ignorant of the true State and quality of the kingdome of England after the old triple distinction of Empire written by Bartolus and Baldus the best Civilian Doctors viz. That there is Imperium merum and Imperium mixtum cum Jurisdictione and that in some places there is onely Jurisdictio sine imperio as is the state of the Low Countries and other Aristocraticall and Democraticall Governments whereof the first i.e. Merum Imperium was the Romane Empire gotten meerely by the sword and for the most part kept by the sword according to the saying of Justin the Historian in the beginning of his Booke Imperium iisdem modis tenetur quibus paratur And by that Empire Principis placitum legis babet vigorem As Justinian in the first of his Institutes mentioneth The second i.e. Mixtum Imperium cum jurisdictione is the Crowne or Kingly power of England Monarchichall indeed for Rex in solio is sine paci But in Parliamento or Concilio regendi he hath Pares Regni i.e. Peeres so dignifyed by him and honoured from the Fountaine of his Majesties Honour And he hath also the Communitatem Populi which the blessed and ever prosperous Queene Elizabeth accounted sibi preciosissimam And all these three States of King Peeres and Commons were happily Conjunct and preserved together by the ligaments of the ancient Lawes of the Land and Priviledges of Parliament which Lawes and Priviledges were never subjugated by any conquest but ever over-lived the change of Kings and appeased force and induced Kings into their setled Reignes here According as that learned Chiefe Justice Sir Edward Coke was bold in presence to tell his Majesty the late King James of famous memory That the Law set the Crowne upon his head Whereat his Majesty seemed angry but was so prudent and wise as not to be so And the old learned Bracton that wrote like as he was a studyed Civilian as well as a Judge of the Common Law in King Henry the second his time adviseth every King of this Land in these words Id tribuat Rex Legi quod Lex attribuit ei Which two maine points or Principles in this present state of England that is to say the Church Government established with the true Protestant faith and Religion and the free Regall power qualifyed with the Naturall and Nationall Lawes of this Land the untouched Priviledges of Parliament and the Rites and Liberties of the people being not onely Cordially professed and protested by his Majesty but secured by the high wisedome and care of the Peeres and Commons and his Majesty joyously returning to his beloved Parliament May it please the Almighty God of his infinite goodnesse so to inspire both King and Peeres and Commons with his Divine grace that Anarchy and Dissolution of Church Government be avoyded and prevented by due restraint and correction of all Sectaries and Schismatickes Brownists Anabaptists c. Who in truth if they might obtaine their fanaticke intents would have no King at all over them on Earth nor Church or materiall Churches But in rapture of the Spirit would fly up to Heaven for the Judaicke King and in the meane time would hold their Church and Conventicles in the Aire or Woods or Barnes or Stables or in their owne holy breasts whereas though Christ himselfe said his kingdome was not of this world yet he taught his Disciples that in this world they should obey Kings as of Gods ordinance and be tributary to them Date Caesari quae sunt Caesaris And that no conceit of any popular or plebeian sway in this Land be in any true English heart But that the Members of both Houses may so prepare good and wholesome Lawes for the Church as may quite extirpate Popery and prevent Schismes and all rendings or divisions of Christ his seamelesse garment of unity of the Spirit to be fast girt with the bond of Peace And for the Common-wealth that never hereafter there be any more Inrodes upon the Lawes priviledges or Liberties of free English men That finally God may be truely honoured and purely served and worshipped his holy Word rightly dispensed and his Sacraments duely and decently administred And then his Heavenly blessings will undoubtedly showre downe upon this little Isle of Great Britaine and the words and wishes of an Ingenious Votary may be fulfilled Long live King Charles and leave Brave Britaine to his Sonne And he to his and they to theirs Vntill the world be done In this Treatise may be discovered and noted six sorts of malignant parties against this unity of King and Parliament and the happy effects and fruits thereof Whose Corrections or Reformation if it so please God the King and Parliament may be as followeth 1. All Papists Priests and Lay who certainly in their secret dispositions whatsoever they make shew of are against King and Church of England and do plot and practise the advancement of Popish religion and Church and to bring in againe that forreine usurped power of the Pope Supra Reges which is banished and abolished by the Statute 1. Eliz. These may and ought to have the Law and Statutes of the Realme put in execution against them and more severe if neede bee to compell them to come to Church and receive the Communion which if they will doe then let them not be branded with a name of Church Papist so to deterre them and drive them out againe 2. All papal affected Bishops and Clergy who though they contrariwise to the Papist Priests profer to obey Kings yet in their hearts could wish the Clergy to be separate