A remonstrance of the un-lawfulnesse of the warre, undertaken by the pretended Parliament of England, against their soveraign, and of the in-justice of the alteration of the ancient gouvernment and fundamentall laws of the kingdome

CHAP. III.

The Kings supreamacy in particular shewed by the Statutes of the Land.

THe Kings supreamacy in generall being thus confirmed by severall Acts of Parlia∣ment, I vvill novv decende into particu∣lars, and shevv his Majesty to be legally in∣vested vvith all the particular rights of soveraigntie. I vvill beginne vvith the militia, vvhich is a right so essentiall to Majesty, that it can not nor ought not to be seperated from it: For Majesty consist not in a bare and empty title, but in the rights of soveraigntie, vvhich he can not be sayd to pos∣sesse, vvho vvants the svvorde to protect the septer. It vvas confessed by the two houses at the beginning of these dissentions, that the militia by right per∣teined to his Majesty, and therefore at the first they

laboured to have it assigned to them by his owne assent; but he opposing their unjust desires, as knowing both his owne and the ruin of his poste∣rity would be the necessary consequences of such a grant, they resolved, seing they could not gaine it by surrender, to take it by assault, and assisted by men of like natures and incinations, they seised upon his Majesties forts and Magazins, and have since exerci∣sed an arbitrary and tyrannicall power over the lives and estates of all that pleased them not, and none could ever please them, but such as are of the same humour and disposition vvith themselves. After∣vvards the pretended house of Commons thought it fit to take upon them the tuition of the King∣dome, and to exercise the povver of the militia vvithout the Lordes; vvho though excluded from the society of government, vvill not be excluded from the society of their crimes, but are yet many of them ready to contribute to the effusion of more bloode, vvhich by men of that faction hath of late beene accounted a very cheape commodity, and upon all occasions spilt and povvred out like vva∣ter. I must confesse I am amazed vvhen I consider hovv confidently and desperatly they have car∣ried on their dissignes in a case so contrary to lavv and justice; for they could not have begun a vvarre or contested vvith his Majesty about a mat∣ter more cleare then that of the militia, vvhich is a right so inherent in the crovvne, setled upon it by

the fundamentall lawes of the lande, and confirmed by so many severall actes of Parliament, that al∣though the pretended Parliamentarians have a great dexterity in coyning distinctions to elude the lawes, yet they will not easily coyne such as shall serve their turne in this particular. In the seventh yeare of Edward the first a statute was made to in∣joyne all men to go to Parliaments, Treatises, and generall Assemblies without force and armes, wherin the Kings power over the militia is acknow∣ledged. The King to the justices of his bench sendeth greeting. Whereas of late before certaine persons de∣puted to treat upon sundry debates had between us and certaine great men of our Realme, amongst other things it was accorded, that in our next Parliament after provision shall be made by us and the common assent of the Prelates, Earles, and Barons, that in all Parliaments, Treaties, and other Assemblies, which should be made in the Realme of England for ever, that every man shall come without all force and ar∣mour well and peaceably to the honour of us, and the peace of us and our Realme. And now in our next Parliament at Westminster after the sayd Treatise, the Prelates, Earles, Barons, and the Commonalty of our Realme their assembled to take advice of this businesse, have sayd, that to us it belongeth, and our parte is through our Royall seigniorie, straitly to defend force of armour, and all other force against our peace at all times when it shall please us, and to

punish them which shall doe contrary, according to our lawes and usages of our Realme, and hereunto they are bounde to ayde us as their Soveraigne Lord at all seasons when need shall be. We command ye that ye cause these thinges to be read afore you in the said bench, and there to be inrolled. Given at Westminster the thirtieth day of october. In another Statute made the eleventh yeare of Henry the seventh, it is decla∣red that all the subjects of the Realme but especially those that have by the King any dignities, giftes, offi∣ces, fees, or annuities; are bounde to assist the King in his warres against all rebellions, insurrections, and powers raysed against him. Where every sub∣ject by the duty of his allegeance is bounden to serve and assist his Prince and Soveraigne Lord at all sea∣sons when need shall require,* 1.1 and most specially such persons as have by him promotion or advancement, as grants and giftes of offices, fees, and annuities, which owe and verily be bound of reason to give their atten∣dence upon his Royall person to defende the same when he shall fortune to go in his person in warres for de∣fence of the Realme, or against his rebells and enemies for the subduing and repressing of them, and their malicious purpose: wherefore be it enacted and esta∣blished by the King our Soveraigne Lord, by the ad∣vice of his Lords Spirituall and Temporall, and the Commons in this present Parliament assembled, and by authority of the same, that if any person or persons being within this Realme of England or Wales, ha∣ving

