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. IV.

The Kings supreamacy in generall shewed by the Common law.

HAving shewed the Kings supreamacy from the Statutes, I come now to the Common law, which is the grounde and foundation of it; for Statutes are but declarations of the royall power, the power it selfe with the severall modifica∣tions and qualifications of it is more ancient then any statute, and can not be limited or restrained by an Acte of Parliament in any thing that tends to the derogation or diminution of Majesty: for the En∣glish Monarchy by the Common law is an absolute Monarchy susceptible of no alteration in the rightes and preheminences of Majesty.

First I say the English Monarchy is an absolute Monarchy by the Common law admitting no mix∣ture in the rightes of soveraigntie, the King alone being the onely supreame head and governour having none superiour to him or coordinate with him eyther singly or collectively taken. this is ex∣presly determined in Sir Edward cokes reportes who hath beene cryed up by the pretended Parlia∣mentarians for the oracle of the law, as being no wayes guilty of too much affection to prerogative: the wordes of the reporte are these. If that Acte of the first yeare of the late Queene, had never been made it was resolved by all the judges that the King or Queene of England for the time being may make such an ecclesiasticall commission as is before mentio∣ned by the ancient prerogative and law of England.* 1.1 And therefore by the ancient lawes of this realme this Kingdome of England is an absolute empire and Monarchy consisting of one heade which is the King and of a body politique compact and compounded of many and almost infinite severall and yet well agreeing members; all which the law divideth into two gene∣rall partes, that is to say the cleargy, and the laytie, both of them next and immediatly under God subject and obedient to the head; also the Kingely head of thise Politique body is instituted and furnished with plenarie and intire power, prerogative, and juris∣diction to render justice and right to every part and member of thise body of what estate degree, or calling

soever, in all causes Ecclesiasticall or temporall other∣wise he should not be a heade of the whole body. This is further proved by Sir Edward Coke by divers presidents and, Acts of Parliament, who concludeth his reporte after this manner.* 1.2 Thus hath it appea∣red as well by the ancient common lawes of this realme, by the resolutions and judgements of the judges, and sages of the lawes of England in all succession of ages, as by authority of many acts of Parliament ancient and of later times, that the Kingdome of England is an absolute Monarchy, and that the King is the onely supreame governour as well-over Ecclesiasticall per∣sons and in Ecclesiasticall causes as temporall within this realme; to the due observation of which lawes both the King and the subject are sworne. Bracton sayth as much in effect, although he calleth not the English Monarchy an absolute Monarchy in ex∣presse tearmes. Sicut Dominus Papa in Spiritualibus super omnibus habeat ordinariam jurisdictionem, ita habet Rex in Regno suo ordinariam in Temporalibus, & pares non habet neque superiores. As the Pope hath ordinary jurisdiction over all in Spirituall causes, so hath the King in his Kingdome in Temporall,* 1.3 and he hath none coordinate with him, or superiour to him. Bracton speaketh not here of particular men, but of the people collectively taken; he sayth the King is over all, and he compareth his temporall jurisdiction with the Spirituall jurisdiction of the Pope, which in his time was acknowledged in Eng∣land

to extende ad universos, as well as ad singulos, as it is now in all other places where it is acknow∣ledged.

In the second yeare of King Iames in Hillary tearme letters being directed to the judges to have their resolution concerning the validity of a grant made by Queene Elizabeth under the great seale, of the benefit of a penall Statute; in which grant power was given to the Lord Chancellor or keeper of the great seale, to make dispensations when and to whome he pleased, after great deliberation it was resolved, that when a Statute is made by Acte of Parliament for the publique good, the King could not give the power of dispensation to any subject, or grant the forfeitures upon penall lawes to any before the same be recovered and vested in his Ma∣jesty by due and lawfull proceedings: and the rea∣son their alledged is because the King as head of the commonwealth, and the fountaine of justice and mercy, ought to have these rightes of soveraigntie annexed onely to his Royall person. Car quant un statute est fait pro bono publico & le Roy (come le teste del bien publique & le fountaine de justice & mercie) est par tout le realme trust ove ceo cest confidence & trust est cy inseparablement adjoyne & annexe al Royall person del Roy in cy haut point de soveraigntie,* 1.4 que il ne poit transferre ceo al disposition on poiar d'ascune privat person ou al ascune privat use. For when a statute is made for the publique good and