from the Kingly Authority and Temporall Law but to beate downe Law and Priviledges of Parliament doe Hyperbolically exalt and extoll the Monarchicall Arbitrary power of the King as above and solute of all Law and responsall onely to God These must know their error and ignorance in their Tenets of Kingly power and government within this Realme and be told by Sir Edward Coke if he were living that never any man in England kicked his heele against the Lawes of the Land but in fine the Law brake his necke and let these Hierarchical Bishops be corrected of their superbity and reformed in their superiority and domination in the Church and their worldly mindednesse in Country and Commonwealth as please the King and Parliament 3. All Court flatterers and Royalists who daily in their affections and discourses maintaine absolute and Prerogative power in the King to grant by his Letters Patents what and how he will above the Lawes and Statutes and would have Proclamations to be Lawes that so they might have Monopolies and projects to serve their turne These weake men of Learning for the most part in the deepe points of Law and policy must be taught to wait on the King their Master with all diligent service and attendance and leave off their discourses of Kingly Authority and of Parliamentall Priviledges and force of Lawes and content themselves henceforth with the King their Masters reward of their service without peeling or preying on the people with their Monopolies and Projects 4. All Cavaliers Captaines and Martiall men who desire warre and tumult and disturbance in the Land and Commonwealth that so they may have rapine and spoyle These must be sent into forreine parts where they may freely have and take their rapine and spoyle upon forreine Enemies and not to rake the bowels and baggs of their owne Countrymen And there also they may gaine honour by valour which here is not to be used 5. All Sectaries and Schismatickes of the Church who disaffect government either Royall or Ecclefiastique These must learne to Conforme themselves to the uniformity of the Church and to obey and submit themselves to their lawfull King who is the Lords Anoynted and set over them by his divine Ordinance 6. All popular and plebeian Humorists who do affect and desire Democracy which they terme or call a Free state and by their leaves be it said they would have neither this King nor his posterity nor any King to sit on the Throne These must be put in minde or made to know that Monarchy qualified by Law is the best Government As the old Poet Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so all the best learned Authors writing of States and Policy do affirme and conclude and the ancient Histories of England do shew that here was ever one or more Kings But this Land never more flourished then since it hath beene now these six or seven hundred yeeres under one Christian King ruling according to the ancient Lawes Usages and Customes of the Land FINIS
Generall and Captaines for the safety and peace of his Land and people against any foraine foes or domesticke trayterous enemies But this is to be understood when his Majesty with his owne prospective eye and watchfulnesse or by the advice of his Privy Councell before Parliament or great Councell in Parliament hath or doth discover the Plots or purposes of foraine enemies intending mischiefe assault or ruine by Invasion foraine or of domesticke traytors by Insurrection and Rebellion at home For in truth it is a Flower of the Kings Crowne and an incident of his Regality as he is a King to have Liberam absolutam potestatem or Jus Bellum indicendi gerendi to or against any Foraine Prince or Potentate and againe Jus potestatem pacis contrahendae paciscendae with any of them and thus all the learned Authours writing of Law and Policy by the Titles of their Bookes de lege Regia have averred and maintained and it is not to be denyed because the King is the head of the body politique which compared to the naturall body wherein the five senses are operative and doe their Offices by their Organa rite disposita yet the naturalists doe affirme that the Communis sensus is in the braine or in Occipite and that per discursum practicum it judgeth and resolveth of the other senses their pleasing or being usefull and profitable to the whole body or offending and annoying it And so the King hath the Jus militiae or power and command of Armes at home throughout his kingdome for he hath Potestatem vitae necis as the Civilians terme it And in our Law the death of any is to be accounted for to the King and the taking away of any Liege Subjects life is in the Indictment said to be Contra Coronam dignitatem Regis But all this notwithstanding the generall position of the Jus Principis or Lex Regia placing the power of Armes and Militia in the Crowne yet his Majesty cannot otherwise levy the Militia but by lawfull meanes and not by Commission of Array as lately hath beene for that is an undue charge not warranted by Law And in case of particular accidents that the King the Head be mis-informed of his and the Common-wealths enemies conceiving them to be friends which are secret and desperate adversaries complotting clandestine Ruine and destruction to the body and refuse to afford ayde for the prevention of imminent danger will any judicious man doubt but the eyes of the body being the great Councell of Common-wealth