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.
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
is to command It is by the same Authority intrusted to him for the good of the Community and shall he stand accountable to God for the discharge of that Trust and yet be restrain'd by them in the common exercise of it Nay is it not a disappointment of that Trust by disabling the performance of it in the Interdiction of the means Or suppose he could transfer that Trust were it not a discharge of the power of executing it And then where lay the necessity of Obeying For Empire and Obedience being Correlatives where the Right of commanding ceases the Duty of Obeying ceases with it and the Government is no longer from God but the People And here also the granting those Commissions being but a just Assertion of that power entrusted as aforesaid are also warrantable by the Law of Reason and consequently well granted 3. What damage is it to the whole that the King makes use of any part without excluding the rest who are equally oblig'd to serve him with the rest in as much as what concerns the whole ought to be defended by the whole and where the danger is general the defence ought to be as general Or if it were a damage it were but Damnum sine injuria because the Law of Nature as I shall come to shew presently wills it Of what use is a Diamond in the Rock Arms in an Arcenal without Hands to manage them Or Books in his Study that dares not take them down for fear of misplacing One half of the World lives by credit with the other half No Commerce or Traffick could be kept up without it And even Princes themselves are secur'd at home by their Reputation abroad And does not this Reputation lie in Strength i.e. the power of commanding their Subjects And if any part of that strength be taken off is it not a lessening the strength of the whole Or can that whole be said to be safe when any part lies unguarded I cannot tell what the Men of the next Age may be but experience has taught those past That the Tortoise is secure within its Shell but if any part lies out all the rest are in danger And inevitably the same must the Condition of that Prince be who shall be thus wanting Whereas on the contrary that of Dido to Aeneas Tros Tyrjusque mihi nullo discrimine brings all to rights again For the King is abridg'd in none of his Subjects The Kingdom has its whole strength And every Man becomes another Arrow to the Bundle Here is no danger of Obstructions for the Circulation is clear No Quarrel among the Children for they are all alike to the Father And no fear of a Discontented Party when every one falls in to the support of that whole whereof he reckons himself a part In a Word tho' the Garment be of divers Colours there 's no Rent or Seam in it No Wound to fester or bleed inwards No jarring string to break the Harmony or excuse for standing idle in the Market-place when they may come in if they please And therefore these Commissions being of no damage but on the contrary a further Security to the Kingdom I conceive them further also warrantable by the Law of Reason and consequently as far as that goes well granted Nor are they less warrantable by the Laws of this Kingdom For if the Kings of England by common usage which is common Law have without Parliament nay during the time of their Sitting but without taking the least notice of them by their own inherent power grounded on the necessary reason of defence commanded their Subjects to their aid and if several Acts of Parliament have declar'd That the Subject owes the King a natural Obedience and Alligeance and are thereby bound to serve Him then His Majesty 's now granting these Commissions is also warranted by the Laws of the Land. And that it has been so done and declared I am coming to shew 1. That the King is to defend and the Subject to obey Judge Hutton's Argument against the King in the â—ase of Ship-Mony needs no proof An Act of Parliament that he should not do it or have no aid from them were void in its self because it would be against natural Reason saith Judge Hutton And Judge Crooke who also gave his Judgment against the King in the same Case confesses That when the good and safety of the Kingdom is in danger Judge Crcok's Argument in the same Case the King may command all his Subjects to provide and furnish Ships at Sea with Men Munition c. at their own Charges And this saith he I hold to be agreeable to Law and Reason Edw. the 3d in the 10th 11th and 12th of his Reign a Parliament then sitting sent out his Writs for Aids without taking any notice of them or the least complaint on their side that the King had stretcht his Authority The two Chief Justices and Lord Chief Baron in the same case said It was the constant practise in the Reigns of Edw. 1. Edw. 2d Edw. 3d. Annals of Ch. I. Fol. 599. And so agreeable to the Common Law of Kingdoms That the King might compel the doing it in case of refusal No Age Order or Person exempted Ibid. An. f. 517. So Rich. 2d commanded all Men between 16. and 60. to be in readiness Writs to Archbishop of Canterbury York Abbots c. That they and all their Clergy 1 H. 4. should Manus adjutrices apponere The like of the same King to several Counties of England to array all the Lords omnes homines defensibiles and all such as were able to bear Arms and those that were impotent and could not go to contribute The like in Hen 6th Hen. 7th and Hen. 8 's time And to the Cinque Ports 48 H. 3. That they come Day and Night to the King when any danger is For as Judge Jones Ibid. An f. 591. Br. Ten. 44.73 Fitz. N. B. 28. 7 Cok in Calv. with whom also agrees our Statute Law The King hath an interest in the Person of His Subjects pro bono publico Or as need requires And may dispose of their Bodies for the defence of the Kingdom Stat. 2 H. 4. c. 24. 9 H. 3. c 20. 11 H. 7. c. 1. 18. 24 H. 8. c. 12. 3 Ed. 6. c. 2. Command them to go with Him or without Him in His Service as well without as within the Realm And the reason of all this is because they are bound by their Alligeance to serve Him and this Alligeance due by the Law of Nature In short every Subject is by reason of his Natural Alligeance bound to serve the King when required by the King But no Act of Parliament can discharge the Subject from this Natural Alligeance Therefore every Subject is bound to serve the King when so required To which if it be said a disability is no absolute discharge I answer where lies the