the King (as head of the commonwealth and the fountaine of justice and mercy) is by all the Realme trusted vvith it, that confidence and trust is so inse∣perably annexed to the Royall person of the King in so high a point of Soveraigntie that he can not transferre it to the disposition or povver of a private person or to any private use. I shal not need to ex∣plaine and amplify the matter by arguments and inferences dravvne from these reportes for the vvordes are cleare of themselves, and do expresly declare and resolve the Monarchy of England to be an absolute Monarchy, the King alone to be the only supreame head and governour of the vvhole body, that is of all the people, as vvell collectively as severally taken.

And hence it is, (namely in regard of the Kings supreamacy he being the onely head of the King∣dome, having no equall or superiour but God a∣lone, vvhose Vicegerent he is upon earth) that the common lavv doth by vvay of fiction and simili∣tude attribute unto him the Divine perfections. Finch lib. 2. del ley. cap. 1.* 1.5 Roy est le test del bien pu∣blike, immediate desouth Dieu, desuis touts persons & en touts causes: Et pur ce••entant que il resemble le person del Dieu, & port son image enter homes le Ley attribute a lui en un similitudinarie manner, l'ombre del excellencies que sont en Dieu, cest ascavoir SOVERAIGNTIE, tout terre est tenu de luy:* 1.6 nul action gist vers luy car quis commmandra le

Roy?* 1.7 POYAR, il poit commaunder ses subjects daler hors de Realme en guerr: poet faire ascune foreine coine currant icy per ses Proclamations. MAIESTY,* 1.8 ne poet prend ne departer ove ascune chose forsque per matter de record si non soit chattell ou tiel quia de minimis non curat lex.* 1.9 INFINI∣TENES en un manner, esteant present en touts ses courts, si come home poet dire en chescun lieu. PER∣PETVITY ayant perpetuell succession,* 1.10 & ne un∣que mor̄. PERFECTION, car nul laches, follie, infancie,* 1.11 ou corruption del sank est judge en lui. VE∣RITY,* 1.12 ne serra unque estoppe. IVSTICE, ne poet esse disseisor, ne fairre ascun tort. The King is head of the commonvvealth immediatly under God, over all persons, and in all causes; and there∣fore because he represents the person of God, and bears his image, the lavv attributeth unto him in a similitudinary manner a shadovv of Divine excel∣lencies; namely SOVERAIGNTIE, all lands are houlden of him, no action lieth against him for vvho shall command the King? POWER he may command his subjects to go out of the Realme to vvarre. he may make any forraine coyne currant here by his Proclamations: MA∣IESTY, he can neyther take not parte vvith any thing vvithout matter of recorde, except it be chat∣tell or such like, because the lavv regard not such small matters. INFINITENESSE after a Manner, being present in all his courtes, and

as it were in all places. PERPETUITIE, ha∣ving perpetuall succession and being not subject to dy; PERFECTION, for no laches, follie, in∣fancy, or corruption of blood can be judged in him; TRUTH, he can not be estopped. IUS∣TICE, he can not be a disseisor, or do any wrong. These divine excellences which the lawe supposeth to be in the King are not by law also supposed to be in the two houses, because they represent not the person of God, but the persons of the people, whose deputies and Lieutenants they are, and not the de∣puties and Lieutenants of God.

There are also divers prerogatives and priviled∣ges by the common lawe belonging to the King, and divers Actes which the King may doe, or not doe, by reason of his Supemacy: The King shall not in his writ give any man the Stile or Title of Do∣minus because it is unbeseeming his Majesty to use that tearme to any, he being him selfe omnium subdi∣torum supremus Dominus, the supreame and sove∣raigne Lord of all his subjects: and in this case al∣though there be variance betweene the writ and obligation, or other specialty,* 1.13 yet the writ shall not abate, which it shall in other cases,* 1.14 as if they vary in the name, or surname, or if they vary in the summe.

