in one single Person yet the Monarch is so limited in the Execution of that Power that he cannot legally perform several Acts of Soveraignty without the Concurrence of his Subjects as with us here in England the King neither makes LAWS nor doth raise Taxes without his Parliament If this be the utmost they design when they call England a mixt Monarchy then though the Expression is very improper an arrand Bull a flat Contradiction in adjecto yet where we are agreed in the Thing we shall not contend about VVords but may safely grant that in this Sense as now explain'd The Government of England is a mixt Monarchy But if by a mixt they denote such a Monarchy wherein though the Style and Title of King together with some Ceremonious Appendices of Royalty as Cap and Knee Guards c. are indeed invested in One single Person yet the Supreme Power and Soveraignty is not solely and intirely in the Monarch exclusively to all others as with us here in England say these Men the Soveraignty by way of Coordination is partly in the King partly in the Lords and partly in the Commons and for this reason they are styled the Three Estates of the Kingdom if this be their Notion of a mixt Monarchy as most plainly it is if Actions may interpret Intentions it is then not only false and absurd but dangerous and destructive And therefore in this Sense we do peremptorily deny That the Government of England is a mixt Monarchy For The Supreme Power is solely in the King and consequently the King is not by way of Coordination One of the Three Estates but the HEAD and Soveraign of them all In order to his Conviction the Dissenting Republican who denyes this Truth may please to consider That he who shall desire to inform himself rightly where the Supreme Power in any Government is plac'd as also by whom how and how far such Power hath from time to time been either exercis'd or restrain'd he must of necessity have recourse to the Publick Laws and Constitutions of such Government Particularly here in England he who designs to be truly instructed in this matter he must not receive his notice from the Discourses of private men which are many times fallacious partial and uncertain but he ought to consult the Known Laws and Statutes those Authentick Records of the Kingdom Now the Oath of Supremacy establish'd by several Parliaments doth expresly Declare That the Kings Highness is the only Supreme Governor of this Realm and of all other his Highness Dominions and Countries as well in all Spiritual or Ecclesiastical Things or Causes as Temporal Words as plain and intelligible as the Wit of Man could devise From whence 't is obvious to make this Inference That if the King is Supream then he hath no Superior if only Supream then no equal If over all Persons and as such the 55th Canon enjoyns us to acknowledg him in our Prayers then All Persons in these his Realms and all other his Dominions and Countries are subordinate or Subject unto him and if subordinate then none of them either severally or joyntly are coordinate with him Now is it possible after so plain and express a Determination for any Man to doubt That the Supream Power is solely in the King I observe it is possible For some Men who will not be satisfy'd with Reason do thus urge That the Oath of Supremacy being expresly levell'd against the Usurpations of the Church of Rome was consequently so fram'd as to discover those who are Popishly affected For the Persons taking that Oath are obliged only to Declare That they Renounce all Foreign Jurisdictions i. e. They do swear That the King of England is no Feudatory Prince and that he holds not his Crown in Fee either from the Pope or any Foraign Power whatsoever But what is all this say these men to the Parliament Or how comes this Oath to be urg'd against the Jurisdiction of the two Houses Since in those very Statutes in which this Oath is enjoyn'd the Legislative Power which doubtless is the Supream Power is expresly Established in the Parliament as well as in the King in these Words Be it Enacted by the Kings most Excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same Lords Spiritual and Temporal and the Commons do Enact joyntly with the King and therefore have a Coordinate Power To which it is thus Reply'd That when this Oath of Supremacy was first framed the Pope being then the most noted Usurper was for that reason more particularly mention'd than any other but from thence to infer That it was design'd by way of Test to discover Those who are Popishly-affected is a very great Mistake For the Supremacy of the Kings of England being the chief Prerogative of the Crown was always challeng'd and maintain'd by (a) V. 27. Ed. 3. c. 1. 3 R. 2 c. 3. 7 R. 2. c. 12. 16 R. 2. c. 5. 2 H. 4. c. 4. 6 H. 4. c. 1. 24 H. 8. c. 12. 25. H. 8. c. 19. 26 H. 8. c. 1. 37 H. 8. c. 17. Parl 2. 1. Mar. c. 1. Popish Princes as well as Protestant (b) 1 Eliz. c. 1. 5 Eliz. c. 1. 13 Eliz c. 2. as appears by these several Statutes here mention'd in the Margent The Intent then of this Oath was not to discover who are Papists but in plain Terms who are Traitors And therefore let Mens Pretences to Religion be otherwise what they will if by scrupling this Oath they refuse to give assurance to the Government that they will be honest and loyal they are to be esteem'd if not Traitors yet at least Trayterously affected And whereas they further urge That the Coordinate Power of the Parliament is no way condemn'd by this Oath which only takes notice of a Foraign Usurpation They are for their satisfaction desired to consider That since rectum est Judex sui obliqui Domestick Usurpation is hereby excluded as well as Foreign The Soveraignty of the People as well as of the Pope And as to that which is pleaded from the Form of the Statute by the Authority of the same as if the Lords and Commons did by their Authority make and enact Laws joyntly with the King To this I do humbly Answer That this Expression if duly consider'd doth not in the least favour the Republican Fancy of a Coordinate Power Which I shall best express to vulgar Capacities for whom this Discourse is chiefly design'd thus faithfully by representing the Matter of Fact Although the Legislative Power is solely in the King yet His Majesty doth not make Laws without the concurring Advice and Approbation of his Subjects For the King like other Men being mortal and of limited Capacity is neither omniscient nor omnipresent He cannot be in all Parts of his Dominions at one and the same time and consequently can no otherwise be acquainted with
