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
of Mankind Even as several Servants differ in the particular Ends or Offices as one tâ— Brew and another to Bake yet they agree in the general Preservation of thâ— Family Besides Aristotle confesses that amongst the Barbarians as he calls all them that are not Grecians a Wife and a Servant are the same because by Nature no Barbarian is fit to Govern It is fit the Grecians should rule over the Barbarians for by Nature a Servant and a Barbarian is all one their Family consists only of an Ox for a Man-Servant and a Wife for a Maid so they are fit only to rule their Wives and their Beasts Lastly Aristotle if it had pleased him might have remembred That Nature doth not always make one Thing but for one Use he knows the Tongue serves both to Speak and to Taste 4. But to leave Aristotle and return to Suarez he saith that Adam had Fatherly Power over his Sons whilst they were not made Free Here I could wish that the Jesuite had taught as how and when Sons become Free â— know no means by the Law of Nature It is the Favour I think of the Parents only who when their Children are of Age and Discretion to ease their Parents of part of their Fatherly Care are then content to remit some part of their Fatherly authority therefore the Custom of some Countreys doth in some Cases Enfranchise the Children of Inferiour Parents but many Nations have no such Custome but on the contrary have strict Laws for the Obedience of Children the Judicial Law of Moses giveth full power to the Father to stone his disobedient Son so it be done in presence of a Magistrate And yet it did not belong to the Magistrate to enquire and examine the justness of the Cause But it was so decreed lest the Father should in his Anger suddenly or secretly kill his Son Also by the Laws of the Persians and of the People of the Upper Asia and of the Gaules and by the Laws of the West-Indies the Parents have power of Life and Death over their Children The Romans even in their most Popular Estate had this Law in force and this Power of Parents was ratified and amplified by the Laws of the Twelve Tables to the enabling of Parents to sell their Children two or three times over By the help of the Fatherly Power Rome long flourished and oftentimes was freed from great Dangers The Fathers have drawn out of the very Assemblies their own Sons when being Tribunes they have published Laws tending to Sedition Memorable is the Example of Cassius who threw his Son headlong out of the Consistory publishing the Law Agraria for the Division of Lands in the behoof of the people and afterwards by his own private Judgment put him to Death by throwing him down from the Tarpeian Rock the Magistrates and People standing thereat amazed and not daring to resist his Fatherly Authority although they would with all their Hearts have had that Law for the Division of Land by which it appears it was lawful for the Father to dispose of the Life of his Child contrary to the Will of the Magistrates or People The Romans also had a Law that what the Children got was not their own but their Fathers although Solon made a Law which acquitted the Son from Nourishing of his Father if his Father had taught him no Trade whereby to get his Living Suarez proceeds and tells us That in Process of Time Adam had compleat Oeconomical Power I know not what this compleat Oeconomical Power is nor how or what it doth really and essentially differ from Political If Adam did or might exercise the same Jurisdiction which a King doth now in a Commonwealth then the Kinds of Power are not distinct and though they may receive an Accidental Difference by the Amplitude or Extent of the Bounds of the One beyond the Other yet since the like Difference is also found in Political Estates It follows that Oeconomical and Political Power differ no otherwise than a Little Commonweal differs from a Great One. Next saith Suarez Commnnity did not begin at the Creation of Adam It is true because he had no body to Communicate with yet Community did presently follow his Creation and that by his Will alone for it was in his power only who was Lord of All to appoint what his Sons should have in Proper and what in Common so that Propriety and Community of Goods did follow Originally from Him and it is the Duty of a Father to provide as well for the Common Good of his Children as the Particular Lastly Suarez Concludes That by the Law of Nature alone it is not due unto any Progenitor to be also King of his Posterity This Assertion is confuted point-blank by Bellarmine who expresly affirmeth That the First Patents ought to have been Princes of their posterity And untill Suarez bring some Reason for what he saith I shall trust more to Bellarmine's Proofs than to his Denials 5. But let us Condescend a while to the Opinion of Bellarmine and Suarez and all those who place Supreme power in the Whole People and ask them of their meaning be That there is but one and the same power in All the people of the World so that no power can be granted except All the Men upon the Earth meet and agree to choose a Governour An Answer is here given by Suarez That it is scarce possible nor yet expedient that All Men in the World should be gathered together into One Community It is likelier that either never oâ— for a very short time that this power was in this manner in the whole Multitude of Men collected but a little after the Creation men began to be divided into several Commonwealths and this distinct power was in Each oâ— them This Answer of Scarce possible noâ— yet Expedient It is likelier begeâ—â— a new doubt how this Distinct power comes to each particular Community when God gave it to the whole Multitude only and not to any particular Assembly of Men. Can they shew oâ— prove that ever the whole Multitude met and divided this power which God gave them in Gross by breaking into parcels and by appointing a distinct power to each several Common-wealth Without such a Compact I cannot see according to their own Principles how there can be any Election of a Magistrate by any Commonwealth but by a meer Usurpation upon the privilege of the whole World If any thinkâ—s that particular Multitudes at their own Discretion had power to divide themselves into several Commonwealths â—hose that think so have neither Reason nor Proof for so thinking and â—hereby a Gap is opened for every petty Factious Multitude to raise a New Commonwealth and to make more Commonweals than there be Families in the World But let this also be yielded them That in each particular Commonwealth there is a Distinct Power in the Multitude Was a General Meeting of a Whole Kingdom ever known for the
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
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