Disseiss'd of his Liberties and the King alone be restrain'd in His Prerogative what also were it but to put Him in a worse Condition than the Subject To examin this but de similibus ad similia were Argument enough but when the heavy Scale turns all for the King 't were the heighth of Injustice to deny Him His Weight For instance 1. Any restriction upon a Subject 2 H. 5.5 from the Lawful Exercise of his Trade is void though the Party himself gave a Bond not to Exercise it Gravesend Barge Case 10 Jac. C. Ban. Or that the Restriction be but Temporary Or Exclude any one and leave it not Free to all Nay further 21 E. 4.79 11 Cok. 53. 85. a Man shall not be Distrein'd though for a just Duty by any Instrument necessary to his Trade As the Anvil from a Smith 14 H. 8. 2 Inst 565. Deut. 24.6 Books from a Scholar The Mill-Stone from a Millar as accordant to the Law of God For it is a taking his Life to pledge in taking away his Lawful means of livelihood And this Mr. Latch calls A Fundamental Law Post-Office Case and the contrary A breach of the innate Liberty of a Free-born People And shall a Subject claim an innate Liberty and it be yet doubted of the Kings innate Prerogative which the Law calls Libertas Regia Bract. l. 1. Privilegium Regis Britt f. 27. Reg. f. 61. Droit le Roy Jus Regium Coronae And of which he is no more Deprivaable than of his Crown or Life Has God Intrusted the King with the Good of the Community and shall he be retrench'd in the common Exercise of it The Men of this Age might be too wise for Paradoxes a King without Power is the same as a King without Subjects 2. A Subject may upon some accidents break a Law yet not offend the Law as in case of Necessity or for the avoiding a greater inconvenience Plowd 18.19 2 Inst 168. c. Such and the like being exempted by the Law of Reason when the words of the Law are expresly against it On which ground tho' the killing a Man be Felony 3 Inst 56. yet for the inevitable necessity of saving his own life a man may kill another 5 Coke 91. Or a Thief attempting to Rob him on the Road Or in his Dwelling-House Or breaking it by Night and no Felony 9 Coke 68. In like manner an Officer if a Felon resist or fly from him so that he cannot otherwise Arrest him 15 H. 7.2 may kill him And the breaking of Prison is Felony but not if the Prison be on Fire And now if Laws may in case of a private Man be suspended by necessity how much more when the Kingdom is in danger of which the Law makes the King sole Judge Vid. Their Arguments by themselves in Quarto whither actual or expectant As was resolv'd by all the Judges even Hutton and Crook concurring in that Point in the Case of Ship-Mony 3. A Subject shall justifie a particular Wrong for a Public Good And rather than the Common-wealth shall suffer the Law will turn some prejudice to particular Persons Every Man's House is his Castle Dyer 34. yet a Sheriff if refus'd entrance may break it to apprehend a Felon Trespass is an offence against the Property of another and always presum'd to be done Vi armis yet justifiable for a common benefit as to make Bulwarks in another mans Ground Dyer 60. 3 Inst 84. or dig Salt-Peter in his Out-houses for the defence of the Kingdom 11 Coke 82. Dyer 36. 8 E. 4.18 21 E. 4.28 To pull down Houses in a public Fire To turn the Plow on the Head-land of another in favor of Husbandry And dry Nets on his Land for the maintenance of Fishing and all this because private prejudice is repaird by public Utility Nay Mr. Prynn justifies his Lords Power of Parliament Part. 4. p. 22. and Commons for laying Taxes on the People for the public Good tho' in truth it was but to support a Rebellion And shall the King that hath the largest Stake in this public Good want so necessary a part of the Government as not to be able to dispense with an inconvenient Statute especially when the not doing it may endanger that Good which is the end of all Laws If a Subject may justifie as before à fortiore may the King in the present Case For all positive Laws being subordinate to the safety of the People against which even the Law of Property carries no force it is but just and reasonable that they give place to the Law of Nature for common Defence 4. Where the Subject is enabled to the Greater he is of consequence enabled to the Lesser 8 Coke 70. A Man has power to make Leases provided they exceed not three Lives or twenty one years he may Lease for Ninety nine years if three Lives live so long for 't is a lesser Estate à fortiore where the King is enabled to the Greater shall He not also be enabled to the Lesser He can Pardon what hinders but he may prevent Witch-craft and Heresie are Offences against the first Table yet the King may Pardon both how much more then Dispense with any thing no Offence against the second Table Nor shall I believe but the Commons of that Parliament that brought in this and the later Test were of Opinion that His Majesty might dispense with them till I am better enform'd what was the meaning of that Address of theirs to the King Jan. 20. 