THE Royal Apology OR AN ANSWER TO THE Rebels Plea WHEREIN The most Noted Anti-Monarchical TENENTS First Published by DOLEMAN the Jesuite to promote a Bill of EXCLUSION against King JAMES Secondly Practised by BRADSHAW and the Regicides in the actual Murder of King CHARLES the 1st Thirdly Republished by SIDNEY and the Associators to Depose and Murder his Present MAJESTY Are distinctly consider'd With a PARALLEL between DOLEMAN BRADSHAW SIDNEY and other of the True-Protestant PARTY LONDON Printed by T. B. for Robert Clavel and are to be sold by Randolph Taylor near Stationers-Hall 1684. TO THE READER IN the Year 1594. the Jesuit PARSONS published a Conference under the Name of DOLEMAN The Design of which Pamphlet as every one knows was to promote a Bill of Exclusion against King JAMES And though the Jesuites malice was herein defeated as to the Person of that King yet how much it influenc'd the Sufferings of his late Majesty is a sad story to repeat For he who shall peruse the many virulent Libels which first occasion'd and then fomented that unnatural Rebellion he will easily be instructed how that Conference was Transcribed and Transprosed by the Patrons of the Faction And to speak in our Modern Language he cannot but observe That the Popish DOLEMAN is the Oracle of the TRVE-PROTESTANT Party Now that this may not be rejected as a slandering Design only to make them odious to Authority as is commonly Objected I have here drawn for the Readers satisfaction a short PARALLEL between Doleman Bradshaw Sidney and some others Upon perusal of which it will plainly appear that the Jesuites Principles as managed by Bradshaw and the Regicides did cut off the Head of King CHARLES the first And since the same Principles have been transcribed by the Brethren of the ASSOCIATION we have just reason to suspect the fame Practices likewise And that those who defend the Murder of King CHARLES the first would doubtless if they had Power in their Hands Depose and Murder King CHARLES the Second If any Republican shall think fit to doubt that the following Discourse is either Partial or Vnconconcluding i. e. that I have either said something that is false or else have omitted in any Instance the very Strength of their Cause let him make known his Grievance And I do here faithfully promise upon such notice given I will through Divine Assistance endeavour his Satisfaction THE CONTENTS THe Occasion of this Treatise Pag. 1. Which Consists Of an Objection p. 3. and its Answer p. 5. Containing these Particulars viz. The Government of England not a mixt Monarchy p. 6. The King not one of the three Estates p. 16. In what sence the King of England is an Absolute Monarch p. 19. And how he is Limited p. 43. That known saying of BRACTON Lex facit Regem how to be understood p. 20. That other controverted Passage Rex habet Superiorem Deum Legem etiam Curiam largely considered p. 25 ad p. 37. Of the Coronation Oath p. 38. Of the Kings Prerogative p. 45. THE Royal Apology OR AN ANSWER TO THE Rebels PLEA ALthough the Kings Title to his Crown and Dignity together with his just Right and Authority over all Persons and in all Causes are beyond Exception establish'd by the Ordinance of God and the known Laws and Constitutions of these Kingdoms yet so far hath Prejudice or something worse prevail'd with some Men and those not of the meanest Rank as to suffer themselves to be led into a Belief That the Original of all Government is from the People and that the Power which Kings and Princes have was derived unto them from the People by way of Pact or Contract Particularly That the King of England as appears from his Coronation-Oath having solemnly engaged to his People to maintain Religion to execute Justice and to keep the Laws and rightful Customs of the Kingdom upon these Conditions was admitted to the Kingly Power The which Conditions if he shall omit to observe and of this they themselves will be Judges they then fancy that he hath forfeited his Crown and that the People who first made him King may by their Representatives in Parliament dethrone and Depose him That this is the Scheme of some Mens Policy the many Treasonable Papers such as The Association Vox Populi Appeal to the City Coll. SIDNEY'S Papers c. together with the late horrid Conspiracy grounded thereupon do sufficiently demonstrate And therefore I hope it will be no unseasonable Undertaking but may through Gods Blessing contribute somewhat to secure the King's Liege-People in their due Obedience whilst I endeavour to evince the Falseness and destructive Consequences of these Anti-monarchical Principles Which that I may the more effectually and with the greater clearness perform I shall first lay down the utmost Strength of their Cause in one intire Objection and then endeavour their satisfaction in the following Answer OBJECTION THE Government of England is a mixt Monarchy consisting of Three Estates King Lords and Commons And therefore the King of England is not an Absolute but a limited Monarch and as Such is to govern by and according to the Laws of the Land and not otherwise And by the Oath which he hath taken at his Coronation he is obliged to use the Power Trust and Office then committed to him for the Good and Benefit of the People and for the preservation of their Rights and Liberties Now if the King thus entrusted to keep the Laws and preserve Religion should be guilty of a wicked Design to subvert our Laws and destroy our Religion by introducing an arbitrary Tyrannical Government he must then understand that he is but an Officer of Trust And the Parliament of England the Representatives of the People in whom all Power doth originally reside they are to take order for the Animadversion and Punishment of such an offending Governor Parliaments were ordain'd to restrain the exorbitant Power of Kings and to redress the Grievances of the People It is very true what some have said Rex non habet parem in Regno But this is to be understood in a limited Sense For though major singulis yet he is minor universis This we know to be Law from that famous Lawyer BRACTION Rex habet Superiorem Deum Legem etiam Curiam Which is thus Interpreted by Mr. SIDNEY For this Reason Bracton saith That the King hath Three Superiors to wit Deum Legem Parliamentum That is The Power originally in the People of England is delegated unto the Parliament SIDNEY'S Tryal pag. 23. This is as I conceive the Sum of all that hath been and the utmost of what I suppose can be said in this matter To which I return this ANSWER THAT this Phrase a mixt Monarchy though somewhat frequent in the Mouths of these Men is yet no very plain or intelligible Expression For if by a mixt Monarchy they design such a Government wherein though the Supream Power may reside
turn to the Office for the 5th of November In the Preface of which he thus reads A Form of Prayer with Thanksgiving for the happy Deliverance of the King and the Three Estates of the Realm And in the Collect before the Epistle We acknowledg the Power Wisdom and Goodness of God in preserving the King and the Three Estates of this Realm assembled in Parliament It thus evidently appearing That the King is not One of the Three Estates and consequently that his Anthority is not limited or restrain'd by the Coordinate Power of the other Two we may with better assurance proceed to examin the Truth of their next Suggestion viz. That the King of England is not an Absolute Monarch In which Inquiry least I should diminish the Kings just Right and Prerogative on the one hand or encroach upon the Subjects Freedom and Liberty on the other I must neither affirm nor deny without due Distinction Now the Kings Power and Authority doth admit of a Twofold Consideration For either we may observe it 's efficient Cause the Spring and Fountain from whence it flows or else may take notice of the Execution and Administration of it As to the First of these If the Question should be asked whence hath the King this Power to Rule and Govern these Nations Who gave him this Authority To this a just Answer may be suggested from His Majesties Royal Motto DIEU ET MON DROIT God and my Birth-right have given me these Kingdoms If it further be demanded How Birth-right doth Entitle to a Crown 'T is then truly replyed That it is a Fundamental Law of England That the Crown doth descend to the next in Blood England being not an Elective but an Hereditary Kingdom And from hence we are occasionally instructed how to understand that Controverted Place in Bracton which I therefore mention because I find it repeated with great Triumph in