THE Royal Apology OR, AN ANSWER TO THE Rebels Plea: WHEREIN, The most Noted Anti-Monarchical TENENTS, First, Published by DOLEMAN the Jesuite, to pro­mote a Bill of EXCLUSION against King JAMES. Secondly, Practised by BRADSHAW and the Regi­cides in the actual Murder of King CHARLES the 1st. Thirdly, Republished by SIDNEY and the Associators to Depose and Murder his Present MAJESTY, Are distinctly consider'd. With a PARALLEL between DOLEMAN, BRADSHAW, SIDNEY and other of the True-Protestant PARTY.

LONDON, Printed by T. B. for Robert Clavel, and are to be sold by Randolph Taylor, near Stationers-Hall. 1684.

TO THE READER.

IN the Year 1594. the Je­suit PARSONS published a Conference under the Name of DOLEMAN. The Design of which Pamphlet, as e­very one knows, was to promote a Bill of Exclusion against King JAMES.

And though the Jesuites malice was herein defeated, as to the Per­son of that King; yet how much it influenc'd the Sufferings of his late Majesty, is a sad story to re­peat. For he who shall peruse the many virulent Libels, which first occasion'd, and then fomented that [Page] unnatural Rebellion; he will ea­sily be instructed how that Confe­rence was Transcribed and Tran­sprosed by the Patrons of the Fa­ction: And to speak in our Mo­dern Language, he cannot but observe, That the Popish DOLE­MAN is the Oracle of the TRƲE-PROTESTANT Party.

Now that this may not be re­jected as a slandering Design, on­ly to make them odious to Au­thority, as is commonly Object­ed; I have here drawn for the Readers satisfaction, a short PA­RALLEL between Doleman, Bradshaw, Sidney and some o­thers. Upon perusal of which it will plainly appear, that the [Page] Jesuites Principles, as managed by Bradshaw and the Regicides, did cut off the Head of King CHARLES the first.

And since the same Principles have been transcribed by the Bre­thren of the ASSOCIATION; we have just reason to suspect the fame Practices likewise: And that those who defend the Murder of King CHARLES the first, would doubtless, if they had Power in their Hands, Depose and Mur­der King CHARLES the Second.

If any Republican shall think fit to doubt that the following Dis­course is either Partial or Ʋncon­concluding, i. e. that I have either said something that is false, or else have omitted in any Instance, the [Page] very Strength of their Cause, let him make known his Grievance. And I do here faithfully promise, upon such notice given, I will (through Divine Assistance) en­deavour his Satisfaction.

THE CONTENTS.

  • THe Occasion of this Treatise, Pag. 1.
  • Which Consists
  • Of an Objection p. 3. and its An­swer p. 5.
  • Containing these Particulars, viz.
  • The Government of England not a mixt Monarchy p. 6.
  • The King not one of the three E­states p. 16.
  • In what sence the King of England is an Absolute Monarch p. 19.
  • And how he is Limited p. 43.
  • That known saying of BRAC­TON Lex facit Regem how to be understood p. 20.
  • That other controverted Passage, Rex habet Superiorem, Deum [Page] & Legem, etiam & Curiam, largely considered p. 25 ad p. 37.
  • Of the Coronation Oath p. 38.
  • Of the Kings Prerogative p. 45.

THE Royal Apology: OR, AN ANSWER TO THE Rebels PLEA.

ALthough the Kings Title to his Crown and Dignity, together with his just Right and Authority, over all Persons and in all Causes, are beyond Ex­ception establish'd, by the Ordinance of God, and the known Laws and Constitu­tions of these Kingdoms; yet so far hath Prejudice, or something worse, prevail'd with some Men (and those not of the mea­nest Rank) as to suffer themselves to be led into a Belief.

That the Original of all Government is from the People; and that the Power which Kings and Princes have, was derived unto them from the People by way of Pact or Contract. Particularly, That the King of England (as appears from his Coronation-Oath) having solemnly engaged to his Peo­ple, to maintain Religion, to execute Justice, and to keep the Laws and right­ful Customs of the Kingdom; upon these Conditions was admitted to the Kingly Power. The which Conditions if he shall omit to observe (and of this, they them­selves will be Judges) they then fancy, that he hath forfeited his Crown; and that the People who first made him King may, by their Representatives in Parliament, de­throne and Depose him.

That this is the Scheme of some Mens Policy, the many Treasonable Papers, such as, The Association, Vox Populi, Appeal to the City, Coll. SIDNEY'S Papers, &c. to­gether with the late horrid Conspiracy groun­ded thereupon, do sufficiently demon­strate.

And therefore I hope it will be no un­seasonable Undertaking; but may, through [Page 3] Gods Blessing, contribute somewhat to se­cure the King's Liege-People in their due O­bedience, whilst I endeavour to evince the Falseness and destructive Consequences of these Anti-monarchical Principles.

Which that I may the more effectually, and with the greater clearness perform, I shall first lay down the utmost Strength of their Cause in one intire Objection, and then endeavour their satisfaction in the fol­lowing Answer.

OBJECTION.

THE Government of England is a mixt Monarchy, consisting of Three Estates King, Lords and Commons: And therefore the King of England is not an Absolute, but a li­mited Monarch; and as Such is to govern by, and according to, the Laws of the Land, and not o­therwise: And by the Oath which he hath taken at his Coronation, he is obliged to use the Power, Trust and Office then committed to him, for the Good and Benefit of the People, and for the preservation of their Rights and Liber­ties.

Now if the King, thus entrusted to keep the Laws, and preserve Religion, should be guil­ty of a wicked Design, to subvert our Laws, and destroy our Religion, by introducing an ar­bitrary, Tyrannical Government; he must then understand, that he is but an Officer of Trust: And the Parliament of England (the Repre­sentatives of the People, in whom all Power doth originally reside) they are to take order for the A­nimadversion and Punishment of such an offend­ing Governor. Parliaments were ordain'd to restrain the exorbitant Power of Kings, and to redress the Grievances of the People.

It is very true, what some have said, Rex non habet parem in Regno. But this is to be understood in a limited Sense: For though ma­jor singulis, yet he is minor universis. This we know to be Law, from that famous Lawyer BRACTION: Rex habet Superiorem, Deum & Legem, etiam & Curiam.

Which is thus Interpreted by Mr. SIDNEY.

For this Reason Bracton saith; That the King hath Three Superiors, to wit, Deum, Legem & Parliamentum; That is, The Power originally in the People of England, is delegated unto the Parliament. SIDNEY'S Tryal, pag. 23.

This is, as I conceive, the Sum of all that hath been, and the utmost of what, I suppose, can be said in this matter. To which I return this

ANSWER.

THAT this Phrase a mixt Monarchy, though somewhat frequent in the Mouths of these Men, is yet no very plain or intelligible Expression.

For, if by a mixt Monarchy, they design such a Government, wherein though the Supream Power may reside in one single Person, yet the Monarch is so limited in the Execution of that Power, that he cannot legally perform several Acts of Soveraignty without the Concurrence of his Subjects (as with us here in England, the King neither makes LAWS, nor doth raise Taxes without his Parliament) If this be the utmost they design, when they call England a mixt Monarchy; then, though the Expression is very improper (an arrand Bull, a flat Contradiction in adjecto) yet where we are agreed in the Thing, we shall not contend about VVords; but may safely [Page 6] grant, that in this Sense, as now explain'd, The Government of England is a mixt Mo­narchy.

But if by a mixt they denote such a Monarchy, wherein though the Style and Title of King, together with some Ce­remonious Appendices of Royalty, as Cap and Knee, Guards, &c. are indeed inve­sted in One single Person, yet the Supreme Power and Soveraignty is not solely and in­tirely in the Monarch, exclusively to all others (as with us here in England, say these Men, the Soveraignty by way of Coordination, is partly in the King, partly in the Lords, and partly in the Commons, and for this reason they are styled the Three Estates of the Kingdom) if this be their Notion of a mixt Monarchy (as most plain­ly it is, if Actions may interpret Intentions) it is then not only false and absurd, but dangerous and destructive. And there­fore in this Sense we do peremptorily de­ny; That the Government of England is a mixt Monarchy.

For, The Supreme Power is solely in the King; and consequently the King is not, by way of Coordination, One of the Three Estates, [Page 7] but the HEAD and Soveraign of them all.

