posse Comitatus if need be to expell this Officer of the Kings and bring him to condigne punishment for resisting the Kings authority in his Lawes Here now is raising of Arms by the Kings legal authority against the Kings Title and the Kings Officer notwithstanding any pretended authority from the Kings personall command and that Officer hath a Writ of Rebellion sent against him and shall be punished by Law for offering to resist the Law upon any pretence ask the Lawyers whether in sence this be not the Law and ordinarily practised save that the King do not command the contrary but whether that would hinder Law or not the Parliament may then in case of necessity raise arms against the Kings personall command for the generall safety and keeping possession which is more necessary then the hope of regaining of the Houses Lands Goods Liberties Lives Religion and all and this by the Kings legall Authority and resisters of this are the Rebells in the Lawes account and not the instruments so imployed legally though with Arms by the Parliament Reply For matter of fact it was themselves that withheld Delinquents from a legall tryall the King detained none but when divers Members of the Parliament were assaulted in the streets driven from the house defamed by Libells and Justice not permitted to take place it was the office of the King to protect them in their Rights and Liberties and to force the due execution of the Lawes and if he refused to yield up those to their injustice which assisted him this was not to keep Delinquents from their tryall but to protect his loyall subjects according to law this for matter of fact But for matter of Right suppose the King had taken up arms unjustly the Law doth not permit his Courts to oppose him or to call any in question that are assistant to him when the King taketh up arms they which attend upon his Person or are imployed in other places about the same service may not be molested or troubled by processe of Law either in Parliament or in any of his Courts as is declared and enacted by a Statute made the eleventh year of Henry the seventh The King our Soveraign Lord calling to his remembrance the duty of Allegiance of his Subjects of this his Realm 11. H. 7. cap. 1. and that they by reason of the same are bound to serve their Prince and Soveraign Lord for the time being in his wars for the defence of Him and the Land against every rebellion power and might reared against him and with him to enter and abide in service in battail if case so require and that for the same service what fortune ever fall by chance in the same battail against the mind and will of the Prince as in this Land sometime passed hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Soveraign Lord in Wars attending upon him in his Person or being in other places by his Commandement within this Land or without any thing should lose or forfeit for doing their true duty and service of Allegiance It be therefore ordained enacted and established by the King our Soveraign Lord by the advice and assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upon the King and Soveraign Lord of this Land for the time being in his person and do him true and faithful service of Allegiance in the same or be in other places by his Commandement in his Wars within this Land or without that for the said deed and true duty of Allegiance he or they be in no wise convict or attaint of high treason ne of other offences for that cause by Act of Parliament or otherwise by any processe of Law whereby he or any of them shall lose or forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chattels or any other things but to be for that deed and service utterly discharged of any vexation trouble or losse As for the case that is put by them it is very impertinent and the whole Objection made both by Mr. Bridge and themselves full of erronious passages and mistakes first they assume the two Houses to be the whole Parliament Secondly they assume them to be a Court of judicature Thirdly they assume the Judges to have a power of suppressing any Delinquents and maintaining themselves by arms The two former assumptions are absolutely false and the latter true only in some cases so far as they have order of Law and no man deny such a power to be in either of the Houses they may force Delinquents to appear before them in such cases and in such a manner as the Law hath provided for what is so done is done by the Kings Command in Law which is to be obeyed before his personal commands But they must proceed no further nor after any other manner then the King commands in Law And first although the Kings bare Command be not sufficient to warrant his Tenant or others to resist the sentence of his Courts yet if the King in Person taketh up arms and granteth Commissions to any to assist him his Courts must then forbear all processe of Law and desist from all further opposition as is provided in the foresaid statute And secondly although the King doth not authorize the fact in person or by Commission yet neither the two Houses in Parliament nor the Judges can make what Ordinances they please to raise arms or imploy their own instruments to bring in Delinquents but must proceed according to order of Law and commit the whole carriage of the businesse to such of the Kings Officers as are appointed for that purpose which are chiefly the high Sheriffs of Counties who are also confined by Law and may not exceed their Commission For both in the case put by the reverent Divines and also in all cases whatsoever if Delinquents grow so strong that they be able to resist the posse Commitatus and cannot be suppressed but by a War and by the Militia of the Kingdom the Sheriffe ought then to certifie the Court thereof and the prosecution of the matter must be left to the King to whom only it is reserved to preserve the peace of the Kingdome in such cases Object 2 Secondly against the Kings Negative voyce they urge the Oath taken at his Coronation whereby they say he is bound to give his assent to all Bills offered him by the Lords and Commons They have found out a form in Latin which they say was anciently used and ought now to be taken the Form is this Concedis just as leges consuetudines esse tenendas promittis pro te eas esse protegendas ad hónorem Dei corroborandas quas vulgus elegerit secundum vires tuas Resp Concedo