several Pamphlets Lex facit Regem the Law makes the King Lib. 1. c. 7. f. 5. and Lib. 3. c. 9. f. 107. The Law i. e. The Law of Succession In which Sense doubtless my Lord Cook as I have somewhere read told King James That the Law set the Crown upon his Head And it is the same Law that set the Crown upon the Head of His Present Majesty For though His Majesties personal Qualifications deserve a Crown yet it was not any Acceptance or Consent of the People express'd at his Coronation or otherwise but it was his Birth-right only which made him King because Son and Heir apparent of King Charles the First This is the full Import and Meaning of that saying of Bracton But now from hence to infer as some canting Polititians have done That because The Law in this Sense as now explain'd makes the King therefore the Law is Superior to the King therefore the Law hath a Coercive Power over the King therefore If the King shall neglect to Discharge his Trust the Parliament of England who are not only the highest Expounders but the sole Makers of Bradshaw's Harangue at the Kings Tryal the Law can by that Law which made him King censure and condemn him for his Neglect I say thus to infer is not only false and explosive in it self but Treasonable to the King and Destructive to the Kingdom But of this God willing more fully in it's proper Place It may suffice at present to observe that the Crown of England is an Imperial Crown i. e. Such a Crown which as to the Coercive part is not subject to any human Tribunal or Judicature whatsoever as most plainly appears from our Law-Books and Statutes It was asserted in our Laws in the Time 16 R. 2. c. 5. of King Richard the Second That the Crown of England hath been so free at all times that it hath been in no EARTHLY SUBJECTION BUT IMMEDIATELY SUBJECT TO GOD in all things touching the Regalty of the same Crown and to none other And in 24 H. 8. it was declared in Parliament 24 H. 8. c. 22. That this Realm of England is an Empire and so hath been accepted in the World govern'd by one Supreme Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick of Spiritualty and Temporalty been bounden and owen to bear NEXT TO GOD a natural and humble Obedience And 25 H. 8. It is Declared That 25 H. 8. c. 21. This Realm recognizing NO SUPERIOR UNDER GOD BUT ONLY THE KING hath been and is free from Subjection to any man's Laws but only to such as have been devized within the same V. 1 Eliz. cap. 3. 1 Jac. c. 1. which are very pertinent to be perused in confirmation of these preceding Statutes And if private Authorities may not seem superfluous after the recital of such Authentick Records I might largely confirm this Supreme Independent Power of the King by the repeated Testimonies of our most eminent and noted Writers But because I would not be too tedious I shall mention none but the forecited Bracton Lord Chief Justice under Henry the 3 d. And I the rather take notice of Him because some passages in his Works have been perverted and abused by the IGNORANCE or MALICE of ill designing Men. From this Learned and Judicious Author we are thus instructed (a) Omnis quidem sub eo ipso sub nullo nisi tantum sub Deo Parem autem non habet in Regno suo quia sic amitteret preceptum All Ranks and Degrees of Men are subject to the King but the King himself is under none but God There is none equal to him or coordinate with him in the Kingdom such a fancy being wholly inconsistent with his Kingly Power (b) Si autem ab ro petatur cum brevo non currat contra ipsum locus erit supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficet ei ad paenam quod Dominum expectet ultorem Nemo quidem de factis suis praesumat disputare multe fortius contra factum suum venire Vid Bracton de Leg. Ang. Lib. 1. cap. 8. Sect. 5. fol 5. And if any Man hath occasion to implead the King since no Writ can be taken out against him he must then proceed by way of Petition But if the King shall still refuse to do him right it will be sufficient punishment for him to expect the Lord as an Avenger Doubtless no man should presume to question the Kings Actions much less to oppose them by force And in his 5th Book de Defaltis Cap. 3. Sect. 3. he speaks the same Language For having put the Case That if the King being Petition'd to redress the Grievances of his Subjects should yet neglect to grant them Justice what further course the Subject might take for his Relief He Rules it thus (c) Quo casu cum Dominus Rex super hoc fuerit interpellatus in eadem
with outward Pomp doth naturally make Impressions of awe and reverence towards his Person Secondly The Oath which he then takes may expel all jealous Fears disposing his Subjects chearfully to submit to his future Government For when the King who is not responsible to them for any of his Actions shall condescend thus publickly to promise his People in the Presence of that God who gave him his Trust and to whom alone he must render an Account for the management of it That he will govern his Subjects according to Law That he will preserve Religion from Heresy and Schism defend their Persons from wrong and violence secure their Estates from Fraud and Rapine Such assurance as this must needs enlarge their Affections to their Prince make their submission more hearty their Obedience more chearful since under his Government if it is not their own Fault they may rationally expect to live a quiet and peaceable Life in all Godliness and Honesty It appears I hope from these Premises notwithstanding this or any other Objection to the contrary That the Kings Power in respect of it's Original is Absolute i. e. He received it from none but God Neither from the Pope nor any other Forraign Prince much less from his own People But now when we speak of the Kings Authority with respect to the Execution and Administration of it the Case is very different For the Kings of England out of their abundant Grace and Favour and to make their Government more easie and acceptable to their Subjects have suffer'd themselves to be so limited in the Exercise of their Power That they can neither make Laws nor raise Taxes but in Parliament much less can they pretend to take away the Life or dispose of the Estate of the meanest of their Subjects but by due course of Law And therefore in this second Consideration of his Authority viz. the Execution and Administration of it The King of England is not an Absolute but a limited Monarch And indeed if these Republicans were not much more forward to remind the King of his Duty than to discharge their own these things did not need to be repeated For the King hath very often most gratiously promised That he will govern by and according to the Laws of the Land and not otherwise And that he will use the Power Trust and Office committed to him for the good and benefit of the People and for the preservation of their Rights and Liberties All this is readily granted in the very words of the Objectors Only this Phrase That he will govern according to the Laws and not otherwise for the avoiding of mistakes must be a little explained There are some Men either through Ignorance or Malice who have fancied because the King is obliged to govern by Law that therefore he must always act according to the Letter of it So as that it shall not be in his Power for instance especially when it is their Interest to restrain him either to Pardon Capital Offenders to Change the manner of their Death or to mitigate the rigour of the Law on any other occasion And in fine these confident Reformers who trade in Post-scripts more than Bracton