The King can hould lande of no man, because he can have no superiour,* 1.15 but on the other side all landes ether immediatly or mediatly are houlden of him as soveraigne Lord: for although a man hath a

perpetuall right in his estate, yet he hath it in the na∣ture of a fee; and whether it cometh to him by descent, or purchase, he oweth a rent or duty for it: and therefore when in pleading a man would signify himselfe to have the greatest right in his estate,* 1.16 he sayth, Que il est ou fuit seise de ceo en son demesne come de fee, that he is or was seised thereof in his demeasne as of fee; and if a man houlds his estate immediatly of the King, as of his crowne or Person, this tenure is called a tenure in ca∣pite, because he houlds it of the supreame head of the commonwealth.

If a man houldeth lande both of the King and other inferiour Lordes whereby his heire becometh a warde, the King alone shall have the custody both of the heire and land, the reason which is ren∣dered in lawe is because the King can have none coordinate with him, or superiour to him. Glanvil. lib. 7. cap. 10. Si quis in Capite de Domino Rege tenere debet, tunc ejus custodia ad Dominum Regem plene pertinet: sive alios Dominos habere debeat ipse haeres, sive non, quia Dominus Rex nullum habere potest pa∣rem, multo minus superiorem. If any man houldeth lande of our Lord the King in capite, then his ward∣shipe shall wholly belonge to our Lord the King, whether he hath other Lordes or not, because the King can have no equall, much lesse a superiour. Bracton. lib. 2. cap. 37. Si aliquis haeres terram ali∣quam tenuerit de Domino Rege in Capite, sive alios

Dominos habuerit, sive non, Dominus Rex aliis prae∣fertur in custodia haeredis, & sive ipse haeres ab aliis prius fuerit feofatus, sive posterius, cùm Rex parem non habeat nec superiorem in regno suo; If an Heire houldeth lande of our Lord the King whe∣ther he hath other Lordes or not our Lord the King shall have the wardshipe of the heire, whether the heire were first or last infeofed by others, because the King hath no equall, or superiour in his King∣dome: The lawe is the same as well for whole So∣cieties, Incorporations, and collective bodies, as for Particular men; if a man should make the two houses his heire leaving them landes houlden of them by knights service, if the same persons held also of the King in capite by knights service, the King alone should have the wardshipe and custo∣dy of the heire and land, though first infeofed by the others; and if the reason in law of this prela∣tion be, because the King hath neyther equall nor superiour, as is alledged by Bracton, and Glanvil, it followeth then, that the two houses collectively taken are neyther superiour nor yet coordinate with the King.

By the common lawe there lyeth no action or write against the King,* 1.17 but in case he seiseth his sub∣jects landes, or taketh away their goods,* 1.18 having no title by order of law, petition is all the remedy the subject hath, and his petition is called a petition of righte: The reason which is given in lawe for this

is because the King is supreame and accountable to none but God. Bracton lib. 1. cap. 8. Non debet esse major eo, (I. e. Rege) in regno suo in exibitione juris, minimus autem esse debet vel quasi in judicio suscipiendo si petat; Si autem ab eo petatur (cum breve non currat contra ipsum) locus erit supplicationi quod factum suum corrigat & emendet, quod quidem si non secerit, satis sufficit ei ad poenam quod Domi∣num expectet ultorem. Nemo quidem de factis suis praesumat disputare, multo fortius contra factum suum venire. There ought not to be in his Kingdome a greater then he (that is, then the King) in the exhi∣bition of lawe, but he ought to be the least, or as it were the least in receiving judgement if he desire it. But if it be desired of him (because no vvrite lyeth against him) there shall be place for petition that he would correct and amend his deede, which if he refuse to doe, it is sufficient for his punishment that he may expect God a revenger, for no man must presume to dispute of his fact, much lesse oppose and resist it. And againe lib. 4. cap. 10. Item inter caetera videndum est quis sit ille qui deijcit, Princeps s. ex potentia, vel aliquis pro eo, vel nomine suo, vel Iudex qui male judicaverit, vel privata persona. Si autem Princeps, vel Rex, vel alius qui superiorem non habuerit nisi Dominum, contra ipsum non habebitur remedium per assisam, immo tantum locus crit suppli∣cationi, ut factum suum corrigat & emendet, quod si non fecerit, sufficiet ei pro poena quod Dominum

