereas it is said in the beginning within the ligeance of England it is twice afterward said in the ligeance of the King and yet all one ligeance due to the King So in the 42. E. 3. fol. 2. where it is first said the ligeance of England it is afterward in the same case called the ligeance of the King wherein though they used severall manner and phrases of speech yet they intended one and the same ligeance So in our usual Commission of Assize of Goale delivery of Oyer and Terminer of the Peace c. power is given to execute justice secundum legem consuetudinem regni nostri Angliae and yet Little lib. 2. in his Chapter of Villenage fol. 43. in disabling of a man that is attainted in a praemunire saith that the same is the Kings Law and so doth the Register in the writ of ad jura Regia style the same Answer 2 Secondly it is answered although the two Houses be the Kings Counsell yet they are not chosen by himself the Lords are consiliari nati born Counsellours and the Commons are consiliari dati Counsellours given him by Election of the people Reply Although the Lords be born Counsellours and the Commons chosen by the people yet they cannot sit in Counsell but at such times as the King is pleased to make use of them and when he is pleased to summon them and command them to sit the Lords cannot refuse to come or the people to send their Deputies nor doth it alter their condition whether they be born his Counsellours given him by the people or chosen by himself they which are born to places of dignity and jurisdiction or they which are chosen to them by the people cease not for all that to be subordinate to the King they are all his Subjects and Ministers and are so far from having authority to challenge obedience to their Counsels that if their Counsells be not such as they ought they are themselves obnoxious to a censure of Law A King is obliged in time of Parliament to follow the advice and direction of the two Houses and out of Parliament of his Privy Counsell when their advice and direction tendeth to the preservation of his person and of his Royal authority and to the preservation of his people and of their rights and priviledges not that Counsellours have authority over Kings but because the matter of their Counsels do morally oblige their consciences but if their advice and direction tend to the ruin of either he may and ought to recede from their Counsels and such a King is not a tyrant but such Counsellours traitors by the law This is mysteriously represented to the Lords when they are first preferred to that degree and dignity by the usuall solemnities then performed for if in stead of giving counsell for the King they give counsell against him they are not only by the Statutes of the Land declared to be traitors but if the Statutes were silent by a tacite condition of law annexed to their dignities and vayled under certain ceremonies used at their first creation
upon the Statute of Glocester made in the sixt year of Edward the first extant amongst the printed Statutes and following immediately after the said Statute in these words After by the King and his Justices certain expositions were made upon some of the articles above mentioned that is to wit to the first article for entries by disseisin damages shall run from the time of the Statute published In the same wise in writs of entre upon disseisin in all writs of Mortdauncester Cousenage Aiel or Befaiel of intrusion by one act by any manner of writ damages shall run after the writ purchased against them that held by Statute albeit their ancestors died seised thereof c. Here we see to whom the interpretation of the law belongeth the Judges by themselves have a power to interpret it judicialiter they could not otherwise proceed to judgement but being called by the King with him and under him they have a power to interpret it authoritative as hath been the practice and is the known law of the Land But for the two houses besides that they can do nothing joyntly together unless the King doth actually concurre with them their structure is such that they are altogether uncapable and unfit to interpret law For the power that interprets law must be always existent to act as new occasions shall arise which requires the exercise of that power which the two houses are not And yet were they alwayes existent both houses having a negative voyce upon any disagreement between them the interpretation of the law must be retarded and all controversies depending thereupon undecided and this disagreement might perhaps endure for ever and so a final determination in such suites would be impossible Now these are inconveniences which ought not to be admitted in any common-wealth for it derogates both from the honour and wisdome of a Nation to be so moulded and framed that justice cannot have a free passage in all contingencies I will yet adde for the further clearing of this point that not only the legislative power it self but the very exercise of the power also so far as it is essential to government is in the King alone for he can by edicts and proclamations provide for all necessary occasions and special emergencies not provided for by fixed and certain laws which is one of the most excellent and eminent acts of the legislative power and a sufficient remedy against all mischiefs in case the two houses should refuse to concur with him in those things which concern the benefit of the Kingdome He may also grant immunities liberties and priviledges to any colledge town city or incorporation and authorise the said communities to make such local Statutes as shall oblige every member thereof so far as they contradict not the general Statutes of