England to be an absolute Monarchy the King alone to be the only supreme head and Governour of the whole body that is of all the people as well collectively as severally taken And hence it is namely in regard of the Kings Supremacy he being the only head of the Kingdome having no equal or Superiour but God alone whose Vicegerent he is upon earth that the Common law doth by way of fiction and similitude attribute unto him the Divine perfections 1. H. 7.10 Finch lib 2. del ley bap 1. Roy est le test del bien publike immediate desoubs Dieu desuis touts persons en touts causes Et pur ceo entant que il resemble le person del Dien port son image enter homes le Ley attribute a lui en un similitudinarie manner 7. E. 4.17 21. H. 7.2 Coke 7. f. 7. B. 43. El. Coke 5. fol. 114. B. 4. E. 6.31 5. E. 4.7 2. H. 4.7 1. H. 7.19 bombre del excelleneies que sont en Dien cest ascavoir SOVERAIGNTIE tout terre est tenu de de luy nul action gist vers luy car quis commandra le Roy POYAR il poit commaunder ses subjects daler hors de Realm en guerr poet faire ascune foreine coine currant icy per ses Proclamations MAJESTY ne poet prend ne departer ove oscune chose forsque per matter de record si non soit chattell ou tiel quia de minimis non curat lex INFINITENES en un manner 35. H. 6.26 esteant present en touts ses courts si come home poet dire en chescun lieu PERPETVITY ayant perpetuell succession ne unque mor. 10. El. 331. 35. H. 6.61 4. El. 246. PERFECTION car nul laches follie infancie ou corruption del sank est judge en lui VERITY ne serra unque estoppe JUSTICE ne poet esse disseisor ne faire ascun tort id est The King is head of the Common-wealth immediately under God over all persons and in all causes and therefore because he represents the person of God and bears his image the law attributeth unto him in a similitudinary manner a shadow of Divine excellencies namely SOVERAIGNTIE all lands are holden of him no action lyeth against him for who shall command the King POWER he may command his Subjects to go out of the Realm to War He may make any forraign coyn currant here by his Proclamations MAJESTY he can neither take nor part with any thing without matter of Record except it be chattel or such like because the law regards not such small matters INFINITENESSE after a Manner being present in all his courts and as it were in all places PERPETUITIE having perpetual succession and being not subject to dye PERFECTION for no laches folly infancy or corruption of blood can be judged in him TRUTH he cannot be estopped JUSTICE he cannot be a disseisor or do any wrong There are also divers prerogatives and priviledges by the Common law belonging to the King and divers Acts which the King may do or not do by reason of his Supremacy The King shall not in his writ give any man the style or title of Dominus because it is unbeseeming his Majesty to use that tearm to any he being himself omnium subditorum supremus Dominus the supream and soveraign Lord of all his subjects and in this case although there be variance between the Writ and Obligation 8. E. 6.23 B. 11. E 4.2 8. E. 4.2 or other specialty yet the Writ shall not abate which it shall in other cases as if they vary in the name or sirname or if they vary in the surn The King can hold land of no man As p. 1.18 Elizab. 498. because he can have no superiour but on the other side all lands either immediately or mediately ate holden of him as Soveraign Lord for although a man hath a perpetual right in his estate yet he hath it in the nature of a fee and whether it cometh to him by descent or purchase he oweth a rent or duty for it and therefore when in pleading a man would signifie himself to have the greatest right in his estate Littleton f. 3. he saith Que il est ou fuit seise de ceo en son demesne come de fee that he is or was seised thereof in his demeasne as of fee and if a man holds his estate immediately of the King as of his Crown or person this tenure is called a tenure in capite because he holds it of the supreme head of the Common-wealth If a man holdeth land both of the King and other inferiour Lords whereby his heir becometh a Ward the King alone shall have the custody both of the heir and land the reason which is rendered in law is because the King can have none coordinate with him or superiour to him Glanvil lib. 7. cap. 10. Si quis in Capite de Domino Rege tenere debet tunc ejus custodia ad Dominum Regem plene pertinet sive alios Dominos habere debeat ipse haeres sive non quia Dominus Rex nullum habere potest parem multo minus superiorem i. e. If any man houldeth land of our Lord the King in capite then his wardship shall wholly belong to our Lord the King whether he hath other Lords or not because the King can have no equal much less a superiour Bracton lib. 2. cap. 37. Si aliquis haeres terram aliquam tenuerit de Domino Rege in Capite sive alios Dominos habuerit sive non Dominus Rex aliis praefertur in custodia haeredis sive ipse haeres ab aliis prius fuerit feofatus sive posterius cùm Rex parem non habeat nec superiorem in regno suo i. e. If an Heir holdeth land of our Lord the King whether he hath other Lords or not our Lord the King shall have the wardship of the heir whether the heir were first or last infeoffed by others because the King hath no equal or superiour in his Kingdom The law is the same as well for whole Societies Incorporated and collective bodies as for Particular men if a man should make the two houses his heir leaving them lands holden of them by Knights service if the same persons held also of the King in capite by Knights service the King alone should have the wardship and custody of the heir and land though first infeoffed by the others and the reason in law of this prelation is saith Bracton and Glanvil because the King hath neither equall nor Superiour By the common law there lieth no action or writ against the King but in case he seiseth his subjects lands 21. H. 7.2 or taketh away their goods having no title or order of law petition is all the remedy the subject hath Stanford in his exposition of the Kings Prerogative c. 22. and this petition is called a petition of right The reason which is
