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. VII.

Divers objections made by the pretended houses answered: The Kings supreamacy shewed to be in his person, not in his courtes.

THe Kings supreamacy being made apparent I shall now proceed to answer their obje∣ctions, which yet are of that nature that they deserve more to be contemned then answered: for in stead of law they alleadge Bedas axioms, their owne fancies, and such other impertinencies, as one would thinke should Sooner move a man to laughter, then to be of their opinion. But because they shall not complaine that their objections are

concealed, and because in answering them I shall further confirme the Kings supreamacy, I will bring them all in order, not suppressing or omitting any thing that hath but the face of an objection, how slight and impertinent soever. I will beginne with that which is alleadged by the two pretended houses themselves, whose most remarkable objections are these which follow, being the summe and substance of that which they say in all their declarations touching matter of right, in this particular. The Kings supreamacy is meant in Curia non in Camera in his courtes not in his private capacity, and to speake properly, onely in his high court of Parliament, whe∣rein he is absolutely supreame head and governour, from which their is no appeal. And if the Parliament may take an account what is done by his Majesty in his inferiour courtes, much more what is done by him without authority in any court. And it is preached to the people in the Kinges declarations, that by the supreamacy is meant a power inherent in the Kings person, without, above, against all his courtes the Parliament not excepted, whereby the excellent lawes are turned into an arbitrary government. Argus eyes will Scarse be able to discover a worde of lavv or truth in all this, every sentence seemeth rather to be a Sarcasme then to conteine matter of serious im∣portance, wherein they deale with his Majesty, as the Iewes did vvith our saviour Christ, who having stripped him of his apparrel, and used all the spitefull

and opprobrions tearmes they could devise against him, added at last a mocke to their other in civilities bowing unto him, and saying, HAYLE KING OF THE IEWES. The two pretended houses having likevvise seized upon all his Majesties re∣venues, and rightes of the Crovvne, and offered him all the indignities they could invent, do yet stile him their King, and supream head and governour, but in such a manner, as they may seem, like the Iewes, rather to doe it by vvay of derision then in earnest.

The Kings supreamacy, they say, is meant in Cu∣ria non in Camera, in his Courtes not in his private capacity. As they fancy the people to have con∣veighed all authority to the King, so they fancy the King to have poured it out againe into his courtes, as if he had no povver, authority, or jurisdiction, adherent in his person, but had committed all to his delegate Iudges, or rather (vvhich they say is to speake properly) unto themselves: vvhereas he hath by lavv a royall and superimenent jurisdiction above all his courtes,* 1.1 and may call causes out of them before himselfe, or heare appeales, and reforme their abuses vvhen occasion require. Lambart. Archeion fol. 95. I shall not need to repeat that which I have before this time opened, touching the beginning of the Kingly power and authority, for the delivery of justice to all the sortes, and in all the suites of his subjects, but I will confirme by prooses drawne

out of our country lawes, and lawyers that the selfe∣same generall jurisdiction is appropriated to all the Kinges of this realme of England. Master Henry Bracton that lived in the time of King Henry the third hath in the ninth and tenth chapter of his booke these words following: Rex (& non alius) debet judi∣care, si solus ad id sufficere possit, cum ad hoc per veritatem Sacramenti teneatur astrictus, exercere igitur debet Rex potestatem juris, sicut Dei Vicarius & minister in terra. Sin Dominus Rex ad singulas causas determinandas non sufficiat, ut levior sit illi labor in plures personas partito onere, eligere debet viros sapientes, & timentes Deum, & ex illis consti∣tuere justiciarios. The wordes do prove two thinges serviceable to this purpose: first, that the King ought onely to be the judge of his people, if he alone were able to performe that office, as well because he is within his owne Kingdome the vice-Roy of God (the supreame judge of the world) as also for that he is thereunto bounde by oath, taken at the Coronation. The second that albeit he doe (for the multitud of causes) substitute others underneath him, yet is he not thereby dischar∣ged himselfe; for it is done ut levior sit illi labor that his labour be the lighter, not that he should sit unoccu∣pied; and least you should doubt that so much is not comprised in that oath of his, one question therein a∣mongst others is this: Facies fieri in omnibus judiciis tuis aequam, & rectam justitiam, & discretionem in misericordia, & veritate secundum vires tuas: To