the common law made void Stanford lib. 2.101 because they cut off part of the Kings prerogative So likewise to grant letters patents of Denization is esteemed by the common law inter jura Majestatis insignia summae potestatis Coke in Calvins case and is so inseparably and individually annexed to the Royal person of the King as it cannot be divided from it That which I have hitherto said of the rights and preheminences of Majesty is to be understood of those rights and preheminences that are so essential to it as they cannot be separted without the diminution or destruction of Majesty As the power of the Militia the power of making laws the power of appointing Judges and such like Acts of jurisdiction as also the power of dispensing with penal Statutes the power of pardoning the transgressions of the Law the power of prosecuting the law and such like supreme acts of justice and mercy some of which rights and preheminences cannot be taken away without giving a wound others not without bringing death and dissolution to Majesty yet there are other rights and preheminences that are called priviledges which are not so essential to Majesty but that they may by special grace of the King be separated Bracton lib. 2. cap. 24. Ea vero quae jurisdictionis sunt pacis ea quae sunt justitiae paci annexa ad nullum pertinent nisi ad Coronam dignitatem Regiam nec à Corona separari poterunt cum faciant ipsam Coronam Ea vero quae dicuntur Privilegia licet pertineant ad Coronam tamen à Corona separari possunt ad privatas personas transferri sed de gratia ipsius Regis speciali id est Those things which belong to jurisdiction and peace and those which are annexed to justice and peace pertain to none but the Crown neither can they be separated from it because they make the Crown But those which are called Priviledges although they pertain to the Crown yet they may be separated from it and transferred to private persons but not without the special favour of the King It may seem strange that the King and the Lords Spiritual and Temporal and the House of Commons which are virtually the whole kingdome should not have power to make what Laws they please and to bind themselves and the whole kingdome by them in things not repugnant to the law of God yet if we consider the ground of this restraint we shall find it reasonable for they which lay the first foundation of a Common-wealth have authority to make lawes that cannot be altered by posterity in matters that concern the rights both of King and people for foundations cannot be removed without the ruin and subversion of the whole building As for example the division of things which is made at the first foundation of a Commonwealth whether the people took the countrey they divide from the Inhabitants by conquest in a just war or whether they did first actually possesse it themselves as being before emptie and vacant cannot be altered by posterity and a new division made without manifest injustice The Laws which they then make for the preservation of their right and propriety in the said division can not be disannulled by succeeding Parliaments nor can any particular man be deprived of his inheritance which descends unto him by virtue of that division or of any part or parcel or appurtenances thereof by any contrary law which shall be made by them I speak not what Parliaments may do by force but what they may justly do for they have not such an arbitrary power but that they are alwayes in a morall subjection to the rules of justice and natural equity And in this case the Kings condition ought not to be worse then the peoples but his share and rights in the said division are as firmly and unchangeably to be preserved as the share and rights of particular men And both the King and people are obliged to this not only by the rules of Justice and natural equity but by oath and by the municipal Lawes of the Land l. 17. to which they are both sworn That the King is bound to this appears by the Lawes of King Edward Debet vero de jure Rex omnes terras honores omnes dignitates jura libertates coronae regni hujus in integrum cum omni integritate sine diminutione observare defendere dispersa dilapidata amissa regni jura in pristinum statum debitum viribus omnibus omnibus revocare i. e. The King ought by right to maintain and defend all the Lands honours dignities rights and liberties of the Crown entirely without diminution and by all means to recall again those rights which are lost and separted from the Crown That the people are bound to this l. 35. l. 56. appears likewise by the Lawes of King Edward and of William the Conquerour who did a little inlarge the Lawes of King Edward in this particular Statuimus etiam firmiter praecipimus ut omnes liberi homines totius regni nostri praedicti sint fratres conjurati ad Monarchiam ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servandum pacem dignitatem coronae nostrae integram observandam ad judicium rectum justitiam constanter omnibus modis pro posse suo sine dilatione faciendam Hoc decretum sancitum est in civitate London i. e. we will and command that all free men of our Kingdom be sworn Brothers to defend and keep our Monarchy and Kingdome according to their power against the Enemies of the same and to maintain the peace and dignity of our Crown entire and to exercise right judgement and justice according to their power without deceit and delay This Decree was enacted in the City of London By the civil law also the rights of Soveraignty cannot be separated from the Prince and the reason alleadged is because they are essential to Majesty Suprema jurisdictio potestas regia etsi Princeps velit se separari non possunt sunt enim ipsa forma substantialis essentia Majestatis ergo manente ipso Rege ab eo abdicari non possunt Cabedo practic observ par 2. decis 40. n. 8. Io. Andr. in addit ad specul tit de jurisdict c. Cum Marthae de celebrat Missar i. e. Supreme jurisdiction and Kingly power cannot be separated from the Prince although he would himself for they are essential to Majesty and cannot be abdicated whilst he remaineth King CHAP. V. The Kings Supremacy in particular shewed by the Common Law I Come now to the particular rights of Soveraignty which are all by the Common law wholly in the power of the King First 19 E. 4.6 Coke 7.25 B. the Militia is his by the Common Law and to him it only pertaineth to make War with
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