1680. wherein they say It was their Opinion That the Prosecuting Protestant Dissenters upon Penal Laws is at this time grievous to the Subject and dangerous to the Peace of the Kingdom And what meant they be not Prosecuting but that they might nay ought to be dispens'd with 'T was their Opinion in one Case 't is the King's in another And shall not the Lord be at least as his Servant But to go on with the Argument High Treason is the most heynous of all others Crimen laesae Majestatis and yet the King may Pardon it 3 Inst 211. or any part of the Execution or all saving part The Sentence for Felony is Hanging yet the King may alter it to Beheading As the Lord H. 32 H. 8 Edward Duke of S. 5 E. 6. The Earl of C. 7 Car. 1. and others Attainted of Felony yet Beheaded The Judgment against a Woman for Treason is Burning yet the Countess of S. Anne of B. and others in H. VIII's time And the Lady J. G. 1 Mary Attainted of High Treason were Beheaded And is not the Body more than Raiment Shall the King have the Power of Life and Death and yet be restrain'd in a matter of indifferency Shall every Man be Lord and Judge in his own Family and the King alone be curb'd in His the Kingdom Shall he always see with other
20th Aug. ' 53. and several the like and every of them with this or the like clause Any Law Statute Custom Usage Act Ordinance and in the matter of the Purchasers of Sir John Stawel's Estate or Judgment to the contrary notwithstanding And Lastly When they had play'd the Game into Oliver's hand was his Instrument of Government set to any other Measures His Ordinances of the 26th Decemb. ' 53. 20th March 53. 16th May ' 54. 2d and 9th June ' 54. and several others carry the same or like Clauses In all which did they not more than imply That the Power of Dispensing was inseparably incident to the Supream Authority in whose hand soever it were Object But may some say we know what they were they had no Right nor could better be expected from them But now we have a Gracious King Sworn to defend the Laws c. Answ Very well But then why do we doubt him in that defence The Law says He can do no wrong and shall we presume he will do it But does there nothing more lie under the Word Sworn For fear there should I give it this further Answer That when the Promise is not annext to the Authority as in the case of a Soveraign Prince but a voluntary condescention that he will ordinarily govern by such a Rule his Estate is not thereby made conditional and tho' he be oblig'd in Honour to the performance yet the Authority ceases not if he fail in it for the People still owing him an absolute Subjection that Prior Subjection cannot be dissolv'd or lessen'd by any Subsequent Act of Grace The King is to all Intents and Purposes 7 co Calvin's Case King before Coronation and consequently without that Oath which he makes at his Coronation Nor does he promise more at that time than he was Morally pre-oblig'd to do it being no other than a Free Royal Promise to discharge that Duty honourably which the Laws of God and Nature had requir'd of him without that Promise To bring the case home Did those Lords and Commons make and vary Laws according to the present condition of their Affairs Had they the patience of untying any Knot their Sword was capable of cutting Shall Men that had not the least face of Right make and unmake break and dispense with so many known Laws to support a Rebellion And shall it be doubted whither a rightful King may pass by one single Law for the preventing or suppressing another Shall it be confest Their Nobles broke the Band of Government their Prophets Prophesy'd falsly their Priestlings Sanctify'd those Ordinances and a foolish People lov'd to have it so And yet be said The King is out of his way when yet he keeps within his own Circle and does no more than what the Law of Reason the Law of the Land as well as his Prerogative warrant him the doing The Matter of this first Test falls properly in I 'll examine it a little and leave every unbia'st Man to his own Judgment wherein nevertheless tho' it may be beyond my skill to make the deaf Adder hear I hope I shall offer some reason yet why he should not hiss SECT V. The Case of the Test 25 Car. 2d stated And that his Majesties granting Commissions to certain Persons not qualify'd according to that Act and retaining them in his Service is warrantable by the Law of Reason and the Laws of this Land c. THe Case upon this Matter will fall to be thus His late Majesty King Charles the 2d in the 25th of his Reign passes an Act of Parliament whereby all Persons not taking the Oaths of Supremacy and Allegiance c. and Subscribing the Declaration therein specify'd after the manner and according to the time by the said Act limited which for brevity Men call the Test shall be ipso facto disabled to hold any Office Civil or Military within the Kingdom of England c. and the said Office void c. Notwithstanding which I conceive and doubt not but to prove That his Majesties granting Commissions to such or such Persons not qualify'd according to the said Act is no more than what is warrantable by the Law of Reason and the Laws of this Land. I shall begin with the Law of Reason and whither we take the Argument Ab Honesto ab utili Or à tuto I conceive every one of them