forrain Princes and Estates as also to maintain the peace to suppresse Rebellions and to see justice executed at home within his own Kingdome Fleta lib. 1 cap. 17. Habet Rex in manu sua omnia jura quae ad Coronam Laitalem pertinent potestatem materialem gladium qui pertinet ad Regni gubernaculum i. e. The King hath all the rights in his hand which belong to the Crown and to Temporal jurisdiction and the power of the sword which belong to the Government of the Kingdome So likewise saith Bracton lib. 1. cap. 8. Sunt alii potentes sub Rege qui dicuntur Barones hoc est robut belli sunt alii qui dicuntur Vavasores viri magnae dignitatis vavasor enim nihil melius dici poterit quam vas fortium ad valetudinem sunt sub Rege milites s ad militiam exercendam electi i. e. There are other great men under the King which are called Barons and other which are called Vavasours men of great dignity There are also soldiers under the King chosen to exercise the Militia And in the beginning of his Book he saith that it is necessary this power should be in the King In rege quirecte regit necessaria sunt duo haec arma videlicet Leges quibus utrumque tempus bellorum pacis recte possit gubernari utrumque enim istorum alter us indiget auxilio quo tam res militaris possit esse tuta quam ipsae Leges usu armorum praesidio possint esse servatae Si autem arma defecerint contra hostes rebelle indomitos sic erit regnum indefensum Si autem Leges sic exterminabitur justitia i. e. In a King that governeth well two things are necessary armes and lawes by which he may be enabled to rule both in times of peace and war and both these help the need of one another whereby both armes and lawes may be preserved If arms be wanting against enemies and rebells the Kingdome shall be without defence if Lawes be wanting without justice This is also evident from the Tenures whereby most of the chief men in the Kingdome hold their estates for all that hold in capite by Knights service are bound for their fee to assist the King in his wars whensoever they shall be summoned by him whether it be to suppresse rebellion or to resist a forraign invasion And this hath been the known Law of the Land ever since the time of William the Conquerour in the fourth year of whose reign this right was confirmed unto him by Act of Parliament The words of the Statute are these Statuinus firmiter pracipimus ut omnes Comites Barones Milites Servientes universi liberi homines totitu regni nostri praedicti habeant teneant se semper bene in armis in equis ut decet oportet quod sint semper prompti parati ad servitium suum integrum nobis explendum peragendum cum semper opus adfuerit secundum quod nobis debent de feodis tenementis suis de jure facere sicut illis statuimus per commune consilium totius Regni nostri praedicti illis dedimus concessimus in feodis jure hereditario i. e. We will and command that all Earls Barons Knights Villeins and all Freemen of out whole kingdom be alwayes well provided with horse and armes as it behoveth them and that they be alwayes in a readinesse to serve us as often as need shall require according as they are bound by their Lands and Tenements and as we have appointed them to do by the Common-Councell of our whole Kingdome and for that consideration have given and granted them lands in Fee for ever Secondly The Legislative power belongs to the King alone by the Common Law the two Houses have authority granted them by the King to assent or dissent but the power that makes it a law the authority that animates it and makes it differ from a dead Letter is in the King who is the life and soul of the law by whose authority alone the lawes command and forbid and vindicate and punish offenders So saith Bracton lib. 1. cap. 2. Hujusmodi verò Leges Anglicanae consuetudines Regum authoritate jubent quandoque quandoque vetant quandoque vindicant puniunt transgressores i. e. These Lawes and customes of England by the Kings authority do sometimes command sometimes sorbid and sometimes chastise and punish transgressors This was also resolved by divers Earls and Barons and by all the justices in the time of Edward the third For one Haedlow and his wife having a controversy with the King and desiring to have it decided in Parliament a reference being made to divers Earls and Barons and to all the justices to consider of the businesse it was resolved that the two houses were not coordinate with the King in the Legislative power but that the King alone made lawes by the assent of the two Houses that he had none equal or coordinate with him in his Realm and that he could not be judged by the Parliament 22. E. 3.6 Fuit dit que le Roy fist les leis per assent des peres de la Commune non pas les peres le Commune Et que il ne avera nul pere en sa terre demesne que le Roy per eux ne doit estr ajuge i. e. It was resolved that the King makes lawes by the assent of the Lords and Commons and not the Lords and Commons and that he could have no Peer in his own land and that he could not be judged by them The Common practice of the law confirms this as well as the resolution of the Judges for the breach of any Statute whether it be by treason murder felony perjury or by any other way is an offence against the Kings authority alone and pleas made against such offences are called the pleas of the crown because they are done encounter la corone dignitie le Roy Stanford les plees del corone lib. 1. cap. 1. against the crown and dignity of the King So that it is not the dignity and authority of the Lords and Commons which is violated by contempt of the law but the dignity and authority of the King He may dispense also with such laws as forbid a thing which is not malum in se and pardon the transgression of others as Treason Felony and the like which in reason he ought no more to do then to dispense with the laws of Germany Spain or France or pardon the transgressours thereof if they were not made by his own authority Again it is an uncontroulable Maxime of Law Ejusdem est leges interpretari cujus est condere None can interpret the laws but the same power that makes them Now that the King calling the Judges to him hath this power is evident by his exposition