do talk of the Kings Prerogative at such a rate as if it were an Arbitrary Illegal Encroachment and are so extravagant as to fancy That by diminishing the Kings Prerogative they advance the Laws and that to oppose the King is to defend the Kingdom In charity therefore to these men and to rectify their mistakes I shall briefly lay down the nature of the Kings Prerogative What it is how it comes to be Establish'd And whether as is pretended it be destructive to the Liberty of the Subject The Word (a) Jurecons hac voce varie utuntur modo pro authoritate eminentia quadam modo pro jure quodam praecipuo speciali seu privilegio Gal. Lex Jurid verb Praerogat Prerogative to omit other Significations Foreign to our purpose doth properly denote some special peculiar Priviledg or Preheminence granted by Law Hence the Kings Prerogative is very fitly styled by Sir H. (b) Spelm. Gloss Praerog verb. SPELMAN Lex Regiae Dignitatis which in (c) 1 Instit cap. 5. sect 125. p. 90. Sir Edw. Cooks words may be thus Translated The Royal Prerogative legally extends to all Powers Preheminences and Priviledges which the Law giveth to the Crown And Littleton saith our Author speaketh of the Kings Prerogative but twice in all his Books viz. § 125 128. and in both places as part of the Laws of England From whence our new Politicians may please to observe That the Kings Prerogative is established by Law and his Majesty hath as good Law for his Royal Prerogatives viz. The descent of the Crown to the next in Blood The Power of Calling and Dissolving Parliaments The Negative Voice The Power of the Militia Pardoning Offenders c. I say His Majesty hath as good Law for these and all other his Prerogatives as any Subject hath for his Paternal Estate Whoever therefore shall presume to dispute these Priviledges of the Crown he must not think me uncharitable whilst I tell him He is an Enemy to the fundamental Laws of England and a Betrayer of the Rights of the Kingdom If the Case be thus may some say If these Royal Prerogatives are so sacred as not to be touch'd it would then be a very suitable undertaking to enlarge your c. and to acquaint us more distinctly what they are and where we may find them In answer to which Demand we are thus instructed by that Loyal Judge JENKINS (a) Jenk Rediv. p. 136. The Kings Prerogative and the Subjects Liberty are determined and bounded and admeasured by the written Law what they are We do not hold the King to have any more Power neither doth his Majesty claim any other but what the Law gives him The right method therefore to be inform'd in this matter is to search the written Laws with the learned Interpretations upon them For though these Statutes are not Constitutive of the Royal Prerogatives All (b) Jenk Rediv. p. 4. Kings had them the said Powers have no beginning i. e. They are so antient we cannot trace their Original yet they are Declaratory of them I say though these Priviledges of the Crown are most of them antecedent to our Acts of Parliament and the written determined Cases of our Laws and consequently are not primarily established by them yet they are so often either explained confirm'd or otherwise there mention'd that he who is conversant in those publick Writings must needs know what they are But since every one hath not the Leisure or the Ability for so laborious a Task those therefore who shall desire Compendio sapere they may please to peruse a little Treatise called Jura Coronae or His Majesties Royal Rights and Prerogatives Asserted And amongst several others there mentioned and explained they will find this Prerogative That the
King hath Power in many cases to Dispense with the Laws And that no (a) Jur. Coron p. 84. Act of Parliament can bind the King from any Prerogative that is solely and inseparably annext to his Sacred Person and Royal Power but that he may dispense with it by a non obstante The Reason of which Prerogative which to some unthinking Men may seem extravagant is plainly this All human Constitutions are liable to Defects And there was never any Law yet framed with such Policy and Skill which might not on some occasion or other be burthensome to the Subject For particular Cases and Contingencies are so infinitely various that it is impossible for human Wisdom to foresee or prevent them And therfore it is absolutely necessary That there should in all Governments be some Power Superior and Paramount to the written Laws By whose Authority the Subject might be reliev'd and pardon'd when the nice and strict Observance of the Law through some unexpected Event might be grievous to himself or destructive to the Publick And (b) Bish Sandersons Judg. of subm to Usurp p. 18. this Power of dispensing with particular Laws as the learned Bishop Sanderson informs us is such a Prerogative as without which no Commonwealth can be well govern'd but Justice would be turn'd into Gall and Wormwood Nor can the Supream Governor without Forfeiture of that Faithfulness which he oweth to the Publick-Weal divest himself thereof If some Men who are very unwilling to give the King his Due are still dissatisfied in the point the present posture of Affairs here in England may then fully convince them We all know that according to the Law High-Treason is punishable with Death And the Judgment of the Court on such occasions is to be Hang'd Drawn and Quarter'd This is Law Let me therefore ask these Men. Can the King by his Prerogative dispense with this Law so as to free the Criminal from the Punishment a Toto or a Tanto or can he not If they say not Ipsi viderint Let them look to that who are most deeply concern'd But if now at the last they are grown so considerate as to say that he can Give me leave then to expostulate with them concerning that late Instance of the unfortunate Lord Stafford When his Majesty out of Compassion to that Noblemans Person and respect to his Quality had changed the manner of his Death and given him the favour to be Beheaded What a noise was then raised That the Law must be observ'd What Fears and Apprehensions of Arbitrary Power What a Tumult did those scrupulous Sheriffs make on that occasion by Petitioning the Two Houses Whether the Kings Writ ought to be obey'd But what Answer they receiv'd both from Lords and Commons is sufficiently known I shall make no Reflections upon it tho indeed the Impertinence of that Action in which I doubt they were encourag'd by some greater than themselves might deserve a Remark From these Premises it is evident That there is Lex Coronae a Royal Prerogative granted by the Common Law to the Crown of England Superior to all written Laws By virtue of which Prerogative-Law the King hath Authority on emergent occasions and when such Dispensation may promote the ends of Government to Dispense with most Statutes or Acts of Parliament Salus populi suprema Lex esto when rightly understood is a full proof of this Assertion As therefore on the one hand When Sedition is rampant and affronts the Government when the Mercy of a King shall be voted his weakness and his Royal compassion and unwillingness to Punish shall have this Gloss put upon it He dares not do it As in such a Case Reason of State which is Salus Populi doth require That some should be executed in terrorem to repress the insolence of others So on the other hand When Tumults are abated when Faction is broken and that Men begin to acknowledg their Mistakes and return to their Wits If under such inviting Circumstances as these the King out of his Grace and Mercy shall either Pardon a Traitor or abate the rigour of his