makes for me For 1. What Honour is it to be King of a People that He cannot command What Profit to have useless Persons that take up room but bring no Honey to the Hive Or what safety when instead of an Enemy from abroad He cannot say He is secure at home How must that Prince have behav'd himself where His People fear him not for him What assistance can He expect from them and have no reputation with them Or what common safety to the whole when neither dare trust one another And what must the consequence of this be with the people The People who take nothing by a true Light but as it is foisted on them through false Opticks Veresimile is the same with them as Verum and if it but look like it 't is the same as if it were so It naturally follows That Conflatâ magnâ Invidiâ seu bene Tacitus seu malè gesta premunt having gotten a malicious Opinion by the end let the Prince do well or ill they 'll be sure to traduce him Whereas the Staves of Beauty and Bands go together but where there are Jealousies and Divisions there can be no Honour Profit or Safety to Prince or People The Form of Government is that which actuates and disposes every part and Member to the common good of the whole and as those Parts give Strength and Ornament to that whole so they receive from it again Strength and Protection in their several Stations Whereas if this mutual Interchange of Concord and support be broken it cannot be but the whole must fall in pieces for want of that common Ligament that kept it together From whence I infer That as to restrain his Majesty from making use of any part of his Subjects for the common defence of the whole is a breach of that mutual Interchange so the granting those Commissions being a support of it were for the Honour Profit and Safety of the King and Kingdom and consequently as far as they have any force warrantable 2. The King is bound to defend his Subjects according to the best of his skill and that because Subjection and Protection are Relatives And who now shall be Judge of that skill Himself or the People Who shall order a Battel the General or the Army Who Prescribe the Physician or the Patient Or judge of the Helm the Pilot or the Ships-Crew And is it not stronger on the King's side Soveraignty is a Commission granted by God to the Prince who is the Soul that informs and actuates that incompacted Body the People and whose Office it
Jus Regium Coronae OR The KING 's Supream Power in Dispensing with Penal Statutes More particularly as it relates to the two Test-Acts of the Twenty Fifth and Thirtieth of His Late Majesty King Charles the Second Argu'd by Reason And Confirm'd by the Common and Statute Laws of this Kingdom In Two Parts Auctore Jo. Wilsonio J.C. Sir Edw. Coke 1 Inst 64. Imperij Majestas Tutelae Salus LONDON Printed by Henry Hills Printer to the King 's Most Excellent Majesty for His Houshold and Chappel And are sold at his Printing-house on the Ditch-side in Black-Fryers 1688. TO THE HONORABLE SOCIETY OF Lincolns-Inn IT is my Honour Gentlemen that I serv'd a double Apprentiship within your Walls and however I have for many years discontinu'd it is not possible that any Man bred in a Society of so much Learning and Air should have altogether forgotten what he once imbib'd The Loyalty of your House excepting some single Person here and there was in the worst of times exemplary Nor were Ye last in bringing the King back again to His And because the Dispensing Power best secures Him in it and the Kingdom under it unto whom more justly could I make a Proof of it than to that Honorable Body from whom I receiv'd it Such Gentlemen is the Discourse I herewith present Ye and in that being now no longer mine but Yours as none are more able be also as pleas'd to defend it Or so kind at least to say this of Your old Acquaintance That he spoke his Thoughts That he believ'd them true And on that account would not willingly quit them till he be better inform'd Gentlemen Your most Humble Servant John Wilson THE CONTENTS OF THE FIRST PART SECTION I. I. THat the rigor of Penal Laws were insupportable without some Supream Power above those Laws to temper that rigor and dispense with them as they become inconvenient Especially when all Human Actions are subject to Corruption and what might fit one time may be the bane of another Examples of it in the Lacedemonian Ephori The Roman Decemviri Dictator Triumvirat SECT II. II. THat this Power cannot lie in any Select part of the People or in the whole Therefore it must be in the Sovereign Prince or Absolute Monarch And such the Kings of England have ever been and now are Examples of it before and since the Conquest Further prov'd from Common Law and Statute Law. The King is sole Legislator and Interpreter of those Laws That it appears not to have been ever the intent of God that the People should have any share in the Government but rather the contrary That the Supream Power was not deriv'd from the People or given in Trust by them but radically in the Prince as reserv'd to Him from the first Origin of Power and before any positive or written Law at what time Men were govern'd by a Natural Equity SECT III. III. THat