assembled the Elders of Israel and all the rulers of the Tribes and the heads of the families of the children of Israel to Jerusalem And here too not a word of the People and yet Sir Edw. Coke calls them both Parliaments and so no doubt but they were somewhat like it or otherwise so many succeeding Centuries had never took pattern from them Not to run so far from home What was our Saxon Witenage mote Micel Synods Micel Gemotes or Great Councils but so many Assemblies of the Wise men concerning whom it is not to be presumed but that they were of the first rate the lump of the People as I so lately toucht it being for many Ages before and after not bred to Letters and consequently more apt for Blows than Arguments and readier to cut the knot in two with their Swords than unty it with their Tongues and in all the Saxon Annals we find the principal or chief Wites or Wise men of the Nation the Assembly of Gods Servants the Clergy then so called Aldermen or Earls Great men Chiefest men Noblemen the constituent parts of those great Councils but no Commons to be found or any that represented them Neither does Sir Edw. Coke in any Authority of his before the latter years of Henry 3. prove any where that the Commons at that time were any such part of those Parliaments for if they had there is no question but he would have nam'd them also as he doth those others that made up those Parliaments Rex Eldredus convocavit Magnates Episcopos Proceres Optimates ad tractandum de publicis negotiis regni King Eldred saith he call'd together his Earls Bishops Barons and Chief men but not a word again of the Commonalty And with this agrees the learned Mr. Selden where we have several other instances to the same purpose but not one word in any of them touching the Commons And as the Saxon Great men were only present in their Great Councils so were only the Norman Barons and their Great men in those of the Conqueror for we often meet Arch-Bishops Bishops Earls Barons but no where find the least mention of the Commons neither is it to be believ'd that his new acquest would yet suffer him to trust a People he had so lately conquer'd or that he made to himself other measures than what he took from his Sword And as to William Rufus his time we find it the same for in the sixth year of his Reign there was a Great Council held at Winchester and in the seventh another at Rockingham and in the tenth De statu regni acturus Episcopos Abbates quosque regni Proceres in unum praecepti sui sanctione egit Being to order some Affairs of the Realm he commanded together the Bishops Abbats and all the Nobility of the Kingdom and yet all this while not a word of the Commons In like manner albeit in the first of Henry 1. Clerus Angliae Populus universus c. the Clergy and all the People were Summon'd to Westminster yet here the word Populus is used as contradistinct to the Clergy to which it is opposed and denotes not any distinct State or Order among Secular men or Laicks but an Order and Estate of men distinct from the Ecclesiasticks or Clergy these two words of Clerus and Populus being the two general States or Orders into which all mankind is divided And so he cites it as quoted by Sir Will. Dugdale touching the Coronation of King Egbert Veniunt Wintoniam Clerus Populus The Clergy and People came to Winchester To which also Mr. Selden gives a great light when of the same Council he saith Ad commune concilium Baronum meorum is mentioned in it Or what means that other of the third of the same King wherein they are call'd Primates utriusque ordinis The Chiefs of both Orders i. e. of the Clergy viz. the Lords Spiritual and of Laity viz. the Nobles who are also called Principes Regni The Chief or Head men of the Kingdom of which also we have several instances in that beloved Physician 's ingenuious learned Answer to Mr. Petit. Neither does it appear that the Great Councils in King Stephen's time consisted of any other than the Clergy and the Nobility there being not the least mention of the Milites or Liberi homines Knights or Free-men or that they acted in them But from these Usurpations we come to Hen. 2. who Robert Duke of Normandy being dead came in upon a rightful Title from his Grand-father Henry 1. and yet the Great Council at Clarendon which was the 10th of his Reign consisted only of Arch-Bishops Bishops Abbats Priors Earls and Chief men of the Kingdom and albeit Mr. Selden as himself from Hoveden says That Clerus and Populus Regni the Clergy and People of the Land were then Assembled it appears not that any other Estate was meant by the word Populus than the Lay Nobles For at the great Council of Northampton which was the following year Rex Statuens celebrare solenne Concilium omnes qui tenebant de Rege in Capite mandari fecit The King having resolv'd to hold a Great Council he Summon'd thither all those that held of him in Capite i. e. in Chief Now to hold in Chief of the King is to hold of him immediately and merely as King and of his Crown as of a Seigneury in Gross and in Chief above all other Seigneuries and not as of or by means of some Honor Castle or Mannor belonging to the Crown And in the preceding leaf Mr. Selden says Tenere de Rege in Capite habere possessiones sicut Baroniam are Synonimies and to hold in Chief and to have their Possessions as Baronies was to have the right of sitting in Councils with the rest of the Barons concerning which it does not yet appear that the Commonalty at that time had any From thence and during the Reign of King Richard the First and until the 15th of K. John we find it the same only at that time the King being at Rochel in France commits the custody of England to the Bishop of Winchester then Chief Justice and writes to his Barons Knights and to all his Feudataries or Vassals thro England That he had received the Popes Letters touching the release of the Interdict under which the Kingdom then lay and of which I toucht before which he had sent to the said Bishop and therefore requires them as of whose kindness and fidelity he had full confidence that according to what the said Bishop should then say unto them they would effectually give their advice and aid as in like manner he writes to several other Cities and Burroughs thereby earnestly requiring them that according to what the said Bishop shall give them to understand that they effectually apply themselves to give him a supply towards the relaxation
to the known Laws of the Land for Omnis sub Rege ipse sub nullo nisi tantum sub Deo Every man is in subjection to the King and he to none but God and so the Oath of Supremacy declares him the onely Supreme Governor of this Realm of which more hereafter when I come to speak of the Statute-Law and therefore if the King refuse to do right seeing no Writ can issue against him there is a place for Petition and if that prevail not Satis ei erit ad poenam saith the same Bracton quod Dominum habeat ultorem And with this agreeth that of Horace Regum timendorum in proprios greges Reges in ipsos imperium est Jovis And in this respect a Prince is not loosed from the Law for as much as concerneth the directive Power of it but having not the Law becomes a Law to himself as well knowing Observantior aequi Fit Populus nec ferre negat cum viderit ipsum Auctorem parere sibi 2. As to the Power of Peace and War It is the right of the King saith Fitzherbert to defend his Kingdom as well against the Sea as against Enemies which implies that it is his right to defend it against Enemies and how can he do it without the right of his Sword when if he should be oblig'd to pray in Aid of others perhaps they may be of another mind or take up so much time in the Debate that the Kingdom may be lost ere they resolve what to do And this I take to be one of the effects of Con-si-de-ra-ti-on in those matters whose good or ill fortune solely depends on Expedition and Secresie for Dangers as the Lord Bacon saith are better met half way than by keeping too long a watch upon their approaches for if a man watch too long 't is odds he will fall asleep But to proceed Sir Edw. Cooke says no Subject can levy War within the Realm without Authority from the King unto whom it only belongeth and that it was High-Treason at the Common Law before the Statute De proditionibus And in Calvin's case he makes it clear That to make Leagues or denounce War only belongs to the King who without his Subjects may grant Letters of safe Conduct and Denization and that this high point of Prerogative Royal cannot be conferred upon any other it being a right of Majesty and among the badges of Supreme Power And now one would think this were enough and yet a late Statute of this Kingdom makes it yet clearer it being thereby declared That the sole Supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all Forces and places of Strength is and by the Law of England ever were the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can nor lawfully may raise or levy War Offensive or Defensive against his Majesty his Heirs and lawful Successors c. all which is not introductive of a new Law but declaratory of the old as may be further seen by the penning thereof And now what can be added more but the Purse without which what 's the Sword but as the Greek Proverb has it A Bow without a Bow-man For in as much as Mony is the Sinews of War and Peace firmamentum belli ornamentum pacis they that hang the Sword on one side and the Purse on the other seem to me to hazard both for neither can any sudden danger of which the King was ever thought the Judg be stav'd off nor War carried on nor the Publick Peace be long preserv'd without it And therefore on such occasions have Parliaments advis'd and assisted the King in supplying his Wants without directing him it seeming hard that he should have Power to Proclaim War and not be able to maintain it and be bound to defend his Subjects but deny'd the means Qui dirimit medium destruit finem 3. As to the creation and appointing Magistrates and Officers especially such as are not under the command of others this also resides solely in the King for besides what I have said in the last Paragraph touching his sole Power in the ordering and disposing the Militia and all Forces by Sea and places of Strength by Land His is the appointing all the great Officers and Ministers of the Realm whether Spiritual or Temporal the highest immediately by himself the inferior mediately by Authority derived from him and as it were De lumine lumen So the King appoints the Lord Commissioner and all other the grand Ministers and Officers of Scotland and the Lord Lieutenant Lord Deputy Lords Justices and all other the grand Ministers and Officers of Ireland who also but