Of absolute necessity then it seems That there be some Supreme Power to rectifie the mischiefs of Time and Chance and by rectifying the rigor of Temporary Laws or dispensing with their inconvenience render them and their burthen the easier And where this Power lies shall be the Subject of the next Section SECT II. That this Power cannot lie in any Select part of the People or in the whole Therefore it must be in every Sovereign Prince or Absolute Monarch And such the Kings of England ever have been and now are c. IN any Select part of the People it cannot lie because no part can be greater or have more Power than the whole and in the whole it cannot for they are subject to the Law themselves as more particularly made to curb their Exorbitancies and keep that so much talk'd of Liberty from running into Licentiousness It remains then that it lie in the Prince i.e. A Sovereign Prince or Absolute Monarch who if he offend against those Laws is unaccountable to them Bract. l. 1. c. 8 1. Inst 1. b. as having no Superior in his Dominions but God And if this yet requires a further Explanation To have Merum Imperium an entire Empire Sir J. Davys 61. and all the Liberties of an Empire in His Kingdom is to be an Absolute Monarch But such the Kings of England ever had and now have Therefore the Kings of England are Absolute Monarchs Such was Edgar Anno Dom. 964. 4 Inst 359. who wrote himself Anglorum Imperator Dominus and call'd his Kingdom an Empire In the Laws of Edward the Confessor Leg. Ed. c 17. the King is stiled Vicarius Dei in regno suo The 16 R. 2. cap. 5. declares The Crown of England hath been free in all Times and in no Earthly Subjection but immediatly to God. Edward IV. is called Supremus Dominus noster Rex c. Which excludes all co-ordinate Authority The 24 H. 8. cap. 12. further declares That by sundry old Antique Histories and Chronicles it is declared and expressed That this Realm of England is an Empire and hath been so accepted in the World. And the 28. of the same King cap. 2. That the Kings of England are Lawful Kings and Emperors of England and Ireland which are no introductive but declaratory Statutes For they say not what the King and his Kingdom shall be but affirm what they anciently have been and now are Lastly The 25 H. 8. c. 21. The 1 El. c. 1. and 1 Jac. 1. c. 1. agree in the same and That the Crown of this Kingdom is an Imperial Crown In short all Offences are said to be against the Peace of our Sovereign Lord the King His Crown and Dignity And High Treason contra Ligeanciae debitum The Laws of England are called the King's Laws The Parliament His Parliament 22 E. 3.3 and therein also the King is sole Judge the rest but Advisers The Power of Calling Proroguing and Dissolving them is the King 's Their ancient way of Address was by Petition to Him. And the later Oaths of Supremacy and Allegiance acknowledge the King The Supreme Authority in the Kingdom And if this be not to be an Absolute Monarch what is It is enough to me that I have shewn the Apex potestatis and where ever that lies there lies the Government and puts it out of question whether this Supreme Power lie in the King or the People But to proceed I said before it could not lie in the People and I conceive made it out that it must be in the King however to make it yet more clear we 'll put both on the Ballance and let most weight carry it The People take them in Sensu Composito and what are they but an unwieldy Lump of every thing and nothing And in Sensu diviso a kind of Sheep without a Shepherd Every one of them has a frisk by himself One is for this Law another for that a third against both a fourth against all and so to the last as the Worm bites Quot homines tot Sententiae ever was and ever will be whereas the King besides that he hath but one mind and that directed to the good of the Community the Law presumes He can do no wrong as being best able to judge of those Laws of which Himself is both Maker and Interpreter Both Houses may Vote and Resolve as they please In the Royal Sanction only lies the Legislation and that Vis plastica that gives the Embrion Life and quickens it into Laws The King makes Laws with the Consent of the Lords and Commons not the Lords and Commons with the Consent of the King which shews that the Legislative Power is solely in the King For the Approbation or Publishing of Laws in a Senate proves not Bodin de Repub Lib. 1. cap. 8. the Majesty of the State to be in the Senate And being so it necessarily follows that He be also the Interpreter And so Bracton Ejus est Interpretari cujus est condere And to the same purpose Dyer Where the words of the Law are ambiguous Dyer f. 37 We must submit to the Declaration of the Law-giver The King who by the Advice of His Learned Counsel may without calling a Parliament expound