9. Ed. 3. saith Whereas the Knights Citizens and Burgesses desired our Soveraign Lord the King in his Parliament by their Petition that for his Profit and the Commodity of his Prelates Earls Barons and Commons it may please him to provide remedy our Soveraign Lord the King desiring the profit of his people by the assent of his Prelates Earles Barons and other Nobles of his Council being there hath ordained In the Parliament primo Edwardi the Third where Magna Charta was confirmed I find this Preamble At the Request of the Commonalty by their Petition made before the King and His Council in Parliament by the assent of the Prelates Earles Barons and other Great Men Assembled it was Granted The Commons presenting a Petition unto the King which the King's Council did mislike were content thereupon to mend and explain their Petition the Form of which Petition is in these words To their most redoubted Soveraign Lord the King praying the said Commons That whereas they have pray'd Him to be discharged of all manner of Articles of the Eyre c. Which Petition seemeth to His Council to be prejudicial unto Him and in Disinherison of His Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him which should fall in Disinherison of Him or His Crown perpetually as of Escheators c. but of Trespasses Misprisions Negligences and Ignorances c. In the time of Henry the Third an Order or Provision was made by the King's Council and it was pleaded at the Common Law in Bar to a Writ of Dower The Plantiffs Attorney could not deny it and thereupon the Judgment was ideo â—sine die It seems in those days an Order of the Council-Board was either parcel of the Common-Law or above it The Reverend Judges have had regard in their Proceedings that before they would resolve or give Judgment in new Cases they consulted with the King 's Privy Council In the Case of Adam Brabson who was assaulted by R. W. in the presence of the Justices of Assize at Westminster the Judges would have the Advice of the Kings Council For in a like Case because R. C. did strike a Juror at Westminster which passed in an Inquest against one of his Friends It was adjudged by all the Council that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by Judges of the Bench to the Kings Council to demand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amended in a Writ and it was answered that a Word may well be amended although the Statute speak but of a Letter or Syllable In the Case of Sir Tho. Oghtred Knight who brought a Formedon against a poor Man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was stayed and Thorp said That in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like Case should come we should not go to Judgment without good advice therefore the Judges Conclusion was Sues au Counseil comment ils voillet que nous devomus faire nous volume faire auterment nient en cest case Sue to the Council and as they will have us to do we will and otherwise not in this Case 18. In the last place we may consider how much hath been attributed to the Opinions of the Kings Judges by Parliaments and so find that the Kings Council hath guided and ruled the Judges and the Judges guided the Parliament In the Parliament of 28. Hen. 6. The Commons made Suit That William de la Poole D. of Suffolke should be committed to Prison for many Treasons and other Crimes The Lords of the Higher House were doubtful what Answer to give the Opinion of the Judges was demanded Their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with General Reports and Slanders This Opinion was allowed In another Parliament 31. Hen. 6. which was prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand pound dammages in an Action of Trespass and was committed to Prison in Execution for the same When the Parliament was re-assembled the Commons made suit to the King and Lords to have their Speaker delivered the Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by priviledge of Parliament upon the Judges answer it was concluded That the Speaker should still remain in Prison according to the Law notwithstanding the priviledge of Parliament and that he was the Speaker Which Resolution was declared to the Commons by Moyle the King's Serjeant at Law and the Commons were commanded in the Kings Name by the Bishop of Lincolne in the absence of the Arch-bishop of Canterbury then Chancellour to chuse another Speaker In septimo of Hen. 8. a question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes There Sir John Fineux and the other Judges delivered their Opinion That they might and ought to be and their Opinion was allowed and maintained by the King and Lords and Dr. Standish who before had holden it the same Opinion was delivered from the Bishops If a Writ of Errour be sued in Parliament upon a Judgment given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours the Lords are to proceed according to Law and for their Judgment therein they are to be informed by the advice and counsel of the Judges who are to inform them what the Law is and so to direct them in their Judgment for the Lords are not to follow their own Opinions or Discretions otherwise So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel as appeareth by Record See Flower Dew's Case P. 1. H. 7. fol. 19. FINIS 1 Kings 20. 16. Gen. 27 29. Arist Pol. Lib. 1. c. 2.
