by inheritance or election For the first investiture I find none to insist upon it though the rule of investing if there be any should be sought in the fundamental Charter If the Crown be hereditary to the Kings and they have it as their own Fee they may dispose of it and of themselves appoint their Successor whom they please and King Henry 8. might without any Act of Parliament have designed by will which of his Children should succeed him And Queen Elizabeth might have nominated either the King of Scots or any other besides him for her Successor Some may demand what right she had to nominate or any other after her death to proclaim her Successor One answer to this demand may be That her wise Council did forsee that this was an effectual if not the only way to prevent greater mischiefs and effusion of blood which in all probability might have followed if this course had not been taken And in an extraordinary case some extraordinary thing tending to the publick good may lawfully be done Yet this is not to be made an ordinary rule and followed as an ordinary Example A third way of acquisition is by election and consent of the people Thus the first King as the Mirrour tells us in express words was elected So were the Saxon Kings till Edward the Confessor the last King of the Saxon Race So was William the second Henry the first Stephen John. The manner and form of the Coronation which contains in a few words much of the Constitution determines the Succession to be by Election Those words of Fortescue to the Prince Non habes potestatem regiam sed a populo effluxam imply so much The Conqueror himself who as a Bastard could not inherit the Crown confesseth that he possessed not the Crown Jure haereditario To this purpose the old book of Caen is alledged These things are above me and out of my element therefore to be judged of by the learned Antiquaries in Law. But suppose it be granted to be elective yet it 's elective in a certain line for such hath been the practice for a long time which is conceived to be more convenient Yet the Author of the due Rights of the Kingdom saith That if a King had such Children so qualified and so educated that they were above others in virtue wisdom and true worth or at least caeteris pares they were the most likely Candidates for the Crown section 12 But let the manner of acquiring this regal Power be either by and from the first investiture or by inheritance or by election the second point and the same of more importance is to know what this power once acquired and possessed is For the Roman Emperors acquired their power by election and yet it was absolute as is pretended and very great And here I do not intend to say any thing of his excellent Dignity his Scepter Sword Throne Crown Robe Titles the Honour due unto them for these are not so material as the Prerogatives of the King of England Prerogatives saith Sir Roger Owen are the Flowers which by time immemorial the Commons of this Realm have granted the Kings thereof If this be true he hath no Prerogatives but such as are granted him and that by the Commons of England But Judge Crook is no flatterer he speaks plainly and saith he knows no Prerogatives the King hath but this that he cannot do wrong This may be understood either as it agrees to all Sovereigns or as to the Kings of England in a more special manner It 's true that no Sovereign though absolute and Despotical can do wrong For Id quisque potest quod jure potest The meaning is they ought not to do wrong for to do wrong is contrary to the Laws of God whereby they hold their Crowns and also to the very end for which God instituted civil Government Yet there is a more special reason why the Kings of England can do no wrong because they are Kings by Law they cannot bind by their personal commands but by their Regal which are not Regal if not Legal Again he doth all things like an Infant in his minority by his Ministers of State to whom he can grant no Power or Commission to act but according to Law. Therefore if any wrong be done as much is it 's done by them and they not the King are chargeable with it and questionable for it Yet he hath power and great power and it 's not the less but rather the greater and more like unto Gods because it 's limitted by Law. He Summons Parliaments makes Officers conferrs Honours sends and receives Embassadors and gives them answer makes Leagues with other States and other things formerly mentioned when I spake of the second king of personal Majesty Yet if we may believe Bracton he hath all this from the Law. For Lex facit Regem and he is but trusted with the exercise of it for the protection of the people and the execution of the Laws in which respect it seems to follow that if the Law be above him they who make the Laws must needs be above him section 13 But in the third place though the King hath great power yet there is some power in the Kingdom which he hath not For he cannot abolish Parliaments he cannot refuse to call them either when the Laws or the ardua Regni require them he cannot exercise the Militia but according to the Laws neither can he make or repeal Laws without the Parliament he cannot command the Purse he cannot alienate the Crown or the Crown-Revenue nor dispose of the Crown as his own hereditary Fee divers other things there are above his power Yet the Kings of England have challenged and exercised far greater power than the Laws and Constitution gives them But that was matter of fact and cannot found a Right We read that King Richard the second was charged as with other things so with these two 1. That he said the Laws were in his head and his breast that is he had the Legislative power solely to himself 2. That he denied to approve the Laws made by the Parliament that is he challenged a negative Voice In both these Arnisaeus undertakes to maintain his cause as just and that he did but challenge his due Lib de authoritate principum in populum semper inviolabili Cap. 4. Yet all his whole answer is but petitio principii For presupposing the King of England to be an absolute Monarch which we know he is not he takes upon him to answer the whole charge which he might easily do if he take for granted that which he can never prove nor English Men especially Antiquaries in Law will never grant him that he wrote against Rebellion and Treason and maintained the just and lawful authority of Princes he did well but that he should write as a Pensioner to the King and so presumtuously judge of the Constitution of a Foreign