discerning the mischiefe and danger doe well and providently if they call the Armes and Hands to strike and fight the Loynes to joyne in strength and Legges and Feet to goe and runne to helpe to defend the Totall that so the Head being disquieted with ache and paines may be preserved in rest and quiet repose Wherefore in such case as now it is here in England the Representative body hath and in all Reason Prosalute Regis Populi ought to have and to use and command the Militia throughout the Land untill such time as the King be better informed and the Common-wealth and Body be setled againe in peace and safety and that then some provident Law concerning the Mi itia be made for time to come to prevent such like accidents as this hath beene And hereupon it may be considered whether the two Houses of Peeres and Commons had not cause to demand the approbation of some Officers of State The Militia not consisting meerely in the having of Armes but also in the power of force to defend against Invasion or the fiercenesse of an Enemy wherein if such Officers as should be intrusted with the power and force of the Armes and with the custody of the Forts and other places of strength within the kingdome should not be well and truely affected to the government of this Land How easily may it be perceived those strong holds which already are or at least are intended by the wisedome of the Parliament shortly to be fortifyed for the greatest defence will or may become the greatest offence and those Bands of Military Forces which are supposed to be for the safeguard of the kingdome turne to the Ruine and Destruction of the Common-wealth These then being the true and genuine causes or motives of the wofull severances betweene the King and Parliament whereat all true hearts have grieved What presumption shall it be deemed in a true English heart bleeding with compassionate sorrow for the head and body Politique so miserably indangered of utter perdition by unnaturall and civill broyles which Lucan writing of lamenteth and describeth in these words and lines Bella per Ematheos plusquam Civilia Campos Jusque datum sceleri canimus populumque potentem In sua victrici conversum viscera dextra Cognatasque acies c. If I say such a true hearted English man doe propose these Soveraigne Salves for so deadly a sore and these present Remedies for so desperate a sicknesse to prevent the instant death and desolation of this famous and renowned kingdome and Nation whose people were of old time surnamed Angli quasi Angeli or ab Angulo dicti as being in an angle or corner of the world and severed from the rest according to that of the Poet Et penitus toto divisos orbe Britannos And which some Divines terme one of the beloved Isles of the Gentiles wherein the Gospell of Christ was soonely Preached after his Ascension 1. First then may it please his most Excellent Majestie piously and religiously to turne his Royall Heart and gracious affection toward his great Councell of Parliament who doe represent all his deare people and be advised by them no more to respect or give eare to those Syrene hallucinations of flattering seducers the Papists and Jesuite Priests the Papally inclined Bishops who stand so much for their Hierarchy as that they with Demas have forsaken the purity of the Gospell and neglect the Preaching of the holy Word of God and have imbraced this present World making themselves Lords over Gods Heritage not true Shepherds to feed his flocke as they ought to doe in Season and out of Season and to waite upon the All-seeing eye of Gods providence for his beloved Spouse the Church to be purged and cleansed of her late inbred and inbrought corruptions 2. Secondly that his Majesty will abandon and quite put away the thought or imagination of any Tyrannicall or Imperiall Government over this Land which the Papall Bishops and Hierarchicall Prelates and Priests and other Lay Flatterers did presume to use daily and insinuate and inculcate to his Sacred Eares under the pretence of telling his Majesty that he is an absolute Imperiall Monarch free and above and without all Lawes to Rule his people ad Arbitrium Principis and that he being Gods Anoynted is responsall onely to God if he doe tyrannize or grieve his Subjects Whereas they are or make themselves utterly
called Jus Statutorium they are not Indicta or promulgata but Enacted Statuta facta or Constituta by the King and both Houses of Parliament In which the chiefest consideration and ponderation of the reasons of making of them are most in the debate and voting of both Houses and the Royall assent is only left to the King with a le Rey le veult or his diâ—assent stayeth them yet not peremptorily but with a modest answer Il Rey se advisera Neither is the abrogation or remission of any penall Law received left to the King though it be onely malum prohibitum not malum in se But his Majestie may dispence with or remit the penalty of a Statute and that not meerely and perpetually but onely Ad tempus and that not de Jure but by his prerogative Royall upon collaterall or accidental event happening ex post facto after the making of the Statute yet not without cause or consideration and for experience of some further or more weighty cause or consideration of benefit or conveniency to the Commonwealth which being discovered to be prejudiciall to the Commonwealth then the Letters Patents of the dispensation