POLITICAL DISCOURSES OF Sir Robert Filmer Baronet VIZ. Patriarcha or the Natural Power of Kings The Free-holders Grand-Inquest Observations upon Aristotles Politicks Directions for Obedience to Government ALSO Observations upon Mr. Hobbs's Leviathan Mr. Milton against Salmatius Hugo Grotius de Jure Belli Pacis Mr. Hunton's Treatise of Monarchy WITH An ADVERTISEMENT to the Jurymen of England touching WITCHES LONDON Printed in the Year M DC LXXX Patriarcha OR THE Natural Power OF KINGS By the Learned Sir ROBERT FILMER Baronet Lucan Lib. â— Libertas Populi quem regna coercent Libertate perit Claudian Fallitur egregio quisquis sub Principe oredit Servitium nusquam Libertas gratior extat Quam sub Rege pio LONDON Printed and are to be sold by Walter Davis Book-binder in Amen-Corner near Pater-noster-row 1680. The COPY OF A LETTER Written by the Late Learned Dr. PETER HEYLYN to Sir Edward Filmer Son of the Worthy Author concerning this Book and his other Political Discourses SIR HOW great a Loss I had in the death of my most dear and honoured Friend your deceased Father no man is able to conjecture but he that hath suffered in the like So affable was his Conversation his Discourse so rational his Judgment so exact in most parts of Learning and his Affections to the Church so Exemplary in him that I never enjoyed a greater Felicity in the company of any Man living than I did in his In which respects I may affirm both with Safety and Modesty that we did not only take sweet Counsel together but walked in the House of God as Friends I must needs say I was prepared for that great Blow by the loss of my Preferment in the Church of Westminster which gave me the opportunity of so dear and beloved a Neighbourhood so that I lost him partly before he died which made the Misery the more supportable when I was deprived of him for altogether But I was never more sensible of the infelicity than I am at this present in reference to that satisfaction which I am sure he could have given the Gentleman whom I am to deal with His eminent Abilities in these Political Disputes exemplified in his Judicious Observations upon Aristotles Politiques as also in some passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this cause which I would not willingly should be betrayed by unskilful handling And had he pleased to have suffered his Excellent Discourse called Patriarcha to appear in Publick it would have given such satisfaction to all our great Masters in the Schools of Politie that all other Tractates in that kind had been found unnecessary Vide Certamen Epistolare 386. THE CONTENTS CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of the People New Plausible and Dangerous 2 The Question stated out of Bellarmine and some Contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The Dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 And from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Usurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and of their Agreement CHAP. II. It is unnatural for the People to Govern or Chose Governours 1 ARistotle examined about the Fredom of the People and justisied 2 Suarez disputes against the Regality of Adam 3 Families diversly defined by Aristotle Bodin and others 4 Suarez contradicting Bellarmine 5 Of Election of Kings 6 By the major part of the People 7 By Proxie and by Silent Acceptation 8 No example in Scripture of the Peoples Choosing their King Mr. Hookers judgement therein 9 God governed alwayes by Monarchy 10 Bellarmine and Aristotles judgement of Monarchy 11 Imperfections of the Roman Democratie 12 Rome began her Empire under Kings and perfected it under Emperours In danger the People of Rome always fled to Monarchy 13 VVhether Democraties were invented to bridle Tyrants or whether they crept in by stealth 14 Democraties vilified by their own Historians 15 Popular Government more Bloody than Tyranny 16 Of a mixed Government of the King and People 17 The People may not judge nor correct their King 18 No Tyrants in England since the Conquest CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1 REgal Authority not subject to Positive Laws Kings were before Laws The Kings of Judah and Israel not tyed to Laws 2 Of Samuel's Description of a King 3 The