the Law where it is doubtful as his Predecessors have done in like Cases And Sir Edward Coke gives the Reason 1 Inst f. 73 99. when he says The King is Caput Reipublicae Legis And in another place 2 Inst f. 268 presum'd to carry all the Laws In scrinio pectoris sui in his own Breast And what he means by those Expressions unless it be That as the Laws are the Kings Laws His also is the Interpretation of them and the Supreme Power of Dispensing with them a wiser Man than my self may be to learn which from a Person especially in his later days no Friend to Prerogative I lay the more weight on in as much as one Affirmative of his cannot but carry more force with every sober Man than all those Negatives he has so often jumbled against it Add to this The People have nothing but what they receved themselves Or if ever they had they would do well to shew it for Possession tho' by Disseisin is good against all men but him that hath the Right or otherwise they cannot be said to have given any Regality which was never in them For as all Government was Originally from God it seems also that it was never his intention that the People should have any share in it When there were but two Persons as at first God plac'd the Government in one and said to the Woman â—en 3.16 Thou shalt be under the power of the Man and he shall rule over thee And to prevent Confusion amongst their Posterity establish'd a Successive Monarchy in his Speech to Cain tho' a Bad and his Brother Abel a Righteous Person and that only by the
no Authority to examine it Take away Knowledge to discern Judgment to weigh and Resolution to determine and what will ye make of a Prince His Majesty foresaw a Storm coming lay close for it and wrought it thro' with Resolution A Hand or two might be enough at Helm but it required many to work the Ship And whom in such a case would a Skipper chuse Such as had stuck to him in former Storms or such as had been for throwing him over-board in a Calm They might have been as handy perhaps or better qualify'd but the Ship was in danger and what talk we of Formalities 2. Object But the King had other hands A Loyal City a trusty Militia c. Answ But is he bound to make use of them in extraordinary Cases Has not that City grown too fast May the King yet March thro' London without leave Or take up Monys upon his Revenue without License I begin now to be of opinion he may and withal hope it shall long continue so Then for the Militia To give them their due they were generally up on the late Western occasion but of no great use what good did their numbers against William the Conquerour's form'd Army Or what 's the reason the Crown of England has so often follow'd the Fortune of a single Battle But that it has been fought by an Uncommanded Multitude who knowing nothing but their own Inclinations believe God is departed from the beaten side and consequently deem it a sin to tempt Providence with a Second I will not say but they may be made more serviceable however till that be what hurt if the King make use of such as are In short as the Subject has his Liberty by the same Laws also has the King his i. e. His Prerogative Nay to imagine the contrary were a Condradiction in Terminis And what better were that Prerogative if restrain'd in the legal use than a Long-wing'd Hawk but ty'd to Fist Shall a Man do nothing without consulting his Wife Or must the King call a Parliament upon every Emergency I think not For Omnis Rex Angliae est solus Rex Stam. pl. cor 99. semper Rex and there are many things he may do of himself without Parliament The power of Peace and War is 9 E. 4.4 and was the King's at Common Law and our later Acts of Parliament are but declaratory of that Ancient Law. He may charge the Subject for defence of the Kingdom without Parliament 13 E. 4.14 And the same did Queen Eliz. in 1588. Grant a Toll upon the erection of a new Fair Market Bridge Ferry Grant Pontage Murage Paveage Rolls Abridg. 2d part 171. c. As there are many ancient Instances of it in the 3d. 7th and 32d of Edw. the 1st It may be said 't is true the Subject here has a Quid pro Quo but what Quid pro Quo is it That the King grants to one or more Subjects to have more priviledge than others That he Erects Cities Corporations Gylds Founds Bishopricks Colleges Hospitals Grants Priviledge to make By-Laws Hold Courts send Burgesses to Parliament no Positive Law that I remember stints the number to two Wales for the most part send but one and London four Is not all this by His Royal Charter And what is it that enables Him to that but His Prerogative which is the antientest part of the Law of the Land and consequently the most Principal Nor is this all The King by His Writ may Ordain alone 9 E. 3.16 A Writ of Cessavit was brought against the Tenants of Northumberland They