without this Supream Power the King were in a worse condition than the Subject 1. Any Restriction on the means of Livelyhood of a Subject is void A Fortiore on any necessary part of the Government 2. A Subject on some Accidents may break a Law yet not offend the Law. A fortiore the King when the Kingdom is in danger of which Himself is the sole Judge whither actual or expectant 3. A Subject shall justifie a particular wrong for a public Good. A fortiore the King for a common Benefit 4. Where the Subject is enabled to the greater he is of consequence enabled to the less A fortiore the King He may pardon the highest Offences much more prevent any lesser matter from becoming an Offence SECT IV. IV. THat no Government can be entire that is defective in any necessary part And therefore all Governments besides the power of the Sword have ever pretended to this Supream Power as a Sine quo non Both Powers discust That even our most prudently design'd Constitutions have turn'd to hurt prov'd from a Series of our own Histories That every of the late Vsurpt Powers as we call 'em frequently made use of this Supream Power of Dispensing c. An Answer to that common Objection That the King is sworn SECT V. V. THe Case of the Test 25 Car. 2d stated and that His Majesties granting Commissions to certain Persons not qualify'd according to the said Act and yet retaining them in His Service is warrantable by the Law of Reason and the Laws of the Land. By the Law of Reason 1. Whither we take the Argument Ab Honesto Ab utili or à Tuto 2. The King is bound to defend according to the best of His skill Who shall be Judge of that skill Himself or the People 3. What damage to the whole that the King makes use of some part without excluding the rest Or if it were a damage it is but Damnum sine injuria By the Laws of the Land. 1. As the King is bound to defend the Subject is bound to obey And this Service of the Subject is due to the King by the Law of Nature which cannot be taken away no not by Act of Parliament 2. A further proof That the King is sole Judge of the danger of the Kingdom and how and when it is to be prevented c. 3. The Law requires nothing to be done but it permits the way and means of doing it else it were Imperfect Lame and Vnjust The King is to defend shall He not chuse His Souldiers 4. A mixt Argument of Law and Reason from the time when the King granted those Commissions The Test examined When made By whom carry'd on To what end There was Bellum flagrans at the time when those Commissions were given out And that His Majesties yet retaining those Officers falls under the same Reason and Law. SECT VI. VI. THat the Statute has created a disability in the Person and other Objections answered 1. Object Grounded on the Disabilities created by the respective Statutes of 31 El. c. 6. against Simony The Vendee of an Office contrary to the 5 Ed. 6. c. 16. And the not taking the Oath of Supremacy according to the 5 El. c. 1. severally answer'd and prov'd not to be under the same Reason 2. Object That the King had other hands A Loyal City A trusty Militia Answ But is the King bound to make use of them in extraordinary Cases The King is Solus Rex semper Rex He may charge the Subject c. And Ordain without Parliament with Instances of both 3. Object Grounded on the vacating the Judgment for the King in the Case of Ship-Mony by the House of Lords in Parliament 1640. Answer'd And the King vindicated by truly stating the Case between His Majesty and that Parliament Their evil treating Him before the Commons Murder'd Him. That He was Virtually tho' not Formally under a Force And that Authority without Power is meerly imaginary SECT VII VII THe Sum of the whole further asserted and confirm'd
mens Eyes hear by other mens Ears and He that is to set Copy's to others have His hand held for fear of blotting Let them that are of that Opinion make it their own Case If preservation is to be preferr'd before Benefit it necessarily follows That there be some Ultimate Judge of the Means SECT IV. That no Government can be entire that is defective in any necessary part and therefore all Governments besides the Power of the Sword have ever pretended to this Supreme Power as a sine qua non c. BY an entire Government I intend such a Government as carries in its self all things necessary for the Defence of its self and all its parts without which it were defective and consequently as no Government because it could neither encounter dangers from Abroad nor obviate unexpected Emergencies at Home Now if the power of judging the means of doing this be of absolute necessity to all Governments and that it will be hard to find any Age so innocent wherein some Law or other has not been brought in not to say obtruded by Interest or Faction it seems of as absolute necessity that every Government carry also in its self The power of dispensing with Laws which however at their first making might be proper enough yet upon other Reason of Affairs may prove inconvenient or be thought may become so and therefore fit to be dispens'd with For Prevention is as necessary as Defence and wise Men meet Dangers half way and the not doing