the Land which are all acts of the legislative power that he can exercise without the concurrence of the two houses Now concerning the Kings negative voice 12. H. 7.10 4. H. 7.18 7. H. 14. Judge Jenkins fol. 18. it is the known law that the King hath a power of dissenting and that no act of Parliament can have any authority except either in person or under his seal he signifies his assent Thirdly allegeance or ligeancy is due to the King and none but the King by the Common law as Sir Edward Coke sheweth at large in Calvins case from the resolution of the Judges By that which hath been said appeareth saith he that this ligeance is due onely to the King so as therein the question is not now cui sed quomodo debetur It is true that the King hath two capacities in him one a natural body being discended of the blood Royal of the realm and this body is of the creation of almighty God and is subject to death infirmity and such like The other is a politick body or capacity so called because it is framed by the policy of man and in the 21. E. 4.39 B. is called a mystical body and in this capacity the King is esteemed to be immortal invisible not subject to death infirmity infancy nonage c. Vide Pl. Com. in le Case de Seigmor Barclay 238. Et in the case del duchie 213. vide 6. E. 3.291 26. ass pl. 54. Now seeing the King hath but one person and several capacities and one politick capacity for the realm of England and another for the realm of Scotland it is necessary to be considered to which capacity ligeance is due and it was resolved that it was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural capacity and is not due to the politick capacity onely that is to the crown or Kingdome distinct from his natural capacity In the same case a little after it followeth And where divers books and Acts of Parliament speak of the ligeance of England as the 31. E. 3. tit Cosinage 5.42 E. 3.2.13 E. 3. tit Bre. 677.25 E. 3. Statut. 2. De natisultra mare All these and divers other spenking briefly in a vulgar manner for loquendum ut vulgus and not pleading for sentiendum ut docti are to be understood of the ligeance due by the people to the King For no man will affirm that England it self taking it for the continent thereof doth owe any ligeance or faith or that any ligeance of faith should be due to it but it manifestly appeareth that the ligeance or faith of the subject is proprium quarto modo to the King omni soli semper Fourthly the power of making Judges and all such State officers as exercise any jurisdiction is in the King alone by the Common law and can not nor ought not to be separated from him for it is not reasonable that delegate Judges should be substituted by any but those whose delegates they are nor can a King execute justice according to his oath which next the Glory of God is the chief end of Government by a naked title onely His subjects may be vexed by the rapine and exactions of unjust Judges they may be wearied by delayes exhausted by insupportable fees opprest many several ways and the King in the mean time must stand still and look on if his hands be bound and he disabled from punishing their delinquencies deputing others into their places And therefore this power cannot be disunited from the crown but ought to be de jure as it hath alwayes been de facto a part of the Kings prerogative Bracton lib. 3. tit de actionibus cap. 10. Et si ipse Dominus Rex ad singulas causas terminandas non sufficiat ut levior sit illi labor in plures personas partito onere eligere debet de regno suo viros sapientes timentes Deum in quibus sit veritas eloquiorum qui ederunt avaritiam quae inducit cupiditatem ex illis constituere Justiciarios
in his person without and above his Courts for as hath been shewed the King hath not only an extraordinary jurisdiction where cases can have remedy no where else but ordinary also above all his courts wherein he is but virtually present Bracton Sicut Dominus Papa in spiritualibus super omnibus habeat Lib. 5. cap 15. ordinariam jurisdictionem ita haber Rex in Regno suo ordinariam in temporalibus pares non habet neque superiores That in Fleta is also to be understood of the Kings ordinary jurisdiction Lib. 1. cap. 17. Potentia Rex omnes in Regno suo praecellere debet quia parem habere non debet nec multo fortius superiorem in justitia exhibenda The King ought to have a superimenent power above all the rest in his Kingdome because he ought to have no equal much lesse a superiout in exhibiting justice CHAP. VIII Divers general objections made by the Author of the Treatise of Monarchy touching the limitation and mixture of the English Monarchy and coordination of the two Houses answered The Nature of Absolute Limited and Mixed Government Explained THE Author of the Treatise of Monarchy the fuller Answerer and other Pretended Parliamentarians have invented a new form of Government to delude the People which they tell them is the Government established in England namely a mixed Monarchy consisting of three Estates independent for their authority upon one another all of them being coordinate and having several shares in the rights of Soveraignty by the fundamental lawes of the land A strange kind of Monarchie not so much as heard of until these times much lesse established in England for a Monarchy is the Government of one alone as the Etymologie of the word importeth now to say the Government of three Estates is the Government of one alone doth not sound half handsomely Other Authors have spoken of mixed Government and mixed Common-wealths but of mixed Monarchy in that sense which they do none but themselves have treated For according to the Verdict of other