In order to his Conviction, the Dissent­ing Republican, who denyes this Truth, may please to consider,

That he who shall desire to inform himself rightly, where the Supreme Pow­er in any Government is plac'd; as also by whom, how and how far such Power hath from time to time, been either exercis'd or restrain'd; he must of necessity have re­course to the Publick Laws and Constitutions of such Government. Particularly here in England, he who designs to be truly in­structed in this matter; he must not re­ceive his notice from the Discourses of private men (which are many times fallaci­ous, partial and uncertain) but he ought to consult the Known Laws and Statutes those Authentick Records of the King­dom.

Now the Oath of Supremacy, establish'd by several Parliaments, doth expresly De­clare; That the Kings Highness is the only Su­preme Governor of this Realm, and of all other his Highness Dominions and Countries, as well in all Spiritual or Ecclesiastical Things or Causes, as Temporal.

Words as plain and intelligible as the Wit of Man could devise.

From whence 'tis obvious to make this Inference;

That if the King is Supream, then he hath no Superior; if only Supream, then no equal. If over all Persons (and as such the 55th. Canon enjoyns us to acknowledg him in our Prayers) then All Persons in these his Realms, and all other his Dominions and Countries, are subordinate or Subject un­to him, and if subordinate, then none of them, either severally or joyntly are coordinate with him.

Now is it possible, after so plain and express a Determination, for any Man to doubt; That the Supream Power is solely in the King? I observe it is possible: For, some Men who will not be satisfy'd with Rea­son, do thus urge.

That the Oath of Supremacy, being ex­presly levell'd against the Usurpations of the Church of Rome, was consequently so fram'd as to discover those who are Po­pishly affected.

For, the Persons taking that Oath are obliged only to Declare; That they Re­nounce [Page 9] all Foreign Jurisdictions: i. e. They do swear; That the King of England is no Feudatory Prince, and that he holds not his Crown in Fee, either from the Pope, or any Foraign Power whatsoever. But what is all this, say these men, to the Parliament? Or, how comes this Oath to be urg'd a­gainst the Jurisdiction of the two Houses? Since in those very Statutes in which this Oath is enjoyn'd, the Legislative Power (which doubtless is the Supream Power) is expresly Established in the Parliament, as well as in the King, in these Words.

Be it Enacted by the Kings most Excellent Majesty, the Lords Spiritual and Temporal and the Commons in this present Parliament assem­bled, and by the Authority of the same.

Lords Spiritual and Temporal and the Commons do Enact joyntly with the King, and therefore have a Coordinate Power.

To which it is thus Reply'd.

That when this Oath of Supremacy was first framed, the Pope being then the most noted Usurper, was for that reason more particularly mention'd than any other; but from thence to infer.

That it was design'd, by way of Test, [Page 10] to discover Those, who are Popishly-affe­cted, is a very great Mistake.

For, the Supremacy of the Kings of England, being the chief Prerogative of the Crown, was always challeng'd and main­tain'd by V. 27. Ed. 3. c. 1. 3 R. 2 c. 3. 7 R. 2. c. 12. 16 R. 2. c. 5. 2 H. 4. c. 4. 6 H. 4. c. 1. 24 H. 8. c. 12. 25. H. 8. c. 19. 26 H. 8. c. 1. 37 H. 8. c. 17. Parl 2. 1. Mar. c. 1. Popish Princes as well as Pro­testant, 1 Eliz. c. 1. 5 Eliz. c. 1. 13 E­liz. c. 2. as appears by these several Statutes here mention'd in the Margent.

The Intent then of this Oath was not to discover who are Papists, but in plain Terms, who are Traitors: And therefore let Mens Pretences to Religion be other­wise what they will; if by scrupling this Oath, they refuse to give assurance to the Government, that they will be honest and loyal, they are to be esteem'd, if not Traitors, yet at least Trayterously affe­cted.

And whereas they further urge, That the Coordinate Power of the Parliament is no way condemn'd by this Oath; which on­ly takes notice of a Foraign Usurpation; They are for their satisfaction, desired to consider,

That, since rectum est Judex sui & obliqui, Domestick Usurpation is hereby excluded as well as Foreign: The Soveraignty of [Page 11] the People as well as of the Pope.

And as to that which is pleaded from the Form of the Statute, by the Authority of the same, as if the Lords and Commons did by their Authority, make and enact Laws joyntly with the King; To this I do hum­bly Answer, That this Expression, if du­ly consider'd, doth not in the least favour the Republican Fancy of a Coordinate Pow­er.

Which I shall best express to vulgar Capacities (for whom this Discourse is chiefly design'd) thus faithfully by repre­senting the Matter of Fact.

Although the Legislative Power is solely in the King, yet His Majesty doth not make Laws, without the concurring Advice and Approbation of his Subjects: For the King, like other Men, being mortal and of limited Capacity, is neither omniscient nor omnipresent. He cannot be in all Parts of his Dominions at one and the same time, and consequently can no otherwise be acquainted with the Grievances of his Subjects, but by the Reports of o­thers.

To supply this Defect, he calls whom [Page 12] he pleaseth (such as he thinks able and faithful to assist and direct him) to be of his Privy Councel; whose advice he takes in the Execution of those Laws which are already Establish'd.

But since all human Laws are liable to Defects (for it is the sole Prerogative of Gods Law, as being the result of Infinite Wis­dom and Goodness, to be exceeding broad; to be fitted to all times, and to answer all occasions) it is therefore sometimes neces­sary that new Laws should be made, and the old ones either abrogated and null'd; or else reinforc'd with greater Penalties.

In such Cases, according to the happy Constitution of these Nations, the King summons his Great Council; the High and most Honourable Court of Parliament; The Lords Spiritual, the Lords Temporal and the Commons; Representing the Three Estates of the Kingdom; Who coming from all Parts of the Nation, are best able to in­form His Majesty of the Grievances of his Subjects; and by what Ways and Me­thods they may most suitably be re­dress'd.

In order hereunto; when any Proposal, [Page 13] or as we phrase it any Bill, hath pass'd the Approbation of the Two Houses; it is then humbly presented to the King for his Royal Assent. Which if His Majesty thinks fit to grant, then Le Roy le veult, makes it a Law: But if the King shall dislike the Bill, he then rejects it, with a Le Roy ne veult, the King will not pass it; or else in that more obliging Form of Denyal, Le Roy avisera, the King will consider or advise about it.

This is the plain matter of Fact. From whence 'tis very easie to understand, what this Form of words, By the Authority of the same doth import, viz. not of the same Lords and Commons (as if either Lords or Commons had an Authority contradistinct from, or coordinate with, the King) but by the Authority of the same Parliament.

The which Parliament, as Sir Edw. Cooke Instit. part 4. Cap. 1. p. 1. informs us, consisteth of The Kings Majesty, sitting there as in his Royal Politick Capacity, and of the Three Estates of the Realm, viz. The Lords Spiritual, the Lords Temporal and the Commons. So that in Pro­priety of Speeeh, neither Lords nor Commons (though in a vulgar Sense, and to some [Page 14] purposes, they are sometimes so called) I say neither Lords nor Commons strictly and properly are a Parliament without the King; who summoning them by his Writs; and presiding over them as their Head, ani­mates and informs them, and makes them a Legal Parliament, who otherwise, with­out the Royal Summons, would be no bet­ter than an unlawful and riotous Conven­tion.

The Lords and Commons have indeed an Authority, to meet and sit and debate as a Parliament; But they have this Authority solely from the King, and not from Them­selves or from the People: For, the King Calls them when he pleaseth, and so makes them a Parliament; and he Dissolves them when he thinks fit, and so makes them none.

Again, The Lords and Commons have an Authority, but not to Enact or make Laws (for the Words, Be it enacted refer only to the King) but to advise and consent to such Laws as shall be made by the King: And therefore this Phrase, Be it e­nacted by the Kings most excellent Majesty, the Lords Spiritual and Temporal, and the Commons [Page 15] in this present Parliament assembled, &c. hath an Ellipsis in it; and is to be read thus. Be it enacted by the Kings most Excellent Ma­jesty, by the Advice and with the Consent of the Lords Spiritual and Temporal and the Commons in this Parliament assembled, &c. Advice and Consent though for Brevities sake they are not always express'd, yet are still to be understood.

And for the Truth of this, I appeal to the Form of our antient Statutes (as also to some modern ones) and that not only in the Title, but also in the Preface and San­ction of them. For till the time of Henry VIII. the words Advice, Assent or Consent were never omitted. As appears from the Statutes themselves, to which recourse to be had.

From these Premises it plainly appears, That the Supreme Power is solely in the King; and, That the Two Houses of Parliament are (not Partners in the Government but) his most Dutiful and Loyal Subjects; as in all their Petitions most truly they do stile themselves. And that this Form in our Statutes, By the Authority of the same, when rightly understood, doth neither [Page 16] give them Title to make Laws, nor per­form any other Act of Soveraignty, which may countenance this Fancy of a Coordi­nate Power.