which he answereth, faciam: wherin the wordes judi∣ciis tuis, & vires tuas, doe more properly denote his owne doing, then the doing of his subalterne justices; albeit their judgement be after a certaine manner, the judgement of the King himselfe also, from vvhence their authority is derived. Much like the wordes of Bracton speaketh King Edward the first in the begin∣ning of his booke of lawes commonly called Britton: where after he had shevved that he is the Vicar of God, and that he hath distributed his charge into sundry portions, because he alone is not sufficient to heare and determine all complaintes of his people; then he addeth these wordes: Nous volons que nostre jurisdiction soit sur touts jurisdictions en nostre realme: issent que in touts maners de felonies, tres∣pas, contracts, & en touts maners de autres actions personals, ou real, ayons poer a rendre & faire ren∣dre les jugements tiels come ils afferont, sans auter processe, par la ou nous sçavons la droit verite come judges. We will, saith the King, that our owne juris∣diction be above all the jurisdiction of our realme: so as in all manner of felonies, trespasses, contracts, and in all other actions personalls, or realls, we have povver to yeald (or cause to yeald) such judgements as do ap∣pertaine (without other processe) vvheresoever vve know the right truth, as judges. Neyther may this be taken to be meant of the Kings bench, vvhere there is onely an imaginary presence of his person; but it must necessarily be understoode of a jurisdiction remaining

and left in the Kings Royall bodie and breast distinct from that of his Bench, Marshalsey, Common pleas, exchequer, and the other ordinary courtes: because he doth immediatly after, in the same place severally set forth by themselves, as vvell the authority of the Kinges Bench, as of the rest of those his ordinarie Courtes of justice. And that this vvas no nevv made lavv, or first brought in by the Normane conquest, I must put you in minde of that vvhich I touched before, out of the Saxon lavves of King Edgar, vvhere you did read it thus: Nemo in lite Regem appellato, nisi quando domi jus consequi non poterit, sin juris summi onere domi prematur, ad regem ut is id oneris allevet, provocato: Let no man in suit appeale to the King unlesse he may not get right at home; but if that right be too heavy for him, goe to the King to have it eased. By vvhich it may evidently appeare, that even so many yeares agoe there might appellation be made to the Kings Person, vvhensoever the cause should inforce it. Hitherto Mr. Lambart; who doth afterwards further prove this supreame and supere∣minent jurisdiction of the King by divers presidents and acts of Parliament. And although the Commons in some other Parliaments have seemed to impugne this Prerogative, yet here, as he saith,* 1.2 the Kings al∣vvayes most gravely and considerately repelled that sort of attempt. The Kings supreamacy then is inhe∣rent in his Person not in his Courtes, as the two pre∣tended houses affirme; for his politique capacity

can not be seperated from his naturall, but what power soever he maketh over unto his Courtes, the same and greater remaineth in Himselfe; His autho∣rity is not separated from him by such a concession privitivè but Cumulativè onely as Civilians distin∣guish in Concessions of like nature made by the Emperour; who give these reasons for the ground of their law, not much different from those alleadged by Lambart out of Bracton and others. Credendum non est Imperatorem ita fontes suos derivasse forâs ut ni∣hil penes se remanserit; sed in quavis concessione sem∣per authoritas & persona ejus excepta censetur: quis enim tam stolidus ut alii benefaciendo seipsum consu∣mere velit, cum etiam Principis sit, & ad officium ejus proprie pertineat jus dicere Knichen. d. superiorit. territ. cap. 1. num. 5.18. Wurms. exercit. 3. num. 15. Ro∣sental. d. feud. cap. 5. conclus. 13. Pruckman. d. Regal. cap. 1. num. 17. Leipold. d. Concurrent. jurisdict. quaest. 1. It is not to be imagined that the Emperour should so empty his fountaines as to leave nothing in himselfe; but it is to be conceived that in every concession his owne Person and authority is ex∣cepted, for who is such a foole to consume himselfe by doing good to others, it is also the essentiall pro∣perty, and office of a Prince, to doe justice.