Authors Besol Synops polit doct lib. 1. cap. 6. when Monarchy Aristocracy and Democracy are melted and allayed together that which resulteth can take its name from none of the simple species or kinds of Government although the chief authority or primity of share belong to any one of the estates Yet if they will needs have a mixed Government to be denominated from that kind that hath predominancy they might with better reason have called their new frame a mixed Democratie this denomination besides that it is not so improper as the other Democratie implying the Government of the people but not of the people only as Monarchy doth of the Monarch alone is more agreeable to the quality and nature of their platforme for the Kings authority being so inconsiderable as they make it the people in this mixture must needs be the predominant Element The Author of the Treatise of Monarchy who seemeth to give most to the King although in terms he grants him a primity of share in the supreme powet yet in substance he would have it placed in the two Houses attributing unto them such authority as they may thereby make him deprivable at their pleasure Now although the said Treatiser seemeth to be a Poet rather then a Lawyer having many new fictions but scarcely a word of law in all his treatise yet because I cannot conveniently reduce his objections to any of the other Questions that are hereafter to be discussed I will answer them in this place But before I come to examine them that all things may be clear and better understood I will for perspicuity sake speak a word or two of the division and several kinds of Absolute Limited and Mixed Government I will begin with Absolute Government of which there be three kinds the first is Absolute both in respect of power and also in respect of the use and exercise of it In this kind of Government the Supreme Governours have perfect Absolute full and intire power and in the exercise of it are subject to no limitation made by any humane law paction or agreement but are limited ab externo by the lawes of God and nature onely being otherwise left to the free determination of their owne wills This is also called Arbitrary government not because such governours as have the free use of their power may doe what they please for their power is bounded by the lawes of God and nature and may not transgresse and goe beyond its limits but because it is not bounded by any humane positive law made to restraine and regulate it The ends of Government may be attained severall wayes in many particulars without breach of the Lawes of God and nature now when a Governour is not directed to his end in any of those particulars by humane constitution and appointment but hath an open and free passage to act which way he please his Government is Absolute and Arbitrary Amongst all the severall kindes of Government this onely is jure Divino as being more ancient then any humane law that could be made to direct it by virtue and authority whereof humane lawes were at first enacted all other sorts were introduced by the policy of men yet lawfull humane Constitutions serving to conduct power to its end making as it were a furrow for it to passe in and to contain it which otherwise is apt to overflow its bounds and to degenerate into tyranny The second is Absolute in respect of the power alone In this kind of Government the Supreme Governours have as perfect Absolute full and intire power as the former their authority have the same latitude and all the same dimensions but they are limited ab externo in the use and exercise of it either by originall and fundamentall constitution or else by lawes made afterwards by speciall grace and condescention so that although their power be perfect Absolute full and intire in all respects and able to produce all the effects of Government yet they can not put it forth and act by it according to their own free election or according to the full activity of it but must act according to those limitations made and granted by law The third is Absolute in respect of the exercise onely In this kind of Government the exercise of the supreme authority is committed for a certain time but the supreme authority it self not translated to one or more who by virtue of the said commission may exercise the power in an arbitrary manner during the time assigned them Such were the Dictators of the Romane Commonwealth who ruled as arbitrarily all the time of their Dictatorship as the most Absolute Monarchs in the world yet the supreme authority remained in the Senate And such are they who exercise Royal power in the minority of Princes whose Government is Absolute and Arbitrary There are also three kindes of Limited Government answereable to Absolute the first is Limited both in
ordinances not a bridle of force but a bridle of admonitions counsel and advice they have no other means but such by Law to bridle the King if at any time he breaks out into violent and illegal courses This is the Scope of Bracton as is evident by the whole coherence and connexion of the matter who was so far from allowing such fond conceits and imaginations as they seem to suppose that the contrary runs in one constant veine through all his book if they regarded the authority of Bracton they would soon lay down their arms and sue to his Majesty for a Pardon Thirdly they alledge the testimony of Fortescue who speaking of the King of England Fol. 25. saith Prinipatu ne dum Regali sed Politico suo populo dominatur That is He governeth his People not only by Kingly but also by Politique power Reply Fortescue implyeth in these words that the King ought not to make his Will but the Lawes the rule of his power not that others are coordinate with him in the rights of Soveraingty Arist Pol. l. 1. c. 1. 