expectet ultorem. It is also to be considered who it is that disseiseth, whether the King by his power, or some other in his name, or a Iudge who judgeth unjustly, or a private person. If it be the King, or any other, who hath no superiour but God, there shall be no remedy had against him by assise, onely there shall be place for petition, that he would cor∣rect and amende his deede, which if he refuseth to doe, it is sufficient for his punishment, that he may expect God a revenger. This is all the helpe which a subject hath against the King, because he is su∣preame, and bound to give an account af his acti∣ons to none but God, and this is the course which the two houses of Parliament are to take by law in case the King infringeth or is supposed to infringe the rightes and liberties of the people, as will ap∣peare by divers petitions of right exhibited in former Parliaments.

Secondly I say, the English Monarchie by the common lawe is susceptible of no alteration in the rightes and preheminences of Majesty; I meane by any Act of Parliament, or by any agree∣ment of King and people: what a conqueror in a just warre, or what the people may doe in case the bloode Royall, which God prohibite, should be extincte, is not now disputable: but so long as there remains a King, or heire apparent to the crowne, the rights and preheminences of Majesty can by no act, agreement, stipulation, or covenant

made betweene King and people be severed and taken from the crowne; should the King unwarily by Acte of Parliament consent to any thing preju∣diciall and derogatory to his Royall prerogative, such Actes are voyd by the common law, and the Iudges (being bounde by oath to assent to nothing that may turne to the Kings hinderance or dam∣mage) are bounde to declare them so,* 1.19 and have done it de facto upon severall occasions. By a Sta∣tute made the twenty third yeare of Henry the sixt it is ordained that no man shall continue Sheriffe of a Shire above one yeare, and that all patents from the King of that office, for tearme of yeares, of life, in fee simple, or in fee taile should be voide any clause or worde of non obstante in any wise put or to be put into such patents to be made notwith∣standing; now this Statute so farre as it striks at the Kings prerogative is by the Iudges of the land de∣clared to be voyd,* 1.20 contrary to the expresse puruiew of that Acte, and all Kings since might with a clause of non obstante against the manifest sence and wordes of that Statute have granted that office for life in taile, or in fee. Finch. lib. 2. fol. 22. Roy poet licencer choses prohibite per estatute,* 1.21 come a coyner argent que est sait felonie per un estatute, & devant ceo fuit loyall a saire, car ceo est forsque malum pro∣hibitum: mes malum in se, come a levier un nu∣sance en le haul chemine, Roy ne poet licence home a faire; mes apres que est fait il poet ceo perdoner. Mes

si lestatute dit, que son licence serra voyd, la le licence aver' un clause de non obstante, cest assavoir, di•••• non obstante ascune estatute al contrarie, ou auterment nest bone: come le Statute 33. H. 6. cap. 18. est, que grant del Roy deste vicount del ascun countie pluis longement quam per un an serra voyd; nient obstant que son patent aver un clause de non obstante: uncore ove un cause de non obstante, tiel patent, serra bone. The King may licence thinges prohibited by Sta∣tute, as to coyne silver, which is made felonie by Statute, but was lawfull before, for that is evill onely because it is forbidden, but that which is evill in it selfe, as to levie a nusans in the high waye, the King can not licence a man to doe that, but he may par∣don it after it be done. But if the Statute say, his licence shall be voyd, there the licence shall have a clause of non obstante, viz. it shall say any Statute to the contrarie notwithstanding. or otherwise it is not good: As the Statute 23. H. 6. cap. 18. is, that the grant of the King to be Sheriffe of a Shire longer then a yeare, shall be voyd, notwithstanding his pa∣tent shall have a clause of non obstante, and yet with a clause of non obstante such a patent shall be good. So likewise the King hath a power to dispence with penall Statutes, and if such dispensations should be prohibited or made voyd by Acte of Parliament, yet with a clause of non obstante,* 1.22 they shall be good, although it should be provided in expresse