in his Kings name appoint under him according to the extent of their respective Commissions so the Kings of England have and may at this day by Letters Patents make a Prorex Locum tenens or Guardian of the Realm before whom in their absence in remotis a Parliament may be held And such was Edward Duke of Cornwal 13 Edw. 3. Lionel Duke of Clarence 21 Edw. 3. John Duke of Bedford 5 Henry 5. And the Test of the Writ of Summons shall be in the Guardians name or by Commission under the great Seal to certain Lords of Parliament authorise them to hold a Parliament the King being then in the Realm but indisposed and such was that 3 Edw. 4. to William Lord Arch-Bishop of York and that other 28 Eliz. to John Lord Arch-Bishop of Canterbury and others ad inchoandum c. ad Procedendum c. ad faciendum omnia singula c. nec non ad Parliamentum adjournandum Prorogandum c. And so are Parliaments held in Scotland and Ireland before the Lords Commissioners Lord Lieutenant Lord Deputy c. of the respective Kingdoms 4. The Power of the last Appeal i. e. from whose Sentence no Appeal lies The only person besides the Kings of England that ever pretended to it here was the Pope tho yet the first attempt ever made that way was by Anselme Arch-Bishop of Canterbury in the Reign of King William Rufus but it took no effect And the Arch-Bishop concerning himself too much touching the Jurisdiction of the Pope in England the King told him Ad Officium Imperatoris spectat c. That it belong'd to the Emperor to make whom he pleas'd Pope and that for the same reason no Arch-Bishop or Bishop within his Realm should yield any subjection to the Court or Pope of Rome and chiefly in this respect cum ipse omnes libertates haberet in regno suo quas Imperator vindicabat in Imperio That he had the same Prerogative in his Kingdom that the Emperor claim'd in the Empire And
in the Case of the County-Palatine of Wexford reported by Sir John Davys at that time Attorney-General of Ireland As also the County-Palatine of Tipperary formerly enjoy'd by the Ancestors of his Grace James Duke of Ormond c. the present Lord Lieutenant of the same and granted restored and confirm'd to him by Letters-Patents at Westminster the 22. of April in the 14th of this King and not long afterward confirmed by Act of Parliament in Ireland and whence also he bears it as a part of his Titles Dominus Regalitatum Libertatum Comitatus Palatini Tipperarii Nor is this all The Kings of England have created Kings within their own Dominions and for such has the world received them So King Henry the Second in the 13th year after his coming into Ireland made his Son John King of Ireland And Henry the Third his Son Edward the First Lord of Ireland and well own'd the doing it albeit until the 33 Henry 8. they wrote but Lords themselves for their Dignity was merely Royal as having their Justices Custodes or Lord Lieutenants and all things belonging to the Royal Estate and Majesty of a King And Sir Edw. Cooke tells us he has seen a Charter made in 20. H. 6. to Henry Beuchamp Earl of Warwick whereby he was created King of the Isle of Wight and as saith Mr. Selden Crowned King of the same 6. The Power of Pardoning which is a Royal Act of Grace whereby the King either before Conviction Sentence or Attainder or after forgiveth any Crime Punishment Execution Right Title Debt or Duty Temporal or Ecclesiastical on which account he may restore a man that has lost Liberam Legem by being recreant As also all that is forfeited to him by Attainder c. he may restore by his Charter but if by the Attainder the Blood be corrupted that must be restored by Act of Parliament of which more at large in Sir Edw. Cooke Titles Pardons and Restitutions 7. To appoint the Value Weight and Stamp of his Coin and make Forein Coin currant by Proclamation As to the first we need go no farther than the smallest Piece and that will tell us whose Image and Superscription it is and therefore called the Kings Money and so King John brought the Irish Mony to the English Standard And as to the other the same Sir Edw. Coke tells us That the King by his absolute Prerogative may make any Forein Coin lawful Mony of England at his pleasure by his Proclamation And in another place putting both together he says That lawful Mony of England is of two sorts viz. The English Mony either of Gold or Silver Coined by the Kings Authority or Forein Coin by Proclamation made currant within this Realm 8. To receive Liege Homage of another inferior King or Homager and such was our Henry the Second to the old Kings of Ireland who are stiled Reges Reguli and may more particularly appear in a grant of his to Roderick King of Connaught that he should enjoy his Territory under a certain Tribute Et quam diu ei fideliter serviet ut sit Rex sub eo Paratus ad servitium suum sicut homo suus And that Oneale is sometime stiled Rex and sometime Regulus denotes the Subject-Kings of that Country And long before the Conquest Edgar had eight Reguli or inferior Kings Homagers to him who at one time row'd him on the River Dee himself guiding the Helm and afterwards glorying to his Nobility that then every one of his Successors might boast himself to be King of England when he receiv'd the like Honor from so many Kings his Attendants So Reignald Lord or King of Man Cui etiam fas erat Corona aurea Coronari and those of Ireland did Homage to our Henry the Third And John Baliol King of Scotland and David Prince of Wales to Edw. the First and James the First to Henry the Sixth for the Kingdom of Scotland So that Liege-Lord is he that acknowledgeth no Superior and a Liegeman is he that oweth Liegance to his Liege-Lord and so the word is frequently us'd in our Statutes viz. The Kings Liege-People And if such a one shall be in open War or Rebellion or joyn with a Forein Enemy against the King he shall not be ransom'd or proceeded with as an Enemy but as a Traytor because it is Contra Ligeantiam suam debitam and so the Indictment runs Such was the case of David Prince of Wales aforesaid who had judgment of Treason given against him for levying War against Edw. 1. for that his was within the Homage and Ligeance of the King 9. Lastly to bear those Titles only proper to Sovereign Princes apart from all others as being indivisible and incommunicable And here not to insist on the words Dei gratia which are familiarly seen in the Titles of the Kings of Europe and Princes of the Empire Spiritual Lords both abroad and at home have of elder times frequently us'd it in their Stiles and in a Summons to our Parliaments and Writs to Assemble or Prorogue the Convocation the King gives it to the Arch-Bishops as Rex c. Reverendissimo in Christo Patri Predilatoque fideli Consiliario nostro A. eadem Gratia Archiepiscopo Cant. c. But in Warrants and Commissions to them it is generally omitted and never us'd by themselves when they wrote to the Pope Emperor or a King but thus A. licet indignus c. Archiepiscopus or Episcopus B. c. whereby the present use of it among our selves is easily reconcil'd in that they receive the Attribute not give it The Kings of England are in the second and third person commonly stiled by that abstract of Majesty as your Majesty his Majesty which came into the Kingdoms of Christendom from the use of it in the Roman Empire the word in it self denoting all kind of special Dignity and if as we should say in English A Greatness And to peruse our Statutes from Magna Charta to our own time the most usual expressions are Our Lord the King The King our Sovereign Lord Most Excellent Highness Royal Majesty Noble Grace Most Excellent Majesty Most Royal Majesty Dread Sovereign Lord Most Gracious Sovereign and as we use it now Most Excellent Majesty and Sacred Majesty which are but the same Attribute in other words and in their own nature so unalienable from Sovereignty that they can by no process of time be Prescrib'd against or usurp'd upon neither can it at all be call'd an Usurpation as if it were proper only to God unless we as well deny Wisdom Power Clemency or any other quality to be attributed to men because those also as all else which is great or good are Primarily in him And so I have done with the marks of Sovereignty as they are generally receiv'd and now if there wanted any thing to
And in another of the same Kings it is called The most Royal Estate of your Imperial Crown of this Realm and the same word Imperial made use of ten other times in the same Statute to the same purpose And with this agrees the Statute of Ireland where in express words also the Kings of England are entituled Kings and Emperors of the Realm of England and of the Land of Ireland and that too five years before the Title of Lord of Ireland was altered into King And by the Act that so alter'd it it is called The Majesty and State of a King Imperial And so in the first of Qu. Eliz. English in which the Oath of Supremacy was enacted the Crown of this Realm is three times called Imperial And in the third Chapter of the same year as often And in the 5th of the same Queen that requires all Ecclesiasticks Graduates in any University or Common-Laws Officers of Court Attorneys every Member of Parliament under the degree of a Baron to take the said Oath of Supremacy before he enter the House or such Election to be deemed void calls it The Dignity of the Imperial Crown And the Act of Recognition of King James uses the same expression of Imperial four times And upon a like ground of mere Supremacy was that Act of Scotland before the Union of the Crowns wherein 't is said Our Sovereign Lord his full Jurisdiction and free Empire within this Realm Scotland And the late Oath or Test prescribed to be taken by all persons in Publick Trust in that Kingdom declares the Kings Majesty the only Supreme Governor of that Realm over all persons as well Ecclesiastical as Civil And the Act of acknowledging and asserting the right of Succession in that Kingdom calls it the Imperial Crown of Scotland In all which matters I have been the more particular that I might the better evince my Reader that this Independent Sovereignty and Supremacy of the Kings of England c. has not been the opinion of any one time but the general consent of all and that our Kings hold their Crowns in chief from God and owe no precarious acknowledgments to the courtesie of the People Nor is the Kings Immediate Personal Originary Inherent Power which he executes or may execute Authoritate Regiâ Supremâ Ecclesiastica as King and Sovereign Governor of the Church of England to be less consider'd it being one of those flowers which make up his Crown and preserve it in verdure And here I question not but it will be granted that the King is the Supreme Patron of all the