The next Pretence of these Republican Polititians (which I find they often urge in vindication of the late Rebellion) is this; That the King is One of the Three Estates; and from thence they infer: He hath but One share in the Government; and that the other Two are Co-partners with Him.

The which Suggestion being apparently False, I shall need to say the less in it's Confutation, especially being so happily prevented by a late Learned Hand, viz. The Grand Question concerning the Bishops Right, &c.

The judicious Author of which Trea­tise having first premised;

That the whole Parliament assembled, are the best Judges, which are the Three E­states in Parliament; and that their Autho­rity is more to be valued, than that of a­ny particular Persons, whether Lawyers or others; He then, in many Instances, in­forms us from the Parliament Rolls and [Page 17] publick Records of the Kingdom; That the Three Estates are the Lords Spiritual, the Lords Temporal and the Commons.

In these Records we read of Impeach­ments R. 2. made before the King, and all the Estates of the Realm. Of Commissions appointed by the Peers and Lords Spiri­tual R. 2. and Temporal, and the Commons of the Kingdom, representing all the States of the Kingdom.

Of such and such things, 6 H. 6. n. 24. advised and appointed by the Authority of the King, as­senting the Three Estates of this Realm.

The Duke of Bedford appear'd in Par­liament 11 H. 6. n. 10. before the King and the Three E­states of this Realm.

In the Parliament 1. H. 6. The Queen Dowager, in her Petition, mentions the Ratification made in Parliament, 9 H. 5. and saith; It was not only sworn by the King, but by the Three Estates of the Kingdom of England, i. e. by the Prelates, Nobles and other Grandees, and by the Commons of the Realm of England.

And to add one Instance for latter times in the Parl. 1 Eliz. cap. 3. The Lords Spiritu­al, the Lords Temporal and the Commons declare, [Page 18] That they do represent in Parliament the Three Estates of the Realm.

With several others which I shall not mention, but refer all those, who either want or desire satisfaction, to the Book it self.

And as to my plain, honest Reader, who hath neither ability nor opportunity to consult these Publick Records, I shall desire him to open his Common-Prayer-Book; and to turn to the Office for the 5th. of No­vember. In the Preface of which he thus reads, A Form of Prayer with Thanksgiving—for the happy Deliverance of the King, and the Three Estates of the Realm. And in the Collect before the Epistle, We acknowledg the Power, Wisdom and Goodness of God, in preserving the King, and the Three Estates of this Realm assembled in Parliament.

It thus evidently appearing; That the King is not One of the Three Estates, and consequently, that his Anthority is not li­mited or restrain'd, by the Coordinate Power of the other Two; we may with better assurance proceed to examin the Truth of their next Suggestion, viz. That [Page 19] the King of England is not an Absolute Mo­narch.

In which Inquiry, least I should dimi­nish the Kings just Right and Prerogative on the one hand, or encroach upon the Sub­jects Freedom and Liberty on the other, I must neither affirm nor deny without due Distinction.

Now the Kings Power and Authori­ty doth admit of a Twofold Considera­tion.

For, either we may observe it's efficient Cause, the Spring and Fountain from whence it flows; or else may take notice of the Execution and Administration of it.

As to the First of these;

If the Question should be asked; whence hath the King this Power to Rule and Govern these Nations? Who gave him this Authority?

To this a just Answer may be sugge­sted from His Majesties Royal Motto; DIEU ET MON DROIT, God and my Birth-right have given me these King­doms.

If it further be demanded, How Birth-right doth Entitle to a Crown? 'Tis then truly replyed That it is a Fundamental Law of England, That the Crown doth descend to the next in Blood; England being not an Elective but an Hereditary Kingdom.

And from hence we are occasionally instructed, how to understand that Con­troverted Place in Bracton (which I there­fore mention because I find it repeated with great Triumph in several Pamphlets) Lex facit Regem; the Law makes the King; Lib. 1. c. 7. f. 5. and Lib. 3. c. 9. f. 107. The Law, i. e. The Law of Succession. In which Sense doubtless my Lord Cook (as I have somewhere read) told King James, That the Law set the Crown upon his Head.

And it is the same Law that set the Crown upon the Head of His Present Ma­jesty.

For though His Majesties personal Qua­lifications deserve a Crown; yet it was not any Acceptance or Consent of the People, ex­press'd at his Coronation or otherwise, but it was his Birth-right only which made him King, because Son and Heir apparent of King Charles the First.

This is the full Import and Meaning of that saying of Bracton.

But now from hence to infer (as some canting Polititians have done) That because The Law, in this Sense as now explain'd, makes the King; therefore the Law is Superi­or to the King; therefore the Law hath a Co­ercive Power over the King; therefore, If the King shall neglect to Discharge his Trust, the Parliament of England (who are not only the highest Expounders, but the sole Makers of Bradshaw's Harangue at the Kings Try­al. the Law) can by that Law which made him King, censure and condemn him for his Neg­lect. I say thus to infer, is not only false and explosive in it self; but Treasonable to the King, and Destructive to the Kingdom: But of this, God willing, more fully in it's proper Place.

It may suffice at present to observe, that the Crown of England is an Imperial Crown, i. e. Such a Crown which as to the Coercive part; is not subject to any human Tribu­nal or Judicature whatsoever, as most plainly appears from our Law-Books and Statutes.

It was asserted in our Laws in the Time 16 R. 2. c. 5. of King Richard the Second, That the Crown of England hath been so free at all times, that it hath been in no EARTHLY SUBJEC­TION [Page 22] BUT IMMEDIATELY SUBJECT TO GOD, in all things touching the Regalty of the same Crown, and to none other.

And in 24 H. 8. it was declared in Par­liament, 24 H. 8. c. 22. That this Realm of England is an Empire, and so hath been accepted in the World, govern'd by one Supreme Head and King, having the Dignity and Royal Estate of the Imperial Crown of the same; unto whom a Body Politick—of Spiritualty and Temporalty, been bounden and owen to bear NEXT TO GOD, a natural and humble Obedience.

And 25 H. 8. It is Declared; That 25 H. 8. c. 21. This Realm, recognizing NO SUPERIOR UNDER GOD, BUT ONLY THE KING, hath been, and is free from Subjection to any man's Laws, but only to such as have been devized within the same. V. 1 Eliz. cap. 3. & 1 Jac. c. 1. which are very pertinent to be perused, in confirmation of these preceding Statutes.

And if private Authorities may not seem superfluous after the recital of such Authentick Records, I might largely con­firm this Supreme Independent Power of the King, by the repeated Testimonies of our most eminent and noted Writers.

But because I would not be too tedious, I shall mention none but the forecited Bracton Lord Chief Justice under Henry the 3 d. And I the rather take notice of Him, because some passages in his Works have been perverted and abused, by the IGNORANCE or MALICE of ill design­ing Men.

From this Learned and Judicious Au­thor we are thus instructed.

Om­nis quidem sub eo, & ipso sub nullo, nisi tan­tum sub. Deo. Pa­rem autem non habet in Regno suo, quia sic a­mitteret preceptum. All Ranks and Degrees of Men are subject to the King; but the King himself is under none but God. There is none equal to him, or coordinate with him in the Kingdom; such a fancy being wholly inconsistent with his Kingly Power— Si autem ab ro petatur (cum brevo non currat contra ip­sum) locus erit suppli­cationi quod factum suum corrigat & emendet, quod quidem si non fecerit, satis suf­ficet ei ad paenam quod Dominum expectet ultorem. Nemo quidem de factis suis praesumat disputare, multe fortius contra factum suum venire. Vid Bracton de Leg. Ang. Lib. 1. cap. 8. Sect. 5. fol 5. And if any Man hath occasion to implead the King (since no Writ can be taken out against him) he must then pro­ceed by way of Petition. But if the King shall still refuse to do him right, it will be sufficient punishment for him to expect the Lord as an Avenger.

Doubtless no man should presume to question the Kings Actions; much less to oppose them by force.

And in his 5th. Book de Defaltis Cap. 3. Sect. 3. he speaks the same Language.

For having put the Case, That if the King being Petition'd to redress the Grievances of his Subjects, should yet neglect to grant them Justice, what further course the Sub­ject might take for his Relief? He Rules it thus.