Power ascribed to Kings in the New Testament 4 VVhether Laws were invented to bridle Tyrants 5 The Benefit of Laws 6 Kings keep the Laws though not bound by the Laws 7 Of the Oaths of Kings 8 Of the Benefit of the Kings Prerogative over Laws 9 The King the Author the Interpreter and Corrector of the Common Laws 10 The King Iudge in all Causes both before the Conquest and since 11 The King and his Councel anciently determined Causes in the Star-Chamber 12 Of Parliaments 13 VVhen the People were first called to Parliaments 14 The Liberty of Parliaments not from Nature but from the Grace of Princes 15 The King alone makes Laws in Parliament 16 He Governs Both Houses by himselfe 17 Or by His Councel 18 Or by His Iudges ERRATA Page 4. line 3. for Calume read Calvin CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of Mankind New Plausible and Dangerous 2 The Question stated out of Bellarmine Some Contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 and from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Usurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and their Agreement SInce the time that School-Divinity began to flourish there hath been a common Opinion maintained as well by Divines as by divers other Learned Men which affirms Mankind is naturally endowed and born with Freedom from all Subjection and at liberty to choose what Form of Government it please And that the Power which any one Man hath over others was at first bestowed according to the discretion of the Multitude This Tenent was first hatched in the Schools and hath been fostered by all succeeding Papists for good Divinity The Divines also of the Reformed Churches have entertained it and the Common People every where tenderly embrace it as being most plausible to
Tragical Slaughter of Citizens at home deserved Commiseration from their vanquished Enemies What though in that Age of her Popularity she bred many admired Captains and Commanders each of which was able to lead an Army â—ough many of them were but ill reâ—â—ited by the People yet all of them â—ere not able to support her in times 〈◊〉 Danger but she was forced in her â—â—eatest Troubles to create a Dictator who was a King for a time thereby giving this Honourable Testimony of Monarchy that the last Refuge in Perils of States is to fly to Regal Authority And though Romes Popular Estate for a while was miraculouâ—â—â—â— upheld in Glory by a greater Prudâ—nce than her own yet in a short time after manifold Alterations she was ruined by her Own Hands Suis ipsa Roma viribus ruit For the Arms she had prepared to conquer other Nations were turned upon her Self and Civil Contentions at last settled the Government again into a Monarchy 13. The Vulgar Opinion is thaâ— the first Cause why the Democratical Government was brought in was to curb the Tyranny of Monarchies But the Falshood of this doth best appear by the first Flourishing Popular Estate of Athens which was founded not because oâ— the Vices of their last King but that his Vertuous Deserts were such as thâ— people thought no man Worthy â—nough to succeed him a pretty waâ—ton Quarrel to Monarchy For wheâ— their King Codrus understood by thâ— Oracle that his Country could not be saved unless the King were slain iâ— the Battel He in Disguise entered hiâ— Enemies Camp and provoked a Common Souldier to make him a Sacrifice for his own Kingdom and with his Death ended the Royal Government for after him was never and more Kings of Athens As Athens thus or Love of her Codrus changed the Government so Rome on the contrary out of Hatred to her Tarquin â—d the like And though these two famous Commonweals did for contrary â—uses abolish Monarchy yet they both agreed in this that neither of them thought it fit to change their State to a Democratie but the one chose â—â—chontes and the other Consuls to â— their Governours both which did â—ost resemble Kings and continued â—â—till the People by lessening the Authority of these their Magistrates did â— degrees and stealth bring in their â—opular Government And I verily beâ—â—â—ve never any Democratical State â—ewed it self at first fairly to the â—orld by any Elective Entrance but â—ey all secretly crept in by the Backâ—â—or of Sedition and Faction 14. If we will listen to the Judgment of those who should best know â—e Nature of Popular Government â— shall find no reason for good men desire or choose it Zenophon that brave Scholar and Souldier disallowed the Athenian Commonweal for that they followed that Form of Government wherein the Wicked are always in greatest Credit and Vertuous men kept under They expelled Aâ—ristides the Just Themistocles died iâ— Banishment Meltiades in Prison Phocion the most virtuous and just man of his Age though he had been chosen forty five times to be their