Arch-Bishopricks and Bishopricks of England as being all founded by the Kings of England to hold Christi Baroniam excepting that of Soder in the Isle of Man which was instituted by Pope Gregory the Fourth and may perhaps be the reason why the Bishop thereof hath neither Place nor Voice in the Parliament of England and so were at first donative Per traditionem annuli baculi Pastoralis by the delivery of a Ring and the Pastoral Staff or Crosier And the Bishop of Rome persuading Henry the First to make them Elective by their Chapters refused it But King John by his Charter recognising the Custom and Right of the Crown in former times by the common consent of his Barons granted that they should be eligible as least doubting he had so far lockt up himself as that he might not be receiv'd to disapprove or allow for before that I find That when he had given a Conge d' eslier to the Monks of Canterbury to Elect an Arch-Bishop and Pope Innocent the Third notwithstanding the Kings desires of promoting the Bishop of Norwich to it whom also they had Elected had under a Curse commanded them to choose Stephen Langton with which for fear of Excommunicacation they comply'd the King banishes the Monks as Traytors and writes to the Pope that he had subverted the Liberties of his Crown by which it appears that he lookt upon himself as the Supreme Governor of the Church of England and that no Arch-Bishop or Bishop could be put upon him without his consent and what advantage the Kingdom got by this Usurpation may be gather'd from the effects when after a more than six years Jurisdiction the King Depos'd and a free Crown put in Vassalage it only open'd a way to those future Broils between him and his Barons which lasted all his time and wanted no fuel to feed 'em till towards the latter end of his Son men began to stand at gaze and as infatuated or startled at they knew not what thought it more safety to look on than lend a hand to master it nor had they fully resolv'd what to do until the Pope having demanded Homage of Edw. 3. and the Arrears of one thousand Marks per ann for the Kingdoms of England and Ireland which had been also demanded in the 3 of Edw. 1. and in case of non-performance threatned to make out Process against the King and Kingdom then at last the scales fell from their eyes and as men got out of a dream they began to consider what they had startled at and as an argument of their recovered Senses the Lords Spiritual by themselves the Lords Temporal by themselves and the Commons by themselves unanimously resolv'd and declar'd That the King could not put Himself his Realm or his People in subjection without their Assent and albeit it might it is as saith Sir Edw. Coke Contra Legem consuetudinem Parliamenti contrary to the order and custom of Parliament because it is a disherison of the King and his Crown after which to avoid all further dispute the manner and order of Election of Arch-Bishops and Bishops and all things relating thereunto is setled by Statute viz. 1. Negatively That no one thereafter be Presented Nominated or Commended to the Sea of Rome for the Dignity or Office of any Arch-Bishop or Bishop within this Realm or any other the Kings Dominions 2 Affirmatively That at every avoidance of any Arch-Bishoprick or Bishoprick as before the King our Sovereign Lord his Heirs and Successors may grant to the Dean and Chapter of the Cathedral Churches where the Sea of such Arch-bishoprick or Bishoprick shall happen to be void a License under the Great Seal as of old time hath been accustomed to proceed to Election of an Arch-Bishop or Bishop of the Sea so being void with a Letter missive containing the name of the person which they shall Elect or Choose by virtue of which they elect the said person c. or in case of refusal incur the Penalties of a Premunire So that upon the whole the Election in effect is but a matter of form it is the Kings meer Grant which placeth and the Bishops Consecration which maketh a Bishop Neither do the Kings of this Land use herein any other than such
A DISCOURSE OF Monarchy More particularly of the IMPERIAL CROWNS OF England Scotland and Ireland According to the Ancient Common and Statute-Laws of the same With a Close from the whole As it relates to the Succession of his ROYAL HIGHNESS JAMES Duke of York DEUT. 4.32 Interroga de diebus antiquis qui fuerunt ante te ex die quo creavit Dominus hominem super terram c. LONDON Printed by M. C. for Jos. Hindmarsh Bookseller to his Royal Highness at the Black Bull in Cornhil 1684. To the most Honorable JAMES Duke of ORMOND c. Lord Lieutenant of Ireland May it please your Grace IT was a saying of the late Earl of Ossory Lord Deputy of Ireland your Son at what time he deliver'd up the Sword of that Kingdom to the Lord Lieutenant Berkeley Action is the life of Government Common experience tells us Usefulness is the end of Action and without which like a Glass-eye to a Body a man rather takes up a room than becomes any way serviceable The sense of this put me on those thoughts I herewith present your Grace and unto whom more fitly than to a Person in the defence of which few men sate longer at Helm or suffer'd more You that hung not up your Shield of Faith in the Temple of Despair and never seem'd more worthy of the great place you now fill than when farthest from it Nor am I in the so doing without some prospect of advantage to my self in as much as if the censuring Age shall handle me roughly on this account under your great Patronage I shall fight in the Shade And now my Lord I was just breaking off when it came into my head that I had in some of our late pieces found Sir Edward Coke often quoted especially to the defence of those Notions which had better slept in their forgotten Embers and therefore I thought it not altogether forein to the matter that I us'd the words of S. Peter 2 Pet. 3.16 touching S. Paul's Epistles In which saith he are some things hard to be understood which they that be unlearned and unstable wrest as also they do the other Scriptures to their own destruction I have purposely made use of him in many places as an high Assertor of Monarchy and Prerogative Those that find him otherwise Habeant secum serventque Or let him lie indifferent my Argument depends not singly on him which I humbly took leave to advert and am May it please your Grace Your most Obedient Obliged humble Servant John Wilson THE CONTENTS Sect. I. THat Monarchy or the Supreme Dominion of one person was primarily intended by God when he created the World That it is founded in nature As consonant to the Divine Government And of Divine Institution Acknowledg'd by Heathens as well as Christians 1 Sect. II. That Adam held it by Divine right Cain a Monarch By the Kingdoms of the most ancient Gentiles not God's but Monarchs were denoted That the origiginal of Power came not from the People by way of Pact or Contract The unreasonableness and ill consequence of the contrary Noah and his Sons Kings A Family an exemplary Monarchy in which the Pater-familias had power of life and death by the right of Primogeniture Examples of the exercise of it in Judah Abraham Jephthah Brutus Vpon the increase of Families they still continued under one head Esau. The four grand Monarchies Ancients and Moderns universally receiv'd it as precedent to all other Governments 12 Sect. III. That all Governments have a natural tendency to Monarchy Their several Forms and Rotations Of Aristocracy Democracy Tyranny to be rather wisht than either Examples of Athens and Rome the first Consulate Their Tribunes several Seditions Marius and Sylla Crassus Caesar Pompey The two latter divide Caesar complemented to Rome by the Senate The Triumvirate their Proscriptions and breach No peace till Monarchy restor'd under Augustus The sense of those times touching this matter 34 Sect. IV. That the Kingdom of the Jews was a Supreme Sovereign Monarchy in which their Kings had the absolute Power of Peace and War and were Supreme in Ecclesiasticis And an Answer to that Objection That God gave them a King in his wrath 62 Sect. V. What is here intended by a Supreme Monarchy The marks of Sovereignty as the Power of making Laws and exemption from any coactive obedience to them The Power of Peace and War c. That the Kingdoms of England c. are Supreme Imperial Monarchies Those two marks of Sovereignty and seven others prov'd to be no other than what has ever been the undoubted Right of the Kings of England The Kings Sovereignty by the Common Law The like from the Statute Law Power in Ecclesiasticks And that they have justly used those Titles of King and Emperor and that from ancient times and before the Conquest 67 Sect. VI. That the King is none of the Three Estates in which two preliminary Objections are examin'd by Reason and answered by the manner of the Three Estates applying to him What the Three Estates are To presume him one of them were to make him but a Co-ordinate Power The King cannot be said to Summon or Supplicate himself How will the Three Estates be made out before the Commons came in With a short Series during the Saxons to the latter end of Henry III. in all which time they are not so much as nam'd as any constituent part of a Parliament And the time when probably they first came in to be as they are at this day one of the three Estates That the Lords Temporal were never doubted but to be an Estate Four reasons offer'd that the Lords Spiritual are one other Estate distinct from the Lords Temporal and one Act of Parliament in point With other Authorities to prove the Assertion 181 Sect. VII Admitting what has been before offer'd wherein has our present King merited less than any of his Royal Ancestors with a short recapitulation of Affairs as they had been and were at his Majesties most happy Restauration and that he wanted not the means of a just Resentment had he design'd any 181 Sect. VIII That notwithstanding the hard Law of the Kingdom the Jews paid their Kings an entire Obedience Two Objections answered The like other Nations to their Kings A third Objection answered The Precept of Obedience is without restriction Examples upon it Nor is Idolatry any ground to resist much less things indifferent The example from our Saviour in Instituting his last Supper Least of all is injury with the practice of Holy men of old in like cases And that if any ground were to be admitted that would never be wanting 189 Sect. IX The Arts of the late times in working the People from this Obedience It was to be done piece-meal The Kings Necessities answered with Complaints Plots discovered Fears and Jealousies promoted Religion cants its part Leading men some to make it Law others Gospel The examples of Corah c.