3. For power is either Despotical or Politick Despotical power is Kingly power not moderated nor restrained by humane Laws and constitutions Politick power is Kingly power limited and restrained by humane and politick Laws Now Fortescue saith that the Kings power is not meerly Despotical and Regal but Politick and tempered by law and his intention is to shew the difference between the Common Laws of England and the Civill Laws The Emperour after the power was translated to him from the Common-wealth by that Law which in the Digest is called lex regia until the custome of making Laws by the assent of the people took place again might command what he pleased Quod Principi placet legis habet potestatem is a part of that Law but the King of England he saith cannot altogether govern his people by such a power but is obliged to rule them according to the tenour of the Politick Laws and Constitutions of the Kingdome so that Politique power is here opposed to Kingly power taken in its greatest latitude and not to Kingly power moderated and restrained by Law But how doth this concern the case in hand Object 4 Fourthly they alledge Precedents Parliaments they say have exercised a supreme power over the Crown of England it self to transfer it from the right Heir and setled it upon whom themselves thought meet to elect for their King They cite two Kings which were deposed Edward the second and Richard the second and then conclude that those Parliaments which have exercised such jurisdiction over them must certainly be above them and the highest Soveraigne power Reply The deposition of those Kings hath been resolved Treason by all the Judges of England and yet if it had been legall Coke institut part 2. tit treason the Precedents are impertinent for those acts were confirmed by the Kings themselves and could never have been esteemed Acts of Parliament without their own assent CHAP. X. Objections made against the KINGS supremacy in Particular by Mr. Bridge the reverend Divines and Others answered THey have yet other Objections whereby they endevour to prove that the Particular Rights of Soveraigntie are divided from the King and placed in the two Houses And first touching the Militia Mr. Bridge and the reverend Divines have found a device how the Parliament may make use of that and levy war against the King by his own authority They say as Judges they may send out Messengers or Sergeants at Arms for his evill Counsellours and in case they refuse to appear before them fetch them in as Delinquents by force of arms this is the sum of their Objection but I will set it down in their own terms Suppose saith Mr. Bridge a man be complained of to the Parliament for some notorious crime it is granted by all that the Parliament hath a power to send a Sergeant at Arms for him Mr. Bridges Objection and if he refuse to come that Sergeant at arms hath a power to call more and if the Delinquent shall raise twenty or thirty or an hundred men to reskue him then the Parliament hath power to send down more messengers by force to bring up the Delinquent and if they may raise an hundred why may they not upon the like occasion raise a thousand and so ten thousand And again in his answer to Doctor Ferns reply If the Parliament may send one Serjeant at Arms then twenty then an hundred then a thousand Reply This I confesse is a subtile invention for there can be by Law but thirty Serjeants at Arms at the same time within the Realm now if Mr. Bridge can shew a way how out of thirty Serjeants at Arms an Army of a thousand 13. R. 2. Cap. 6. or ten thousand may be raised he shall be worthy to have a Statue erected to his Memory The reverent Divines have in substance the same objection The reverent Divines objection saving onely they are not so punctuall for point of Law as to have their Army consist of Serjeants at Arms and they alledge a case in Law to justifie that way of proceeding Supposing say they the power of calling and dissolving Parliaments wholly in the King ordinarily yet there may be such power in them so long at they do sit to command arms to be raised for the suppressing of any Delinquents maintaining themselves with Arms even under the colour of the Kings authority which I thus make good If there be any such kind of power in the very judges in their Courts at Westminster for the whole Kingdome and in their several circuits for the shires they sit in although themselves are made Judges at the Kings will merely and put out ordinarily at his pleasure and they can neither keep assizes at any time nor keep any term any where but when and so long as the King pleases to give commission If I say there be such a power in the Judges and even in one of them then much more in the whole Parliament which is unquestionably and undoubtedly the highest judicature in the Kingdome and hath most power during their sittings now that such a kind of power is in the Judges I appeale to experience in the case following A private man hath a suit with the King about land or house and the like the King hath possession and some officer or tenant of his holds it for the King the Judges having heard the cause give sentence for the subject adjudge him to have the possession delivered him by the Kings Tenant or Officer he refuses and Arms himself to keep possession still upon this after due summons and processe of Law a writ of rebellion shall go out against the Officer af the Kings even though he should pretend to keep possession still by a command and warrant from the King and the Sheriffe shall be commanded to raise arms oven the whole