General yet he was put to Death with all his Friends Kindred and Servants by the Fury of the People without Sentence Accusation or any Cause at all Nor were the People of Rome much more favourable to their Worthies they banished Rutilius Metellus Coriolanus the Two Scipio's and Tullyâ— the worst men sped best for as Znophon saith of Athens so Rome was a Sanctuary for all Turbulent Discontented and Seditious Spirits The Impunity of Wicked men was such that upon pain of Death it was forbidden all Magistrates to Condemn to Death or Banish any Citizen oâ— to deprive him of his Liberty or so much as to whip him for what Offence ever he had committed either against â—e Gods or Men. The Athenians sold Justice as they â—d other Merchandise which made â—lato call a Popular Estate a Fair here every thing is to be sold The â—fficers when they entered upon their â—harge would brag they went to a â—olden Harvest The Corruption of â—ome was such that Marius and Pompey durst carry Bushels of Silver to the Assemblies to purchase the â—oices of the People Many Citizens â—der their Grave Gowns came Armâ— into the Publick Meetings as if â—â—ey went to War Often contrary â—ctions fell to Blows sometimes with â—ones and sometimes with Swords â—e Blood hath been suckt up in the â—arket Places with Spunges the Riâ—â—r Tiber hath been filled with the â—ead Bodies of the Citizens and the â—â—mmon Privies stuffed full with them If any man think these Disorders Popular States were but Casual such as might happen under any â—nd of Government he must know that such Mischiefs are Unavoidable and of necessity do follow aâ—â— Democratical Regiments and the Reason is given because the Nature of all People is to desire Liberty without Restraint which cannot bâ— but where the Wicked bear Ruleâ— and if the People should be so indiscreet as to advance Vertuous Men they lose their Power For that Good Men would favour none but the Good which are always the fewer in Number and the Wicked and Vitious which is still the Greateâ— Part of the People should be excluded from all Preferment and iâ— the End by little and little Wise men should seize upon the State and take it from the People I know not how to give a better Character of the People than can be gathered from such Authors as lived Amongst or Near the Popular States Thucydides Zenophon Livâ—â— Tacitus Cicero and Salust have set them out in their Colours I will borrow some of their Sentences There is nothing more uncertain than the People their Opinions are as variable and suddain as Tempests there is neither Truth nor Judgment in them they are not led by Wisdom to judg of any thing but by Violence and Rashness nor put they any Difference between things True and False After the manner of Cattel they follow the Herd that goes before they have a Custom always to favour the Worst and Weakest they are most prone to Suspitions and use to Condemn men for Guilty upon any false Suggestion they are apt to believe all News especially if it be sorrowful and like Fame they make it more in the Believing when there is no Author they fear those Evils which themselves have feigned they are most desirous of New Stirrs and Changes and are Enemies to Quiâ—et and Rest whatsoever is Giddy or Head-strong they account Manlike and Couragious but whatsoever is Modest or provident seems sluggish each man hath a Care of his Particular and thinks basely â—â— the Common Good they look upon Approaching Mischiefs as theâ— do upon Thunder only every maâ— wisheth it may not touch his own Person it is the Nature of theâ— they must Serve basely or Domâ—neer proudly for they know â—â— Mean Thus do they paint to the Life this Beast with many Headâ— Let me give you the Cypher â—â— their Form of Government As it â—â— begot
Benefit of the King's Prerogative over Laws 9. The King the Author the Interpreter and Corrector of the Common Laws 10. The King Judge in all Causes both before the Conquest and since 11. The King and his Council have anciently determined Causes in the Star-Chamber 12. Of Parliaments 13. When the People were first called to Parliament 14. The Liberty of Parliaments not from Nature but from Grace of the Princes 15. The King alone makes Laws in Parliament 16. Governs both Houses as Head by himself 17. By his Council 18. By his Judges 1. HItherto I have endeavour'd to shew the Natural Institution of Regal Authority and to free it from Subjection to an Arbitrary Election of the People It is necessary also to enquire whether Humane Laws have a Superiority over Princes because those that maintain the Acquisition of Royal Jurisdiction from the people do subject the Exercise of it to Positive Laws But in this also they Erre for as Kingly Power is by the Law of God so it hath no inferiour Law to limit it The Father of a Family