Sentence who will pretend to say that such undeserved Favour is Illegal Or that the King whether he pardon or punish doth not govern in both Instances according to Law The Objectors go on If the King thus entrusted to keep the Laws and preserve Religion should be guilty of a wicked Design to subvert our Laws and destroy our Religion by introducing an Arbitrary Tyrannical Government he must then understand that he is but an Officer of Trust All this is granted If the word Trust do only refer to Almighty God but not to the People The King doth chearfully acknowledg that he is Authoriz'd and Deputed by the most High to govern these Nations and that he must render an Account for so great a Trust committed to his charge And though the King hath many Enemies both Spiritual and Temporal yet his Support is this He who gave him his Commission is able to Protect him He hath hitherto very signally preserv'd him And it is the constant hearty Prayer of all Loyal Subjects That his God and the God of his Fathers will preserve him still His Majesty hath indeed many Enemies and good Princes did never want them but in the Mercy of the most High he shall not miscarry But if this Trust do refer to the People as if the Kings Power and Authority were derived to him from the People by way of Pact or Contract Let them then explain Who are this People with whom he did thus Contract When was this Bargain made What are the Conditions Before what Witnesses Who must Judge of the Delinquency VVhere are the Records of these Transactions to be perused If no Evidence to confirm any of these Instances the Case is then decided by that known Maxim Idem est non esse non apparere This Fundamental Contract of the Nation is only a hard Word to amuse the vulgar We know not what it is nor where to find it But it follows in the Objection The Parliament of England the Representatives of the People in whom all Power doth Originally reside they are to take Order for the Animadversion and Punishment of such an Offending Governour Parliaments were ordain'd to restrain the exorbitant Power of Kings and to redress the Grievances of the People The Sum of which charge is this There is a Coercive Power over the King Which Power Mr. SIDNEY tells us Originally in the People of England is delegated Sidney's Tryal p. 23. unto the Parliament To which I do thus Answer That though his Majesty hath a just esteem for Parliaments and thinks the Parliament of England the happiest Constitution that ever Nation did enjoy and hath gratiously assur'd us That no Irregularities of Parliaments shall make him out of Love with Parliaments but that he will have frequent Parliaments Yet such an extravagant Power of Parliaments as is here pretended is
such height of Treason as deserves a sharper Confutation than can be given it from this Treatise As to the point of Non-Resistance most seasonable to be enforc'd at this time I did once design very fully to have enlarg'd upon it To have shew'd its Obligation from all Laws Natural Positive Divine Human. As also to have Answer'd the most Popular Pleas for such Resistance But I am so happily prevented by the Learned Labours of others particularly my Lord Bishop of VVinchester Dr. Falkner and Dr. Sherlock who have indeed exhausted that Subject that I shall give no further trouble but conclude my short Discourse with this following Argument The Supream Power must not be resisted But the King of England hath Supreme Power Therefore His Majesty cannot lawfully be resisted The Proposition is the voice of Nature There can be no Order nor Government unless this Truth be admitted Reason tells us Par in parem non habet potestatem much less hath an Inferior a Coercive Power over his Superior To which let me observe That even the late Rebels themselves were convinc'd in this matter For to vindicate their former Treasons and to patronize their intended Murder of that Blessed Prince they voted Jan. 4. 1648. Resolv'd That the People are under God the Original of all just Powers That the Commons of England Assembled in Parliament being chosen by and representing the People have the Supreme Power in the Nation That whatsoever is Enacted or declared for Law by the Commons in Parliament hath the Force of a Law and the People concluded thereby though consent of King and Peers be not had thereunto Plainly insinuating That whilst the Subjects of England according to their Duty did acknowledg the Supreme Power to be in the King they must needs apprehend That the War was Rebellion and his pretended Judges were Traitors And as to the Assumption viz. That the King of England hath Supreme Power this I hope hath been so fully prov'd in this little Treatise that I might suppose the Conclusion without any further Enlargement But because some late Seditious Pamphlets have very impertinently advanc'd the Power of Parliaments I shall ex abundanti thus undeniably convince them That the Parliament of England is Subject to the King Mr. SIDNEY Informs us That the Sidney's Paper p. 2. Right and Power of Magistrates in every Country is that which the Laws of that Country make it to be If therefore it do appear by the Laws and Statutes of the Kingdom That the Parliament of England is Subject to the King then the Controversy is at an End For Proof of this they are desired to Consult 12 Car. 2. c. 30. Where the Lords and Commons thus Petitioned to his Majesty We your Majesties said Dutiful and Loyal Subjects the Lords and Commons in Parliament Assembled do beseech your most Excellent Majesty that it may be Declared That by the undoubted and fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament nor the People Collectively or Representatively nor any other Persons whatsoever ever had have hath or ought to have any Coercive Power over the Persons of the Kings of this Realm Words so plain and undeniably evident that they are not capable of any further Explication Only it will be pertinent to observe Two Things First the Lords and Commons do not here petition that it may be Enacted but that it may be Declared intimating that the Kings Supremacy was not first establish'd in this Statute as if before the making of this Act the Parliament had been Superior to the King but is here only Declared to have been Establish'd by the undoubted Fundamental Laws of this Kingdom i. e. by such Laws as are the Foundation of the Government Whoever therefore shall Affirm That the Parliament hath a Coercive Power over the Person of the King he alters the Foundation and destroys the Government Secondly I do from this Statute observe That their famous Axiom major singulis minor universis will no longer support their Cause it being plain from this Act That the King is major universis as well as singulis When our Republican Clubs who talk so much of Law shall have answer'd this Statute they may then expect to hear further from me In th' interim I shall recommend a Text to be held forth in all their Conventicles the next time of their meeting Prov. 24. 