of Peace and War and this appears within the very letter of their demands viz. That he might judg them which is the power of Peace and go out before them and fight their Battels which is the power of War And what Authority he had in matters of the Church may be seen in this That Solomon of himself thrust out Abiathar the High-Priest and appointed Zadok in his room And that even the Horns of the Altar were no Sanctuary against him in case of Treason may be also seen in Adonijah and Joab and yet we cannot so much as gather that God was offended with him for his so doing or that his person was the less acceptable to him by reason of those matters To which if it be objected That God gave them a King in his anger I answer Moses having foretold the Israelites that when they came into the Land they would be asking a King charges them to set him over them whom God should choose which shews That a popular Election was utterly forbidden them yet they weary of such Judges as had succeeded Moses and whom God had raised to rule them as Kings demand a King like all the Nations i. e. of a more absolute power than those Judges had and therefore not staying Gods time but taking upon them to be their own Carvers he is said to have given them a King in his wrath in that they had not rejected Samuel but himself who had appointed Samuel In acknowledgment of which and as sensible of their error they ever after accepted their Kings by Succession unless only when their Prophets had anointed and ordained another by Gods special designation Nor do we find any one in Holy Writ chosen King by the Children of Israel but Abimelech the Bastard of Gideon and Creature of the People who also came in by Conspiracy and Murder And as it seems probable Jeroboam who made Israel to sin for they had sent to him at that time a discontented Fugitive in Egypt and he headed them in a complaint of Grievances to Rehoboam which occasion'd the revolt of the ten Tribes both which yet reigned as wickedly as they entred unjustly and perish'd miserably SECTION V. What is here intended by a Supreme Monarchy The marks of Sovereignty as the Power of making Laws and exemption from any coactive obedience to them The Power of Peace and War c. That the Kingdoms of England c. are Supreme Imperial Monarchies Those two marks of Sovereignty and seven others prov'd to be no other than what has ever been the undoubted Right of the Kings of England The Kings Sovereignty by the Common Law The like from the Statute Law Power in Ecclesiasticks And that they have justly used those Titles of King and Emperor and that from ancient times and before the Conquest I Have now brought my Discourse whither I first design'd it and therefore to avoid confusion which ever attends the being too general I shall first shew my Reader what I mean by a Supreme Imperial Monarch at this day and in the next place prove the Kings of England c. are such And lastly that however the Emperors of the West and East have so much striven about that great Title of Emperor or Basileus that yet the Kings of England as Supreme within their Dominions have also and justly from ancient Ages used it as no less proper to their own independent greatness As to the first The Regal Estate and Dignity of a King is of two sorts The one Imperial and Supreme as England France Spain c. who owing no service to the Majesty of another is his own Master and hath an absolute Power in himself no way subject to the controul of another and of such a one speaks Martial Qui Rex est Regem Maxime non habeat The other an Homager or Feudatary to another King as his Superior Lord such as that of Navar and Portugal of old to Castile Granada and Leon to Aragon Lombardy Sicily Naples and Bohemia to the Empire six parts of the Saxon Heptarchy who acknowledged the seventh Anglorum Rex primus and such was Aella King of Sussex the Kings of Man and others of whom I shall have occasion to speak hereafter hereafter The first of these is what I intend and will be the better made out if we cast our eyes a little on the marks of Sovereignty and then consider wherein they differ from our own Laws And amongst others we find these 1. The Power of making Laws and so what our English Translation calls Judah my Law-giver is in the vulgar Latin Juda Rex meus Judah my King This power being one of the principal ends of Regal Authority and was in Kings by the Law of Nature long before Municipal Laws had any Being the people at that time being govern'd by a natural equity which by the Law of Nature all were bound to observe And so the Poet Remo cum fratre Quirinus Jura dabat populo The like of King Priam Jura vocatis More dabat populis And of Augustus Legesque tulit justissimus Auctor So Cicero speaking of Julius Caesar as a Law-giver saith thus Caesar si ab eo quaereretur quid egisset in Toga Leges se respondisset multas praeclaras tulisse Though many yet received Laws at the will of their Prince and thus Barbaris pro legibus semper imperia fuerunt which word barbarous at that time carry'd no disgrace with it but was apply'd to them that spoke a strange Language And so the Hebrews called the Egyptians of all other Nations the most civiliz'd and learned for that they us'd the Egyptian Tongue and not the Hebrew as we have it in the Psalmist When Israel came out of Egypt and the house of Jacob de gente barbaro from a people of strange language And as they gave Laws to others so were they loosed from the force of them themselves i. e. from all coactive Obedience or Obligation to any written or positive Law Thus M. Antony when press'd by his Cleopatra to call Herod in question answer'd It was not fitting a King should give an account of what he did in his Government it being in effect to be no King at all And to the same purpose Pliny Ereptum principi illud in principatu beatissimum quod non cogitur Another mark of Sovereignty is the power of Peace and War and which as Bodin says was never doubted to be in a King In like manner to create and appoint Magistrates especially such as are not under the command of others The power of the last appeal To confer Honors To pardon Offenders To appoint the Value Weight and Stamp of his own Coin and make Forein Coin currant by Proclamation To receive Liege Homage of an inferior King And bear those Titles of Sacred and Majesty only proper to Sovereign Princes apart from all others of
when Pope Innocent the Third had against the declar'd will of King John caused Stephen Langton to be Elected Arch-Bishop of Canterbury and after that confirm'd him and wrote to the King to receive him the King returns that he the Pope had subverted the Liberties of his Crown and that therefore he would prohibit all People going to Rome and from making appeals thither which confirms my former instance and that this Power was always in the King however for a time it might have happen'd to be neglected for otherwise it had been a vain thing in him to have expell'd the Monks of Canterbury as Traytors which he actually did or to have imagin'd that a Bigotted Seditious Clergy as at that time they were and to be headed by that Arch-Bishop at least no friend to the King if not his Enemy should be frighten'd with an empty Bug bear touching a matter whereof he had no cognisance had he not been satisfi'd it was in his Power to do it as well as his Father before him had done it And having thus occasionally nam'd him let me with all submission offer this to the memory of that unfortunate Prince that his designs in order to the freeing the Crown from Forein usurpation were mighty and that he came short in what Henry the Eighth afterwards effected was not that he was less able but his times worse for considering the unsettled condition of those times and at what disadvantages he came in what wonder if he were oppress'd by a Faction when deserted by his Subjects who otherwise had never suffer'd him to have made that Crown to the defence of which they had all sworn tributary which many years afterward when the Arrears of that Tribute were demanded was too late tho effectually enough declar'd in Parliament he could not do nor they consent to the doing it But to proceed When after this the Sea of Rome would be yet intermedling it was by all the States of Parliament severally examin'd and answering each State one by one personally for it self unanimously Declar'd That the Pope's awarding any Processes or Sentences of Excommunication c. against any Bishops or other Spiritual Persons for executing Judgments given in the Kings Courts was clearly in derogation of the Kings Crown and Regality used and approved of the time of all his Progenitors and which they would maintain as they were bound by their Liegance and thereupon Enacted That the purchasing any Bulls from Rome or elsewhere shall be a Premunire In which it is observable That as the Judges before that time were for the most part Church-men the Laity being not yet come up to Letters or where they were Rari nantes in gurgite vasto The Lords Temporal and the Commons of this Parliament were all Romanists and of what Persuasion the Lords Spiritual and their Assistants the then Judges were I leave to every man the question at that time being not matter of Religion but right of Superiority not the Church but Court of Rome And so Sir E. Cooke speaking of the first Article of the Statute of 25 H. 8. concerning the Prohibition of Appeals to Rome saith it is but declaratory of the ancient Law of this Realm And in another place The same Authority that the Pope ever exercised in this Kingdom by Usurpation was always in the King de jure With which also agrees the Lord Chief Justice Hobart That whatsoever the Pope did in this Kingdom even then when he was in his greatest height and strength was of no better force in right and justice than at the first when he was but simple Bishop of Rome which was coram non Judice and so Jus non habenti tuto non paretur 5. The Power of conferring Honors on which account he may also enable a man to assign his Surname Arms and Barony to another For as by the Laws of England all Lands within the same were originally derived from the Crown and holden of the King either mediately or immediately as Lord Paramount so also by the