Governs by no other Law than by his own Will not by the Laws and Wills of his Sons or Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet or all this every Father is bound by the â—aw of Nature to do his best for the preâ—ervation of his Family but much more â— a King always tyed by the same Law of Nature to keep this general ground That the safety of the Kingdom be his â—hief Law He must remember That he profit of every man in particular and of all together in general is not always One and the same and that the Publick is to be preferred before the Private â—nd that the force of Laws must not be â— great as Natural Equity it self which â—nnot fully be comprised in any Laws â—hatsoever but is to be left to the Reâ—â—gious Atchievement of those who â—â—ow how to manage the Affaires of â—tate and wisely to Ballance the particular profit with the Counterpoize of â—e Publick according to the infinite Vaâ—ety of Times Places Persons a proof â—nanswerable for the Superiority of Princes above Laws is this That there were â—ings long before there were any Laws or a long time the Word of a King â—as the only Law and if Practice as â—â—th Sir Walter Raleigh declare the â—eatness of Authority even the best Kings of Judah and Israel were not tyed to any Law but they did what-soever they pleased in the greatest matters 2 The Unlimitted Jurisdiction of Kings is so amply described by Samuel that it hath given Occasion to some to Imagine that it was but either a Plot or Trick of Samuel to keep the Government himself and Family by frighting the Israelites with the mischiefs in Monarchy or else a prophetical Description only of the future III Government of Saul But the Vanity of these Conjectures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy Wherein it is evidently shewed that the scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient For by telling them what a King would do he indeed instructs them what a Subject must Suffer yet not so that it is Right for Kings to do Injury but it is Right for them to go Unpunished by the People if they do it So that in this point it is all one whether Samuel describe a King or a Tyrant for Patient Obedience is due to both â—ho Remedy in the Text against Tyrants but in Crying and praying unto God in that Day But howsoever in a Rigorous Construction Samuel's description be applyed to a Tyrant yet the Words by a Benigne Interpretation may agree with the manners of a Just King and the Scope and Coherence of the Text doth best imply the more Moderate or Qualified Sense of the Words for as Sir W. Raleigh confesses all those Inconveniences and Miseries which are reckonâ—ed by Samuel as belonging to Kingly Government were not Intollerable but such as have been born and are still born by free Consent of Subjects towards their Princes Nay at this day and in this Land many Tenants by their Tenures and Services are tyed to the same Subjection even to Subordinate and â—nferior Lords To serve the King in his Wars and to till his ground is not only agreeable to the Nature of Subjects but much desired by them according to their several Births and Conditions The like may be said for the Offices of Women-Servants Confectioners Cooks and Bakers for we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justifyed as necessary at the first Erects on of a Kingdome For those who wiâ—â— have a King are bound to allow hiâ— Royal maintenance by providing Revenues for the CROWN Since it both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in â—iches besides we all know the Lands â—nd Goods of many Subjects may be oftâ—mes Legally taken by the King either â—y Forfeitures Escheat Attainder Outâ—wry Confiscation or the like â—hus we see Samuel's Character of a â—ng may literally well bear a mild â—nse for greater probability there is at Samuel so meant and the Israelites understood it to which this may be â—ded that Samuel tells the Israelites â—s will be the manner of the King that â—ll Reign over you And Ye shall â—â— because of your King which Ye shall â—e chosen you that is to say Thus â—â—ll be the common Custom or Fashiâ— or Proceeding of Saul your King as the Vulgar Latine renders it this â—l be the Right or Law of your King â— meaning as some expound it the â—â—al Event or Act of some individuâ—â—agum or indefinite King that might â—en one day to Tyrannise over them â—hat Saul and the Constant practice Saul doth best agree with the Liteâ— Sense of the Text. Now that Saul â—no Tyrant we may note that the â—le asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King
Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's meaning is in short obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor S. Paul intended other-Form of Government than only Monarchical much less any Subjecton of Princes to Humane Laws That familiar distinction of the Schoolmen whereby they Subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the Positive Laws of any Nation Since the Compulsory Power of Laws is that which properly makes Laws to be Laws by binding men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the advice and direction which the Kings Council gives the King which no man says is a Law to the King 4 There want not those who Believe that the first invention of Laws was to Bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in Order Popular Estates could not Subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens as soon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and though many of their Laws were very Severe and Bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves So the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the people 5. The reason why Laws have been also made by Kings was this when Kings were either busyed with Wars or distracted with Publick Cares so that every private man could not have accesse to their persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered unto him in the Tables of his Laws that so there might be no need to resort to the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things â—eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The people have the Law as a Familiar Admonisher and Interpreter of the King's pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-Weale doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so much as the Natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm That â—lthough Laws of themselves do not â—ind Kings yet the Oaths of Kings at â—heir Coronations tye them to keep all â—he Laws of their Kingdoms How far this is true let us but examine the Oath of â—he Kings of England at their Coronation â—he words whereof are these Art thou â—leased to cause to be administred in all thy â—udgments indifferent and upright Justice â—nd to use Discretion with Mercy and Veâ—ity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected â—nd maintained by thee These two are â—he Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-bishop of Canterbury Pleaseth it â—ou to confirm and observe the Laws and â—ustoms of Ancient Times granted from â—od by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity â—y the famous King Edward We may observe in these words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall judge but the King since he swears to administer Upright Justice with Discretion and Mercy oâ— as Bracton hath it oequitatem proecipiaâ— misericordiam So that in effect the King doth swear to keep no Laws but such as in His Judgment are Upright and those not literally always but according to Equity of his Conscience join'd with Mercy which is properly the Office of a Chancellour rather than of Judge and if a King did strictly sweat to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Stâ—tute by
Cases some-what â—ike have been delivered by former â—udges who all receive Authority from the King in his Right and Name to give sentence according to the Rules and Presidents of Antient Times And where Presidents have failed the Judges have resorted to the General Law of Reason and accordingly given Judgment without any Common Law to direct them Nay many times where â—here have been Presidents to direct â—hey upon better Reason only have Changed the Law both in Causes Crimical and Civil and have not insisted so much on the Examples of former Judges as examined and corrected their â—easons thence it is that some Laws are â—ow obsolete and out of use and the â—ractice quite contrary to what it was in Former Times as the Lord Chancellor Egerton proves by several Instances Nor is this spoken to Derogate from the Common Law for the Case standeth so with the Laws of all Nations although some of them have their Laws and Principles Written and Established for witnesse to this we have Aristotle his Testimony in his Ethiques and in several places in his Politiques I will cite some of them Every Law saith he is in the General but of some things there can be no General Law when therefore the Law sqeaks in General and something falls out after besides the General Rule Then it is fit that what the Law-maker hath omitted or where he hath Erred by speaking Generally it should be corrected or supplyed as if the Law-maker himself were Present to Ordain it The Governour whether hâ— be one Man or more ought to be Lord â—ver all those things whereof it was impossible the Law should exactly speak because it is not easie to comprehend all things under General Rules whatsoever the Law cannot Determine it leaves to the Governours to give Judgment therein and permits them to rectifie whatsoever upon Tryal they find to be better than the