is it may be inherent in his own Person and yet be in others too as the light of the Sun is inherent in its own body and yet multiplyed and diffused through the world Now when it is separated from him after that manner it is commonly called their authority to whom it is committed because they are the seat and subject of it That light which the Stares derive from the Sun is usually called the light of the Stars and the Stars are said by the means thereof to concurre with the Sun and to have a causality and operation upon inferiour bodies it is no impropriety to say The light of the Sun and the light of the Stars inlightneth all the world although the light of the Stars be derived from the Sun But secondly what if it be granted that the Lords and Commons have authority of their own distinct from the Kings authority To speak my own opinion freely I think they have a distinct authority I mean not Supreme authority but an authority derived from the King yet distinct from his He that hath but a delegate power if it be committed to him for term of years term of life or perpetuity he doth by such a grant acquire an estate in the said power and an authority distinct from his that gave it him As in an Estate of lands wherein a man hath a perpetuall right in fee simple or in fee taile his right is distinguished from the Kings right of whom he holds it the King having the demeane of the Land and the other the demeane of the Fee so it is in an estate of power and authority if the King granteth an estate of power authority and jurisdiction in fee simple or in fee taile for term of years term of life or perpetuity their rights in the said authority are distinct the King hath the demean of the Power the other the demean of the use the King hath Dominium directum the other Dominum utile And this is the present case the Legislative power is wholely and intirely the Kings yet the Lords and Commons have a perpetual right in the use and exercise of some part thereof so that the King cannot actually make a law except they will also use the authority committed to them it being in their power to assent or not assent to use or not to use the said authority There is an authority then in the Lords and Commons distinct from the Kings authority which must necessarily be put forth in the making of lawes yet not supreme but subordinate to the King derived from him and depending upon him But this is more then can be forced out of the foresaid clause and I think more then is intended in it Object 4 Fourthly that Monarchy in which three estates are constituted to the end that the power of the one should moderate and restrain from excesse the power of the other is mixed in the root and essence of it but such is this as is confessed in the answer to the said propositions Reply The Antecedent and Consequent are both false The erection of Courts wherein the Judges have authority to proceed according to law notwhitstanding the personall and arbitrary Commands of the King hath alwayes been esteemed a strong and effectuall means to restrain and moderate the excesses of Monarchie Yet the Judges cannot be inferred from hence to be coordinate with the King in the rights of Soveraigntie or to have a mixed power with him in the Government of the Kingdome But the Consequent hath neither apparence nor shadow of truth Parliaments were ordained that the other estates might consult with the King about the weighty affairs of the Kingdome as often as he thought it needfull and agree to such laws as should be found profitable and expedient not that they should quarrell and contest with him It is true the two Houses do for the most part in time of Parliament gain an opportunity to have grievances redressed because they may otherwise deny the King the assistance he desire but they have no authority radically in themselves to redresse them or to restrain and moderate his excesses by force of armes nor were they constituted for that end If it should be granted that Parliaments are by originall constitution and agreement and that the People have alwayes given what lawes they pleased to the Conquerour as often as the Crown hath been obtained by conquest yet in probability they could have no such end as this Treatiser imagineth or to abuse the people seemeth to imagine had they purposed the three estates should moderate the excesses of one another in Parliaments they would never have granted the King authority to dissolve them at his pleasure whereby he might easily avoyd and frustrate their intention Besides Parliaments are so tempered as it is imposible to attain to that end by such a mixture one of the estates or any two of them having no authority to make an act of Parliament without the third which way can they moderate the excesses of one another by such acts further then the exorbitant estate shall be willing to be moderated Nor doth his Majesty as he imputeth to him any where confesse that three estates are constituted in this Monarchie to the end that the power of one should moderate and restrain from excesse the power of the other he should therefore have cited his words that the Reader might have judged of their sense These are the objections brought by the Author of the Treatise of Monarchy which are partly taken out of the fuller Answerer and partly invented by himself In answering them to avoyd needlesse Controversies I have granted that a mixed form of government is possible although I be not ignorant that a mixed government is but the invention of later times and reputed impossible by authors of chiefest note I have admitted also that the King the Nobility and Commons are the three estates of Parliament although I know this contrary to the Statutes wherein the three Estates of Parliament are declared to be the Clergy the Nobility and the Commons I have insisted the longer upon these Objections because the Author of the foresaid Treatise is esteemed by some the chief Advocate of that side I intend not to derogate from the Author who I presume would have written more substantially had the case been capable of defence yet if a man may guesse at his humour by that Treatise he seemeth to be much more inclined to assert new principles then to shew reasons how they should be maintained That he might illude the Laws wherein the government of England is declared Monarchical he layeth down divers positions to this effect that where a transcendent interest Part 1. cap. 4. or primity of share is in one man it is sufficient to constitute a Monarchy although the other estates have their shares also in the rights of Soveraignty and supreme Authority but he doth not so much as offer to prove this either by law or