Dignity or Honour without any Power The nature of it consists in Power which hath several branches concerning which he relates the Opinion and Judgment of the Philosopher of Historians of the writers of Politicks of Lawyers and in the end delivers his own mind and reduced them to certain Heads in this manner Iura majestatis sunt Majora Defensionis Gubernationis in Minora de aerario colligendo Legibus condendis Magistratibus constituendis The first division is taken from the inequality of these Prerogatives and Rights The second he seems to ground upon these words That our King may judge us and go out before us and fight our Battels 1 Sam. 8.20 Where to Judge seems to signifie to Govern by Law and Officers to go out before us and fight our Battels presupposeth in his Judgment the power of the Militia To these he adds other two concerning the ordering of Religion and Coining of Money Under these general Heads he reduceth many other particulars and so proceeds to handle 1. the greater 2. The less Prerogatives severally and that largely This with the salving of some doubts and confuting some Errours is the Scheme and substance of the whole Treatise divided into three several Books section 8 Leaving every one to his own method I will with submission to better Judgment make bold to deliver my own Majestas est Realis quae potest rempublicam Constituere abolere mutare reformare Personalis quae agit cum exteris De Bello Pace Per Foedera Legationes suis circa divina religionem ordinando humanae leges ferendo exequendo This though not exact may serve the turn and in some measure declare the several branches of this great Power which in it self is but one yet hath many acts and the same different in respect of several and different Objects and Subjects I only mention the chief Heads to which the rest may be reduced for the better and more distinct understanding of it I will more particularly explain my self 1. Therefore Majesty is Reall Personal Real is in the Community and is greater than Personal which is the power of a Common-wealth already constituted For as you have heard before this form of a Common-wealth is virtually in it before it be constituted and their consent is the very foundation of it And this consent whether mediate or immediate tacit or express is so necessary that though a people be conquered yet the Victor cannot govern them as men without their consent Nay more when God designed immediately first Saul then David yet the election and consent of the people did concur with and follow upon the Divine Designation As this Real Majesty is a Power to model a State so it s always inherent and can never be separated insomuch that when a form of Government is dissolved or there shall be a failer of Succession the Power of the Soveraign doth divolve unto them by the law of nature or rather it was always in the people As this Community hath the power of constitution so it hath of dissolution when there shall be a just and necessary cause Hence appears the mistake of Junius Brutus Buchanon Heno and others when they say Ejus est destituere Cujus est constituere if they meant it of the multitude and body of the Subjects as Subjects under a form of Government it can only be true of a Community where they have just and necessary cause Subjects as Subjects cannot do it because of their Subjection and Obligation whereas the Community as a Community is free from any Obligation to any particular Form either from the Laws of God Natural or Positive or from their own Consent or Oaths And though the People in this consideration are bound both by the Natural and Positive Laws of God to constitute a Government if they can yet they are not bound to this Form or that Another Act of this Majesty in the Community is when they see it necessary and just and they have not only Power but Opportunity to do it to alter the Form of the Government this Act as with us is above the Power of a Parliament which may have Personal yet cannot have this Real Majesty For a Parliament doth necessarily presuppose a Form of Government already agreed upon whereby they are made the Subject of Personal Soveraignity Therefore they cannot alter or take away the cause whereby they have their being nor can they meddle with the fundamental Laws of the Constitution which if it once cease they cease to be a Parliament If the Government be dissolved and the Community yet remains united the People may make use of such an Assembly as a Parliament to alter the former Government and constitute a new but this they cannot do as a Parliament but considered under another Notion as an immediate Representative of a Community not of a Common-wealth And thus considered the Assembly may constitute a Government which as a Parliament cannot do which always presupposing the Constitution as such can act only in and for the administration That Community is wise which doth and happy which can keep their Majesty so due unto them as to limit their personal Soveraigns so as not to suffer them to take it from them and assume it to themselves section 9 As there is a real so there is a personal Majesty so called because it 's fixed in some Persons who are trusted with the exercise of it and may and many times do forfeit to God and in some cases forfeit to the Community or the People for when it is said it may be forfeited to the People we must understand that the People is not Plebs the meanest and the lowest rank and but a part of the Community but the whole Community it self as a Community otherwise we may lay the Foundation of all kinds of Tumults Confusions Seditions and Rebellions The Person or Persons trusted with the Majesty and Power are bound to seek the good of the whole People and for that end they are trusted with it and no otherwise Hence the saying Suprema lex salus populi esto The Acts of this Power which it hath a right to exercise are many and that in respect of those without or those within the Common-wealth For agit cum exteris it dealeth and acteth with those without This is not the first but rather the last kind of acting It ariseth from the relation which it hath to other States with which it may have some society though it hath no dependance upon it The Rules of this Acting as it respects themselves and the States with whom they deal are the Laws of Nations Yet the particular Laws of every several State may determine the Rules according to which it will act with or against another State. Because one State may wrong or benefit or strengthen and help another hence it comes to pass that sometimes there is a cause of War. For when by Ambassadours or other
