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A93661 A view of a printed book intituled Observations upon His Majesties late answers and expresses. Spelman, John, Sir, 1594-1643. 1643 (1643) Wing S4941; Thomason E245_22; ESTC R6700 54,336 47

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their consent and advice of the Lords shall deeme to be just and fit And this power or rather trust they derive from the people their Electors yet not without dependance on the King The Knights are sent by the County but the County had power and command by the Kings Writ to send them And as for the Burgesses their trust or power call it what you will doth more especially referre unto the King as the author thereof for whence had the elected Burgesses their power but from the Borough that sent them whence had the Borough power to send but from the King who by his Letters Patents incorporated them into a Borough and gave them power to send Burgesses to the Parliament which otherwise they had no more right to doe then any other vile whatsoever And this is the ground of that power which the house of Commons have as concerning the generalty of the Kingdome And besides this the house of Commons although a great and honourable Assembly yet of themselves as I think they are no Court either of Record or of ordi●ary Iustice unlesse it bee with respect to their owne Members which is rather a necessary priviledge then any power They can neither administer an Oath nor give any judgement twixt party and party nor have they power to controll or reverse a judgement given in the meanest pipowder Court I speak not this with a minde to derogate from the due honour of that Assembly but to occasion some friendly brother if I am in errour to instr●ct me how the imposing of the Protestation by order of the Commons only upon all the subjects in generall under a penalty of being branded with malignancy and adjudged unfit to beare any publike office may be defended How that order for levelling Chancels and making other alterations in the Church which issued from the Commons without the King and in opposition to the Lords may be justified either by reason or president How that Remonstrance a chiefe meanes of all our succeding dissentions that was voted with so much opposition in their owne house and was after published I will not say to disaffect the people from his Majesties government may be defended and justified In briefe may I be instructed with some grounds by which these and many other their actions and Votes may be warranted I shall thenceforth acknowledge them whom now perhaps by mistake I think to be no Court at all to be the most supreme Iudicatory both for Law and State In the meane while I am ignorant of any trust they have other then a trust from the people to consult and assent to the King and Lords in the making of Lawes which without the consent of the Lords and his Majesties concurrence is altogether uselesse and of no vertue And in them apart I know no Iurisdiction but with respect to their owne Members and surely that such as it is they have from the Crowne the fountaine of all Iustice and the spring head of all Iurisdiction The house of Peeres considered simply have power by assent or disassent to enable or disable the making or repealing of any Lawes and generall Ordinances but without the concurrence of King and Commons this of it self is of no use They are likewise an high Court of Iudicatory in respect of particular causes orderly brought before them having Iurisdiction in many though not in all Cases In criminall causes concerning life and member I think they have not Iurisdiction without the Kings speciall Commission and therefore they cannot attaint any man for treason murder or felony They are not only a Court of Iustice but of Record they may take a recognizance and by the Kings Writ or Commission may reverse for errour the Iudgements given in any of the ordinary Courts But all these powers as likewise their Baronies by reason of which they have place and vote in Parliament are immediately and meerely derived from the Crowne the fountaine of all honour and jurisdiction and they doe so necessarily depend upon the King in matters of Iudicatory as that in iudgement of law they speak ove bouch le Roy mesme Thus much concerning the Lords and Commons apart from the King The King alone he is Capitalis Angliae Iusticiarius the fountaine of all Iurisdiction and above all other Iurisdictions Britton speaking in the person of King E. 1. nous volousque nostre jurisdiction soit sur touts jurisdictions in nostre royalme By the law of Nations and by the very end of Regall power the King is to iudge the people 1 Sam. cap. 8. Give us a King to judge us vers. 20. We will have a King over us that we also may be as the Nations and that our King may judge us Bracton tels us That the King alone if he could suffice ought to judge the people and that by his Oath he is bound thereunto And as the ordinary iuridicall power is supreme and originally in the King so likewise is the legislative it being a principall end of Regall authority dare jus populo which power was in Kings by the law of nature while they governed the people by naturall Equity long before either municipall lawes or Parliaments had a being Before Moses there were no standing municipall lawes or at least not before Pharoneus long before which there were Kings of S●it●●● Assyria Egypt c. who according to naturall Equity gave law unto their people Rhemo cum fratre Quirinu● jura dabat Hoc Priami g●stamen erat ●um jura vocati● M●r● d●ret popul●● But their lawes they so gave ought to bee agreeable to naturall Equity aiming no lesse at the good of the people then of themselves Such conditions and limitations as are agreeable to naturall Equity Kings by the divine institution were bound to observe and some by their voluntary Oaths for themselves and their successours many times bound themselves to more strict limits then were absolutely requisite yet being agreeable to Equity and consistent with Royalty ought to be observed And then●e it is according to the severall degrees that the latitude of naturall Equity doth admit in giving lawes that some Kings are more strictly limi●ed then others and according to the oaths and promises made by the King of this Realme they can neither give nor repeale any law but ●ith the assent of the Peeres and people The Observa●or doth not deny the Legislative power to bee in the King but saith he partly in the King partly in the Kingdom which I shall admit to be true in this sence viz. that the Legislative power is not so in the King onely as that he being sole can either in ordinary or extraordinary cases make or alter any Law for thereunto is necessarily required the assent both of Lords and Commons But yet to speak properly the Legislative power is solely in the King although not in the King being sole Rex solus legislator non si solus the assent of