same Laws were all degrees of Nobility and Honor derived from the King as the Fountain of Honor. So H. 6. granted to H. Beuchamp Ut esset primus praecipuus Comes Angliae and that he should use the Title of Henricus Praecomes totius Angl c. ibid. 361. First Earl of all England c. And to the name Count or Earl which was the most ancient name of Dignity among the Saxons Edw. 3. Ang. Greg. 11. created the Title of Duke as distinct from that of Earl for in elder times they were oft synonimous with us and created his eldest Son the Black Prince then Earl of Chester into the Title of Duke of Cornwal which he created into a Dutchy and about the 18th of his Reign the most noble Order of the Garter And in the 9th of R. 2. Robert de Vere Earl of Oxford was created Marquess of Dublin And H. 6. the 18th of his Reign created John Lord Beaumont Viscount Beaumont of which Titles we find no mention in the Magna Charta 9. H. 3. for they were not at that time in being And to this yet further the Kings of England have and may at this day create a County-Palatine which none but the Emperor or a Supreme Monarch may do for whoever is owner thereof hath in that County Jura Regalia as fully as the King in Palatio Par curis solo diademate dispar So Hugh Lupus Nephew of King William the Conqueror was by him created Earl of Chester and the County given him Tenendum sibi haeredibus ita libere ad gladium sicut ipse Rex tenebat Angliam ad Coronam by which general words he had Jura Regalia within the said County and consequently a County-Palatine without express words and by force thereof he created eight Cheshire Barons So not long after his time was the County-Palatine of Durham raised And in the 10th of H. 1. the Royal Franchise of Ely In the 13th of Edw. 3. the County-Palatine of Pembroke And in the 50th year of his Reign the County of Lancaster was by him erected into a County-Palatine and by him given to his fourth Son John of Gaunt then Duke of Lancaster for life to which if any one shall say that it was De assensu praelatorum procerum Sir Edw. Coke answers for me That the King may make a County-Palatine by his Letters Patents without Parliament Add to this the three first Counties-Palatine created in Ireland by Henry the Second viz. Leinster which he granted to Earl Strongbow who had married the Daughter and Heir of M. Morough Prince of Leinster 2. Meath to Sir Hugh Lacy the Elder 3. Ulster to Sir Hugh Lacy the younger and had their Barons under them answerable to the Barons created by H. Lupus of which before Of which you may read excellent Learning
the further proof of this Sovereign Imperial Monarchy There are yet other Regalities and Prerogatives which the Common Laws of England have ever allowed and never doubted but to be inherent in their Kings And hence it is that the King cannot be said to be a Tenant because he hath no Superior but God Almighty And if the King and a common Person joyn in a Foundation the King shall be the Founder for the thing being entire the Kings Prerogative shall be preferr'd That he shall have the Escheat of all Lands whereof a person attaint of High Treason was seiz'd of whomsoever they were holden That there is no Occupant against the King nor shall any one gain his Land by priority of Entry for Nullum tempus occurrit Regi That half Blood is no impediment to the descent of the Lands of the Crown as was seen in the Case of Queen Mary who was but of half Blood to King Edward 6. and Queen Elizabeth to both for the quality of the Person alters the Descent That the accession of the Crown purges all Attainders as may be seen in the respective Cases of Henry 6. and Henry 7. whose Attainders were no other than a present disability which upon their assuming the Royal Dignity were ipso facto void That the word King imports his Politick Capacity which is never in minority and never dies but extends to all his Successors as well Kings as Queens That he is King before Coronation for besides that the Law suffers no interregnums he holds it by inherent Birth-Right the Coronation being but a Royal Ornament and outward Solemnization of the Descent and not unlike the publick Celebration of Matrimony between a Man and a Woman which adds nothing to the substance of the Contract but declares it to the world That the Ligeance of his Subjects is absolute and indefinite and due to the natural Person of the King by the Law of Nature which is immutable and part of the Law of the Land before any Municipal or Judicial Law and that an Act of Parliament cannot bar the King of the Service of his Subject which the indelible Law of Nature gave him it being a part of the Law of the Land by which subjection is due to him And therefore the Statute That no man notwithstanding any non obstante shall serve as Sheriff above one year bars not the King from dispensing with it And William Lord la Ware altho disabled by Act of Parliament was nevertheless called to Parliament was nevertheless called to Parliament by Queen Elizabeth by Writ of Summons for she could not be barr'd of the Service and Counsel of any of her Subjects Add to this That all Restrictions upon his Sovereign Liberty are void and therefore Publick Notaries made by the Emperor claiming to exercise their Offices in England were prohibited as being against the Dignity of a Supreme King And with this agrees the Statute-Law of Scotland made in the Parliament of the 5th of King James the Third cap. 3. In short when King John had subjected his Crowns of England and Ireland to Pope Innocent the Third and had become his Feodary under the annual Acknowledgment of one thousand Marks to the Pope and his Successors and when afterwards the Arrearages thereof were demanded the Parliament of that year answered That no King can put himself or his Realm in Subjection without their Assent And how far that Assent reach'd we have it in the 42 of Edward the Third where in full Parliament it was further declar'd That they could not Assent to any thing in Parliament that tended to the Disinherison of the King or his Crown whereunto they were Sworn which is no more than what the Statute that prescribes the Oath of the Kings Justices has in it viz. Ye shall not Counsel nor Assent to any thing that may turn him the King in Damage or Disinherison by any manner way or colour And to the same effect are the several Oaths of the Lord Chancellor and Lord Treasurer You shall not know nor suffer the Hurt or Disinheriting of the King or that the Rights of the Crown be decreased by any means as far as you may lett it In a word to omit many others All such things whereof no Subject can claim Property as Treasure-trove Wreck Estrays c. belong to the King by his Prerogative which extends to all Powers and Preheminences which the Law hath given the Crown and is a principal part of the Law of the Land and is called by Bracton Libertas Privilegium Regis both words signifying the same thing i. e. The Kings Prerogative And by Britton Droit le Roy The Kings Right And in the Register Jus Regium which is the same and Jus Regium Coronae The Royal Right of the Crown And since it has not been wound up so high as to endanger the strings what reason is there to wish it let down so low as to render it profanable by the People When the Philistines return'd the Ark of God which they had taken the men of Beth-Shemesh must be prying into it and he that has a mind to know the effect of their curiosity may read it in Samuel God slew one hundred and fifty thousand of them But enough of the Common-Law we 'l in the next place consider what the Statute-Law in further affirmance of the Common-Law saith to this matter And here it cannot be thought saith Sir Edw. Coke that a Statute made by the Authority of the whole Realm will recite a thing against the Truth I 'll begin with that of Richard 2. commonly call'd the Statute of Premunire in which it is declared That the Crown of England hath been ever so free that it is in no earthly subjection but immediately subject to God in all things touching the Regality of the same Crown and to none other In like manner the Statute of H. 8. against Appeals to Rome saith That by divers sundry old Authentick Histories and Chronicles it is manifestly declared and expressed that this Realm of England is an Empire and so hath 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 terms by names of Spiritualty and Temporalty have bounden and owen to bear next to God a natural and humble Obedience And near the middle of the said Statute it is further called the Authority and Prerogative of the said Imperial Crown And in the 25 of the same it is called The Imperial Crown and Royal Authority recognising no Superior under God but only your Grace And in the following Chapter besides the frequent use of the word Imperial the Kings thereof are stiled Kings and Emperors of this Realm