such offices, fees, or annuties by any of his re∣hearsed giftes and grantes, do not give their atten∣dance upon him, when he shall fortune to go in warres in his person, in their sayd persons, as their duty bindeth them: that then they and every of them making therof default (the Kings speciall licence not had, or els he hath such unfained sicknesse, letting, or disease, that he may not in his person come to do his personall attendance and service after the forme afore sayd, and that duely proved) that then every such person or persons forfeit and lose their sayd offices, fees, and annuities, and to stand voyd at the Kings pleasure any acte, ordinance, or statute to the contrary, after this time had or made in any wise notwith∣standing. By the Parliament houlden the fourth and fifth yeares of Queene Mary an Acte was made, wherin it is acknowledged that the Queene and hir progenitors had power and authority to appoint commissioners to muster and array the people and subjects, and to levy such a number as they should thinke fit to serve them in their warres, and a remedy provided against the abuses, that had formerly beene committed by divers who absented them∣selves from such musters, and brought not their best furniture and array with them.* 1.2 Where hereto∣fore commandement hath been given by the King and Queenes Majesties, and other the progenitors of the Queenes Majestie, Kings of this Realme, to divers and sundry persons, to muster their Majesties people

and subjects of this their Realme of England, and to levy a number of them for the service of their Ma∣jesties, and of this Realme in their warres, such as were most able and likeliest to serve well in the same: which service hath beene greatly hindered, as well for that a great number hath absented them from the said musters, which ought to have come to the same, as also for that many of the most able and likely men for that service hath beene through frendshipe or reward, released, forborne, and discharged of the said service, and some other not being able or meet, taken, appointed, and chosen thereunto, and yet the same disability and unaptnesse notwithstanding, the same unable and unmeet persons upon summes of money, or other kinde of rewardes or exactions by them payd to some such as had the order of the said musters, have beene also released and discharged of the said service, to the great improverishment of the subjects, and chiefly to the great perill and danger of this noble Realme, in the hinderance of the true and necessary service thereof; for remedy whereof be it enacted by the King and Queene our Soveraigne Lord and Lady, with the assent of the Lords spirituall and temporall and the Commons in this present Parlia∣ment assembled, and by the authority of the same, that if any person or persons that shall be commanded at any time hereafter, generally, or specially, to muster afore any such as shall have authority or commande∣ment for the same by or from the Kings and Queenes

Majesties, or by the heires or successours of the Queenes Majesty, or by any Lieutenant Warden, or other person or persons authorised for the same, do willingly absent him or themselves from the same musters, having no true and reasonable excuse of sick∣nesse, or other lawfull impediment: or at their appa∣rence at such musters do not bring with them such their best furniture, or array, and armour, as he or they shall then have for his or their owne person in a rea∣dinesse, shall for every such default and offence have and suffer imprisonment by the space of ten dayes without baile or mainprise, by the commandement of such as shall have authority is is aforesaid to take the same musters, unlesse he or they so offending as is afore said, do agree to or with the said Commissioners, or two of them, to pay to the use of the King and Queene our soveraigne Lord and Lady, or of the heires and successours of the same our soveraigne Lady, for every such offence, forty shillings for a fine: which said fine after agreement for the payment of the same as is afore said, shall be certified and estreated into the court of the Eschequer at Westminster, by such as shall have power to take the said musters as is aforesaid, or by two of them under their seales or the seales of two of them within the space of two monthes next after such agreement, to pay the said fine had or made; and the same fine so estreated, to be levied in such forme as fines assessed by the justices of assise or of gaole delivery in their circuits are used to be levied. I will omit the

statutes made in the 11.* 1.3 H. 7. cap. 1. and the 2. E. 6. cap. 2. by which it appeareth that the subjects of England are bound to go with the King in his vvar∣res as vvell vvithin the Realme as vvithout: I vvill also omit the acte not printed made in the fifth yeare of Henry the fourth concerning the commission of array, as also divers other acts and statutes made to that effect and purpose, because so much hath been sayd about that subject already by his Majesty, in his ansvver to the declaraiion of both houses of Parlia∣ment concerning the commission of array.