tearmes that such dispensations notwithstanding the sayd clause should be of none effect. By divers Statutes it hath beene enacted,* 1.23 that no charter of pardon of the death of a man nor of other felony should be granted; yet all these Statutes are by the common law made voyd,* 1.24 because they cut off parte of the Kings prerogative: for it is against reason, that the fountaine of mercy should by an Acte of Parliament be dried up, although Kings ought to make use of theire prerogative but sparingly in that particular, vvhen they meet vvith a fit object of mercy, and not in cases vvhere the lavv of God command execution of justice, or in ordinary cases, vvhereby offendors may be incouraged.* 1.25 So like∣vvise to grant letters patents of Denization is estee∣med by the common lavv inter jura Majestatis & insignia summae potestatis,* 1.26 and is so inseperably and individually annexed to the Royall person of the King as it can not be divided from it. That which I have hitherto sayd of the rightes and preheminen∣ces of Majesty, is to be understood of those rightes and preheminences that are so essentiall to it, as they can not be separated vvithout the diminution or destruction of Majesty. As the power of the militia, the power of making lawes, the power of appointing Iudges, and such like Actes of jurisdi∣ction, as also the power of dispensing with penall Statutes, the power of pardoning the transgressions

of the law, the power of prosecuting the law, and such like supreame actes of justice and mercy: some of which rightes and preheminences can not be taken away without giving a wounde, others not without bringing death, and dissolution to Majesty: yet there are other rightes and preheminences that are called priviledges, which are not so essentiall to Majesty, but that thy may by speciall grace of the King be seperated. Bracton. lib. 2. cap. 24. Ea vero quae jurisdictionis sunt & pacis & ea quae sunt justi∣tiae & paci annexa ad nullam pertinent nisi ad Coro∣nam & dignitatem Regiam, nec à Corona seperari po∣terunt cum faciant ipsam Coronam. Ea vero quae di∣cuntur Privilegia, licet pertineant ad Coronam, ta∣men à Corona separari possunt & ad privatas perso∣nas transferri, sed de gratia ipsius Regis speciali. Those thinges which belonge to jurisdiction and peace, and those which are annexed to justice and peace pertaine to none but the crowne, neyther can they be seperated from it because they make the Crowne: But those which are called Priviledges, although they pertaine to the Crowne, yet they may be separated from it and transferred to private per∣sons, but not without the speciall favour of the King. It may seeme strainge that the King and the Lords Spirituall and Temporall, and the house of Com∣mons, which are virtually the whole kingdome, should not have power to make what lawes they please, and to binde themselves and the whole king∣dome

by them in thinges not repugnant to the law of God; yet if we consider the grounde of this re∣strainte, we shall finde it reasonable: for they which lay the first foundation of a commonwealth, have authority to make lawes that can not be altered by posterity in matters that concerne the rightes both of King and people: for foundations can not be removed without the ruine and subversion of the whole buildinge: As for example, the division of thinges which is made at the first foundation of a commonvvealth (vvhether the people tooke the country they divide from the inhabitants by con∣quest in a just vvarre, or vvhether they did first ac∣tually possesse it themselves as being before emptie and vacant) can not be altered by posterity, and a nevv division made vvithout manifest injustice. The lavves vvhich they then make for the preservation of their right and proprietie in the sayd division, can not be disanulled by succeding Parliaments, nor can any particular man be deprived of his inheritance, vvhich descend unto him by vertue of that divi∣sion, or of any parte or parcell, or appurtenances thereof, by any contrary lavv vvhich shall be made by them; I speake not vvhat Parliaments may do by force, but vvhat they may justly doe; for they have not such an arbitrary povver, but that they are alvvayes in a morrall subjection to the rules of justice and naturall equity. And in this case the Kinges condition ought not to be vvorse then the