21 22. My Son fear thou the Lord and the King and meddle not with them that are given to change For their Calamity shall rise suddainly and who knoweth the ruin of them both From whence may be raised these good Obversations viz. Honesty is the best Policy and Loyalty the best Religion FINIS THE PARALLEL DOLEMAN THERE can be no doubt but that the Common-Wealth hath Power to chuse their own fashion of Government as also to change the same upon reasonable Causes In like manner is it evident that as the Common-Wealth hath this Authority to chuse and change her Government so hath she also to limit the same with what Laws and Conditions she pleaseth Conference about Succession Part. 1. cap. 1. pag 12 13. All Law both Natural National and Positive doth teach us That Princes are subject to Law and Order and that the Common-Wealth which gave them their Authority for the Common good of all may also restrain or take the same away again if they abuse it to the Common-evil The whole Body though it be governed by the Prince as by the Head yet is it not Inferior but Superior to the Prince Neither so giveth the Common-wealth her Authority and Power up to any Prince that she depriveth her self utterly of the same when need shall require to use it for her defence for which she gave it Part. 1st cap. 4. p. 72. And finally the Power and Authority which the Prince hath from the Common-wealth is in very Truth not Absolute but Potestas vicaria delegata i. e. a Power Delegate or Power by Commission from the Common-Wealth which is given with such Restrictions Cautels and Conditions yea with such plain Exceptions Promises and Oaths of both Parties I mean between the King and Common-wealth at the day of his Admission or Coronation as if the same be not kept but wilfully broken on either Part then is the other not bound to observe his Promise neither though never so solemnly made or sworn Part 1st cap. 4. pag. 73. By this then you see the ground whereon dependeth the righteous and lawful Deposition and Chastisement of wicked Princes viz. Their failing in their Oath and Promises which they made at their first entrance Then is the Common-wealth not only free from all Oaths made by her of Obedience or Allegiance to such unworthy Princes but is bound moreover for saving the whole Body to resist chasten or remove such evil Heads if she be able for that otherwise all would come to Destruction Ruine and publick
Desolation part 1. cap. 4. pag. 77 78. BRADSHAW THE People of England as they are those that at the first as other Countries have done did chuse to themselves this Form of Government even for Justice sake that Justice might be administred that Peace might be preserved so Sir they gave Laws to their Governours according to which they should Govern and if those Laws should have prov'd inconvenient or prejudicial to the publick they had a Power in them and reserved to themselves to alter as they shall see cause Kings Trial p. 64. CHARLES STUART King of England The Commons of England Assembled in Parliament according to the fundamental Power that rests in themselves have resolved to bring you to Tryal and Iudgment p. 29. If so be the King will go contrary to the end of his Government Sir he must understand that he is but an Officer of Trust and he ought to discharge that Trust and they are to take Order for the Animadversion and Punishment of such an Offending Gover. p. 65. Sir Parliaments were ordained for that purpose to redress the Grievances of the People And then Sir the Scripture says They that know their Masters will and do it not what follows The Law is your Master the Acts of Parliament pag. 66 67. This we know to be Law Rex habet superiorem Deum Legem etiam Curiam and so says the same Author and truly Sir he makes bold to go a little further Debent ei ponere fraenum They ought to bridle him pag. 65. That the said Charles Stuart being admitted King of England and therein trusted with a limitted Power Vid Char. p. 30. The House of Commons the Supream Authority and Jurisdiction of the Kingdom pag. 48. Which Authority requires you in the name of the People of England of which you are Elected King to answer them pag. 36. Sir you may not Demur the Jurisdiction of the Court they sit here by the Authority of the Commons of England and all your Predecessors and you are responsible to them pag 44. For there is a Contract and Bargain between the King and his People and your Oath is taken and certainly Sir the Bond is reciprocal Sir if this Bond be once broken farewel Soveraignty pag. 72. Sir though you have it by Inheritance in the way that is spoken of yet it must not be denied that your Office was an Office of Trust Now Sir if it be an Office of Inheritance as you speak of your Title by Desient let all men know that great Offices are seizable and forfeitable as if you had it but for a year and for your Life p. 73. And Sir the People of England cannot be so far wanting to themselves which God having dealt so miraculously and gloriously for they having Power in their hands and their Great Enemy they must proceed to do Iustice to themselves and to You. p. 75. SIDNEY and other of The True-Protestant Party GOD hath left Nations unto the Liberty of setting up such Governments as best pleased themselves The Right and Power of Magistrates in every Country was that which the Laws of that Country made it to be Sidn Pap. p. 2. St. Peter 1 Pet. 2. 13 14. stiles Kings as well as the Governours under him the Ordinance of Man which cannot have any other Sence but that Men make them and give them their Powers Hunts postsc p. 37. By all which it is evident That the Succession to the Crown is the Peoples Right And though the Succession to the Crown is Hereditary because the People so appointed it would have it so or consented to have it so yet in a particular Case for the saving the Nation The whole Line and Monarchy it self may be altered by the unlimited Power of the Legislative Authority Hunts Postsc pag. 43. Some Men will talk as if they believed themselves That the Legislative Power is in the King when no King of England yet ever pretended to it A Legislative Authority is necessary to every Government and therefore we ought not to want it and therefore Parliaments in which our Government hath placed the making of Laws cannot be long discontinued Hunts Postsc p. 28. BRACTON saith that the King hath three Superiors to wit Deum Legem Parliamentum that is the Power Originally in the People of England is Delegated unto the Parliament Sidn Tryal p. 23. All Government is founded in Trust and settled in such a Person or limited to such a Family for the safety and advantage of the People as well as of the Ruler It is remarkable that there was never a Conveyance of the Crown of England to any Person but upon the tacit Concurrence and with the Virtual or Implicite Consent of the People And therefore anciently before an King of England was actually Crown'd the People being first acquainted with the Day appointed for that Solemnity were three several times publickly asked whether they would have such a Person to rule over them Let. from Gentl. in the City concerning D. Y. pag. 13 14. Those Laws were to be observ'd and the Oaths taken by them having the force of a Contract between Magistrate and People could not be violated without danger of dissolving the whole Fabrick Sidn Pap. pag. 2. If he doth not like his condition he may Renounce the Crown but if he receive it upon that Condition as all Magistrates do the Power they receive and swear to perform it he must expect that the performance will be exacted or revenge taken by those he hath betrayed Sid. Try p. 23. I will hope there are very few in this Nation so ill instructed that do not think it in the Power of the People to depose a Prince who really undertakes to alienate his Kingdom or that really Acts the Destruction or the Vniversal Calamity of his People Great consid relating to D. Y. consider'd p. 6. To give every one his due is to administer Defence to the Innocent and by Authority of Law to subdue the Aggressors of Mankind how great and mighty soever they be Fiat justitia therefore Id. Pag. 16.