Secondly the legislative povver is an other right of soveraigntie, vvhereby Kings and supreame Ma∣gistrates are inabled by just and necessary lavves to provide for the peace and safty of their people, and this is vvholely and intirely in the King, although he be limited in the exercise of his povver so as he can not make lawes without the assent of the Lords and Commons assembled in Parliament. And this is that vvhich the pretended houses have stoode so much upon: because the Kings of England desiring to rule their people by lenity, have out of princely clemency condiscended so farre as not to impose upon them (vvhich they anciently did as I shall shevv hereafter) any nevv lavv, or alter and repeale the old, vvithout their ovvne consent, they from the premisses would make the people beleeve that their authority is equall to the Kings, and that themselves as their deputies are coordinate vvith him: and not

content with the share which they unjustly chalen∣ged at first, they afterwards layd claime to all, exclu∣ding the King as altogether uselesse in Parliaments, and denying him his negative voyce, usurping and taking upon themselves the whole power of making lawes, whereas they can have no other interest or authority but what they derive from him, that is a power of assenting or dissenting what shall be made a law, but for the power and authority of the law which obligeth the subjects to obedience, that the law hath from the King alone: the Statutes declare this in expresse tearmes, for their ordinary stile is.* 1.4 The King doth will and command, and it is assented in the Parliament by the Prelates, Lords, and Commons.* 1.5 Our soveraigne Lord the King by the assent of the Lordes spirituall and temporall and the Commons in this present Parliament, hath ordained. And that the meaning and true intention of these expressions is such as I have sayd will appeare by the resolution of the Iudges, of which I shall speake hereafter:* 1.6 Now that the King hath a negative voyce in making lawes and that nothing can or ought to be esteemed an Act of Parliament without him, is evident by di∣vers Statutes. In the first year of King James a Sta∣tute was made wherin the two houses petitioning the King, that the recognition of their duty and obe∣dience, as also of his Majesties right unto the crowne of England, might be published in high court of Parliament, to remaine as a memoriall to all poste∣rity,

conclude after thise manner, which if your Ma∣jesty shall be pleased (as an argument of your gracious acceptation) to adorne with your Majesties Royall as∣sent, without which it can neyther be compleat and perfect, nor remaine to all posterity according to our humble desire, as a memoriall of your Princely and tender affection towards us, we shall adde this also to the rest of your Majesties unspeakable and inestima∣ble benefits. But in the fifteen yeare of Edward the third a Statute was made on speciall purpose to make voyd an Act where unto the King had pro∣mised to set to his seale, and seemed to assent, (which by some for that reason was esteemed a Sta∣tute) because he had not actually assented and set to his seale. Edward by the grace of God, &c. to the Sheriffe of Lincoln greeting, whereas at our Parlia∣ment summoned at Westminster in the 15. of Easter last past, certaine articles expresly contrary to the lawes and customes of our realme of England, and to our prerogatives, and rightes Royall were pretended to be granted by us by the manner of a Statute, we con∣sidering how that by the bonde of our oath we be tyed to the observance and defence of such lawes, custo∣mes, rightes, and prerogatives, and providently wil∣ling to revoke such thinges to their owne state which be so improvidently done, upon conference and treatise thereupon had with the Earles, Barons, and other wise men of our said realme, and because we never consented to the making of the Statute, but as then it behoved

us we dissimuled in the premisses, by protestations of revocation of the said statute if indeed it should pro∣ceed, to eschew the dangers which by the denying of the same, we feared to come, forasmuch as the said Parliament otherwise had beene without dispaching any thing in discord dissolved, and so our earnest busi∣nesse had likely beene ruinated, which God prohibite. and the said pretensed statute we promised then to be sealed. It seemed to the said Earles, Barons, and other wise men that sithence the statute did not of our free will proceede, the same be voyd and ought not to have the name nor strength of a statute; and therfore by there counsell and assent we have decreed the sayd sta∣tute to be voyd, and the same in as much as it procedeed of deede, we have agreed to be adnulled; willing never∣thelesse that the articles conteined in the said pretensed statute, which by other of our statutes or of our proge∣nitours Kings of England have beene approved, shall according to the forme of the sayd statute in every pointe, as convenient is, be observed: and the same we doe onely to the conservation and reintegration of the rightes of our crowne, as we be bounde, and not that we should in any wise grieve or oppresse our subjects, whome we desire to rule by lenity and gentlnesse. And therefore we do command thee that all these thinges thou cause to be openly proclaimed in such places within thy Bailiwicke where thou shalt see expedient, witnesse my selfe at Westminster the first day of octo∣ber the fifteenth yeare of our reigne.