given in law for this is because the King is supreme and accountable to none but God Bracton lib. 1. cap. 1. Non debet esse major eo I. e. Rege in regno suo in exibitione juris minimus autem esse debet vel quasi in judicio suscipiendo si petat Si autem ab eo petatur cum breve non currat contra ipsum locus erit supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ei ad poenam quod Dominum expectet ultorem Nemo quidem de factis suis praesumat disputare multo fortius contra factum suum venire i. e. There ought not to be in his Kingdom a greater then he that is then the King in the exhibition of law but he ought to be the least or as it were the least in receiving judgment if he desire it But if it be desired of him because no writ lyeth against him there shall be place for petition that he would correct and amend his deed which if he refuse to do it is sufficient for his punishent that he may expect God a revenger for no man must presume to dispute of his fact much lesse oppose and resist it And again lib. 4. cap. 10. Item inter caetera videndum est quis sit ille qui deijcit Princeps s ex potentia vel aliquis pro eo vel Iudex qui male judicaverit vel privata persona Si autem Princeps vel Rex vel alius qui superiorem non habuerit nisi Dominum contra ipsum non habebitur remedium per assisam immo tantum locus erit supplicationi ut factum suum corrigat emendet quod si non fecerit sufficient ei propoena quod Dominum expectet ultorem i. e. It is also to be considered who it is that disseiseth whether the King by his power or some other in his name or a Judge who judgeth unjustly or a private person If it be the King or any other who hath no superiour but God there shall be no remedy had against him by assise onely there shall be place for petition that he would correct and amend his deed which if he refuseth to do it is sufficient for his punishment that he may expect God a revenger This is all the help which a subject hath against the King because he is supreme and bound to give an account of his actions to none but God and this is the course which the two houses of Parliament are to take by law in case the King infringeth or is supposed to infringe the rights and liberties of the people as will appear by divers petitions of right exhibited in former Parliaments Secondly I say the English Monarchy by the common law is susceptible of no alteration in the rights and preheminences of Majesty I mean by any Act of Parliament or by any agreement of King and people what a conqueror in a just war or what the people may do in case the blood Royal which God prohibit should be extinct is not now disputable but so long as there remains a King or heir apparent to the crown the rights and preheminences of Majesty can by no act agreement stipulation or covenant made between King and people be severed and taken from the crown should the King unwarily by Act of Parliament consent to any thing prejudicial and derogatory to his Royal prerogative such Acts are void by the common law and the Judges being bound by oath to assent to nothing that may turn to the Kings hinderance or damage are bound to declare them so 23. H. 6. cap. 8. and have done it de facto upon several occasions By a Statute made in the twenty third year of Henry the sixt it is ordained that no man shall continue Sheriff of a Shire above one year and that all patents from the King of that office for term of years of life in fee simple or in fee taile should be void any clause or word of non obstante in any wise put or to be put into such patents to be made notwithstanding 2. H. 7. Coke lib. 7. fol. 14. now this Statute so far as it strikes at the Kings prerogative is by the Judges of the land declared to be void contrary to the express purview of that Act and all Kings since might with a clause of non obstante against the manifest sence and words of that Statute have granted that office for life in tail or in fee. 11. H. 7.11 B. Finch lib. 2 fol. 22. Roy poet licencer choses prohibite per statute come a coyner argent que est fait felonie per un estatute devant ceo fuit loyall a fair car ceo est forsque malum prohibitum mes malum in se come a levier un nusance en le haut chemine Roy ne poet licence home a faire mes apres que est fait il poet ceo pardoner Mes si lestatute dit que son licence sera void la le licence aver ' un clause de non obstante cest assavoir dire non obstante ascune estatute al contrarie ou auterment nest bone come le Statute 33. H. 6. cap. 18. est que grant del Roy deste vicount del ascun countie pluis longement quam per un an serra void nient obstant que son patent aver un clause de non obstante uncore ove un cause de non obstante tiel patent serra bone i. e. The King may licence things prohibited by Statute as to coyn silver which is made felony by Statute but was lawful before for that is evil onely because it is forbidden but that which is evil in it self as to levy a nusans in the high way the King cannot licence a man to do that but he may pardon it after it be done But if the Statute say his licence shall be void there the license shall have a clause of non obstante viz. it shall say any Statute to the contrary notwithstanding or otherwise it is not good As the Statute 23. H. 6. c. 18. is that the grant of the King to be Sheriff of a Shire longer then a year shall be void notwithstanding his patent shall have a clause of non obstante and yet with a clause of non obstante such a patent shall be good So likewise the King hath a power to dispense with penal Statutes and if such dispensations should be prohibited or made void by Act of Parliament Coke lib 7.37 yet with a clause of non obstante they shall be good although it should be provided in express terms that such dispensations notwithstanding the said clause should be of none effect By divers Statutes it hath been enacted 2. E. 3. cap. 2. 4. E. 3. cap. 13. 14. E. 3. c. 14. that no charter of pardon of the death of a man nor of other felony should be granted yet all these Statutes are by