Quo casu cum Dominus Rex super hoc fuerit interpella­tus, in ea­dem volun­tate quod velit te­nentem esse defensum cum inju­ria, cum tentatur Justitiam totis viri­bus defensa­ro, ex tunc erit injuria ipsius Domini Regis, nec poterit ei necessitatem aliquis imponere quod illam corrigat & emendet nisi velit, cum superiorem non habeat nisi Deum, & satis crit illi pro paena quod Deum expectat ultoram. Bracton Lib. 5. de Defaltis c. 3. Sect. 3. fol. 368, If the King, who is bound to admini­ster Justice to his utmost Power, will not recal the wrong he did upon a false Suggestion; in this case he injures his Subjects, but no body can force him to do Right; because he hath no Superior but God only. And it is sufficient that we shall have a day of hearing hereafter at a Just Tri­bunal.

V. Lib. 2. c. 24. Sect. 1. p. 55. & lib. 2. c. 37. Sect. 5. p. 87. & lib. 3. c. 9. Sect. 3. p. 107.

But here I am Allarm'd with that no­ted saying of this Author; Rex habet Supe­riorem, Deum & Legem etiam & Curiam.

And there is scarce a Pamphlet, preten­ding Vid. Sidney's Tryal p. 23. either to Law or Latin, which doth not triumph in this Sentence of Bracton. I am therefore oblig'd, for their sakes who may otherwise be misguided, to endea­vour the full Sence and Meaning of these Words.

In order to which Task, and that he may the better apprehend the clearness of my Answer, I must trouble my Reader to peruse the whole Section.

De Chartis vero Regiis & factis Regum, non debent nec possunt Justiciarii, nec privatae per­sonae disputare; nec etiam si in illa dubitatio ori­atur, possunt eam interpretari, & in dubiis & obscuris, vel si aliqua dictio duos contineat in­tellectus Domini Regis erit expectanda interpre­tatio & voluntas, cum ejus sit interpretari, cu­jus est concedere, & etiam si omnino sit falsa propter rasuram, vel quia forte signum apposi­tum est adulterinum, melius & tutius est quod coram ipso Rege procedatur ad Judicium. Item nec factum Regis, nec chartam potest quis ju­dicare, ita quod factum Domini Regis irretetur. [Page 26] Sed dicere poterit quis, quod Rex Justitiam fe­cerit, & bene, & si hoc, eadem ratione quod male, & ita imponere ei quod injuriam emendet, ne inci­dat Rex & Justic. in Judicium viventis Dei propter injuriam. REX AUTEM HABET SUPERIOREM, DEUM. S. ITEM LEGEM, PER QUAM FACTUS EST REX. ITEM CURIAM SUAM, viz. Comites, Barones, quid Comites dicuntur, quasi socii Regis, & qui habet Socium, habet Magistrum, & ideo si Rex fuerit sine fraeno, i. e. sine Lege, debent ei fraenum ponere, nisi ipsimet fuerint cum Rege sine fraeno, & tunc clamabunt subditi & dicent, Domine Ihesu Christe in chamo & fraeno maxillas eorum con­stringe, ad quos Dominus, vocabo super eos gentem robustam & longinquam & ignotam, cu­jus linguam ignorabunt, quae destruet eos, & e­vellet radices eorum de terra, & a talibus judi­cabuntur, quia subditos noluerunt juste judi­care, & in fine, ligatis manibus & pedibus eorum, mittet eos in caminum ignis & tenebras exterio­res, ubi erit fletus & stridor dentium. V. Lib. 2. c. 16. §. 3 fol. 34.

This is the whole Section, in which that controverted Passage, Rex habet Superiorem, &c. is contain'd.

Now as preparatory to a just Explica­tion, it will be pertinent to consider these Two Things.

First, That all difficult and obscure pla­ces in any Author, ought to be determi­ned by such as are plain and obvious; but not e converso. And therefore,

Secondly, When we doubt of the true Sence of an Author, it is much more mo­dest as well as charitable, to confess our own Ignorance, and to say, we do not know what he means, rather than to calumni­ate and mistake him, by affixing such a Sence to his Words as he never intended.

And consequently, it might be a suffi­cient Answer to affirm; That since our Bracton hath so plainly and so often told us; That the King is under none but God. That all Orders and Degrees of Men are Subject to the King. That he hath no equal much less Su­perior. That no man should presume to question his Actions, &c. It evidently follows;

That whatever can be understood by this Curia (whether Lords or Commons) yet this Curia is not Superior to the King: It neither gave him his Authority at first, nor hath the least shadow of a Coercive [Page 28] Power, to limit and restrain him. For certainly that cannot be the meaning of Bracton, which he hath so expresly con­tradicted in other parts of his Works.

But that I may Answer as well as Evade, I now come to explain, what I think to be the true Sence and Meaning of these Words, Rex habet Superiorem, &c.

The Subject matter of this Second Book of BRACTION is, De acquirendo rerum Do­minio. It explains the nature of Legal Ti­tles; and sets forth the several ways, by which a man may acquire such a Right and Property in the thing possess'd as to call it his own. And amongst many o­thers, DONATION as being the chief, is more particularly consider'd by him.

Now these Gifts or Grants (as he tells us in the beginning of this 16 Chap. Sect. 1.) fiunt in scriptis, sicut in Chartis, ad perpetuam memoriam, propter brevem hominum vitam, & ut facilius probari possit Donatio. They are for Mortalities sake, put into Writing, that so the Donee (should his Title be que­stion'd) by the Evidence of such enrolled Deeds, may secure his Possession.

Of these Grants or Charters, some are [Page 29] made by the King; others by private Men. And having largely discours'd of these private Charters, Sect. 2. 4. and so on; in this intermediate 3 d. Sect. he more parti­cularly gives us his Judgment de Chartis Regiis; which by way of Eminency are stiled Charters.

De Chartis vero Regiis & factis Regum, non debent nec possunt Justiciarii, nec privatae Per­sonae disputare: Neither the Who are here meant by those Ju­sticiarii, let the learned in the Law de­termine. Justiciarii nor private persons, have any Commission to dispute the Kings Charters; or to question any other of his Majesties Proceedings; nec etiam si in illa dubitatio oriatur, possunt eam interpretari: For where the Royal Grant is doubtful and obscure, it would be pre­sumption in them to pretend to explain it. Et in dubiis & obscuris, vel si aliqua dictio duos contineat intellectus, Domini Regis erit ex­pectanda Interpretatio & voluntas; cum ejus sit interpretari cujus est concedere.

But if any part of it be ambiguous, and doth admit of a double Sense, than the Kings pleasure (since His Majesty who first made the Grant best knows his own Mind) is the surest and most authentick Interpretation; Et etiam si omnino sit falsa [Page 30] propter rasuram, vel quia forte signum apposi­tum est adulterinum, melius & tutius est quod coram ipso Rege procedatur ad Judicium.

Moreover should there be suspicion, that any Charter (either by erasing or corrupt Interpolation) hath been falsely transcri­bed, 'tis the best and safest course, to de­termine the matter before the King him­self. Item nec factum Regis, nec chartam po­test quis judicare, ita quod factum Domini Re­gis irritetur. However (as was said before) let no man presume to censure the Kings Charters, or any other of his Proceedings, so as to make null and void the Act and Deed of our Lord the King.

Sed dicere poterit quis, But here it may be Objected, quod Rex justitiam fecerit, & bene, If the King will do Justice, 'tis well; & si hoc eadem ratione quod male, & ita imponere ei quod injuriam emendet, ne incidat Rex & Justic. in judicium viventis Dei propter injuriam. and should he not do Justice, it seems that must be well taken too, since no body dares tell him that he doth amiss; and ac­cordingly there will be none to admonish him to correct his fault, that so he may e­scape the Judgment of the living God.

To this Objection BRACTON re­turns an Answer, though indeed not ushe­red in with the usual Formality of a Sic Respondeo. And his Answer is this;

Rex autem habet Superiorem, &c.

'Tis true indeed, none can controle the Kings Person or censure his Actions (his Majesty being Supream over all Persons, and in all Causes) autem; but yet we have these encouraging Reasons, that the King will do Justice, and govern his People according to Right.

For 1. Rex habet Superiorem, Deum, sc. As high and as great as the King is, there is one higher and greater than he, even Al­mighty God; The King of Kings and Lord of Lords. It is therefore much hoped; that a due Sense of this dreadful Majesty (be­fore whose Tribunal the greatest Monarchs as well as the meanest of their Subjects must one day appear) may over-awe and restrain the King from all unjust and inju­rious Proceedings.

2. Item Legem per quam factus est Rex. And moreover the better to enable the King to do Justice, there is a Law to di­rect him in his Interpretations, the which [Page 32] Law his Majesty is obliged even in grati­tude to observe, since it was the Law which made him King. (But how this must be understood is already explain'd.)