on the other hand we must not be too scrupulous and pretend Conscience and yet make our Fancy or some humane Constitutions our Rule and adhere unto them as though they were Divine Institutions For some whilst they refuse either to submit or act under a power in their conceit usurped they become guilty of more hainous Sin and when they presume they are faithful to some personal Majesty they prove unfaithful to Real and their own dear Country preferring the Interest of some Person or Family or persons before the good of the whole body of the people to whom they owe more than to any other And whosoever will not be faithful unto his own Country cannot be faithful to any form of Government or personal Governours Yet whosoever will handle this point accurately must first define what Usurpation in general is 2. How many kinds and differences of Usurpation there be and 3. What the particular Usurpation is against which he argues and 4. State the particular Case with all the Circumstances section 5 The continuance and dissolution of a Legal Power is also to be observed As for real Majesty it always continues whilest the Community remains a Community and subjection to this is due till it be destroyed Subjection to personal Majesty in a Representative cannot in just things be denied till a latter Representative make their power void The personal Majesty of a King with us requires subjection whilst he lives and governeth according to Law but upon his Death or upon Tyranny likewise or acting to the dissolution of the Fundamental Constitution he ceaseth to be a Soveraign and the Obligation as to him ceaseth A Parliament turning into a Faction acting above their Sphere wronging King or People cannot justly require nor rationally expect for Subjection And though private persons cannot yet the people by a latter and well ordered Parliament may both judge them and call the Exorbitant Members to account When a personal Soveraign cannot protect his Subjects because their Lives Persons and Estates are in the power of another he cannot rationally require subjection but for the time at least he should be willing to free them from Allegiance and to let them make the best terms they can for themselves But voluntary Revolt or Rebellion cannot free them from this Obligation to their lawful Soveraign In a word so many ways as Majesty and Soveraignty may be lost so many ways this Obligation may be dissolved Yet in all these Dissolutions Subjects must remember that their Obligation to God and their Country doth continue when not only Personal Soveraigns but also the Forms of Government are altered There are just Causes and Reasons of the Dissolution of this Obligation and there are also unjust pretences and grounds of denying Subjection If any one of an innovating humour or desire of alteration or discontent with their present Governours or conceits of false Titles or an intention to advance some of their own party or a belief that any forraign Prince or Priest can absolve them from their Allegiance or that their Soveraigns are wicked or do not administer justly or are Tyrants when they are not or in any such like case shall seek to cast off the Yoke and think themselves free they must needs be guilty and cannot be excused Those are the greatest Offenders who are Enemies to Government it self under pretence of liberty or impunity in their Crimes vailed under the notion of self-preservation or a reformation of some things amiss section 6 The Oaths of Allegiance and Supremacy could alter nothing in the Constitution and both did presuppose our Allegiance due to England according to the fundamental Laws and could neither take it away nor add any thing unto it The Parliament by them might declare what was the Duty of every Subject The occasion of them both are well known the end was to exclude all forraign Power in matter of Religion and civil Right in both which the Pope had usurped formerly and might do so for future times especially seeing many Subjects did incline so much unto the Sea of Rome They seemed to bind the Subjects taking them not only to the present Kings or Queens but their Heirs and Successors For the King might have Heirs and Successors and he might have no Heirs and yet have Successors For Queen Elizabeth had no Heir or Heirs but a Successor she had Yet because the Crown is not entailed by common Law and the fundamental Rule as some tell us therefore none is a Successor till he be designed and actually invested and acknowledged and till then the Oaths were not administred to be taken by any particular subject The Oath taken to the former Prince if once removed by Death or some other way though it expressed Heirs and Successors was not thought sufficient it must be taken anew unto the present Successor by Name Yet if the Crown had been entailed or the King 's proper Fee by Inheritance this seems to be needless One reason of these words inserted seems to be this that seeing Succession and Election was usually in a Line it was intended by them to exclude Pretenders and all Power of the Pope or any other to dispose of the Crown when the former Possessor was removed or deceased yet they did not so tye us to be faithful unto the Power of England to be exercised by King Peers and Commons as that it were unlawful to be true and faithful unto the Community of England though under another form The Obligation to our Country was far higher and fidelity to it was due by the Laws of God and Nature so that we must seek the good thereof though the Government was altered Fidelity unto the Community is first due Fidelity to it under some form of Government was the second Fidelity unto it as under that form by King Peers and Commons was the third Fidelity unto the person of the King is the last and presupposeth the former whosoever understands and takes them otherwise perverts the true meaning and makes them unlawful The Protestation and Covenant were made in a time of danger and distraction and did include or presuppose the former Obligations yet the Protestation superadded something concerning the Protestant Doctrine of the Church of England to be maintain'd and the Covenant something of Discipline as to be performed and both extended to the preservation of the peace and union of the three Kingdoms Neither of them did allow any unlawful means to compass these ends Neither of them could take away our Obligation to our Country and destroy our English Primary Interest but it remains entire and since all the alterations made afterwards we are as much as ever bound to seek and promote the same and whosoever will refuse to do so upon pretence of these Oathes the Protestation and the Covenant he is Traytor to the common good of the Nation For as there is a positive so there is a negative Infidelity For though such did not use