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
the King alone V. Examples of Personal Disabilities some created by Parliament others by Ecclesiastical Canons dispenst with by the King others void of themselves VI. The King cannot devest Himself or restrain His Successor of any regal Right that is essentially in the Crown These are my Materials for covering the House I shall proceed to finish it 1. And that there are many things so incident in power to the King that it is not in the power of a Parliament to take them away Judge Hutton of whom before agrees it with the rest of the Judges and Instances in the Case of Henry the 7th Annal Char. 1. f. 592.593 and that a Parliament could not dispose the Right of the Crown The Power of making Wars and Leagues which also was agreed by Judge Crooke The Power of Coin and its value The sole Power of Calling Ibid. 582. Proroguing and Dissolving Parliaments And that no Law can be made without His consent And many other Monarchical Powers and Prerogatives which saith he to be taken away were against Natural Reason and further calls them Incidents so inseparable that a Parliament cannot take them away For in another place they belong to His Crown as Head and Protector And again both of them An Act of Parliament That the King should have no aid of His Subjects would not bind because it would be against Natural Reason Which was but a Confirmation of what Judge Crawley and others the Judges had delivered in the same Case And further says the said Judge Crawley you cannot have a King without Regal Rights no not by Act of Parliament And what are these Regal Rights but the Kings Prerogative which contains in its self Matter of Prescription Plowd 332. and is consequently as inseparable Incident 2. Both Kings and Parliaments have been ever tender of having them encroacht on as may appear by the Savings in several Acts of Parliament The St. Praerogativa Regis 3 E. 1. closes thus The King would not that at any other time His Concessions thereby made should turn in prejudice to Him or His Crown but that such Rights as appertain to Him should be saved in all points So the King will not draw any Aid 25 E. 3. c. 5. or Prize into Custom but by the common Assent of all the Realm Saving the antient Aids and Prizes due and accustomed So no Imposition shall be set upon Wooll 11 R. 2. c. 9. Leather c. other than as granted by Parliament and if any be to be nulled Saving to the King His antient Right So 1 H. 4. c. 6. the King is content to be concluded by the Wise Men of His Realm touching the Estate of Him and His Realm Saving always His Liberty i.e. His Prerogative Now what 's the meaning of those Savings But that those Parliaments considering there might in after time some new Accidents happen which could not be then foreseen they bethought themselves of no better way of securing against them than by leaving 'em to the King's Discretion And therefore when it is said The King will not do but so or so what other can it be but that the King will not ordinarily do otherwise And that it was not the Parliaments intent but that in Cases extraordinary He should make use of His antient Right And what antienter Right than the Service of the Subject for defence of the Kingdom Nor is it to be thought but when the Law assigns the King the defence of the Kingdom it presumes Him also the power to raise the means for the doing it Or else it were but the charge of a defence without the power and means And if the King could not do this out of Parliament then were the Parliament the sole Judge and not the King which also were contradictory to the free Majestick Power of a Monarch And if this be not enough there is yet another Statute that makes it clear For when it says no Man shall be compell'd out of his Shire 1 E. 3. c. 5. but when necessity requires and then shall be done as in times past How is that If the King before that Statute could not have don 't that But had been to no purpose and if the King before that could have don it as I have shewn what was the constant practice of His Father's and Grand-father's times it is a plain Confession of that Right and a modest entreaty that He will not ordinarily make use of that discretionary power but as Necessity requires Other while again we have it by Implication where such Savings have been omitted As when the Petition of Right was in agitation 3 Car. 1. the Commons to take off all doubt of encroaching on the King 's Rights made this Protestation That it was not their intention thereby to bind the King from His ancient Right which the King also on His passing that Bill takes particular notice of however it comes to be left out in the last Edition of the Statutes at large as that Clause saving the King's Regality in the Statute 2 R. 2. St. 2. c. 4. for Confirmation of Liberties is omitted in all of them Nor was this Protestation made without Reason for it had been long before declar'd 42 E. 3. 4 Inst 14. 357. that they could not consent to any thing in Parliament that tended to the disinherison of the King or His Crown to which they were Sworn It was 18 E. 3. c. 4. and is a part of the Judges Oath And of the Coronation Oath That He shall keep all the Honours and Dignities of the Crown Cowel Tit. Oath in all manner whole without minishment and the Rights of the Crown hurt decayed or lost to His Power shall call again into the antient Estate From which it is undeniable but that the King has antient Rights and being so it necessarily follows That they cannot be taken away till prov'd to be forfeited And if forfeited who shall sit in Judgment on it when the King having no Peer in His Realm 3 E. 3.19 cannot be judged Himself nor by His own Authority and other there is none in His Realm 3. The Power of Dispensing or granting Non Obstantes to Penal Statutes is one of those antient Rights Sir Robert Holburn of whom also before confesses it The King saith he may dispense with Penal Laws and make them as none Ibid Ann. 552. For there is a necessity that this Power should be in some Body No Law says the King shall not do it and Acts of Parliament are but Leges temporis Book of Law. 82. The King saith Sir Henry Finch hath an absolute power over all for by a Non Obstante he may dispense with a Statute Law tho' the Statute say such Dispensation shall be meerly void And Judge Barkely to the same purpose A Penal Law is made and a Clause in it Ibid. Ann. 57â— that the King shall not dispense with