Petition the King and shew that they had been so harrast by Incursions of the Scots that they could not pay their Rents The King by His Writ Ordain'd a stay of Sute The King before the convenience of Colleges grants to the Scholars of Oxford 49 E. 3.18 That they should have the choice of Inns there This is my Free-hold says the Towns-Man and the King cannot do it But it is the King's Patent said the Judges and in favour of Learning and therefore a good Ordinance Much more to which purpose may be had in the Case of Ship-Mony where because the Arguments are hard to be got by themselves they may be found in the Annals of King Charles the First 3. Object But was not the Judgment for the King in that Case afterwards vacated in Parliament Answ That it was so de facto is true But that the Arguments of Sir Robert Holborn and Mr. St. Johns who argu'd it against the King and of the Judges Hutton and Crooke who had first under-written for the King and afterwards gave their Opinions against what they had so under-written were by that Parliament held for Law is also as true And therefore if I have taken any of their Concessions to prove my point for the King as Eas est ab hoste doceri I know not why it may not be the same Law now And for the rest of the Judges that gave their Opinions for the King according to what they had first underwritten they were accounted Men Eminent in their time and if the Lord Chief Justice Finch a Gentleman in whom Art and Nature concurr'd to make him Eloquent and a long experience dexterous and who had been speaker of the Parliament of 3d. Car. 1. at what time the Petition of Right past may be credited Those first Opinions were so delivered to His Majesty that no one Judge knew the Opinion of the rest or the reason that induc'd His Majesty to demand it And now that I am upon this Matter it is but a Justice due to that King's Memory that I open the History of it The Cards had long shuffling for some plausible Trump whereby to engage the People into a Rebellion None more luckily turn'd up wherein their Properties seem'd to be concern'd than this of Mr. Hambden where the Case lay thus The Dutch in the 9th Car. 1. 1634. had set up the Northern Herring-fishing on our Sea Grotius had put out three or four sheets of Paper which he calls Mare Liberum Mr. Selden learnedly encounter'd him and as fully answer'd it in his Mare Clausum by shewing That before the Romans had ever to do in Britain during their time and ever since the Dominion of the Narrow Seas was the Ancient undoubted Right of the Crown of England Pens were too weak to decide the Matter Mr. Noy finds Precedents of Naval-aids by sole Authority of the King Some few of the Commons except against it as being out of Parliament and against the Petition of Right The first Writ is directed to the Major c. of London to equip seven Ships of War by a day certain sufficiently provided at their own Charges of all things necessary for 26 Weeks From thence Writs are sent into the inland Counties Most pay their proportion which in the whole amounted to but 20000 per Mens thro' England Mr.
Hambden of the County of Bucks and whose share was but 20 s. makes default The King an Reg. 12. Writes to the Judges and demands their Opinion in Writing Whither when the good or safety of the Kingdom in general is concern'd the King may not by Writ under the Great Seal command all His Subjects of this Kingdom to furnish a certain number of Ships and Men for such time as the King shall think fit and by Law compel the doing it in case of refusal And whither in such a case He is not the sole Judge both of the danger of the Kingdom and when and how the same is to be prevented and avoided To this every one of the 12 Judges did subscribe in the Affirmative Thereupon process is issu'd out of the Exchequer against Hambden He demurs upon the Legality of the Writ It is argu'd by all the Judges The Majority of them give their Opinions for the Writs on which the Barons gave Judgment which Judgment was in the 16th of the said King 27 Feb. 1640. vacated in Parliament But with due honour to all other Parliaments what Parliament was it It was begun in that House of Commons that afterward Murder'd that King And tho' the Vacatur was per Considerationem Judicium Dominorum Spiritualium Temporalium in Curia Parliamenti c. Yet as to the Lords Spiritual this may be said That a leading Man among them then was and from the time the Seal had been taken from him had been also a Discontent nor was it hard to perswade Persons interested that the Clergy were not liable to Secular Charges whereas aid in War building of Bridges and raising Forts is that Trinoda necessitas that binds the Clergy as well as the Laity And what got they by it but that as it open'd a Gap to several Acts that past afterwards so the