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.
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
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
dispensing with it has been and is every days practice And if it were not for the King's License for Importing and Exporting several Commodities prohibited by Statute Informers and their Auxiliaries Knights of the Post might live well enough without the Sweat of their Consciences But admitting these may not come up as I see not where they fall short The 13. H. 6. c. 8. is in point No Sheriff says that Statute shall continue in his Office above one year under the Penalty of 200 l. and every Patent to that purpose to be void notwithstanding the Clause of Non Obstante And the person for ever after disabled to bear the Office of Sheriff And yet Edw. the 4th made a Sheriff for life cum clausula Non Obstante to that Statute and adjudged good 2 H. 7.6 by all the Justices Nor seems the Case of the Lord De la Ware to be altogether wide of the matter William West Nephew and Heir of Tho. Lord De la Ware had been disabled by Act of Parliament 3 E. 6. to claim any Lands Dignities c. from his said Unkle for his natural Life only 8 Eliz. Thomas dies The Queen restores William And by new Creation to the same Title calls him to Parliament where he had place as puny Baron and dies 11 Coke 1. Now the Case as it is reported by Sir Ed. Coke relates only to this whither the new Lord De la Ware should take his place to the antient Barony by Writ or according to his Father's Creation by Patent and resolv'd he should have it according to the antient Barony which at the time of the new Creation was only Suspended But I make this other use of it That an Act of Parliament in one King's Reign barr'd not the Successor of the Service of that Subject because it was due by a Title paramount the disability viz. The Law of Nature Here was a manifest disability created by Parliament in the Person of William and the intent of the Act was he should not serve in Parliament as Lord De la Ware The Queen finds she had use of his Service as Lord De la Ware and by new Creation enables him to perform it So then whither he sate in Parliament by vertue of the old Dignity or new Creation it matters not He sate in Parliament The disability was remov'd and the Queen had his Service And besides this there are other Matters contrary to the usage of the Realm and Ecclesiastical Canons in force among our selves that have been dispenst with by our Kings and that out of Parliament The Clergy by that usage and their own Canons are disabled to bear Secular Offices 2 Inst 121. and the doing otherwise has been complain'd of in Parliament 45 E. 3. yet our Kings have frequently dispenst with them in it and made them Chancellors Treasurers c. both before and since the Reformation and he scandals the Authority of both that will allow neither On the other hand Cromwell in Henry 8th's time was Merè Laicus yet the King made him His Vicegerent in Ecclesiasticis however otherwise incapacitated by the same usage and Canons And that there have been several Personal Disabilities created by Parliament yet void in themselves we have the several Examples of Edw. the 4th who in the Blood of His Father Richard Duke of York was disabled from claiming the Crown Henry the 6th to reassume it Henry the 7th attainted by Parliament Queen Mary and Queen Elizabeth respectively Excluded by the same Authority And yet the accession of the Crown clear'd those Disabilities without a Repeal and what better could there have been dream't from the late Bill of Exclusion 6. Lastly and to close all The King cannot devest Himself or restrain His Successor of any regal Right that is essentially in the Crown i.e. really annext to His Person as King Because it would be in prejudice of the Crown in making Him less King than He ought to be Nor are any of the King's Grants or Concessions to be understood otherwise than Salvo Jure Coronae For by the same Reason that any one part may be separated may also more and so from one thing to another even all at last and very well if it holds a Dukedom of Venice Whereas Quae Jurisdictionis Bract. l. 2. c. 24. Pacis sunt ad nullum pertinent nisi ad Coronam dignitatem Regiam nec à Coronâ Seperari possunt cùm faciant ipsam Coronam Such things saith he as concern the Supream Authority and Peace of the Kingdom belong to none but the Crown and Royal Dignity nor can they be separated from the Crown in as much as they are the very things that make it a Crown This Bracton was a Judge in Hen. the 2d's time during the heat of the Barons Wars and what he means by those Words but that the Crown were nothing without that Supream Authority and the power of executing it were worth his explaining that would draw any other sense from them And if he shall not it is but reasonable that he confess That the Crown is and ought to be preserv'd entire and as it will not admit of any false Metal to embase it will less endure any Clogs to encumber it I speak not of Popular or Consular States or what may have been practis'd in them Or Elective Kingdoms where tho One may bear the Title and Honour of a Prince He has not Merum Imperium the Supream Power of an Absolute Regality but is Himself subject to that Power which is transcendent to His and appertaineth to the State. But of the King of England over whom the States have no power in as much as all Power and Authority is deriv'd from Him de Lumine Lumen but as before Salvo Jure Coronae For the Royal Dignity is indivisible and every Subject owes Him Liege Homage De vita membro terreno honore for Life Member and Earthly Honour nor can any Earthly Power discharge him of it William the Conqueror created Hugh Lupus his Nephew Hereditary Earl of Chester and gave him the County in Fee Ita Liberè ad gladium 4 Inst 211. ut ipse Rex tenebat Angliam ad Coronam To hold it as free by his Sword as Himself-held England by his Crown Yet this exempted him not from remaining a Subject So a Grant to the Abbot of St. Bartholomew 14 H. 7.11 to be as free in his Lands as the King in His Crown Yet he was still a Subject and shall pay a fine But these may be said were the single Acts of a King and out of Parliament We 'll see now what a Parliament could do Richard the 2d by His Letters Patents created Robert de Vere Earl of Lincoln and Marquess of Dublin to be Duke of Ireland and grants to him for life Totam terram Dominium Hiberniae Portus Maris c. The whole Land and Dominion of Ireland The Sea