upon the Statute of Glocester made in the sixt year of Edward the first extant amongst the printed Statutes and following immediately after the said Statute in these words After by the King and his Justices certain expositions were made upon some of the articles above mentioned that is to wit to the first article for entries by disseisin damages shall run from the time of the Statute published In the same wise in writs of entre upon disseisin in all writs of Mortdauncester Cousenage Aiel or Befaiel of intrusion by one act by any manner of writ damages shall run after the writ purchased against them that held by Statute albeit their ancestors died seised thereof c. Here we see to whom the interpretation of the law belongeth the Judges by themselves have a power to interpret it judicialiter they could not otherwise proceed to judgement but being called by the King with him and under him they have a power to interpret it authoritative as hath been the practice and is the known law of the Land But for the two houses besides that they can do nothing joyntly together unless the King doth actually concurre with them their structure is such that they are altogether uncapable and unfit to interpret law For the power that interprets law must be always existent to act as new occasions shall arise which requires the exercise of that power which the two houses are not And yet were they alwayes existent both houses having a negative voyce upon any disagreement between them the interpretation of the law must be retarded and all controversies depending thereupon undecided and this disagreement might perhaps endure for ever and so a final determination in such suites would be impossible Now these are inconveniences which ought not to be admitted in any common-wealth for it derogates both from the honour and wisdome of a Nation to be so moulded and framed that justice cannot have a free passage in all contingencies I will yet adde for the further clearing of this point that not only the legislative power it self but the very exercise of the power also so far as it is essential to government is in the King alone for he can by edicts and proclamations provide for all necessary occasions and special emergencies not provided for by fixed and certain laws which is one of the most excellent and eminent acts of the legislative power and a sufficient remedy against all mischiefs in case the two houses should refuse to concur with him in those things which concern the benefit of the Kingdome He may also grant immunities liberties and priviledges to any colledge town city or incorporation and authorise the said communities to make such local Statutes as shall oblige every member thereof so far as they contradict not the general Statutes of the Land which are all acts of the legislative power that he can exercise without the concurrence of the two houses Now concerning the Kings negative voice 12. H. 7.10 4. H. 7.18 7. H. 14. Judge Jenkins fol. 18. it is the known law that the King hath a power of dissenting and that no act of Parliament can have any authority except either in person or under his seal he signifies his assent Thirdly allegeance or ligeancy is due to the King and none but the King by the Common law as Sir Edward Coke sheweth at large in Calvins case from the resolution of the Judges By that which hath been said appeareth saith he that this ligeance is due onely to the King so as therein the question is not now cui sed quomodo debetur It is true that the King hath two capacities in him one a natural body being discended of the blood Royal of the realm and this body is of the creation of almighty God and is subject to death infirmity and such like The other is a politick body or capacity so called because it is framed by the policy of man and in the 21. E. 4.39 B. is called a mystical body and in this capacity the King is esteemed to be immortal invisible not subject to death infirmity infancy nonage c. Vide Pl. Com. in le Case de Seigmor Barclay 238. Et in the case del duchie 213. vide 6. E. 3.291 26. ass pl. 54. Now seeing the King hath but one person and several capacities and one politick capacity for the realm of England and another for the realm of Scotland it is necessary to be considered to which capacity ligeance is due and it was resolved that it was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural capacity and is not due to the politick capacity onely that is to the crown or Kingdome distinct from his natural capacity In the same case a little after it followeth And where divers books and Acts of Parliament speak of the ligeance of England as the 31. E. 3. tit Cosinage 5.42 E. 3.2.13 E. 3. tit Bre. 677.25 E. 3. Statut. 2. De natisultra mare All these and divers other spenking briefly in a vulgar manner for loquendum ut vulgus and not pleading for sentiendum ut docti are to be understood of the ligeance due by the people to the King For no man will affirm that England it self taking it for the continent thereof doth owe any ligeance or faith or that any ligeance of faith should be due to it but it manifestly appeareth that the ligeance or faith of the subject is proprium quarto modo to the King omni soli semper Fourthly the power of making Judges and all such State officers as exercise any jurisdiction is in the King alone by the Common law and can not nor ought not to be separated from him for it is not reasonable that delegate Judges should be substituted by any but those whose delegates they are nor can a King execute justice according to his oath which next the Glory of God is the chief end of Government by a naked title onely His subjects may be vexed by the rapine and exactions of unjust Judges they may be wearied by delayes exhausted by insupportable fees opprest many several ways and the King in the mean time must stand still and look on if his hands be bound and he disabled from punishing their delinquencies deputing others into their places And therefore this power cannot be disunited from the crown but ought to be de jure as it hath alwayes been de facto a part of the Kings prerogative Bracton lib. 3. tit de actionibus cap. 10. Et si ipse Dominus Rex ad singulas causas terminandas non sufficiat ut levior sit illi labor in plures personas partito onere eligere debet de regno suo viros sapientes timentes Deum in quibus sit veritas eloquiorum qui ederunt avaritiam quae inducit cupiditatem ex illis constituere Justiciarios
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