Vicecomites alios Ballivos Ministros suos quibus referantur tam quaestiones super dubiis quam querimoniae super injuriis i. e. And if our Lord the King be not sufficient to determine all controversies himself he ought to select wise men fearing God and hating coveteousness and out of them constitute Justices Sheriffs Bailies and other officers to whom controversies and complaints may be referred The practice of the law hath alwayes been the same since Bracton's time and all Judges and chief officers appointed by writ patent or commission from the King Hence it is that all patents and commission of Judges and other such officers are determined by the common law at the Kings death Coke tit discontinue de proces c. part 7.30 Al common ley per demise le Roy le plea fuit discontinue le proces que fuit agard nient returne devant le mort le Roy fuit perde Car per le breve del predecessor rien poit estre execute in le temps del novel Roy si non que il soit in especial cases car le mort le Roy non solement les justices de lū Bank de laūt Barons del exchequer mes les viconts auxi eschetors touts commissions de Oyer Terminer Goale delivery justices de peace sont determine per le mort le predecessor qui eux fist i. e. By the Common law all pleas were discontinued by the death of the King and process awarded and not returned before his death was lost for by the writ of the predecessour nothing can be executed in the time of the new King except it be in some special causes for by the death of the King not onely the justices of both the benches and the Barons of the exchequer but Sheriffs also and Escheatours and all commissions of Oyer and Terminer Goal delivery and Justices of peace are determined by the death of the predecessor that made them Fifthly the power of making leagues and contracting alliance as also of making war with foraign States is in the King alone Coke lib. 7.25 Leagues between our Soveraign and others are the means to make aliens friends foedera percutere to make leagues onely and wholly pertaineth to the King wars do make aliens enemies and bellum indicere belongeth onely and wholly to the King and not to the subject as appearath in 19. E. 4. fol. 6.6 It hath been resolved by the Judges 19. E. 4.46.22 E. 4. Fitz. jurisdiction last placite Judge Jenkins fol. 17. that if all the people of England collectively taken should break the league made with a forraign Prince without the Kings consent the league holds and is not broken There are yet other rights of Majesty as the power of Coynage the power of granting letters patents of Denization the power of dispensing with such laws as are dispensable and the power of pardoning the transgression of them with divers others all which belong to the King by the Common law but because they are not called in question I will pass them over CHAP. VI. The Kings Supremacy both in general and particular shewed by reasons depending upon the laws and customes of the Land ALthough I esteem positive Laws and customes more demonstrative then deductions and inferences yet these have also their weight and importance I will therefore in the last place add such reasons as shall sufficiently confirm the Kings Supremacy although the laws had positively declared or the Judges resolved nothing concerning it First that power which is so under controul that it can be annihilated at the will of another must needs be inferiour to that power which doth so overrule and master it Now such is the condition of Parliaments that the King by law can annihilate them at his pleasure for they depend upon him quoad existentiam for their existence and continuance If it should be granted that Parliaments are in actu signato by original constitution yet the precise time of their existence and continuance hath alwayes been at the Kings appointment it being in his power to call them and dissolve them when he please so that they must needs be subordinate to him and depend upon him for their operation when they depend upon him for their existence Answer To this the reverent Divines answer for the convention of Parliaments the State hath authority in some eases to meet together in Parliament without a legal warrant from the King as if the King be a prisoner in the enemies hands or distracted and have done it de facto in the infancy and minority of some Kings and for the dissolution of Parliaments they say that they have heard wise men affirm that by law a Parliament can not be dissolved whilst there are any petitions of grievances or such matters of importance depending and unfinished Reply What needed the reverent Divines to have cited these wise men Could they not as easily have said themselves that Parliaments could not be dissolved by the Kings command as they said they might be called without it Perhaps they thought that such notorious falsities would never pass currently amongst the people if they were not confirmed by the authority of wise men as well as by their owne yet I beleeve the wise men they speak of were not so wise as Thales Milesius but whatsoever they were their magisteriall dictates must not passe for law for both that which these wise men affirm and that which they affirm themselves is manifestly opposit to law and truth There was never yet since the first foundation of the Monarchie a Parliament called without a legall warrant from the King nor can a Parliament be called without it for the cases put by them are altogether impertinent and can not be supposed the King according to his politique capacity can not be a prisoner or an infant or distracted but in case his condition be such as make him uncapable to guide and manage his charge in person as in case of infancy or distraction the law hath made sufficient provision who shall exercise the regall power in such occurrencies if he be prisoner in the enemies hands he may substitute others or if he be so closely kept as that can not be permitted in such events also the law is not deficient but in all these cases nothing can be acted by authority inherent in the people but by the Kings authority which can never be in prison nor is it subject to infancy or distraction and Parliaments called at such time by those that have authority by law to exercise the Royall power are called by a legall warrant from the King and without such a legall warrant they never were nor can be called It there have been any generall Conventions without it as the reverent Divines who should have done well to have quoted their authors and their words assure us their acts were never esteemed lawes nor such Conventions Parliaments And that the King