King being lessen'd in His Authority was unable to defend them from a worse Vacatur which was put upon themselves 17 Car. 1. c. 22. within one full year after it And for the Lords Temporal such or most of them I mean as follow'd not His Majesty to Oxford they joyn'd with those Commons in making Ordinances to raise Monies and Arms for the carrying on of that Rebellion which afterwards inaudito Regibus exemplo brought Him to the Block and their Priviledge of Peerage with Him. In short the matter is beyond excuse if they would not have had the Clock gone they might have chosen not to have wound it up or taken off the Weights For tho' that Vacatur of the House of Lords upon the Judgment in the Exchequer was confirm'd by an Act of Parliament what was gotten by that 20 s. which cost the Kingdom more Treasure than it was at any one time worth to have been sold and more Blood than would have Conquer'd another Nor was it more than necessary to have said so much touching that Parliament with whom the King was virtually tho' not formally under a Force For as preparatory to what ensu'd they first got an Act of Parliament that they should not be Dissolv'd or Prorogu'd but by Act of Parliament And having gotten this Footing in the same Runn they procur'd others for taking off The several Courts of the Star-Chamber Presidencies of Wales See the Acts of the 17. Car. 1. and the North Dutchy of Lancaster Exchequer of the Palatinate of Chester High-Commission And now to throw a Personal disrepute upon His Majesty they bring in that Bill against Ship-mony as having prenecessitated Him not to deny any thing And having in the same heat got the Stannaries and the Statute 1 E. 2. de Militibus taken off and the Bishops out of the House of Lords the very next Act that past was the impressing Souldiers for Ireland And what did they do with them See the King's Answer to their Irish Papers But having driven the King from Whitehall by Tumults fought Him at Edge-Hill with those individual Forces Thus inch by inch fell that goodly Oak of the British Forest His Roots and Binders were cut off and what wonder if His own weight brought Him down Or that the People were so intent on gathering the Sticks that they wanted leisure to heed what was done And now to close this Section If Authority without Power be but what Lucan says of Pompey Magni nominis umbra as without further proof was verify'd in him That Government certainly must be an imaginary nothing or at best but painted wings that has not the power of preserving its self as the Emergency or Exigence of Affairs requires Nor is it ever likely to be long liv'd where it wants the Resolution to make it self obey'd It is said of Saul that he feared the people 1 Sam. 15.24 But it lost him the Kingdom And how probably can it be otherwise when the People shall be more at Liberty than the Soveraign Shall they stop at nothing for Subverting the Government and is it reasonable the King be abridg'd for the saving it What hurt is it that Caesar have the things that are Caesar's especially when the profit and advantage is the Peoples The contrary I am sure has ever embroyl'd us and he that goes no further than our own Histories will find That the more our Kings have been bound the more have they shaken off those Fetters and the more it has been endeavour'd to restrain their Rights the more have they ever exerted their Authority In a word we have the Interest of a King for our Defence and the Word of a King for our Security and if an Act of Parliament cannot bar the King of any thing that is due to Him of Common right how much better were it to believe Him to be what we would have Him and make him so than by disputing the dividing Mathematical points and engaging our selves in impracticable Notions catch at Shadows and lose the Substance The Camel in the Fable might have kept his Ears if he could have been contented without Horns SECT VII The Sum of the whole further asserted and confirm'd from several Statutes and other Authorities of the Common-Law c. I Have already prov'd the necessity of this Supream Power That it is innate and inherent in the Person of an absolute Monarch What that is That the Kings of England are such And spoken at large to their power of Dispensing It remains now that for a close of the whole I further shew I. That there are divers things so incident in power to the King that it is not in the power of a Parliament to take them away II. That both Kings and Parliaments have been ever tender of having them encroach't on as may appear by the Savings in several Statutes III. That the Power of Dispensing and granting Non Obstantes to Penal Statutes is one of those Incidents and that inseparable IV. That Statutes derogatory to the Prerogative have some of them been held for void others recall'd by