becommeth voyd in Law and frustrate and vanisheth againe or is made utterly voyd and condemned for ever at the next Parliament The third Question 3. What power or prerogative the King hath Supra legem praeter legem or contra legem terrae ALthough it was anciently said by a King of this Land H. 3. Nolumus praerogativam nostram disputari yet that was answered againe by the Peeres and Barons in Parliament with another Nolumus Nolumus leges Angliae mutari So that with favour and good manners and duty the Kings prerogative may bee talked of in respect of the Law of the Land and of the naturall right and Liberty and property of the Subject And thus it is resolved That the King hath in some Cases a regall power or prerogative supra legem and in some Cases praeter or ultra legem But in no Case hath his Majestie power or prerogative contra legem Terrae or Statuta Regni The Cases of example wherein his Majesty may by his great Seale do something supra legem are diverse but especially those of his mercy and Grace extended to delinquent Subjects that fall into some offences and danger of Law by trespasses or felonies Although the Law be positive and penall condemning the offenders yet his Majesty may pardon them the trespasse or felony and the punishment fine or forfeiture thereupon Quoad interesse suum but therein also the Law doth stay or restraine the Kings power that he cannot by his pardon remit or give away Interesse partis But that the party grieved or wronged may and ought to have his action And the sonne or wife may have and prosecute the Appeale de morte patris or viri and the King by no power Imperiall can take it from them The Cases praeter legem are some dispensative Proclamations or grants of experience whether something be pro bono publico or not as for importation or exportation of some or other forreine or native Commodity or the exercise or practise of some new invented Art Science or Mystery among the people which having most commonly the specious shew of good yet no sooner that it be discovered to be hurtfull to the Commonwealth or derogatory to the liberty or property of the Subject or that it bring on any burden taxe or charge or doe secretly exhaust or diminish the rightfull profits of any Trade Mystery or Science before lawfully used or belonging to any of the Kings Liege people or Subjects then the same is to be abhorred condemned and suppressed as an odious project monopoly or unwarrantable thing And the Rule and reason of Common Law which is that In omnibus salus populi suprema Lex esto hindereth that no Regall or Prerogative power can uphold or maintaine it though the case be praeter Legem and not provided for by any Statute Or if it be provided for and the King hath dispensed by a Non obstante The Cases of example Contra Legem are either when the King doth grant Authorize or permit any thing whatsoever against the Common Law of the Land or the rule or reason thereof such his Majesties grant by Letters Patents Proclamations or other Commands or such licence or permission cannot be nor is of any force or can or ought to stand or be used practised or suffered in this Land And this is first to be understood of the Common Law of this Land in point of Commutative Justice that concerneth the right and interest of every Subject viz. Jus personarum rerum actionum of every man whereof the first is expressely preserved by the great Charter of England Nullus liber homo capietur imprisonetur c. The second is secured to every man by the Law of property wherein it is said Quod nostrum est sine furte aut assensu nostro a nobis tolli non potest upon which no Regall power or Prerogative can trench And the third both by the words of the great Charter Nulli negabimus c. justitiam and by the Statute Ordaining that every man should enjoy the benefit of Law and Courts of Justice for his Freehold Lands Goods or Chattels And that neither the great Seale nor Privy Seale should hinder the due course of Law Secondly in point of distributive Justice either in paena or praemio for good or evill behaviour in the publique conversation or actions of one towards another And in this part of Common Law of the Land Malum in se is most concerned that vice should be punished and ought not to be spared by any Regall power leave or licence in any case whatsoever for it were improper that the King being Gods Vicegerent might or ever should connive at or leave unpunished any crime or offence contrary to the Commandements of God or the Law of Nature For his Majesty is said to be like God Dixi Dii estis and the Schoolemen say Deus non potest ma um agere quia non vult non vult quod non potest according to which the Lawyers say Id possumus quod de jure possumus and that Le Rey ne poit faire tort And for the malum prohibitum by Statutes or Ordinances of Parliament his Majesty cannot nor will goe against them but in Tutiorem partem to pardon where there is hope of amendment Otherwise see the Statute of Northampton wherein some odious crimes are denyed the King to pardon Wherefore so it is that if the King through that naturall propensity of Kings spoken of by God himself doe more then he should doe toward the people or that by his omission some enormities are crept in then it behoveth him to call together his great Councell in Parliament to advise with them for his owne better direction and for Reformation of abuses and Corrections of such as