instances to which I could yet add more if I thought it needful But it would be superfluous to illustrate and interpret this place by other when the words considered by themselves imply no more for he maketh no distinction of Superiority but calleth God and the Law and the Earls and Barons in his court superiour to the King after the same manner Now it is evident that God in this place is said to be superiour to him in respect of the directive power his Law hath over him for although God hath de jure a coercive power and jurisdiction over Kings and shall de facto after their death dispose of them as their Judge and in this life also doth often restrain them by his secret judgements yet Bracton speaketh not in this place as will appear immediately when the whole and intire period shall be cited of either of those kinds of jurisdiction but of giving present and open judgement upon the Kings fact and upon his charter which is a jurisdiction that he exerciseth not but giveth his Law only for direction by which all Princes ought to be regulated both in granting their charters and in the whole administration of their power It is also clear that the Laws of the Land are said to be superiour to him in respect of the directive power of them having otherwise no force or influence upon him Bracton therefore meaneth that the Earls and Barons in his Court are superiour to him in the same respect and not in respect of any jurisdiction they ought to exercise over him But if we look upon the coherence of these words and their dependence upon the precedent and subsequent matter Bracton's intention will more fully and easily be discerned I will therefore set down as much as is necessary to the present purpose and explain every clause of it and shew the relation and connexion one thing hath with another and let the Reader judge whether this testimony of Bracton doth not strengthen the Kings cause and might not rather be alledged for him then against him Nec factum Regis nec chartam potest quis judicare ita quod factum Domini Regis irritetur Sed dicere poterit quis quod Rex Justitiam fecerit bene si hoc eadem ratione quod male ita imponere ei quod injuriam emendet ne incidat Rex justiciari in judicium viventis Dei propter injuriam Rex autem habet superiorem Deum Item legem per quam factus est Rex item curiam suam videlicet Comites Barones quia Comites dicuntur quasi socii Regis qui habet socium habet Magistrum ideo si Rex fuerit sine frano i. e. sine lege debent ei fraenum ponere That is No man may judge of the Kings fact or his charter so as to make void the fact of our Lord the King But some may say the King hath done justice and well and if so by the same reason that he hath done ill and impose upon him to amend the injury lest he and his justices fall into the judgement of the living God for the injury But the King hath God his superiour and the Law by which he is made King and his Court namely his Earls and Barons for they are called Comites as being Companions to the King and he that hath a Companion hath a Master and therefore if the King be without a bridle that is without Law they ought to put a bridle upon him If this passage be well considered it will be clear that Bracton in the words alleadged calleth not the Earls and Barons superiour to the King in a civill and legall but in a moral regard alone First he saith No man may judge of the Kings fact or his charter so as to make void the fact of our Lord the King How can the words alledged agree with this if their exposition be admitted How can the Earls and Barons in his Court be superiour to the King in respect of a coercive power or civil Jurisdiction when they cannot judge his charter or his fact No man can have a coercive power or civil jurisdiction over another but he hath authority to judge him according to Law and to force the execution of his Sentence Secondly he saith But some may say the King hath done Justice and well and if so by the same reason that he hath done ill and impose upon him to amend the injury lest he and his Justices fall into the hands of the living God for the injury But the King hath God his superiour and the Law by which he is made King and his Court namely his Earls and Barons Having declared what power the Earls and Barons have not over the King here he declareth what power they have In case justice be not duly administred there are some he saith which may advertise him of it and impose upon him to reform what is amisse and those he declares to be the Earls and Barons in his Court who as well as God and the Laws of the Realm are superiour to him that is are superiour to him in the same manner namely by a directive power For he saith not that they should by constraint but by admonition impose upon him to amend the injury using this reason lest He and his Justices fall into the hands of the living God according to that which he saith in the place before quoted Cap. 4. p. 37. Satis sufficit ei pro poena quod Dominum expectet ultorem Thirdly he saith For they are called Comites as being Companions of the King and he that hath a Companion hath a Master Here he giveth a reason why the Earls and Barons may be called his Superiours namely because they are his Companions and he that hath a Companion hath a Master This reason holds good if he indevoureth by it to prove them his Superiours in respect of a directive power and moral superiority but is ridiculous if he should indevour by it to prove them his Superiours in respect of a coercive power or civil jurisdiction for every one cannot be Superiour to his Companions in respect of jurisdiction and be a leige Lord or Legal Master over all the rest But every one may instruct Counsell and direct all his Companions and be a moral Master over them in that respect all Companions may be mutually one anothers Masters Fourthly he saith And therefore if the King be without a bridle that is without Law they ought to put a bridle upon him This inference which he maketh out of the former words doth also confirm that Bracton calleth them not his Superiours in respect of a coercive power or civil jurisdiction for because they are his Companions and so in a moral regard his Masters they ought therefore he saith if he be without a bridle to put a bridle of the Law upon him This bridle then must be a bridle of Law and not a bridle of their own