3. Item, Curiam suam, viz. Comites, Baro­nes; but besides these Two preceding Con­siderations, there is a Third Expedient to restrain the King from all unjust and exor­bitant Proceedings.

For, as there is a God in Heaven to o­verawe him; and as there is a Law on Earth to direct him: So likewise he hath his Curia, to admonish and advise him, viz. Comites, Barones, quia Comites dicuntur quasi Socii Regis; His Nobility, his Earls and his Barons; who by reason of their con­stant attendance at Court, are admitted into a nearer Familiarity with his Majesty, and are, as it were, the Kings Companions. Et qui habet Socium, habet Magistrum; and by such Intimacy as this, they are, in some sort, the Supervisors and Censors of his A­ctions; Et ideo si Rex fuerit sine fraeno, i. e. sine Lege, debent ei fraenum ponere. If there­fore the King shall omit to observe the Laws; 'tis then their Duty to admonish him of his neglect; saying, SIR, This is [Page 33] the Law, this should bridle you; this should limit and direct your Actions. And this doubtless they will do, nisi ipsimet fue­rint cum Rege sine fraeno; unless they them­selves have a mind to be lawless as well as the King.

But if matters should be brought to this pass, what shall then the poor Sub­jects do? how shall their Grievances be redress'd? Shall it not then be lawful to take up Arms (in the just Defence of King and Kingdom) to remove these evil Coun­cellors from the King? No such matter! & tunc clamabunt subditi & dicent, Domine Ie­su Christe, in chamo & fraeno maxillas eorum constringe; Our honest Bracton allows the Subject no other Arms against his Sove­raign, but the old Primitive Artillery of Pray­ers and Tears.

Ad quos Dominus, vocabo super eos gentem robustam & longinquam & ignotam, &c. And if the Subjects being under any Oppressi­on, shall thus dutyfully refer their cause to God, he will then take Care to do them right; and will not only restrain, but also punish their Oppressors: As our Author more fully explains to the end of this 16. [Page 34] Section, which I shall not need to translate any further, there being no difficulty in it.

If this Paraphrastical Translation (which I thought would most naturally lead us to the true sence of the words) doth not yet fully remove the Doubt; I shall then, for the Readers satisfaction, give this fur­ther Interpretation.

BRACTON in this 2 d. Book. Chap. 16. §. 3. is discoursing (as I have already ob­served) de Chartis Regiis. And he tells us; that the Royal Charters, when either doubt­ful or obscure, are to be determined co­ram Rege i. e. in the Courts of Kings-Bench and Chancery. (For these being the Kings own immediate personal Courts, in one of which the Kings of England have formerly sate in Person, all Writs returnable there run in this Style, coram nobis; and all judicial Re­cords there are stiled, and the Pleas there holden entered Coram Rege. And there­fore this Phrase in BRACTON Coram Re­ge is, I think warrantably render'd, the Courts of Kings-Bench and Chancery.

Now if the Plantiff shall suspect, that the Proceedings in these Courts are not just [Page 35] and equal, he may then make his Appeal. For the King hath not only Legem; his ordi­nary Courts of Justice, but also Curiam suam, (viz.) Comites, Barones His HOUSE OF LORDS. The Cause may then be re­moved by Writ of Error, or by Appeal in­to the House of Lords.

But if the Party shall still complain that he hath not Justice; there is then no other Remedy but Prayers and Patience.

For, this House of Lords being the Su­preme and highest Court of Judicature, no Earthly Appeal can be made any further. Sistendum est in aliquo. In all Judicial Pro­ceedings, Ecclesiastical and Civil, there must be a non ultra. For, as the Law of Nature doth instruct us, that Appeals must of necessity be allowed (otherwise those Injuries which may be occasion'd, through the Ignorance or Corruption of inferior Judges could never be redress'd) so the same Law doth also teach us; That Appeals must not be Infinite; i. e. There must be some Supreme Power, in whose final Determina­tion (be it right, or be it wrong) all Inferiors must acquiesce and submit. Otherwise, no Controversies could be decided; nay, [Page 36] there could be no Government, nothing but Disorder and Confusion in the World.

These are my present Thoughts of this difficult Passage: And whether I have yet given it's proper Sence is humbly submit­ted to the Impartial Reader. But whether I have or have not; the Republican Objector is again desired to take notice;

That whatever else can be the meaning of these Words, yet our Bracton doth not affirm this Curia to be superior to the King; Such an Interpretation being inconsistent with Grammar as well as Loyalty.

We have this Rule in our Syntaxis; that, If the Relative be referr'd to two Clauses or more, then the Relative shall be put in the Plural Num­ber.

If therefore this Relative word Superior do refer not only to Deum, but also to Le­gem and Curiam, it should not be Superiorem in the Singular, but Superiores in the Plu­ral.

Bracton was not only very learned and judicious as to his Sence, but also (consider­ing the Age he lived in, and the Subject he discours'd on) very polite and elegant as to his Style; and consequently we must [Page 37] not suppose him guilty of so gross a Solae­cism, which the meanest School-Boy is able to correct.

If the Patrons of the Faction, who are very hard to please, shall think fit to Re­ply; That it is a most unusual and Pedan­tick Method, to interpret a Law-Maxim by a Rule in Grammar; and thence are unalte­rably resolv'd to insist upon it; That un­less we can explain, in what Sence this Cu­ria is Superior to the King, all that hither­to hath been said on this occasion is trifling and explosive;

If, I say, these Republicans will not other­wise be contented, let them then take it thus. Rex habet superiorem—Curiam—i. e. The King can do more with the Advice and Assistance of his Curia then without it. Or more plainly thus. The Kings of England have more Power and Capacity in Parliament, then out of Parliament.

If this will not satisfie. Cras respondebo. For at present, I think fit to add no more in this matter.

This passage of BRACTON (which hath given us so large a Digression) being thus dispatch'd; we shall now return to our former Discourse.

'Tis undeniably evident from the Au­thentick Records of the Kingdom (not to mention private Authorities) That the King of England hath no Superior but God. That His Majesty did not receive his Authority from any Earthly Power. That he is not Foeudatory, either to the Pope or any other Foreign Prince, much less to his own People. That he was not admitted to his Kingdoms with any Limitations or Conditions; As the Kings of Poland and some others are. And consequently, since the Terms Absolute and Conditional are op­posite and contradistinct; If the Kings Power and Authority (with respect to its Original Efficient Cause) be neither Condi­tional nor Dependent, it is then Absolute as well as Independent. And therefore we may safely conclude (in this sence as now explained) The King of England is an ab­solute Monarch.

But here I expect it will be reply'd (and 'tis a very Popular Objection.)

That the Coronation Oath, in which there is a plain Contract and Bargain between the King and his People, doth sufficiently inti­mate; That the Crown is Conditional, i. e. was conferr'd upon his Majesty with cer­tain [Page 39] Limitations and Conditions. For, the King having promised, to keep and defend the Laws and rightful Customs of the Kingdom, &c. He is then publickly shew'd to the People; and their consent to his Coronation being first demanded; he is, by that solemn Action, accepted as their King. Plainly insinuating, that without such a Promise on his part, he would not have been accepted on theirs. And from hence Mr. SIDNEY (a very Authentick Author with some men) doth infer; That there is a mutual Compact between the King and his Subjects; and if the King doth not perform his Duty, the Subjects are discharg'd from theirs. His words are these, That those Laws were to be observ'd, and the Oaths taken by them, having the Force of a Contract between Magistrate and People, could not be violated without dan­ger of dissolving the whole Fabrick: Which in plain English is this: If the King breaks his Oath, and doth not govern according to Law; he then forfeits his Crown, and the People are absolved from their Obe­dience.

In Answer to which, we are to take no­tice; [Page 40] that this plausible Objection is raised upon a false Foundation, viz. That the Co­ronation Oath makes the King; which is a most gross as well as dangerous Mistake; the King being as perfect and compleatly King before his Coronation as after.

'Tis a Maxim in our Law, The King ne­ver dyes: There being no such thing here in England as an Interregnum. For the very same moment that the Predecessor deceaseth, the Rights of Majesty descend and fall up­on the Successor. And herein I am instructed by those eminent Lawyers, the Lord Chan­cellor Egerton, and Sir Edw. Coke. By the former thus,

The Soveraignty is in the Person of the King,
L. Chanc. Egerton Postnat. p 73.
the Crown is but an Ensign of Soveraignty. The Investure and Coronation are but Ceremonies of Honour and Majesty. The King is an absolute and perfect King before he be Crowned, and with­out those Ceremonies.

