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. V.

The Kings supreamacy in particular shewed by the Common law.

I Come now to the particular rightes of Sove∣raigntie, vvhich are all by the Common lavv wholely in the power of the King. First,* 1.1 the mi∣litia is his by the Common law, and to him it o∣nely perteineth, to make warre with forraine Princes and Estates; as also to maintaine the peace, to sup∣presse rebellions, and to see justice executed at home within his owne Kingdome: Fleta lib. 1. cap. 17. Ha∣bet Rex in manu sua omnia jura quae ad coronam et Laicalem pertinent potestatem, et materialem gla∣dium qui pertinet ad Regni gubernaculum. The King hath all the rightes in his hand which belonge to the

crowne, and to Temporall jurisdiction, and the power of the sworde, vvhich belonge to the govern∣ment of the Kingdome. So likevvise saith Bracton lib. 1. cap. 8. Sunt et alij potentes sub Rege qui dicun∣tur Barones, hoc est robur belli, sunt et alij qui di∣cuntur Vavasores, viri magnae dignitatis, vavasor enim nihil melius dici poterit quam vas sortium ad ad valetudinem. Sunt et sub Rege milites, s. ad mili∣tiam exercendam electi. There are other great men under the King, vvhich are called Barons, and other vvhich are called Vavasours, men of great dignitie. There are also souldiers under the King chosen to exercise the militia. And in the beginning of his booke he saith that it is necessary this povver should be in the King. In Rege qui recte regit, necessaria sunt duo haec, arma videlicet et Leges, quibus utrum∣que tempus bellorum et pacis recte possit gubernari: utrumque enim istorum alterius indiget auxilio, quo tam res militaris possit esse in tuto, quam ipsae Leges usu armorum et praesidio possint esse servatae. Si autem arma defecerint contra hostes, rebelles, et indomitos, sic erit regnum indefensum: Si autem Leges, sic exterminabitur justitia. In a King that governeth vvell, tvvo thinges are necessary, armes and lavves, by vvhich he may be enabled to rule both in times of peace and vvarre; and both these neede the helpe of on another, vvhereby both armes and lavves may be preserved. If armes be vvanting against enemies, and rebells, the Kingdome

shall be without defence; if lawes be wanting, with∣out justice. This is also evident from the Tenures, whereby most of the chiefe men in the kingdome hould their estates: for all that hould in capite by knightes service, are bound for their fee to assist the King in his warres whensoever they shall be sum∣moned by him; whether it be to suppresse rebel∣lion, or to resist a forraine invasion. And this hath beene the knowne law of the land ever since the the time of William the Conqueror, in the fourth yeare of whose reigne this right vvas confirmed unto him by Acte of Parliament: The vvordes of the Statute are these. Statuimus et firmiter praeci∣pimus, ut omnes Comites, et Barones, et milites, et servientes, et universi liberi homines totius regni nostri praedicti habeant et teneant se semper bene in armis, et in equis ut decet et oportet, et quod sint semper prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum semper opus adfuerit, secundum quod nobis debent de feodis, et tenementis suis de jure facere, et sicut illis statuimus per commune consilium totius Regni nostri praedicti, et illis dedimus et concessimus in feodis jure heredi∣tario. We vvill and command that all Earles, Ba∣rons, Souldiers, villeins, and all free men of our vvhole kingdome, be alvvayes vvell provided vvith horse and armes, as it behoveth them, and that they be alvvayes in a readinesse to serve us as often as need shall require according as they are bound

by their landes and tenements, and as vve have appointed them to doe by the common councell of our vvhole kingdome, and for that considera∣tion have given and granted them landes in fee for ever.

Secondly the legislative povver belonge to the King alone by the Common Lavv, the tvvo houses have authority granted them by the King to assent or dissent, but the povver that maks it a lavv the authority that animats it and maks it differ from a dead letter, is in the King, who is the life and soule of the law by whose authority alone the lavves commande, and forbid, and vindicate, and punish offendors. So sayth Bracton lib. 1. cap. 2. Hujus∣modi verò Leges Anglicanae, et consuetudines, Regum authoritate jubent quandoque, quandoque vetant, et quandoque vindicant et puniunt transgressores. These Lavves and customes of England by the Kinges au∣thority doe sometimes command, sometimes forbid, and somtimes chastise and punish trans∣gressours. This vvas also resolved by divers Earles and Barons, and by all the justices in the time of Edvvard the third: For one Haedlow and his wife having a controversy vvith the King, and de∣siring to have it decided in Parliament, a reference being made to divers Earles, and Barons, and to all the justices, to consider of the businesse, it vvas re∣solved that the tvvo houses vvere not coordinate vvith the King in the Legislativer Povver, but that