Prerogatives as Forein Nations have been accustomed unto Or otherwise what made Pope Boniface solicit the Emperor Honorius to take order that the Bishops of Rome might be created without ambitious seeking of the Place A needless Petition if so be the Emperor had no right in placing of Bishops there Of which there are several other instances in a piece of Mr. Hookers touching the Kings Power in the advancement of Bishops In short if before that Act of Hen. 8. a Bishop in England had been made a Cardinal the Bishoprick became void but the King should have nam'd the Succsseor because the Bishoprick is of his Patronage And as to the Arch-Bishops and Bishops in Ireland the respective Chapters of ancient time upon every avoidance sued to the King in England to go to the Election of another and upon certificate of such Election made and the Royal Assent obtain'd a Writ issued out of the Chancery here to the Lord Chief Justice of Ireland or the Lieutenant rehearsing the whole matter and commanding him to take fealty of the Bishop and restore him to his Temporalties But now the course is that such Writs are made in Ireland in the name of the King who nominates the Arch Bishops and Bishops there as he doth in England and then the Chapter choose him whom the King names to them and thereupon the Writs are made of course Nor were the Kings of England even in those times excluded but still acknowledg'd to have Power of Dispensation and other Ecclesiastical Acts. And therefore as he first gave Bishopricks and Abbeys and afterward granted the Election to Deans and Chapters and Covents so likewise might he grant Dispensation to a Bishop Elect to retain any of his Dignities or Benefices in Commendam and to take two Benefices and to a Bastard to be a Priest And where the Statute 25 H. 8. c. 21. says That all Dispensations c. shall be granted in manner and form following and not otherwise yet the King is not thereby restrain'd but his Power remains full and perfect as before and he may still grant them as King for all acts of Justice and Grace flow from him and on this account also he can pardon any Ecclesiastical Offence as Heresie for example is a cause merely Spiritual or Ecclesiastical and yet the King may pardon one convict of Heresie And as the King may dispense or pardon so also does that Supreme Power enable him to several other things relating to Church-matters which pertain not to another He may found a Church Hospital or Free Chappel Donative and whether he specially exempt the same from ordinary Jurisdiction or not his Chancellor and not the Ordinary shall visit it and he may by his Charter license a Subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof Common Persons were Patrons So he shall visit Cathedral Churches by Commissioners Sede vacante Archiepiscopalii He may also revoke before Induction by presenting another for the Church is not full against the King till Induction And therefore if a Bishop Collates and before Induction dies by which means the Temporalties come into the Kings hands the King shall present to the avoidance for the same reason In short He is the Supreme Ordinary and on that account may take the resignation of a Spiritual Dignity Neither did the Abbots and Priors in Edward the Fourths time think him less when they stile him Supremus Dominus noster Edwardus 4. Rex which agrees with the Laws before the Conquest in which the King is called Vicarius summi Regis The Vicar of the highest King And albeit Ecclesiastical Councils consisting of Church-men did frame the Laws whereby the Church Affairs were ordered in Ancient times yet no Canon no not of any Council had the force of Law in the Church unless it were ratifi'd and confirmed by the Emperor being Christian In like manner our Convocations that assemble not of themselves but by the Kings Writ must have both Licence to make new Canons and the Royal Assent to allow them before they can be put in Execution and this by the Common Law for before the Statute 25 H. 8. c. 19. A Disme i. e. the Tenths of all Spiritual Livings in ancient times paid to the Pope granted by them did not bind the Clergy before the Royal Assent In a word the King may make orders for the Government of the Clergy without Parliament and deprive the Disobedient And the Act for suppressing Seditious Conventicles has a saving to his Majesties Supremacy in Ecclesiastical Affairs And so I hope I have clear'd this point That the Kingdom of England c. is a Sovereign Imperial Monarchy of which the King is the only Supreme Governor as well in all Spiritual or Ecclesiastical Things or Causes as Temporal It remains now that I shew That however the Emperors of the West and East have so much striven about that great Title of Emperor or Basileus that yet the Kings of England as Supreme within their Dominions have also justly used it and that from ancient Ages as no less proper to their own independent greatness And here amongst many others we have Edgar frequently in his Charters stiling himself Albionis Anglorum Basileus King of Britain and the English And in one of his to Oswald Bishop of Worcester in the year 964. and of his Reign the sixth Ego Edgarus Anglorum Basileus omniumque Regum Insularum Oceanique Britanniam circumjacentis cunctarumque Nationum quae infra eam includuntur Imperator Dominus c. I Edgar King of the English and of all the Kings of the Isles and the Ocean lying round Britain i. e. England Scotland and Wales and of all the People therein Emperor and Supreme Lord for the word in this place bears no less as I have shewn it before in the Word Lord of Ireland Wherein it is observable that as long since as it is that yet the King of England or Britain was Lord and Emperor of the British Sea which agrees with that of one of his Successors Canutus when sitting in a Chair by the South Shore he used these words to the Sea Tumeae ditionis es terra in qua sedeo mea est Thou art of my Dominion or Empire and the Land whereon I sit is mine as taking it clearly that he was the Supreme Lord and Emperor of both whence also it is affirm'd by Belknap one of the Justices of the Kings Bench 5 R. 2. That the Sea is of the King Ligeance as of the Crown of England So that Edward his Son in a Charter to the Abbey of Ramsey Ego Edwardus totius Albionis Dei moderante gubernatione Basileus I Edward by the Guidance or
and then thus altered viz. By the Assent of the Lords Spiritual and Temporal and at the special instance and request of the Commons and in the fifth of the same King By the Advice and Assent of his Lords Spiritual and Temporal and at the request of the Commons which so continued without any variation in substance until the 18th of Henry 6. at what time it became as we have it now viz. By the Advice and Assent of the Lords Spiritual and Temporal and the Commons Besides if the Lords Spiritual were not a third Estate what is the reason that at the making of the Statute of Praemunire that the Commons having declared that they would stand to the King in the defence of his Liberties and praying that all the Lords as well Spiritual as Temporal severally and all the Estates of Parliament might be examined how they thought of that matter The Lords Temporal being so demanded answered every one by himself and in like manner the Lords Spiritual severally examin'd answered by themselves which affords me a double Argument 1. That by all the States of Parliament there must be necessarily intended more than two if it were for no other reason than mere propriety of Speech 2. That the King could not make up that other or third Estate because he is desired to examin all the States severally which he could not do if he had been one of them himself so in the 40th of Edw. 3. which I should have named first when the King asks advice of his Parliament Whether King John could have subjected the Realm as what in him lay he did The Prelates by themselves the Dukes Earls and Barons by themselves and the Commons by themselves answered That he could not From which nothing seems clearer to me than that the Lords Spiritual are one Estate distinct from the Lords Temporal or otherwise what needed they have been examin'd by those several names of Spiritual and Temporal or as severally answer'd by the same appellations 5. And now if yet there remain'd any doubt we have one Act of Parliament clear in point where the question being whether the making of Bishops had been duly and orderly done according to Law the Statute says which is much tending to the slander of all the State of the Clergy being one of the greatest States of this Realm And so having found Three Estates without the King I think in good manners we ought to spare him I have hitherto offered some Reasons nor without their Authorities I come now to somewhat more direct if yet those of the 40th of Edw. 3. the 16th of Rich. 2. and the 8th of Qu. Eliz. last mentioned could be thought otherwise I 'll begin with the Statute of H. 8. where this Kingdom is called an Empire governed by one Supreme Head and King unto whom a Body Politick compact of all sorts and degrees of People divideth in Terms and by names of Spiritualty and Temporalty been bounden and who can believe that the Authority of a Parliament should utter any thing in Parables or under double meanings contrary to the common sense of the express words or that there was ever intended by the words divided in Terms and by names of Spiritualty and Temporalty so many mere words and no more However to take off all doubt Sir Edw. Coke says The High Court of Parliament consisteth of the Kings Majesty sitting there as in his Royal Politick Capacity and of the Three Estates of the Realm viz. the Lords Spiritual the Lords Temporal and the Commons And so Cowel The word Parliament in England we use it for the Assembly of the King and the Three Estates viz. the Lords Spiritual Lords Temporal and the Commons And Title Statute he saith it signifieth a Decree or Act of Parliament made by the Prince and the Three Estates unto whom as I said before they are subordinate in the Legislation and of no Power of themselves but joyned to their Figure have the full strength of their places which in short we may thus farther demonstrate under the familiar instance of a Dean and Chapter of whom the Dean is no part but Caput Capituli the Head of them And now if any one shall demand why this term of the Three Estates does not so frequently occur to us of Ancient time I answer That before the Commons were brought in there was no thought of it and since that time no dispute of it until of late where many a worse twig was even learnedly made use of to stilt and bolster a Ricketed Cause· However it is not too late that the Point is cleared now And so we have it in the Act for Unifermity of Publick Prayers made the 14th of this King where the Form of Prayer for the Fifth of November is thus entitled A Form of Prayer with Thanksgiving to be used yearly on the Fifth day of November for the happy deliverance of the King and the Three Estates of the Realm c. And with this agrees the Kingdom of Scotland of which Mr. Cambden in his History of Britain says That their Supreme Court is their Parliament which consisteth of Three Estates The Lords Spiritual the Lords Temporal and the Commons for Cities and Burghs of which the King is Directus totius Dominus And so a Parliament of that Kingdom reckons them It is ordained by the King by Consent and Deliverance of the Three Estates And the Act of asserting the Kings Supremacy over all Persons and in all Causes Ecclesiastical and the late Indictment against Argile and the Acts for the Acknowledging and Asserting the Right of Succession to the Imperial Crown of Scotland And that other for ratifying all former Laws for the security of the Protestant Religion agree in point with it Nor is it strange they should inasmuch as neither their Langue nor their Laws especially such as are criminal as may be seen by comparing their Regiam Majestatem with our Glanvil De Legibus written in Henry the Second's time much differ from ours And the Union of the two Crowns in the Person of King James is called An Union or rather a re-uniting of two Mighty Famous and Ancient Kingdoms yet anciently but one And that the Laws of Ireland a distinct Realm or Kingdom from both say nothing of this matter I take it to be for the same reason that the Romans made no Law against Parricide They never dreamt it SECTION VII Admitting what has been before offer'd wherein has our present King merited less than any of his Royal Ancestors with a short recapitulation of Affairs as they had been and were at his Majesties most happy Restauration and that he wanted not the means of a just Resentment had he design'd any I Have hitherto shewn that the Crown of England c. is Supreme Sovereign and Imperial nor will it be from the purpose now to demand Wherein has our present King less merited than