The pretended houses proceed; And to speake properly onely his high court of Parliament wherein he is absolutely supreame head and governour from which there is no appeale. They Speake not more

properly as they say, but much more improperly then they did before; it is the same authority that is in all his courtes and in his Person too, though not all the same authority; for it is limited and restrained in his courtes by commission, writ, or law; and ac∣cording as those limitations and restrictions are more or lesse, so may courtes be said to have a greater or lesse jurisdiction, but not the King to be more or lesse supreame: nor is their expression improper onely, but also full of falshood and deceit; for whe∣reas they say there can be no appleale from the high court of Parliament, they desire the people should so construe theire wordes, as to thinke the two houses could jointly by reason of the Kings virtuall presence take cognizance of a plea, and give judgement upon it, from which theire could be no appeale; which had they spoke out their falshood had been transparent. for onely the Lords house is a court of judicature, and from thence appeales may be made to the King who may and have reformed the undue proceedings of that court; for anno 18. Edward. 1.* 1.3 Bogo de Clare being discarged of an accusation put against him in Par∣liament for some imperfections of forme that were discovered in the complaint, the King commanded him neverthelesse to appeare before himselfe ad fa∣ciendum & recipiendum quod per Regem & ejus con∣silium fuerit faciendum and so proceeded to a re∣examination of the whole cause. Neyther is the for∣mer part of their wordes truer then the latter; the

Kings supreamacy they say to speake properly is onely in his high court of Parliament. This in their sence is false; the supreamacy of the King is no more in his high court of Parliament by reason of his virtuall presence or politique capacity, then in his other Courtes, when he is personally there his suprea∣macy then together with his Person is in the Court, not otherwise. For I have shewed already in divers places that the rights of Soveraigntie are not onely individually inherent in his Person, but so insepera∣bly also annexed unto it that they can not be com∣municated to others by any grant or concession made by himselfe in private, or by an act of Parlia∣ment.* 1.4 I shall now adde, that their conceit is called in Cokes reports a damnable and damned opinion, and hath been at large confuted, and condemned, by all the judges, as is there related; it was first in∣vented by the Spencers, who to cover their treason, sayd that homage and the oath of ligeance was more by reason of the Kings Crowne, that is by reason of his politique capacity then by reason of the Person of the King: from which opinion they inferred these detestable consequences. 1. If the King doe not demeane himself by reason his Leiges are bound by oath to remove him. 2. Seeing the King could not be reformed by suit of law, that ought to be done per aspertee. 3. that his Lieges are bound to governe in ayde of him, all which were con∣demned by two Parliaments, one in the Reigne

of Edward the second called exilium Hugonis le spencer. And the other anno 1. E. 3. cap. 1. And indeed their conceit is so irrationall, that it might easily be prognosticated they would never make good Stats∣men which could find no better evasion to illude the lawes. For when the King is not personally pre∣sent is his courtes, he can be there by reason of his politique capacity no other wayes but by virtuall emanation; there can be in them no more authority then is delegated and committed to his judges: Now it is a common conception as evident as the first principles, that a delegate power can not be su∣preame. A King may alienate and resigne up supreame authority, but he can not delegate it; In how generall tearmes soever, say Civi∣lians, authority be granted by the Concessour to the concessary supreame authority can not be comprised under those tearmes. Quocunque modo Regalium concessio fiat, nihilominus superius illud & Majestaticum imperium, ea largitione nunquam cen∣seatur comprehensum, sed potius major semper, quam est concessa, reservata & retenta putetur potestas. cap, Dudum. §. hoc igitur de praebend. in 6. l. inquisitio. Et ibi De••c. de solut. Periginus de jure fisci, lib. 1. tit. ult. num. 33. Kniken. de jure territorii cap. 1. num. 315. Which way soever Regalities are granted, it may not be supposed that supreame authority is comprehended under such a grant, but rather that a greater povver then is granted is reserved to the Prince.