voluntate quod velit tenentem esse defensum cum injuria cum tentatur Justitiam totis viribus defensaro ex tunc erit injuria ipsius Domini Regis nec poterit ei necessitatem aliquis imponere quod illam corrigat emendet nisi velit cum superiorem non habeat nisi Deum satis crit illi pro paena quod Deum expectat ultoram Bracton Lib. 5. de Defaltis c. 3. Sect. 3. fol. 368 If the King who is bound to administer Justice to his utmost Power will not recal the wrong he did upon a false Suggestion in this case he injures his Subjects but no body can force him to do Right because he hath no Superior but God only And it is sufficient that we shall have a day of hearing hereafter at a Just Tribunal V. Lib. 2. c. 24. Sect. 1. p. 55. lib. 2. c. 37. Sect. 5. p. 87. lib. 3. c. 9. Sect. 3. p. 107. But here I am Allarm'd with that noted saying of this Author Rex habet Superiorem Deum Legem etiam Curiam And there is scarce a Pamphlet pretending Vid. Sidney's Tryal p. 23. either to Law or Latin which doth not triumph in this Sentence of Bracton I am therefore oblig'd for their sakes who may otherwise be misguided to endeavour the full Sence and Meaning of these Words In order to which Task and that he may the better apprehend the clearness of my Answer I must trouble my Reader to peruse the whole Section De Chartis vero Regiis factis Regum non debent nec possunt Justiciarii nec privatae personae disputare nec etiam si in illa dubitatio oriatur possunt eam interpretari in dubiis obscuris vel si aliqua dictio duos contineat intellectus Domini Regis erit expectanda interpretatio voluntas cum ejus sit interpretari cujus est concedere etiam si omnino sit falsa propter rasuram vel quia forte signum appositum est adulterinum melius tutius est quod coram ipso Rege procedatur ad Judicium Item nec factum Regis nec chartam potest quis judicare ita quod factum Domini Regis irretetur Sed dicere poterit quis quod Rex Justitiam fecerit bene si hoc eadem ratione quod male ita imponere ei quod injuriam emendet ne incidat Rex Justic in Judicium viventis Dei propter injuriam REX AUTEM HABET SUPERIOREM DEUM S. ITEM LEGEM PER QUAM FACTUS EST REX ITEM CURIAM SUAM viz. Comites Barones quid Comites dicuntur quasi socii Regis qui habet Socium habet Magistrum ideo si Rex fuerit sine fraeno i. e. sine Lege debent ei fraenum ponere nisi ipsimet fuerint cum Rege sine fraeno tunc clamabunt subditi dicent Domine Ihesu Christe in chamo fraeno maxillas eorum constringe ad quos Dominus vocabo super eos gentem robustam longinquam ignotam cujus linguam ignorabunt quae destruet eos evellet radices eorum de terra a talibus judicabuntur quia subditos noluerunt juste judicare in fine ligatis manibus pedibus eorum mittet eos in caminum ignis tenebras exteriores ubi erit fletus stridor dentium V. Lib. 2. c. 16. §. 3 fol. 34. This is the whole Section in which that controverted Passage Rex habet Superiorem c. is contain'd Now as preparatory to a just Explication it will be pertinent to consider these Two Things First That all difficult and obscure places in any Author ought to be determined by such as are plain and obvious but not e converso And therefore Secondly When we doubt of the true Sence of an Author it is much more modest as well as charitable to confess our own Ignorance and to say we do not know what he means rather than to calumniate and mistake him by affixing such a Sence to his Words as he never intended And consequently it might be a sufficient Answer to affirm That since our Bracton hath so plainly and so often told us That the King is under none but God That all Orders and Degrees of Men are Subject to the King That he hath no equal much less Superior That no man should presume to question his Actions c. It evidently follows That whatever can be understood by this Curia whether Lords or Commons yet this Curia is not Superior to the King It neither gave him his Authority at first nor hath the least shadow of a Coercive Power to limit and restrain him For certainly that cannot be the meaning of Bracton which he hath so expresly contradicted in other parts of his Works But that I may Answer as well as Evade I now come to explain what I think to be the true Sence and Meaning of these Words Rex habet Superiorem c. The Subject matter of this Second Book of BRACTION is De acquirendo rerum Dominio It explains the nature of Legal Titles and sets forth the several ways by which a man may acquire such a Right and Property in the thing possess'd as to call it his own And amongst many others DONATION as being the chief is more particularly consider'd by him Now these Gifts or Grants as he tells us in the beginning of this 16 Chap. Sect. 1. fiunt in scriptis sicut in Chartis ad perpetuam memoriam propter brevem hominum vitam ut facilius probari possit Donatio They are for Mortalities sake put into Writing that so the Donee should his Title be question'd by the Evidence of such enrolled Deeds may secure his Possession Of these Grants or Charters some are made by the King others by private Men. And having largely discours'd of these private Charters Sect. 2. 4. and so on in this intermediate 3 d. Sect. he more particularly gives us his Judgment de Chartis Regiis which by way of Eminency are stiled Charters De Chartis vero Regiis factis Regum non debent nec possunt Justiciarii nec privatae Personae disputare Neither the (a) Who are here meant by those Justiciarii let the learned in the Law determine Justiciarii nor private persons have any Commission to dispute the Kings Charters or to question any other of his Majesties Proceedings nec etiam si in illa dubitatio oriatur possunt eam interpretari For where the Royal Grant is doubtful and obscure it would be presumption in them to pretend to explain it Et in dubiis obscuris vel si aliqua dictio duos contineat intellectus Domini Regis erit expectanda Interpretatio voluntas cum ejus sit interpretari cujus est concedere But if any part of it be ambiguous and doth admit of a double Sense than the Kings pleasure since His Majesty who first made the Grant best knows his own