By the latter in these Words: If the Crown descend to the rightful Heir, he is Rex Cooks Inst. part 3. p. 7. before Coronation. For by the Law of England there is no interregnum: and Coronation is but an Ornament or Solemnity of Honour. And so it was resolv'd by all the Judges, Hil. 1. Jac. in the [Page 41] Case of Watson and Clark Seminary Priests: For by the Law there is always a King, in whose name the Laws are to he maintain'd and executed, otherwise Justice should fail. Thus he,

But that I may effectually convince our Associators of their mistake in this matter, I thus argue ad hominem.

Was his present Majesty actually King (i. e. King de facto as well as de jure) before his Coronation, or was he not?

If they acknowledg that he was; the Cause is then decided. But if they say he was not; I must then remind them of ano­ther point of Law, laid down by that O­racle of the Law in the preceding words, a Pardon granted by a King de jure, that is not also de facto is void. Now when they have first consider'd; That the Act of Oblivion was made before the King was Crown'd, I shall then leave it to themselves to deter­mine the Case.

Doubtless upon second Thoughts which are usually the best, they will readily con­fess; That his present Majesty was actually King before his Coronation; and consequent­ly, That the Oath which he then took, was not any Condition preparatory to his admit­tance to the Kingly Power.

Coronation then is but a Ceremony, and no part of his Title: I say, it is but a Ceremony; and yet (that I may remove some imperti­nent Scruples against it) it is no trifling, in­significant Ceremony: For,

First, The solemn Splendor in which the King appears in that Action (the generali­ty of People being much affected with outward Pomp) doth naturally make Im­pressions of awe and reverence towards his Person.

Secondly, The Oath which he then takes, may expel all jealous Fears; disposing his Subjects chearfully to submit to his future Government. For when the King (who is not responsible to them for any of his Acti­ons) shall condescend thus publickly to pro­mise his People, in the Presence of that God who gave him his Trust (and to whom alone he must render an Account for the management of it) That he will govern his Subjects according to Law; That he will preserve Religion from Here­sy and Schism; defend their Persons from wrong and violence; secure their Estates from Fraud and Rapine: Such assurance as this, must needs enlarge their Affecti­ons [Page 43] to their Prince; make their submission more hearty; their Obedience more chear­ful, since under his Government (if it is not their own Fault) they may rationally expect to live a quiet and peaceable Life in all Godliness and Honesty.

It appears, I hope, from these Premi­ses (notwithstanding this or any other Ob­jection to the contrary) That the Kings Power, in respect of it's Original, is Abso­lute, i. e. He received it from none but God. Neither from the Pope, nor any other For­raign Prince, much less from his own Peo­ple.

But now when we speak of the Kings Authority, with respect to the Execution and Administration of it, the Case is very different. For the Kings of England, out of their abundant Grace and Favour, and to make their Government more easie and acceptable to their Subjects, have suffer'd themselves to be so limited in the Exercise of their Power; That they can neither make Laws, nor raise Taxes but in Parlia­ment; much less can they pretend to take away the Life, or dispose of the Estate of the meanest of their Subjects but by due [Page 44] course of Law: And therefore in this se­cond Consideration of his Authority, viz. the Execution and Administration of it; The King of England is not an Absolute but a limi­ted Monarch.

And indeed, if these Republicans were not much more forward, to remind the King of his Duty than to discharge their own, these things did not need to be repea­ted. For the King hath very often most gratiously promised; That he will govern by, and according to, the Laws of the Land and not otherwise: And that he will use the Power, Trust and Office commit­ted to him, for the good and benefit of the People, and for the preservation of their Rights and Liberties. All this is rea­dily granted, in the very words of the Objectors.

Only this Phrase, That he will govern according to the Laws, and not otherwise for the avoiding of mistakes, must be a little explained.

There are some Men, either through Ignorance or Malice, who have fancied; because the King is obliged to govern by Law, that therefore he must always act [Page 45] according to the Letter of it: So as that it shall not be in his Power, for instance (especially when it is their Interest to re­strain him) either to Pardon Capital Offen­ders; to Change the manner of their Death; or to mitigate the rigour of the Law on a­ny other occasion. And, in fine, these con­fident Reformers (who trade in Post-scripts more than Bracton) do talk of the Kings Prerogative at such a rate; as if it were an Arbitrary, Illegal Encroachment; and are so extravagant as to fancy; That by dimi­nishing the Kings Prerogative, they advance the Laws; and that to oppose the King, is to defend the Kingdom.

In charity therefore to these men, and to rectify their mistakes, I shall briefly lay down the nature of the Kings Preroga­tive: What it is? how it comes to be E­stablish'd? And whether, as is pretended, it be destructive to the Liberty of the Sub­ject.

The Word Ju­recons. hac voce varie utuntur: modo pro authoritate & eminen­tia: quadam modo pro jure quo­dam praeci­puo, specia­li seu privi­legio, Gal. Lex Jurid. verb Prae­rogat. Prerogative (to omit other Significations Foreign to our purpose) doth properly denote; some special peculi­ar Priviledg or Preheminence, granted by Law. Hence the Kings Prerogative is very fitly [Page 46] styled by Sir H. Spelm. Gloss. Praerog. verb. SPELMAN, Lex Regiae Dignitatis, which in 1 Instit. cap. 5. sect. 125. p. 90. Sir Edw. Cooks words may be thus Translated. The Royal Pre­rogative legally extends to all Powers, Prehemi­nences and Priviledges, which the Law giveth to the Crown. And Littleton, saith our Au­thor, speaketh of the Kings Prerogative but twice in all his Books, viz. §. 125 & 128. and in both places as part of the Laws of En­gland.

From whence our new Politicians may please to observe. That the Kings Preroga­tive is established by Law; and his Majesty hath as good Law for his Royal Preroga­tives. viz. The descent of the Crown to the next in Blood: The Power of Calling and Dissolv­ing Parliaments: The Negative Voice: The Power of the Militia: Pardoning Offenders, &c. I say His Majesty hath as good Law for these and all other his Prerogatives, as any Subject hath for his Paternal Estate.

Whoever therefore shall presume to di­spute these Priviledges of the Crown, he must not think me uncharitable whilst I tell him, He is an Enemy to the fundamen­tal Laws of England, and a Betrayer of the Rights of the Kingdom.

If the Case be thus, may some say; If these Royal Prerogatives are so sacred as not to be touch'd; it would then be a very suitable undertaking to enlarge your, &c. and to acquaint us more distinctly what they are, and where we may find them.

In answer to which Demand we are thus instructed by that Loyal Judge JEN­KINS, Jenk. Rediv. p. 136. The Kings Prerogative and the Subjects Liberty are determined and bounded, and admeasured by the written Law what they are. We do not hold the King to have any more Power, neither doth his Majesty claim any other but what the Law gives him.

The right method therefore to be in­form'd in this matter, is to search the writ­ten Laws, with the learned Interpretati­ons upon them. For though these Sta­tutes are not Constitutive of the Royal Pre­rogatives (All Jenk. Rediv. p. 4. Kings had them; the said Powers have no beginning; i. e. They are so antient we cannot trace their Original) yet they are Declaratory of them.

I say, though these Priviledges of the Crown are most of them antecedent to our Acts of Parliament, and the written deter­mined Cases of our Laws (and consequent­ly [Page 48] are not primarily established by them) yet they are so often either explained, con­firm'd, or otherwise there mention'd; that he who is conversant in those publick Wri­tings must needs know what they are?

But since every one hath not the Leisure or the Ability for so laborious a Task; those therefore who shall desire Compendio sapere, they may please to peruse a little Treatise called Jura Coronae; or His Majesties Royal Rights and Prerogatives Asserted. And amongst several others there mentioned and explai­ned, they will find this Prerogative.

That the King hath Power, in many ca­ses, to Dispense with the Laws: And that no Jur. Coron. p. 84. Act of Parliament can bind the King from any Prerogative, that is solely and inseparably an­next to his Sacred Person and Royal Power; but that he may dispense with it by a non obstante.

The Reason of which Prerogative (which to some unthinking Men may seem extra­vagant) is plainly this.

All human Constitutions are liable to Defects: And there was never any Law yet framed with such Policy and Skill, which might not, on some occasion or other, be burthensome to the Subject. For particular [Page 49] Cases and Contingencies are so infinitely various, that it is impossible for human Wis­dom to foresee or prevent them.