They adde further, And if the Parliament may take an account vvhat is done by his Majesty in his inferiour courtes, much more what is done by him without authority in any court. This if is well put in; they say not categorically they may take an ac∣count what is done by his Majesty in his inferiour courtes, yet they vvould have the people thinke them to have such a povver; and therefore they lay it downe as a supposition vvhich they seeme to take for granted, although they knovv it to be false: for they may take an account vvhat is done in his courtes by subordinate Officers and Ministers, but not vvhat is done by his Majesty, vvho as King can no more doe vvrong then God can be the authour of sinne; His authority is from God, and if in∣justice be committed in his courtes his Kingly au∣thority is not the cause thereof, but the corruption of his judges vvho abuse it; and his Majesty may take an account of them eyther privately, or in his Parliament, but is not himselfe accountable for their abuses. For although the judgement of his courtes may and is tearmed in law the judge∣ment of the King, yet that is to be understood of the act it selfe, which can not be effected without his influence and concurrence; not of the obli∣quity and deviation from justice vvhich is in it. Nor is he yet accountable to any but God for his Personall actions; by the lavves of the land he can not be obnoxious to any

guilt;* 1.5 had he committed treason or any other crime before he was King, by taking the Crowne upon him all attaindor of his Person is purged ipso facto. And therfore if the assumption were granted yet the consequence must not; had they power to call him to account for the corruption of his courtes, it follo∣weth not that they might also convent him for his Personall errours: for the jurisdiction of a court is not to be argued and proved by inferences, but by commission, Statute, or prescription; and I am sure they can not prove such a jurisdiction as they challenge by any of those pleas. Enough hath been said already to prove them to be his inferiour dele∣gate, and subordinate ministers, that derive their au∣thority from him, and in case of grievance are to sue unto him by petition, which is all the help the law giveth in such exigencies; for they are so farre from having any jurisdiction over him in matters of mis∣deamenour, that they can not take knowledge of those cases wherein Majesty without disparagement may submit it selfe to a legall triall as in controversies of right, or of title to land, &c. except he be pleased to have the buisinesse decided in that court. In Haedlows case before mentioned, it is resolved by all the justices, that controversies which concerne the King can not be determined in Parliament;* 1.6 and it is there added above what hath been cited, that Kings may not be judged by others then themselves and their justices, unques Roys ne serra adjuge si non per eux mesmes &

lour justic. And this is true, at it is resolved by Scrope in the Bishop of Winchesters case, not onely in re∣spect of others, but in respect of the Members of Parliament themselves: for although they are to be tryed by their owne respective houses in things which concerne the Parliament, if the fact touch not the King; yet if it touch the King, and the case be pro∣secuted by him, they can not then take cognizance of it, except he thinks it expedient, who hath power if he please to try it in any of his other courtes, howsoever the tvvo pretended houses have exclai∣med against it for a great breach of priviledge. Fitz. tit. coron. P. 3. E. 3. P. 161. Ceux queux sount judges in Parliament sount judges de lour Pieres, mes le Roy naver Piere in sa terre demesne, per que il ne doit per cux estre judge ne ailours faire son suite vers cestui qui luy trespassa quam la ou luy pleist. They which are judged in Parliament, are judged of their Peers, (that is the Lords by the house of Lords, and the Com∣mons by the house of Commons) but the King can have no Peer in his owne land, and therefore he ought not to be judged by them, nor to make his processe against him that offends, but vvhere he please him∣selfe.