Written Laws Besides all Laws are of themselves Dumb and some or other must be trusted with the Application of them to Particulars by examining all Circumstances to pronounce when they are broken or by whom This work of right Application of Laws is not a thing easie or obvious for ordinary capacities but requires profound Abilities of Nature for the beating out of the truth witness the Diversity and sometimes the contrariety of Opinions of the learned Judges in some difficult Points 10 Since this is the common Condition of Laws it is also most reasonable that the Law-maker should be trusted with the Application or Interpretation of the Laws and for this Cause anciently the Kings of this Land have sitten personally in Courts of Judicature and are still Representatively present in all Courts the Judges are but substituted and called the Kings Justices and their Power ceaseth when the King is in place To this purpose Bracton that learned Chief Justice in the Reign of Henry the Third saith in express terms In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected since it is his part to interpret who made the Law for as he saith in another place Rex non Alius debet Judicare si Solus ad id sufficere possit c. The King and no body else ought to give Judgment if He were able since by vertue of his Oath he is Bound to it therefore the King ought to exercise Power as the Vicar or Minister of God but if our Lord the King be not able to determine every cause to ease part of his Pains by distributing the Burthen to more Persons he ought to chuse Wise men fearing God c and make Justices of them Much to the same purpose are the words of Edward the First in the beginning of his Book of Laws written by his appointment by John Briton Bishop of Hereford We will saith he that our own Jurisdiction be above all the Jurisdictions of our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions Personal or Real We have power to yield such Judgments as do appertain without other Process wheresoever we know the right truth as Judges Neither may this be taken to be meant of an imaginary Presence of the King's Person in His Courts because he doth immediately after in the same place severally set forth by themselves the Jurisdictions of his Ordinary Courts but must necessarily be understood of a Jurisdiction remaining in the King 's Royal Person And that this then was no New-made Law or first brought in by the Norman Conquests appears by a Saxon Law made by King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Justitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Justices of the Bench should follow the King to the end that He might have always at hand able men for His Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made Stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Processe of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False
Accusations and Malitious Suggestions made to the King and His Council especially during the time of King Edward the Third whilst he was absent in the Wars in France insomuch as in His Reign divers Statutes were made That provided none should be put to answer before the King and His Council without due Processe yet it is apparent the necessity of such Proceedings was so great that both before Edward the Third's days and in his time and after his Death several Statutes were made to help and order the Proceedings of the King and his Council As the Parliament in 28. Edw. 1. Cap. 5. did provide That the Chancellour and Justices of the King's Bench should follow the King that so he might have near unto him some that be learned in the Laws which be able to order all such matters as shall come unto the Court at all times when need shall require By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained in case the Suggestion to the King proved untrue Then 38. Edw. 3. Cap. 9. takes away Taliation and appoints Imprisonment till the King and Party grieved be satisfied In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expences are awarded in such Cases In all these Statutes it is necessarily implyed that Complaints upon just Causes might be moved before the King and His Council At a Parliament at Glocester 2. Ric. 2. when the Commons made Petition That none might be forced by Writ out of Chancery or by Privy Seal to appear before the King and His Council to answer touching Free-hold The King's Answer was He thought it not reasonable that He should be constrained to send for His Leiges upon Causes reasonable And albeit He did not purpose that such as were sent for should answer Finalment peremptorily touching their Free-hold but should be remanded for Tryal thereof as Law required Provided always saith he that at the Suit of the Party where the King and His Council shall be credibly informed