Thirdly, allegiance or ligeance (I speake not of feudall but naturall ligeance) is another right of so∣veraigntie due only to supreame Rulers and Gover∣nours; A coordinate magistrate who hath but a par∣cell and share of authority, can not alone challenge all obedience from the people, for all that are coor∣dinate and have their shares in the rightes of sove∣raigntie joyntly taken together make up but on su∣preame head to whom only allegiance or ligeance is due, for as the ligatures or stringes do knit toge∣ther the joyntes of all the partes of the body,* 1.7 so doth ligeance joyne together the soveraigne and all the subjects, quasi uno ligamine. Now that allegiance or ligiance is due to the King and onely to the King will appeare by severall Acts of Parliament. In the first yeare of King Iames, the Lords and Commons declared,* 1.8 that both the ancient and famous Realmes of England and Scotland were united in allegiance and loyall subjection in his royall person, to his Ma∣jesty and his posterity for ever; In 34. H. 8. cap. 1 and 35. H. 8. cap. 3. &c. the King is called the liege Lord of his subjects: and in the Acts of Parliament of 13. R. 2. cap. 5. and 11. R. 2. cap. 1. 14. H. 8. cap. 2. &c. subjects are called the Kings liege people. By other Acts of Parliament divers oathes have been framed and given to the people, the contents and effects whereof were, that they should beare all faith and allegiance to the King and his heires: In the sixe and twenty yeare of Henry the eight an oath was

taken by all the Kings subjects for the surety of the succession of the crowne of England, the oath was this; Ye shall sweare to beare faith, truth,* 1.9 and obedience all onely to the Kings Majesty and to the heires of his body of his most deare and intirely beloved lawfull wife Queene Anne begotten and to be begotten. and further to the heires of our sayd soveraigne Lord ac∣cording to the limitation in the statute made for surety of his succession in the crowne of this realme mentio∣ned and conteined, and not to any other within this Realme, nor forraine Authority, or Potentate, and in case any oath be made, or hath beene made by you to any person, or persons, that then ye repute the same as vaine, and adnihilate, and that to your cunninge, witte, and utmost of your power, without guile, fraude or other undue meane, ye shall observe, keepe, maintaine, and defende, the said act of succession and all the whole ef∣fects and contents thereof, and all other acts and sta∣tutes made in confirmation, or for execution of the same, or for any thing therein conteyned. And this ye shall do against all manner of persons, of what estate, dignity, degree, or condition soever they be. And in no wise do or attempt, nor to your power suffer to be done or attempted, directly, or indirectly, any thing or thinges, privately or appertly to the let, hinderance, damage, or derogation thereof, or of any parte of the same, by any manner of meanes or for any manner of pretence; so helpe you God, and all Saintes, and the holy Evangelists. There are two thinges observable in

this oath, first, that they sweare inclusivè to beare all faith, truth and obedience, to the Kings Majesty and his heires, and onely to them; Secondly that they sweare exclusivè to beare faith, truth, and obedience, to no other eyther within the realme or without, not to other persons, nor to other authority, by both which clauses of the oath it appears, that the King, and none but the King, can challenge faith and alle∣giance from the people.* 1.10 Afterwards in the eight and twenty yeare of King Henry the eight the like oath was injoyned to be taken by all his subjects touching his succession by Queen Iane, for the former Act touching his succession by Queene Anne was re∣pealed, but the oath injoyned was otherwise the same; And in the five and thirty year of his reigne an other oath was framed, wherein, besids the con∣tents of the former touching allegiance due to the King and his heires, some other additions were in∣serted touching his supreamacy in Ecclesiasticall causes: because the former oaths were not thought full enough to that effect and purpose; And these oathes were extraordinary and imposed by speciall appointment: But besyds these there is an other ordinary oath of Allegiance which was first institu∣ted by King Arthur,* 1.11 and is mentioned amongst the lawes of King Edward, and confirmed by the lawes of William the Conquerour;* 1.12 this oath continueth still in force and should by the law be given in every Leete. The order and forme of it appeareth in Britton who wrotte in the reigne of Edward the first, and

compiled a booke of the Statutes and lawes which were then in use; the effect of it is this:* 1.13 You shall sweare, that from this day forward you shall be true and faithfull to our soveraigne Lord the King and his heires, and truth and faith shall beare of life and member and terrene honour, and you shall neyther know nor heare of any ill or damage intended unto him, that you shall not defende so helpe you almighty God. By this it is cleare enough that allegiance is due to the King: the two houses on the other side are so farre from having authority to exact allegiance from the people that they are bound themselves by law to take the oath of Allegiance before they be admitted to sit in the house; and having every one singly taken the sayd oath at his first admittance in∣to the house, how they should collectively taken by sitting together be absolved, none but the pretended Parliamentarians themselves can understand, whose common practice hath beene to play with oathes as children play with toyes and trifles, seeming rather to make them their pastime, then to esteeme them religious acts, or sacred obligations.