any of his Regal Ancestors that it should appear less on his Head than theirs especially considering he is so far from not getting up to 'em that his Royal Father only excepted he has out-gone them all in his own example albeit he wanted not the too many just occasions of having been otherwise To recapitulate some few of them nor is it less than fit to burn Incense where ill Odors have been cast or rais'd To have seen then three famous Kingdoms that had so often acknowledg'd his Princely Progenitors their undoubted Heirs like Aesop's Pots broken against one another To have examin'd the Quarrel of which whatever were the pretences nothing other was in the bottom than to kill the Heir and divide the Inheritance To have beheld his Glorious Father Disarm'd by one Party and in that condition left to the growing designs of another and the merciless Cruelty of both To have consider'd him not forsaken only but ingratefully edg'd forward to his Destruction by those Mushromes whom his Royal Influence had fermented into somewhat To have recollected his many Messages fruitless Treaties and that after all condescensions nothing would content them without the Kingdom also If there be yet room for a thought to have remember'd after the Faith of both Houses given him how he was brought to Jerusalem to be Crucifi'd by the Jews To have once more remembred Him The Fountain of all Law Justice and Honor publickly arraign'd by the Tail of the People and that too under the false detorted names of Law Justice and Honor of the Nation nor without the Fucus of their Religion also brought in to sanctifie the Ordinance To have remember'd him I say Traiterously Sentenc'd by his own Subjects and as ignominiously even while the Heads of the Faction as the Phrase of that time was Were seeking God Infesto Regibus exemplo Securi percussum and Murder'd before his own Palace Kingly Government abolish'd the Name Stile Title and Test of the King alter'd into The Keepers of the Liberty of England by Authority of Parliament That notion of a Parliament too which by the same fatal blow cut themselves off also Let me not seem tedious to have remembred himself Proscrib'd and thereby made High Treason to Proclaim him King The Oaths of Allegiance and Supremacy damn'd The Royal Ensigns defac'd The Coin alter'd The Regal Statue thrown down and under that Vacancy Engraven Exit Tyrannus Regum ultimus Anno Libertatis restitutae primo In short to have remembred his helpless Friends either starving at Home or by not complying necessitated into Forein Arms and not the least number of them so unfortunate as to have surviv'd the Ruines of their once Families and lastly the more unhappy himself that could only look on and pity them Quis talia fando Temperet What private Gentleman could have born it But perhaps you 'l say he wanted the opportunity I think not For if we consider him as he was at that time not only return'd from his Fathers Allies but the same Profest Son of the Church of England he first went out and in that the Darling of the People what particular person or number of men might he not have singled from the Herd as a just Sacrifice to his Fathers Ashes and his own Revenge had he design'd any He had an Army at his beck The Navy regenerated All Forts and Garrisons re-inforc'd with Royalists The Country return'd to its former Allegiance and the City crying out Yea let him take all since my Lord the King is return'd to his own House in peace What I say might he not have done especially considering that such as had been obnoxious could not but expect that the Cloud must break and be afraid where it might fall and consequently ready each man to have given up his nearest Relation to save himself Et quae sibi quisque timêre Unius in miseri exitium convertere Can a Mother forget her Son Or a Son such a Father And yet Quanquam animo redit usque Pater tamen excutit omnem Rex melior he so far forgot it as to avoid the occasions of remembring it Nay which of his Enemies lookt up to him and return'd empty Was not the Childrens Bread thrown among them while the helpless Orphans scarce lickt up the Crums And has not that fulness of Bread provok'd them into wantonness They have eat drunk and now rise up to play and 't is a shrewd sign they are idle when nothing will serve them but they must be Sacrificing in a Wilderness yet what greater Testimonies could there be of an entire Forgiveness And if so this methinks should at last mind us that as Vapors rising from the Earth stay not long in the Air but fall on the same Earth again That we also as truly sensible of the Mercy return him at least the grateful Acknowledgments of an humble Obedience SECTION VIII That notwithstanding the hard Law of the Kingdom the Jews paid their Kings an entire Obedience Two Objections answered The like other Nations to their Kings A third Objection answered The Precept of Obedience is without restriction Examples upon it Nor is Idolatry any ground to resist much less things indifferent The example from our Saviour in Instituting his last Supper Least of all is injury with the practice of Holy men of old in like cases And that if any ground were to be admitted that would never be wanting I Gave an account before of that hard Law of the Kingdom given to the Jews and yet we find not throughout the Story that they did in the least repine at it but rather the contrary for when upon the Constitution of Saul some Children of Belial for so the Text calls them had despis'd him saying How shall this man save us The People whose hearts God had toucht in the next Chapter ver 12. say unto Samuel Who is he that said Shall Saul reign over us Bring the men that we may put them to death And what value they put on their Kings Person may be seen in this that Saul's Armor-bearer chose rather to kill himself than perform that last if yet I may so call it charitable Office to his distressed Master then ready to fall into his Enemies hands and praying it neither would the People suffer David to go forth before them to Battel For if we flee say they they will not be much concerned at it neither if half of us die will they care for us but thou art worth ten thousand of us In short he that was King among them did whatever pleased him And whatever the King did pleased all the people And was not this a perfect love between a King and his People was there ever a more exact or entire Obedience An Obedience to be reckon'd for Righteousness And yet what new paths do we take to our selves when if we would but examin Holy Writ we might find that every
increase of Families Esau. Gen. 36 Gen. 14. Josh. 12. The Assyrian Monarchy The Persian The Grecian The Roman Monarchy All other ancient Nations Monarchies Bodin Selden's Tit. Hon. 10. And as universally received by the Moderns Precedent to all other Governments Arist. pol. l. 4 Lord Baeon The several Forms of Government Arist. Pol. l. 3. c. 5. And their Rotations Discourse on Livy Deca 1. Aristocracy Democracy Virgil. Ovid. Metam Tyranny to be rather wisht than either Examples in Athens c. Florus l. 1. Tacitus l. 1. Rome from the first Consulate Florus l. 1. c. 23. Their Tribunes Rosiâ— Antiq. l. 7. c. 19. Lib. 1. c. 24. Id. l 3. c. 14 15 16 17. Several Seditions Marius and Sylla In vita Syllae Fastorum l. 4. Crassus Caesar Pompey The two latter divide Flo. l. 4. c 4. Ibid. cap. 8. Lib. â— Ep. 75. Caesar complemented to Rome by the Senate God Rom. Ant. 171. Flo. l. 4. c. 7. The Triumvirate Rofin Antiq. l. 7. c. 21. Their Proscriptions Rosin Antiq. l. 7. c. 21. And Breach No peace until Monarchy restor'd Florus l. 4. c. 12. The sense of those times touching this matter Amp. in lib. memoriali c. 28. Lucan Statius 1 Sam. 8. throughout 1 Sam. 10.25 1 Sam. 8.20 1 Kings 2.27 1 Kings 25.34 Object Sol. Deut. 17.15 Judges 9.18 1 Kings 12.3 Inst. 4 343. Seld. Tit. Hon. 24. Marks of Sovereignty Power of making Laws Psal. 60.7 Virgil. Livy Psal. 114.1 And exemption from any coactive Obedience to them Joseph Ant. l. 15. c. 14. Panegyr ad Trajan Power of Peace and War De Repub. 163. Id. Bodin 182. That the Kingdom of England is a Supreme Imperial Monarchy The Kings Power in making Laws In his Resusc. fol. 153. Ibid. 154. Ibid. fol. 276 Sir E. Coke's Preface to his third Report Sir Jo. Davys Preface to his Irish Reports 36 Edw. III. cap. 15. Sir Jo. Davys Preface to his Irish Reports Sir E. Cooke Sur West 2. Inst. 4.243 Inst. 2.286 Indictment against the Earl of Areyle 1681. The Kings Power in interpreting Laws Cited by him in his Postnaci Sir H. Spelman's Gloss fol. 107. Inst. 1.99 Inst. 2.168 Vide Petition of Right and his Majesties Answer 3 Car. 1. Vide Stat. at large fol. 1433. His being exempt from their coactive force Inst. 1.99 Ibid. 73. Ibid. 110. Inst. 4.28 Ibid. 46. â—ract l. 1. c. 8. 1 Jac. Claudian The Kings absolute Power of Peace and War Nat. Brev. 113. Ess. of Delay Inst. 3.9 25 Edw. 3.2 7 Rep. 25. 