that because of Maintenance Oppression or other Out-rages the Common Law cannot have duly her Course in such case the Council for the Party Also in the 13th year of his Reign when the Commons did pray that upon pain of Forfeiture the Chancellour or Council of the King should not after the end of the Parliament make any Ordinance against the Common Law the King answered Let it le used as it hath been used before this time so as the Regaâ—lity of the King be saved for the King will save His Regalities as His Progeniâ—tors have done Again in the 4th year of Henry the Fourth when the Commons complained against Subpoena's and other Writs grounded upon false Suggestions the King answered That He would give in Charge to His Officers that they should abstain more than before time they had to send for His Subjects in that manner But yet saith He it is not Our Intention that Our Officers shall so abstain that they may not send for Our Subjects in Matters and Causes necessary as it hath been used in the time of Our Good Progenitors Likewise when for the same Cause Complaint was made by the Commons Anno 3. Hen. 5. the King's Answer was Le Roy s'advisera The King will be advised which amounts to a Denyal for the present by a Phrase peculiar for the Kings denying to pass any Bill that hath passed the Lords and Commons These Complaints of the Commons and the Answers of the King discover That such moderation should be used that the course of the common Law be ordinarily maintained lest Subjects be convented before the King and His Council without just cause that the Proceedings of the Council-Table be not upon every slight Suggestion nor to determine finally concerning Free â—old of Inheritance And yet that upon â—ause reasonable upon credible Information in matters of weight the King's â—egallity or Prerogative in sending for â—is Subjects be maintain'd as of Right ought and in former times hath been â—onstantly used King Edward the First finding that â—ogo de Clare was discharged of an Acâ—usation brought against him in Parliament for that some formal Imperfections â—ere found in the Complaint commanded him nevertheless to appear before Him and His Council ad faciendum â—cipiendum quod per Regem ejus Conciâ—â—m fuerit faciendum and so proceeded â—â— an Examination of the whole Cause â—â— Edw. 1. Edward the Third In the Star-Chamâ—â—r which was the Ancient Council-Chamâ—â—r at Westminster upon the Complaint â—â— Elizabeth Audley commanded James â—udley to appear before Him and His â—ouncil and determin'd a Controversie between them touching Lands contain'd the Covenants of her Joynture Rot â—aus de an 41. Ed. 3 Henry the Fifth in a Suit before Him and His Council for the Titles of the Mannors of Seere and S. Laurence in the Isle of Thenet in Kent took order for the Sequestring the Profits till the Right were tryed as well for avoiding the breach of the Peace as for prevention of waste and spoil Rot. Patin Anno 6 Hen. 5. Henry the Sixth commanded the Justices of the Bench to stay the Arraignment of one Verney of London till they had other commandment from Him anâ— His Council because Verney being indebted to the King and others practised tâ— be Indicted of Felony wherein he might have his Clergy and make his Purgation of intent to defraud his Creditors 3. Hen. 6. Rot. 37. in Banco Regis Edward the Fourth and His Council 〈◊〉 the Star-Chamber heard the Cause of the Master and Poor Brethren of S. Leonard in York complaining that Sir Hugh Haâ—ings and others withdrew from them great part of their living which consisted chiefly upon the having of Thrave of Corn of every Pâ—ough-Land within the Counties of York Westmerâ—nd Cumberland and Lancashire Rot. â—aten de Anno 8. Ed. 4. Part 3. Memb. 14. Henry the Seventh and His Council in â—â—e Star-Chamber decreed That Margery â—nd Florence Becket should Sue no further in their Cause against Alice Radley â—idow for Lands in Wolwich and Plumâ—ad in Kent for as much as the Matter â—d been heardfirst before the Council of â—ng Ed. 4. after that before the Presiâ—â—nt of the Requests of that King Hen. and then lastly before the Council of said King 1. Hen. 7. What is hitherto affirmed of the Deâ—dency and Subjection of the Comâ—on Law to the Soveraign Prince the â—e may be said as well of all Statute â—â—ws for the King is the sole immediâ— Author Corrector and Moderator them also so that neither of these â— kinds of Laws are or can be any â—inution of that Natural Power â—â—ch Kings have over their People by â—t of Father-hood but rather are an â—ument to strengthen the truth of it for Evidence whereof we may in some points consider the nature of Parliaments because in them only all Statutes are made 12. Though the Name of Parliament as Mr. Cambden saith be of no great Antiquity but brought in