it what Demosthenes told his Athenians like Country-Fellows at Cudgels that never ward a Blow till struck To examine it a little That there can be no Society without Government needs no proof and that there can be no Government that answers not the end of Government which is Common Safety needs as little for without it what were Peace but a mere Notion A kind of Truce or Cessation no laying down of Arms. To support this therefore all Governments have not only pretended to the Power of the Sword but as a Consequent of that to this other of Dispensing I shall but touch the former because I take it for granted as an inseparable incident to the Sovereign Power for the Power of the Sword being for the Defence and Protection of the People is subservient to the Government and must needs belong to him with whom God hath entrusted the Government as a necessary requisite without which He cannot perform that Trust For what were it but a thing in Name if it had nothing to work on or how could it subsist without a Command over the People Or be more called Government than a Cripple or a Paralitique an entire Man inasmuch as the one wants his Limbs the other the use of them And what shall we talk of a power of Commanding without a power of exacting Obedience to those Commands All Government were precarious without it and men would Obey but as themselves listed Nor is it more possible there could be Order without it and where that 's wanting there must be Confusion Una Eurusque Notusque ruunt And what was the Effect of it Ad litora fluctus In a word Brambles grow at both ends but the cross-encounter of the Sap withers the middle How necessary then is it that there be some Ultimate Judge whose Dictates be Conclusive for to admit them Disputable were to suppose a possibility of Erring the least apprehension of which begets Disputing that Sidings those Factions and they every thing By these steps crep up the Parliament of 1640. and therefore made it one of their De quibus non disserendum That Egg not crush'd in the Shell might have broken into a Serpent and spoild all What shall I add Moses no sooner nam'd a God to his People than he brings Him in speaking Let there be Light and it was so He gave them no time to think as perhaps doubting they might have disputed if not the thing His Power over them In like manner for the Power of Dispensing with Penal Laws which is but a Concomitant of the former It is God alone that can comprehend all things at once past present and to come are the same with Him and I Am bears no distinction of Tenses Whereas Man concluding only from the more probable of the Premisses how is it possible for him to foresee all the intercurrencies and perplexities of Time and Chance at best so sufficiently as to be secure against them The best Gamester cannot prevent all Blots and the most expert Marks-man may sometimes carry over as well as not reach home And therefore because in the making of Laws it is as impossible as in Philosophy to find the Maximum quod sit or Minimum quod non That indivisible Point of Proportion or sufficiency just so much as will do and no more as impossible I say as to make a Shoe shall fit every Foot any Rule so general as shall admit no exception or Law so absolute but that in some Case or other there is no Provision made or shall not fail in some particular or by Corruption of Time not corrupt with it It is of absolute necessity that the Government whatever it be have the Supreme Power of keeping all Temporary Laws and provisional Remedies to their first intention or dispense with them as they prove inconvenient and therefore fit to be dispens'd with till they shall be better Abrogated I instanc'd erewhile in the days of Old but as I come nearer to my Matter I 'll come nearer Home And let him that Reads me without prejudice consult our own Histories and he 'll find that even our best Constitutions how prudently soever at first intended have by the same Corruption of Time and Manners not only fail'd in their end but on the contrary turn'd to hurt I said before That at the begining all Administration of Justice was in one Hand i.e. The Crown c. But as People encreas'd this Administration was divided into Counties and the King appointed His Deputy in every County to be Conservator of the Peace at Home and defend it from Enemies from abroad who was called The Ealderman Earl or Shyreeve i. e. Praepositus Comitatus for so the Saxon and is our now Sheriff But this answer'd not the intention For the Office being at that time granted in Fee with a Tourne County-Court and a third penny of the County to support the Dignity they became so obnoxious to the Crown that they led their Counties as they pleas'd themselves and not often against it to lessen this growing Authority as our Kings afterwards granted Lands they also granted Court-Leets and Court-Barons to the respective Lords of those Seigniories or Mannors And what effect had that Royal Munificence But that it so put them in the Head of how much more Power was wanting that in the 17th of King John with Swords in their hands they complain to Him of an infringment of their Liberties the first time