And therfore it is absolutely necessary; That there should in all Governments be some Power, Superior and Paramount to the written Laws: By whose Authority the Subject might be reliev'd and pardon'd; when the nice and strict Observance of the Law (through some unexpected Event) might be grievous to himself, or destructive to the Publick. And Bish. Sander­sons Judg. of subm. to Usurp. p. 18. this Power of dis­pensing with particular Laws (as the learned Bishop Sanderson informs us) is such a Pre­rogative, as without which no Commonwealth can be well govern'd; but Justice would be turn'd in­to Gall and Wormwood: Nor can the Supream Governor, without Forfeiture of that Faithful­ness which he oweth to the Publick-Weal divest himself thereof.

If some Men (who are very unwilling to give the King his Due) are still dissatisfi­ed in the point; the present posture of Af­fairs here in England may then fully con­vince them.

We all know that according to the Law High-Treason is punishable with [Page 50] Death. And the Judgment of the Court, on such occasions, is to be Hang'd, Drawn and Quarter'd. This is Law. Let me therefore ask these Men. Can the King by his Prero­gative dispense with this Law, so as to free the Criminal from the Punishment (a Toto or a Tanto) or can he not? If they say not. Ip­si viderint. Let them look to that who are most deeply concern'd.

But if now at the last they are grown so considerate, as to say that he can: Give me leave then to expostulate with them, con­cerning that late Instance of the unfortu­nate Lord Stafford.

When his Majesty, out of Compassion to that Noblemans Person and respect to his Quality, had changed the manner of his Death, and given him the favour to be Beheaded: What a noise was then raised, That the Law must be observ'd? What Fears and Apprehensions of Arbitrary Power! What a Tumult did those scrupulous She­riffs make on that occasion, by Petitioning the Two Houses; Whether the Kings Writ ought to be obey'd? But what Answer they receiv'd both from Lords and Commons is sufficiently known.

I shall make no Reflections upon it, tho indeed the Impertinence of that Action (in which I doubt they were encourag'd by some greater than themselves) might deserve a Remark.

From these Premises it is evident, That there is Lex Coronae, a Royal Prerogative granted by the Common Law to the Crown of England, Superior to all written Laws. By virtue of which Prerogative-Law, the King hath Authority (on emer­gent occasions, and when such Dispensati­on may promote the ends of Government) to Dispense with most Statutes or Acts of Parliament. Salus populi suprema Lex esto; when rightly understood is a full proof of this Assertion.

As therefore on the one hand;

When Sedition is rampant, and affronts the Government; when the Mercy of a King shall be voted his weakness; and his Royal compassion and unwillingness to Punish, shall have this Gloss put upon it; He dares not do it.

As in such a Case, Reason of State (which is Salus Populi) doth require; That some should be executed in terrorem; to re­press [Page 52] the insolence of others; So on the other hand,

When Tumults are abated; when Fa­ction is broken, and that Men begin to ac­knowledg their Mistakes, and return to their Wits: If under such inviting Circum­stances as these, the King out of his Grace and Mercy, shall either Pardon a Traitor, or abate the rigour of his Sentence, who will pretend to say, that such undeserved Favour is Illegal? Or that the King, whe­ther he pardon or punish, doth not govern, in both Instances, according to Law?

The Objectors go on.

If the King thus entrusted to keep the Laws and preserve Religion, should be guilty of a wicked Design, to subvert our Laws, and de­stroy our Religion, by introducing an Arbitrary, Tyrannical Government; he must then under­stand, that he is but an Officer of Trust.

All this is granted; If the word Trust do only refer to Almighty God, but not to the People.

The King doth chearfully acknowledg, that he is Authoriz'd and Deputed by the most High, to govern these Nations; and that he must render an Account for so [Page 53] great a Trust committed to his charge. And though the King hath many Enemies, both Spiritual and Temporal, yet his Support is this. He who gave him his Commission is able to Protect him. He hath hitherto very signally preserv'd him. And it is the constant, hearty Prayer of all Loyal Sub­jects; That his God, and the God of his Fathers will preserve him still. His Majesty hath indeed many Enemies (and good Prin­ces did never want them) but in the Mercy of the most High he shall not miscarry.

But if this Trust do refer to the People, as if the Kings Power and Authority were derived to him from the People by way of Pact or Contract: Let them then explain, Who are this People, with whom he did thus Contract? When was this Bargain made? What are the Conditions? Before what Witnesses? Who must Judge of the Delinquency? VVhere are the Records of these Transactions to be perused?

If no Evidence to confirm any of these Instances; the Case is then decided by that known Maxim, Idem est non esse & non ap­parere. This Fundamental Contract of the Na­tion, is only a hard Word to amuse the [Page 54] vulgar. We know not what it is, nor where to find it.

But it follows in the Objection.

The Parliament of England (the Representa­tives of the People, in whom all Power doth O­riginally reside) they are to take Order for the A­nimadversion and Punishment of such an Offen­ding Governour. Parliaments were ordain'd to re­strain the exorbitant Power of Kings and to re­dress the Grievances of the People.

The Sum of which charge is this.

There is a Coercive Power over the King. Which Power (Mr. SIDNEY tells us) Originally in the People of England, is dele­gated Sidney's Tryal. p. 23. unto the Parliament.

To which I do thus Answer.

That though his Majesty hath a just esteem for Parliaments; and thinks the Par­liament of England the happiest Constitu­tion that ever Nation did enjoy; and hath gratiously assur'd us; That no Irregularities of Parliaments, shall make him out of Love with Parliaments; but that he will have frequent Parliaments: Yet such an ex­travagant Power of Parliaments as is here pretended, is such height of Treason; as deserves a sharper Confutation than can be given it from this Treatise.

As to the point of Non-Resistance (most seasonable to be enforc'd at this time) I did once design very fully to have enlarg'd upon it. To have shew'd its Obligation from all Laws Natural, Positive, Divine, Human. As also to have Answer'd the most Popular Pleas for such Resistance. But I am so happily prevented by the Learned Labours of others (particularly my Lord Bishop of VVinchester, Dr. Falkner and Dr. Sherlock; who have indeed exhausted that Subject) that I shall give no further trou­ble; but conclude my short Discourse with this following Argument.

  • The Supream Power must not be resisted;
  • But the King of England hath Supreme Power;
  • Therefore His Majesty cannot lawfully be resisted.

The Proposition is the voice of Nature. There can be no Order nor Government, unless this Truth be admitted. Reason tells us; Par in parem non habet potestatem, much less hath an Inferior a Coercive Power o­ver his Superior.

To which let me observe; That even the late Rebels themselves were convinc'd in this matter. For, to vindicate their for­mer Treasons, and to patronize their inten­ded [Page 56] Murder of that Blessed Prince, they vo­ted, Jan. 4. 1648. Resolv'd, That the People are (under God) the Original of all just Powers. That the Commons of England Assembled in Par­liament, being chosen by, and representing the People, have the Supreme Power in the Nation. That whatsoever is Enacted or declared for Law by the Commons in Parliament hath the Force of a Law, and the People concluded thereby, though consent of King and Peers be not had thereunto.

Plainly insinuating, That whilst the Subjects of England, according to their Duty, did acknowledg the Supreme Power to be in the King, they must needs appre­hend, That the War was Rebellion; and his pretended Judges were Traitors.

And as to the Assumption, viz.

That the King of England hath Supreme Pow­er; this, I hope, hath been so fully prov'd in this little Treatise, that I might suppose the Conclusion without any further Enlarge­ment.

But because some late Seditious Pam­phlets have very impertinently advanc'd the Power of Parliaments; I shall, ex abundan­ti, thus undeniably convince them, That the Parliament of England is Subject to the King.

Mr. SIDNEY Informs us, That the Sidney's Paper p. 2. Right and Power of Magistrates in every Coun­try, is that which the Laws of that Country make it to be. If therefore it do appear by the Laws and Statutes of the Kingdom, That the Parliament of England is Subject to the King, then the Controversy is at an End.

For Proof of this, they are desired to Consult, 12 Car. 2. c. 30. Where the Lords and Commons thus Petitioned to his Majesty.

We your Majesties said Dutiful and Loyal Subjects, the Lords and Commons in Parliament Assembled, do beseech your most Excellent Majesty that it may be De­clared; That by the undoubted and funda­mental Laws of this Kingdom, neither the Peers of this Realm, nor the Com­mons, nor both together in Parliament, nor the People Collectively or Representa­tively, nor any other Persons whatsoever ever had, have, hath or ought to have any Coercive Power over the Persons of the Kings of this Realm.

Words so plain and undeniably evident that they are not capable of any further Explication.

Only it will be pertinent to observe Two Things.