peoples, but his share and rightes in the said division are as firmely and unchangeably to be preserved, as the share and rightes of particular men: And both the King and people are obliged to this, not onely by the rules of justice, and naturall equity, but by oath, and by the municipall lawes of the lande, to which they are both sworne. That the King is bound to this, appeares by the lawes of King Edward.* 1.27 Debet vero de jure Rex omnes terras, & honores, omnes dignitates, & jura, & libertates coronae regni hujus in integrum cum omni integritate & sine diminutione observare & defendere; dispersa & dilapidata & a∣missa regni jura in pristinum statum & debitum vi∣ribus omnibus revocare. The King ought by right to maintaine and defende all the landes, honours, dignities, rightes and liberties of the crowne, intirely without diminution; and by all means to recall againe those rightes which are lost and separated from the crovvne. That the people are bound to this, appears likevvise by the lawes of King Edvvard,* 1.28 and of William the Conquerour, vvho did a little inlarge the lavves of King Edvvard in this parcular.* 1.29 Statuimus etiam & firmiter praecipimus ut omnes li∣beri homines totius regni nostri praedicti sint fratres conjurati ad Monarchiam & ad Regnum nostrum pro viribus suis & facultatibus contra inimicos pro posse suo defendendum, & viriliter servandum, & pacem & dignitatem coronae nostrae integram observandam, & ad judicium rectum & justitiam constanter omni∣bus

modis pro posse suo sine dolo & sine dilatione fa∣ciendam. Hoc decretum sancitum est in civitate Lon∣don, vve vvill and commande that all free men of our Kingdome be svvorne brothers to defend and keepe our Monarchy and Kingdome according to their povver against the enemies of the same, and to maintaine the peace and dignitie of our crovvne intire, and to exercise right judgement, and justice according to their povver vvithout deceit and de∣lay. This decree vvas enacted in the city of Lon∣don. By the civill lavv also the rightes of Sove∣raigntie can not be separated from the Prince, and the reason alleadged is, because they are essentiall to Majesty. Suprema jurisdictio et potestas regia, etsi Princeps velit, a se separari non possunt, sunt enim ipsa forma et substantialis essentia Majestatis, ergo manente ipso Rege ab eo abdicari non possunt. Cabedo practic. observ. par. 2. decis. 40. n. 8. Io. Andr. in addit. ad specul. tit. de jurisdict. c. Cum Marthae. de cele∣brat. Missar. Supreame jurisdiction and Kingly povver can not be seperated from the Prince al∣though he vvould himselfe, for they are essentiall to to Majesty, and can not be abdicated vvhilst he re∣maineth King.

Notes

• * 1.1

  Coke. lib. 5. in Caudreys case.
• * 1.2

  Fol. 40. 6.
• * 1.3

  Lib. 5. cap. 15.
• * 1.4

  Coke lib. 7. tit. penall. Statutes.
• * 1.5

  1. H. 7. 10.
• * 1.6

  7. E. 4. 17. 21. H. 7. 2.
• * 1.7

  Coke 7. fol. 7. B. 43. El. coke 5. fol. 114. B.
• * 1.8

  4. E. 6. 31. 5. E. 4. 7.
• * 1.9

  2. H. 4. 7. 1. H. 7. 19.
• * 1.10

  35. H. 6. 26.
• * 1.11

  10. El. 331.
• * 1.12

  35. H. 6. 61. 4. El. 246.
• * 1.13

  8. E. 6. 23. B.
• * 1.14

  11. E 4 2 8. E. 4. 2.
• * 1.15

  As. pl. 1. 18 Elizab. 498.
• * 1.16

  Littleton fol 3.
• * 1.17

  21. H. 7 2.
• * 1.18

  Stanford in his exposi∣tion of the Kings Pre∣rogative cap 22.
• * 1.19

  23. H. 6. cap. 8.
• * 1.20

  2. H. 7. Coke lib. 7. fol. 14.
• * 1.21

  11 H 7. ••1. B.
• * 1.22

  Coke lib. 7. 37.
• * 1.23

  2. E. 3. cap 2. 4 E. 3. cap. 13 14. E. 3. cap. 14.
• * 1.24

  Stanford lib. 2. 101.
• * 1.25

  20. H. 7. 8.
• * 1.26

  Coke in Cal∣vins case.
• * 1.27

  l. 17.
• * 1.28

  l. 35.
• * 1.29

  l. 59.