13th of this King cap. 2. Sir E. Cooke Inst. 1.90 * Subscribed to by all the Judges in the case of Ship-Money and by Hatten and Crooke tho they fell off afterward Sir Will. Dugdale's Short View fol. 42. Inst. 1.161 The Kings Power in appointing chief Magistrates and great Ministers Smith de Repub. Ang. l. 2. Inst. 2.26 Inst. 3.7 The Power of the last Appeal Inst. 4.343 Ibid. 341. Matth. Paris cited by Sir J. Davys in his Irish Rep. 61. Answer to Petit. p. 88. Ass. de Clarend 10 H. 2. c. 8. Inst. 4.14 16 R. 2. c. 5. Vide The Case of Premunire in Sir John Davys Inst. 4.341 Inst. 2.602 Sir H. Hobart fol. 146. The sole fountain of Honor Inst. 4.126 Inst. 1.65 Inst. 4.363 Seld. Tit. of Honor 621. Ibid. 628. Ibid. 630. Inst. 1.69 May create a Palatinate Camb. Britt 464. Seld. Tit. Hon. 530. Inst. 4.211 Camb. Britt 600. Plowd 214. Inst. 4.204 in the Margin 9 Jac. in Scac. fol. 49. As also Seld. Tit. Hon. 693. Stat. Hibern 14 Car. 2. c. 20. Have made a King and Lord of Ireland Seld. Tit. Hon. 38.41 Inst. 4.357 Inst. 1.83 Ibid. Seld. 26. Sir E. Cooke 5 Rep. 110. in Foxley's Case Inst. 3.233 241. The King appoints the value c. of Coin Sir J. Davys q. v. Case de mixt Moneys Stat. 25 Edw. 3. cap. 2. Sir J. Davys in Pref. 5. Rep. 114. Inst. 2.576 Inst. 1.207 Liege Homage received by our Kings Seld. Tit. Hon. 26. Ibid. 29. Ibid. 24 25.38 Inst. 3.11 Their burning those incommunicable Titles of Majesty c. Tit. Hon. 594. Ibid. 92. Further instances of the Kings Sovereignty by the Common Law Inst. 1.1 Inst. 2.68 Inst. 1.13 Ibid. 42. Inst. 1.15 1 H. 7.4 Plowd 238. Inst. 4.352 Inst. 3 7. 7. Rep. in Calvin's Case Ibidem 23 H. 6. c. 8. 11. Rep. of the Lord De la Ware 13 Edw. 3. Inst. 4.342 Vide Seld. Tit. Hon. 21. Ann. Reg. 14. Ann. 40. Ed. 3. Inst. 4.13 357. 18 Edw. 3. Inst. 4.88 104. Inst. 2.167 Inst. 1.90 344. Inst. 2.496 Bract. l. 1. Britt f. 27. Regist. fol. 61. 1 Sam. 6.19 The like from the Statute-Law and that the Crown of England is Imperial Inst. 4.343 16 R. 2. c. 5. Vide Article against Woolsey 21 H. 8. Iâ—st 4.89 24 H. 8. c. 12. 25 H. 8. c. 21. Vide Cap. 22. 88 H. 8. c. 7. Vide cap. 16. Stat. Hibern 28. H. 8. c. 2. Stat. Hibern 33 H. 8. c. 1. 1 Eliz. c. 1. and Cap. 3. 5 Eliz. c. 1. 1 Jac. c. 1. Stat. Scotiae 5. Jac. 3. c. 3. Printed at Edenburgh 1681. The Kings Power in Ecclesiasticks Sir H. Hob. 143. Inst. 1.94 Glanv l. 1. c. 7. Inst. 4.285 Inst. 1.134 344. Ann. Reg. 17. Math. Paris fol. 213. Answ. to Pet. fol. 88. 40 Edw. 3. The Act is not in the Statutes at large but you may find it Inst. 4.13 Ibid. 357. 25 H. 8. c. 2. This was set out by Dr. Bernard in 16 1. in a Book entituled Clavi Trabales with the Bishop of Lincoln's Preface to it p. 82. Inst. 4.357 Ibid. 359. Regist. 294. Fitz. N. Breâ— Printed in 1666. 411. 6 Edw. 3.11 11 H. 4.68 11 H 4.60 11 H. 7.12 Sir Hen. Hob. fol. 146. Inst. 3.238 Fitz. N.B. 662. Inst. 1.344 Dyer 348. Ibid. 294. The same 3 Car. 1 c. 4. Inst. 4.342 Inter Leges Ed. c. 17. Mr. Hooker of the Kings Power in matters of Religion Cla. Trab 72. Inst. 4.323 Cro. Jac. 371. 22 Car. 2. That the Kings of England have justly used the Titles of Emperor c. and that from Ancient Ages Seld. Tit. of Honor f. 17. Sir Edw. Coke's Preface to his fourth Report Camb. Brit. 189. Ibid. Seld. Inst. 4.343 Ibidem Ibid Seld. 1 Object 1. Object 2. Sol. 1. Bodin l. 2. Ibid. Bodin Sol. 2. The manner of the Three Estates applying to the King 3 Car. 1. 1 Jac. 1. 1 Eliz. 3. 1 Mar. Sess. 2. 28 H. 8. c. 7. 1 Rich. 3. 3 Edw. 4. 4 Edw. 3. â—5 Edw. 3. 1 Edw. 1. Stat de Scat. 51 H. 3. What these Three Estates are Inst. 4.1 Inst. 1.110 Lib. 5.233 De Repub. l. 1. Coll. Fr. Tâ—â—ffe his Speech to them â—rom the Duke of Lorain 1674. Sir H. Spelm. Gloss. f. 449. 1 Pet. 2.13 To presume him such were to make him but a Co-ordinate Power Bar. Arg. l. 1. He cannot Summon himself Novum Organ Aphor. 46. Where were these three Estates
which you may read at large in Bodin But I come to the second That the Kingdoms of England c. are a Supreme Imperial Monarchy which will the better appear when by examining those marks of Sovereignty we find no more in them than what the Laws of these Realms have ever acknowledg'd to be the undoubted right of our Kings and that whether we respect the Common Law Statute Law or their Power in Ecclesiasticks I 'll take my rise from the marks of Sovereignty 1. The Power of making Laws The Laws of most Kingdoms saith the Lord Bacon have been like Buildings of many pieces patcht up from time to time according to the occasion without form or model and as to our own that they are mixt as our Language of British Roman Saxon Danish Norman Customs Edgar the Saxon collected those of his time and gave them the force of a Fagot bound which formerly were dispersed The Danes impos'd upon us their Dane-Law And the third of that name before the Conquest Ex immensa Legum congerie quas Britanni Romani Angli Daci condiderunt optima quaeque selegit in unam coegit quod vocari voluit Legem communem Some of which bear his name to this day as Ordain'd by him After him William the Conqueror whom Polidor Virgil calls our Law-giver brought in somewhat of a new Law as may be seen in this That tho he made but little or no alteration in the Fundamentals but formulis juris he found here yet whether it were to honor his own Language or to shew some mark of Conquest he set forth his Publick Edicts in the Norman Tongue and caused our Laws to be written in the same And likewise his Justiciaries Lawyers and Ministerial Officers being at that time all Normans it may be none of the least reasons why all our Pleadings and Entries were in that Tongue until altered by Statute That because of the great mischiefs that had hapned to divers by means of the said Laws being written in the French Tongue which they understood not That therefore all Pleas for the future should be pleaded in the English Tongue and enrolled in the Latin and that we receiv'd our ancient Tenures from the Normans is obvious every where And King John planted the English Laws in Ireland But to come nearer home and examin how our present constitutions agree with it nor are they other than what has been the Practice of all former Parliaments wherein both Houses are so subordinate to the King in the making of Laws that neither of them singly nor both of them together can make any binding Law without the Kings concurrence they might in all times 't is true propose advise or consent or to borrow a Metaphor Spawn of themselves but in the Royal Consent only like the male touch lay the vis plastica which gave the Embrion life and quicken'd it into Laws and the reason of it is because the Legislative Power resideth solely in the King ut in subjecto proprio and the consent of the Lords and Commons is no sharing of that Power which is indivisible but a requisite condition to complete the Kings Power for otherwise all those Bills that have pass'd both Houses and for want of the Royal-Assent lie buried in oblivion might as occasion serv'd be rak'd from their forgotten Embers and set up for Laws Which also further appears in the several forms of our Kings giving their Royal Assent as Le Roy voit Le Roy est Assensus Le Roy Advisera c. and makes good this point That the Power of making Laws resides in the King and that he may as he sees cause either refuse or ratifie And this the Law of Scotland calls his Majesties best and most incommunicable Prerogative And as the Legislative Power resides in the King solely so also to him belongs it to interpret those Laws Si disputatio oriatur Justiciarii non possunt eam interpretari sed in dubiis obscuris Domini Regis erit expectanda interpretatio voluntas cum ejus sit interpretari cujus est condere saith the Lord Ellesmer from Bracton and Britton His is the interpretation of the Law whose is the Power of making the Law In his recurrendum ad Regem justitiae fontem whence he is said to carry all the Laws in scrinio pectoris sui in his Breast To give one instance for all When King Charles the First of happy memory had just given his Royal Assent to the Petition of Right he told the Houses That his meaning was to confirm all their Liberties as knowing that according to their own Protestations they neither meant nor could hurt his Prerogative c. And on the last day of the Session before his Royal Assent to the Bills saying he would tell them the cause why he came so suddenly to end that Session he adds Tho I must avow that I own an account of my actions to none but God And again charging both Houses with their Profession during the hammering that Petition that it was in no ways to trench upon his Prerogative saying they had neither intention nor power to hurt it he commands them all to take notice that what he had spoken was the true meaning of what he had granted But especially adds his Majesty you my Lords the Judges for to you only under me belongs the Interpretation of Laws for none of the Houses of Parliament joynt or separate what new Doctrin soever may be raised have any power either to make or declare a Law without my consent And as the King is the sole Lawgiver and Interpreter of that Law when given so also is he exempt and free from the Law for as much as concerneth the coactive force of the Law as being the Head of the Law and of the Common-wealth and consequently no man can give Sentence of condemnation against him if he do any thing against that Law for besides that every Sentence must be given by a Superior upon his Inferior there must be some Supreme whereunto all are subject but it self to none because otherwise the course of Justice would go infinitely in a Circle every Superior having his Superior without end which cannot be yet admitting it might the People cannot do it for they have no power themselves or if they had are his Subjects and a Parliament cannot do it for besides that they are his Subjects also and not his Peers who shall try him for he is Principium Caput finis Parliamenti and it can neither begin nor end without his Presence in Person or by Representation and hence it is that his Death Dissolves them Again if the People may call him to account the State is plainly Democratical if the Peers it is Aristocratical if either or both of them 't is no way Monarchical which is directly contrary