the King alone made lawes by the assent of the two houses, that he had none equall or coordinate with him in his realme, and that he could not be judged by the Parliament.* 1.2 Fuit dit que le Roy fist les leis per assent des peres & de la commune, et non pas les peres, et le commune: Et que il ne avera nul pere en sa terre demesne, et que le Roy per eux ne doit estr̄ ajuge. It was resolved that the King make lawes by the assent of the Lordes and Commons, and not the Lordes and Commons: and that he could have no peere in his owne land, and that he could not be judged by them. The Common practice of the lawe confirme this as well as the re∣solution of the Iudges; for the breach of any Statute whether it be by treason, murther, felony, perjury, or by any other way, is an offence against the Kinges authority alone, and pleas made against such offen∣ces are called the pleas of the crowne, because they are done encounter la corone et dignitie le Roy,* 1.3 against the crowne and dignity of the King. So that it is not the dignity and authority of the Lordes and Commons which is violated by contempt of the law, but the dignitie and authority of the King. He may dispence also with such lawes as forbid a thinge which is not malum in se, and pardon the transgres∣sion of others, as Treason, Felonie, and the like; which in reason he ought no more to doe, then to dispence with the lawes of Germany, or pardon the transgressours thereof, if they were not made by

his owne authority. Againe the King calling the Iudges to him, hath a power to interprete the Sta∣tutes, and it is an uncontroulable Maxime of Law, Ejusdem est leges interpretari cujus est condere: None can interpret the lavves, but the same povver that make them. I knovv the tvvo houses have cha∣lenged this povver, and voted it a high breach of priviledge for any to question their authority herein: but vve desire they vvould shew us by vvhat lavv they can vvorke such miracles; for the King taking the Iudges to him, have alvvayes had that povver by the lavves of the land: their exposition upon the Statute of Glocester made in the sixt yeare of Ed∣vvard the first is extant amongst the printed Statutes, and followeth immediatly after the sayd Statute, in these vvordes. After by the King and his Iustices, certaine expositions were made upon some of the arti∣cles above mentioned, that is to wit, to the first article, for entries by disseisin, damages shall run from the time of the Statute published. In the same wise, in writs of entre upon disseisin and in all writs of Mort∣dauncester. Cousenage, Aiel or Besaiel, of intrusion by ones owne acte by any manner of write, damages shall run after the write purchased against them that held by Statute, albeit their ancestors died seised thereof. Touching an Inquest to be made of such as be with in age, the Statute shall run without limi∣tation of time. Touching alienation of landes houlden by the lawe of England, the Statute shall run for

such landes being aliened after the time of the Statute published. In like manner the Statute shall extend and run upon the landes of a wife aliened by hir hus∣band (whereas no fine was levied thereof in court.) Touching landes being let in fee ferme, to pay there∣fore yearly the fourth parte of the very value thereof, the Statute shall run as well unto landes that were leased before the making of the Statute, as after, in case that the tenant have withhoulden above the space of two yeares after the Statute published, so much as he should have paid to his leassor yearly ac∣cording to the forme of the Covenant. And as to the punishment of wast in all cases (except it be of dowers and wards) it shall be understanded of wasts done sithens the Statute published. And of the for∣feiture of treble in cases of wast of dowers, and wardships, it shall be understanded of wasts commit∣ted after the Statute published. And as concerning them which doe alien their dowers, it is to be under∣standed after the publishing of the Statute. Given at Glocester the Sunday next after the feast of Saint Peter ad vincula, the sixt yeare of the reigne of King Edward the first; Here we see to whome the inter∣pretation of the law belongeth, the Iudges by them∣selves have a power to interpret it judicialiter, they could not otherwise proceede to judgement; but being, called by the King, with him, and under him, they have a power to interpret it authorita∣tivè as hath been the practice, and is the knowne