First, the Lords and Commons do not here petition, that it may be Enacted, but that it may be Declared; intimating that the Kings Supremacy was not first establish'd in this Statute (as if before the making of this Act, the Parliament had been Superior to the King) but is here only Declared to have been Establish'd by the undoubted Funda­mental Laws of this Kingdom; i. e. by such Laws as are the Foundation of the Go­vernment. Whoever therefore shall Af­firm, That the Parliament hath a Coer­cive Power over the Person of the King, he alters the Foundation and destroys the Go­vernment.

Secondly, I do from this Statute observe, That their famous Axiom, major singulis, minor universis, will no longer support their Cause, it being plain from this Act; That the King is major universis as well as singu­lis.

When our Republican Clubs, who talk so much of Law, shall have answer'd this Statute; they may then expect to hear fur­ther from me.

In th' interim, I shall recommend a Text, to be held forth in all their Conventicles, the [Page 59] next time of their meeting.

Prov. 24. 21, 22.

My Son, fear thou the Lord and the King, and meddle not with them that are given to change.

For their Calamity shall rise suddainly, and who knoweth the ruin of them both?

From whence may be raised these good Obversations, viz.

Honesty is the best Policy, and Loyalty the best Religion.
FINIS.

THE PARALLEL.

DOLEMAN

THERE can be no doubt but that the Common-Wealth hath Power to chuse their own fa­shion of Government, as also to change the same upon reasonable Causes. In like manner is it evident, that as the Common-Wealth hath this Authority to chuse and change her Government, so hath she also to limit the same with what Laws and Conditions she pleaseth. Confe­rence about Succession. Part. 1. cap. 1. pag, 12, 13.

All Law, both Natural, National and Positive doth teach us; That Prin­ces are subject to Law and Order, and that the Common-Wealth which gave them their Authority for the Common good of all, may also re­strain or take the same away again, if they abuse it to the Common-evil. The whole Body, though it be go­verned by the Prince, as by the Head, yet is it not Inferior but Superior to the Prince. Neither so giveth the Common-wealth her Authority and Power up to any Prince, that she depriveth her self utterly of the same, when need shall require, to use it for her defence, for which she gave it. Part. 1st. cap. 4. p. 72.

And finally the Power and Autho­rity which the Prince hath from the Common-wealth is in very Truth, not Absolute but Potestas vicaria & delega­ta, i. e. a Power Delegate, or Power by Commission from the Common-Wealth, which is given with such Re­strictions, Cautels and Conditions, yea with such plain Exceptions, Pro­mises and Oaths of both Parties (I mean between the King and Com­mon-wealth, at the day of his Ad­mission or Coronation) as if the same be not kept but wilfully broken on ei­ther Part, then is the other not bound to observe his Promise neither, though never so solemnly made or sworn. Part 1st. cap. 4. pag. 73.

By this then you see the ground whereon dependeth the righteous and lawful Deposition and Chastisement of wicked Princes, viz. Their fail­ing in their Oath and Promises, which they made at their first en­trance—Then is the Common-wealth not only free from all Oaths made by her of Obedience or Allegiance to such unworthy Princes, but is bound moreover for saving the whole Body, to resist, chasten, or remove such evil Heads, if she be able, for that otherwise all would come to De­struction, Ruine and publick Desola­tion. part 1. cap. 4. pag. 77, 78.

BRADSHAW

THE People of England, as they are those that at the first (as other Coun­tries have done) did chuse to them­selves this Form of Government e­ven for Justice sake, that Justice might be admi­nistred, that Peace might be preserved; so Sir, they gave Laws to their Governours, accord­ing to which they should Govern; and if those Laws should have prov'd inconvenient or prejudi­cial to the publick, they had a Power in them, and reserved to themselves to alter as they shall see cause. Kings Trial p. 64.

CHARLES STUART King of England; The Commons of England Assembled in Parliament, according to the fundamental Power that rests in themselves, have resolved to bring you to Tryal and Iudgment. p. 29. If so be the King will go contrary to the end of his Government, Sir he must understand that he is but an Officer of Trust, and he ought to discharge that Trust, and they are to take Order for the Animadversion and Punishment of such an Offending Gover. p. 65.

Sir, Parliaments were ordained for that purpose, to redress the Grievances of the People. And then, Sir, the Scripture says, They that know their Masters will and do it not, what follows? The Law is your Master, the Acts of Parliament. pag. 66, 67.

This we know to be Law, Rex habet superiorem, Deum & Legem, etiam & Curiam, and so says the same Author; and truly Sir, he makes bold to go a little further, Debent ei ponere fraenum, They ought to bridle him. pag. 65.

That the said Charles Stuart being admitted King of England, and therein trusted with a li­mitted Power. Vid Char. p. 30.

The House of Commons, the Supream Au­thority and Jurisdiction of the Kingdom. pag. 48. Which Authority requires you, in the name of the People of England, of which you are Ele­cted King, to answer them, pag. 36. Sir you may not Demur the Jurisdiction of the Court—they sit here by the Authority of the Commons of En­gland; and all your Predecessors and you are re­sponsible to them. pag 44.

For there is a Contract and Bargain between the King and his People, and your Oath is taken, and certainly Sir, the Bond is reciprocal.—Sir, if this Bond be once broken, farewel Sove­raignty. pag. 72.

Sir, though you have it by Inheritance in the way that is spoken of, yet it must not be denied that your Office was an Office of Trust: Now Sir, if it be an Office of Inheritance, as you speak of your Title by Desient, let all men know that great Offices are seizable and forfeitable, as if you had it but for a year and for your Life, p. 73.

And Sir, the People of England cannot be so far wanting to themselves, which God having dealt so miraculously and gloriously for, they having Power in their hands, and their Great Enemy, they must proceed to do Iustice to themselves and to You. p. 75.

SIDNEY and other of The True-Protestant Party.

GOD hath left Nations unto the Liberty of setting up such Governments as best pleased themselves.

The Right and Power of Magistrates in every Country, was that which the Laws of that Country made it to be, Sidn. Pap. p. 2.

St. Peter 1 Pet. 2. 13, 14. stiles Kings, as well as the Governours under him, the Ordinance of Man, which cannot have any other Sence, but that Men make them and give them their Pow­ers: Hunts postsc. p. 37. By all which it is evident; That the Succession to the Crown is the Peoples Right. And though the Succession to the Crown is Hereditary, because the People so appointed it; would have it so, or consent­ed to have it so; yet in a particular Case for the saving the Nation, The whole Line and Mo­narchy it self may be altered, by the unlimi­ted Power of the Legislative Authority. Hunts Postsc. pag. 43. Some Men will talk as if they be­lieved themselves, That the Legislative Power is in the King, when no King of England yet ever pretended to it. A Legislative Authority is necessary to every Government, and therefore we ought not to want it, and therefore Parliaments, in which our Government hath placed the mak­ing of Laws, cannot be long discontinued. Hunts Postsc. p. 28.

BRACTON saith that the King hath three Su­periors, to wit, Deum, Legem & Parliamentum; that is, the Power Originally in the People of En­gland is Delegated unto the Parliament. Sidn. Tryal p. 23.

All Government is founded in Trust, and set­tled in such a Person, or limited to such a Family, for the safety and advantage of the People, as well as of the Ruler.

It is remarkable that there was never a Con­veyance of the Crown of England to any Person, but upon the tacit Concurrence, and with the Virtual or Implicite Consent of the People. And therefore anciently before an King of England was actually Crown'd, the People being first acquaint­ed with the Day appointed for that Solemnity, were three several times publickly asked, whether they would have such a Person to rule over them. Let. from Gentl. in the City concerning D. Y. pag. 13, 14.

Those Laws were to be observ'd, and the Oaths taken by them, having the force of a Contract between Magi­strate and People, could not be violated without danger of dissolving the whole Fabrick. Sidn. Pap. pag. 2.

If he doth not like his condition, he may Renounce the Crown; but if he receive it upon that Condition (as all Ma­gistrates do the Power they receive) and swear to perform it, he must expect that the performance will be exacted, or revenge taken by those he hath betrayed. Sid. Try. p. 23.

I will hope there are very few in this Nation so ill instru­cted, that do not think it in the Power of the People to depose a Prince, who really undertakes to alienate his Kingdom, or that really Acts the Destruction or the Vniversal Calamity of his People. Great consid. relating to D. Y. consider'd p. 6.

To give every one his due, is to administer Defence to the Innocent, and by Authority of Law to subdue the Ag­gressors of Mankind, how great and mighty soever they be, Fiat justitia therefore. Id. Pag. 16.

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