World These are my present Thoughts of this difficult Passage And whether I have yet given it's proper Sence is humbly submitted to the Impartial Reader But whether I have or have not the Republican Objector is again desired to take notice That whatever else can be the meaning of these Words yet our Bracton doth not affirm this Curia to be superior to the King Such an Interpretation being inconsistent with Grammar as well as Loyalty We have this Rule in our Syntaxis that If the Relative be referr'd to two Clauses or more then the Relative shall be put in the Plural Number If therefore this Relative word Superior do refer not only to Deum but also to Legem and Curiam it should not be Superiorem in the Singular but Superiores in the Plural Bracton was not only very learned and judicious as to his Sence but also considering the Age he lived in and the Subject he discours'd on very polite and elegant as to his Style and consequently we must not suppose him guilty of so gross a Solaecism which the meanest School-Boy is able to correct If the Patrons of the Faction who are very hard to please shall think fit to Reply That it is a most unusual and Pedantick Method to interpret a Law-Maxim by a Rule in Grammar and thence are unalterably resolv'd to insist upon it That unless we can explain in what Sence this Curia is Superior to the King all that hitherto hath been said on this occasion is trifling and explosive If I say these Republicans will not otherwise be contented let them then take it thus Rex habet superiorem Curiam i. e. The King can do more with the Advice and Assistance of his Curia then without it Or more plainly thus The Kings of England have more Power and Capacity in Parliament then out of Parliament If this will not satisfie Cras respondebo For at present I think fit to add no more in this matter This passage of BRACTON which hath given us so large a Digression being thus dispatch'd we shall now return to our former Discourse 'T is undeniably evident from the Authentick Records of the Kingdom not to mention private Authorities That the King of England hath no Superior but God That His Majesty did not receive his Authority from any Earthly Power That he is not Foeudatory either to the Pope or any other Foreign Prince much less to his own People That he was not admitted to his Kingdoms with any Limitations or Conditions As the Kings of Poland and some others are And consequently since the Terms Absolute and Conditional are opposite and contradistinct If the Kings Power and Authority with respect to its Original Efficient Cause be neither Conditional nor Dependent it is then Absolute as well as Independent And therefore we may safely conclude in this sence as now explained The King of England is an absolute Monarch But here I expect it will be reply'd and 't is a very Popular Objection That the Coronation Oath in which there is a plain Contract and Bargain between the King and his People doth sufficiently intimate That the Crown is Conditional i. e. was conferr'd upon his Majesty with certain Limitations and Conditions For the King having promised to keep and defend the Laws and rightful Customs of the Kingdom c. He is then publickly shew'd to the People and their consent to his Coronation being first demanded he is by that solemn Action accepted as their King Plainly insinuating that without such a Promise on his part he would not have been accepted on theirs And from hence Mr. SIDNEY a very Authentick Author with some men doth infer That there is a mutual Compact between the King and his Subjects and if the King doth not perform his Duty the Subjects are discharg'd from theirs His words are these That those Laws were to be observ'd and the Oaths taken by them having the Force of a Contract between Magistrate and People could not be violated without danger of dissolving the whole Fabrick Which in plain English is this If the King breaks his Oath and doth not govern according to Law he then forfeits his Crown and the People are absolved from their Obedience In Answer to which we are to take notice that this plausible Objection is raised upon a false Foundation viz. That the Coronation Oath makes the King which is a most gross as well as dangerous Mistake the King being as perfect and compleatly King before his Coronation as after 'T is a Maxim in our Law The King never dyes There being no such thing here in England as an Interregnum For the very same moment that the Predecessor deceaseth the Rights of Majesty descend and fall upon the Successor And herein I am instructed by those eminent Lawyers the Lord Chancellor Egerton and Sir Edw. Coke By the former thus The Soveraignty is in the Person of the King L. Chanc. Egerton Postnat p 73. the Crown is but an Ensign of Soveraignty The Investure and Coronation are but Ceremonies of Honour and Majesty The King is an absolute and perfect King before he be Crowned and without those Ceremonies By the latter in these Words If the Crown descend to the rightful Heir he is Rex Cooks Inst part 3. p. 7. before Coronation For by the Law of England there is no interregnum and Coronation is but an Ornament or Solemnity of Honour And so it was resolv'd by all the Judges Hil. 1. Jac. in the Case of Watson and Clark Seminary Priests For by the Law there is always a King in whose name the Laws are to he maintain'd and executed otherwise Justice should fail Thus he But that I may effectually convince our Associators of their mistake in this matter I thus argue ad hominem Was his present Majesty actually King i. e. King de facto as well as de jure before his Coronation or was he not If they acknowledg that he was the Cause is then decided But if they say he was not I must then remind them of another point of Law laid down by that Oracle of the Law in the preceding words a Pardon granted by a King de jure that is not also de facto is void Now when they have first consider'd That the Act of Oblivion was made before the King was Crown'd I shall then leave it to themselves to determine the Case Doubtless upon second Thoughts which are usually the best they will readily confess That his present Majesty was actually King before his Coronation and consequently That the Oath which he then took was not any Condition preparatory to his admittance to the Kingly Power Coronation then is but a Ceremony and no part of his Title I say it is but a Ceremony and yet that I may remove some impertinent Scruples against it it is no trifling insignificant Ceremony For First The solemn Splendor in which the King appears in that Action the generality of People being much affected