law of the Lande. But for the two houses (besids that they can doe nothing jointly together, unlesse the King doth actually concurre with them) their structure is such that they are altogether uncapable and unfit to interpret law: For the power that in∣terprete law must be alwayes existent, to act as new occasions shall arise, which require the exercise of that power, which the two houses are not. And yet were they alwayes existent, both houses having a negative voyce, upon any disagreement between them, the interpretation of the law must be retarded, and all controversies depending there upon unde∣cided: and this disagreement might perhaps en∣dure for ever, and so a finall determination in such suites would be impossible, except they should de∣termine their differences by force, which they have beene often necessitated to doe, since they have usurped the power of interpreting law, and ordering the affaires of the Kingdome. Now these are incon∣veniences which ought not to be admitted in any commonwealth: for it derogats both from the ho∣nour and wisdome of a Nation to be so moulded and framed, that justice can not have a free passage in all contingencies. I will yet adde for the further clearing of this pointe, that not onely the legislative power it selfe, but the very exercise of the power also, so farre as it is essentiall to government is in the King alone; for he can by edicts and proclamations provide for all necessary occasions, and speciall

emergencies, not provided for by fixed and certaine lavvs; vvhich is one of the most excellent and emi∣nent actes of the legislative povver, and a sufficient remedy against all mischiefes, in case the tvvo hou∣ses should refuse to concurre vvith him in those thinges vvhich concerne the benefit of the King∣dome. He may also grant immunities, liberties, and priviledges, to any colledge, tovvne, cittie, or incor∣poration, and authorise the sayd communities to make such locall statutes as shall oblige every mem∣ber thereof so farre as they contradict not the gene∣rall Statutes of the Land, vvhich are all actes of the legislative povver that he can exercise vvithout the concurrence of the tvvo houses. Novv concerning the Kinges negative voice, it is the knovvne lavv of the land that the King hath a povver of dissenting, and that no act of Parliament can have any autho∣rity except eyther in person or under his seale he signifies his assent.* 1.4 This hath been often times re∣solved by the justices; and if no lavv or custome could be shevved for it, yet it is unreasonable to thinke that the Kinges of England should by agree∣ment vvith the people devest themselves of this au∣thority, and leave the povver of making lavves vvholely to their subjects, vvhereby they should have inabled them by lavv to pull the crovvne from off their heades, and set it vvhere they please.

Thirdly allegeance or ligeancy is due to the King, and none but the King by the common lavv, as Sir

Edvvard Coke shevveth at large in Calvins case from the resolution of the judges. By that which hath been sayd appeareth, sayth he, that this li∣geance is due onely to the King so as therein the que∣stion is not now cui sed quomodo debetur. It is true that the King hath two capacities in him, one a natu∣rall body being discended of the blood Royall of the realme, and this body is of the creation of almighty God, and is subject to death, infirmity, and such like; The other is a politique body or capacity, so cal∣led because it is framed by the policy of man (and in the 21. E. 4. 39. B. is called a misticall body) and in this capacity the King is esteemed to be immortall, in∣visible, not subject to death, infirmity, infancy, nonage, &c. Vide Pl. Com. in le Case de Seignior Bar∣clay 238. Et in the case del duchie 213. vide 6. E. 3. 291. & 26. ass. pl. 54. Now seeing the King hath but one person and severall capacities, and one politique capacity for the realme of England, and an other for the realme of Scotland, it is necessary to be considered to which capacity legeance is due, and it was resolved that it was due to the naturall person of the King, which is ever accompanied with the politique capa∣city, and the politique capacity as it were appropria∣ted to the naturall capacity) and is not due to the poli∣tique capacity only, that is to the crowne or Kingdome distinct from his naturall capacity. In the same case a little after it followeth. And where divers bookes and Acts of Parliament speake of the ligeance of Eng∣land

as the 31. E. 3. tit. Cosinage 5. 42. E. 3. 2. 13. E. 3. tit. Bre. 677. 25. E. 3. Statut. 2. De natis ultra mare. All these and divers other speaking briefly in a vulgar manner (for loquendum ut vulgus) and not pleading (for sentiendum ut docti) are to be un∣derstood of the ligeance due by the people to the King. For no man will affirme that England it selfe taking it for the continent thereof, doth owe any ligiance or faith, or that any faith or ligeance should be due to it; but it manifestly appeareth, that the ligeance or faith of the subject is proprium quarto modo to the King, omni, soli, & semper.