Last of all they charge the King for attributing too much povver and authority to himselfe. And it is preached to the people in the Kings declarations that by the Supreamacy is meant a power inherent in the Kings Person without, above, against all his courtes,

the Parliament not excepted, whereby the excellent lawes are turned into an arbitrary Government. It is no wonder if the pretended houses were more in∣clined to heare what their owne seditious divines preached in Saint Margerets, then what the King preached in his declarations; they which sustaine such a cause, can no more endure to heare, then to speake the truth: yet I beleeve it had beene better for them if they had entertained his Majesties Person and Declarations with more respect and dutie. Al∣though for the present they seem to have ruined him and his people too, and to have advanced their owne interest by the ruine of them both; Yet they which have mounted to places of dignity and profit upon the dead bodies of the King and people, may finde in the ende, that Rebellion and Murder sit not so high, but that vengeance and divine Iustice sit above them. As for the charge which they bring a∣gainst his Majesty, it is partly false; his Majesty never used such expressions as they pinne upon him: where doth he say that he hath a personall power above and against the Parliament? let any man pro∣duce the wordes out of which he can force such a sence. He is himselfe in Person head of the Parlia∣ment, and to say that he hath a Personall Power above and against himselfe were to speake as im∣properly, as the pretended houses use to speake in their owne declarations, which his Majesty is not guilty of. Theire charge is also partly vaine and fri∣volous;

for whereas they accuse him for saying his supreamacy was inherent in his Person, they might as well accuse him for saying he was King: Suprea∣macy is an essentiall attribute of Majesty, and can not be separated without the corruption of its sub∣ject; to say the Kings supreamacy is in his courtes and not in his person, is not onely to contradict the lawes, but the Common principles of reason. This hath been demonstrated in divers places, yet because occasion is offered againe, I will here adde the reso∣lution of all the Iudges made in the first yeare of Henry the seventh concerning this matter; for a Par∣liament being then called, and both the King himselfe, and divers of the Members, being attainded of high treason, it was resolved by the Iudges that the attain∣dor of the Members ought to be adnulled before they could sit in the house: but touching the King it was resolved, that his attaindor was adnulled upon his admittance to the crowne, because the King is personable, that is, because his Kingly authority was inherent in his Person, by reason whereof he was discharged of all guilt against the lawes. Et donques fuit move un question que serra dit pur le Roy mesme pur ceo que il fuit atteint,* 1.7 & puis communication ew enter eux, touts accordront, que le Roy fuit Personable, & discharge de ascune atteind' eo facto q̄il prist sur luy le Reigne & ēe Roy. And then a question was moved what shall be sayd of the King himself for he was also attainted, and after commmunication

had amongst them, all agreed that the King was Per∣sonable, and discharged from all attaindor in the very act that he tooke the Kingdome upon him and became King. It is likewise shewed that the King hath not onely an absolute jurisdiction in cases ex∣traordinary, which can have remedy no where else; but ordinary also, above all his courtes wherein he is but virtually present; yet for further illustration of the truth, I will here call to remembrance two places of Bracton alleadged before for other purposes, yet serving also to confirme the Kings ordinary juris∣diction. The first is Sicut Dominus Papa in spirituali∣bus super omnibus habeat ordinariam jurisdictionem, ita habet Rex in Regno suo ordinariam in temporali∣bus, & pares non habet, neque superiores.* 1.8 The second is, Dominus Rex ordinariam habet jurisdictionem,* 1.9 & dignitatem, & potestatem, super omnes qui in Regno suo sunt; habet enim omnia jura in manu sua, quae ad coronam & laicalem pertinent potestatem. That in Fleta is also to be understoode of the Kings ordi∣nary jurisdiction.* 1.10 Potentia Rex omnes in Regno suo praecellere debet, quia parem habere non debet, nec mul∣to fortius superiorem in justitia exhibenda. The King ought to have a supereminent power above all the rest in his Kingdome, because he ought to have no equall, much lesse a superiour in exhibiting justice.

Notes

• * 1.1

  Manwoo•• of forrest lawes part. 1.
• * 1.2

  Fol. 125.
• * 1.3

  Lambarts Archeion fol. 133.
• * 1.4

  Lib. 7. in Calvinet case.
• * 1.5

  1. H. 7. 4.
• * 1.6

  22. E. 3. 6.
• * 1.7

  1. H. 7. 4.
• * 1.8

  Lib. 5. cap. 15.
• * 1.9

  Lib. 2. cap. 24.
• * 1.10

  Lib. 1. cap. 17.