Fourthly to pardon the transgression of the lawes to remit treason, murder, felonie, manslaughter; to appoint subordinate Iudges; to make leagues with forraine Princes and States, all these are rightes of soveraigntie; and all these are declared and deter∣mined by the Statutes of the lande to belonge to the Kings Majesty. First the power of pardoning

the transgressions of the law and of remitting trea∣son, murder, felonie, manslaughter, and such like of∣fences is declared and determined to be in the Kings Majesty by a Statute made in the twenty se∣venth yeare of Henry the eight. Where divers of the most ancient prerogatives and authorities of Iusti∣ce appertaining to the imperiall crowne of this realme have beene severed and taken from the same by sundry giftes of the Kings most noble progenitours,* 1.14 Kings of this realme, to the great diminution and de∣triment of the Royall estate of the same, and to the hin∣derance and great delay of justice, for reformation whereof be it enacted by authority of this present Parliament, that no person or persons of what estate or degree soever they be of, from the first day of Iuly which shall be in the yeare of our Lord God 1536. shall have any power or authority to pardon, or remit any treasons, murders, manslaughters, or felonies, or any utlaries for any such offences aforesaid, committed, perpetrated, done, or divulged, or hereafter be commit∣ted, done or divulged by or against any person or per∣sons in any parte of this realme, Wales, or the marches of the same; but that the Kings highnesse his heires and successours Kings of this realme shall have the whole and sole power and authority thereof united and kint to the imperiall crowne of this realme, as of good right and equity it appertaineth any grantes, usages, prescription, act, or acts of Par∣liament, or any other thing to the contrary hereof

notwithstanding. Secondly the power of appoin∣ting subordinate judges is declared and determined to be in the King by the same statute. And be it also enacted by authority aforesaid that no person or persons of what estate degree or condition soever they be, from the sayd first day of Iuly shall have any power or authority to make any justices of Eire justi∣ces of assize, Iustices of peace or justices of Goale delivery: but that all such officers and ministers shall be made by letters patents under the Kings great seale, in the name and by authority of the Kings highnesse and his heires Kings of thise realme, in all shires, counties, counties Palatine, and other places of thise realme, Wales, and the marches of the same, or in any other his dominions, at their pleasure and wills in such manner and forme as justices of eire, justices of assise, justices of peace and justices of goale delivery be commonly made in every shire of thise realme, any grants, usages, prescription, allowance, act or acts of Parliament, or any other thinge or thinges, to the contrary thereof notwithstanding. Thirdly the power of making leagues with forraine Princes and States is declared to be in the King by a Statute mad in the fourteenth yeare of Edward the fourth which be∣ginne thus.* 1.15 whereas divers and great offences and at∣tempts have now of late beene done and committed a∣gainst the amities and leagues made betwixt our said soveraigne Lord the King and strainge Princes. By this beginning of the Statute it is manifest that the

power of making leagues and contracting al∣liance with forraine estates is a right belonging onely to the crowne. I could yet adde divers other acts of Parliament to confirme this and all the other particulars above named, but I suppose these which are allready alledged, are more then sufficient, there are also other rightes of sove∣raigntie which I could shew by the statutes to be in the King, but because there is no contestation about them I will not fight with a shadow; those above mentioned are the chiefest and inseperable from Majesty.

Notes

• * 1.1

  11. H. 7. cap. 18.
• * 1.2

  4. 5. M. cap. 3.
• * 1.3

  Coke lib. 7. 7. B.
• * 1.4

  5. K. 2. cap. 4.
• * 1.5

  7. H. 4. cap. 15.
• * 1.6

  22. E. 3.
• * 1.7

  Coke in Cal∣vins case lib. 7.
• * 1.8

  ••. Iac. cap. 2.
• * 1.9

  26. H 8. cap 2.
• * 1.10

  28. H. 8. cap. 7.
• * 1.11

  l. 35.
• * 1.12

  l 59.
• * 1.13

  Coke lib. 7. in Calvins case.
• * 1.14

  27. H. 8. cap. 24.
• * 1.15

  14. E. 4. cap. 4.