Fourtly, the power of making Iudges, and all such State officers, as exercise any jurisdiction, is in the King alone by the Common law, and can not, nor ought not to be seperated from him: for it is not reasonable that deligate Iudges should be substi∣tuted by any but those whose deligates they are; nor can a King execute justice according to his oath (which next the Glory of God is the chiefe ende of Government) by a naked title onely; His subjects may be vexed by the rapine and exactions of un∣just Iudges, they may be wearied by delayes, ex∣hausted by insupportable fees, opprest many se∣verall wayes, and the King in the meane time must stand still and looke on, being too weake to resist, if his handes be bound, and he disabled from pu∣nishing their delinquencies, and deputing others in∣to their places. And therefore this power can not

be disunited from the crowne, but ought to be de jure, as it hath alwayes beene de facto, a part of the Kings prerogative. Bracton lib. 3. tit. de actioni∣bus, cap. 10. Et si ipse Dominus Rex ad singulas causas terminandas non sufficiat, ut levior sit illi labor in plures personas partito onere, eligere debet de regno suo viros sapientes & timentes Deum, in quibus sit veritas eloquiorum, & qui oderunt avaritiam (quae inducit cupiditatem) & ex illis constituere Iusticia∣rios, Vicecomites, & alios Ballivos, & Ministros suos, quibus referantur tam quaestiones super dubijs, quam querimoniae super injurijs. And if our Lord the King be not sufficient to determine all contro∣versies him selfe, he ought to selecte wise men, fearing God, and hating covetousnesse, and out of them constitute Iustices, Sherifts, Bailies, and other officers, to whome controversies and complaintes may be referred. The practice of the law hath al∣wayes beene the same since Bractons time, and all Iudges and chief officers appointed by write, patent, or commission from the King. Hence it is that all patents and commissions of Iudges, and other such officers, determineth by the common law at the Kings death. Coke tit. discontinuance de proces, &c. part. 7. 30. Al common ley per demise le Roy le plea fuit discontinue, & le proces que fuit agard, & nient returne devant le mort, le Roy fuit perde: Car per le breve del predecessor rien poit estre execute in le temps del novel Roy, si non que il soit in especiall

cases; car le mort le Roy, non solem̄t les justi∣ces de lū Bank & de laūt, & Barons del exchequer, mes les viconts auxi, & eschetors, & touts com∣missions de Oyer & Terminer, Goale delivery, & justi∣ces de peace, sont determine per le mort le predecessor que eux fist. By the Common law all pleas were discontinued by the death of the King, and processe awarded and not returned before his death was lost: for by the writ of the predecessour nothing can be executed in the time of the new King, except it be in some speciall causes; for by the death of the King not onely the justices of both the benches, and the Barons of the exchequer, but Sheriffs also, and Escheatours, and all commissions of Oyer and Ter∣miner, Goale delivery, and Iustices of peace, are determined by the death of the predecessour that made them.

Fiftly, the power of making leagues and con∣tracting alliance, as also of making warre, with for∣raine States is in the King alone. Coke lib. 7. 25. Lea∣gues between our Soveraigne and others are the onely means to make aliens friends, & foedera percutere to make leagues; onely and wholely perteineth to the King: warres do make aliens enemies, and bellum in∣dicere belongeth onely and wholely to the King, and not to the subject, as appeareth in 19. E. 4. fol. 6. 6.* 1.5 It hath been resolved by the Iudges, that if all the peo∣ple of England collectively taken should breake the league made with a forraine Prince, without the

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Kings consent, the league houlds, and is not broken. There are yet other rights of Majesty as the power of Coynage, the power of granting letters patents of Denization, the power of dispensing with such lawes, as are dispensible, and the power of par∣doning the transgression of them, with divers others, all which belong to the King by the Common law; but because they are not called in question, I will passe them over and conclude this chapter with the testimony of Bracton. Dominus Rex ordinariam ha∣bet jurisdictionem,* 1.6 et dignitatem et potestatem, super omnes qui in regno suo sunt, habet enim omnia jura in manu sua quae ad coronam et laicalem pertinent po∣testatem. Our Lord the King hath ordinary juris∣diction and dignity, and authority over all that are in the Kingdome, for he hath all the rightes in his hande which belong to the crowne, and to the secu∣lar power.

Notes

• * 1.1

  19 E. 4. 6. Coke 7. 25. B.
• * 1.2

  22. E. 3. 6.
• * 1.3

  Stanford les plees del corone. lib. 1. cap. 1.
• * 1.4

  12. H. 7. 10. 4. H. 7. 18. 7. H. 14. judge jen∣kins fol. 18.
• * 1.5

  19. E. 4. 46. 22. E 4 Fitz. jurisdiction last placite. Iudge len∣kins fol. 17.
• * 1.6

  lib. 2. cap. 24