Benefit of the King's Prerogative over Laws 9. The King the Author the Interpreter and Corrector of the Common Laws 10. The King Judge in all Causes both before the Conquest and since 11. The King and his Council have anciently determined Causes in the Star-Chamber 12. Of Parliaments 13. When the People were first called to Parliament 14. The Liberty of Parliaments not from Nature but from Grace of the Princes 15. The King alone makes Laws in Parliament 16. Governs both Houses as Head by himself 17. By his Council 18. By his Judges 1. HItherto I have endeavour'd to shew the Natural Institution of Regal Authority and to free it from Subjection to an Arbitrary Election of the People It is necessary also to enquire whether Humane Laws have a Superiority over Princes because those that maintain the Acquisition of Royal Jurisdiction from the people do subject the Exercise of it to Positive Laws But in this also they Erre for as Kingly Power is by the Law of God so it hath no inferiour Law to limit it The Father of a Family Governs by no other Law than by his own Will not by the Laws and Wills of his Sons or Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet or all this every Father is bound by the â—aw of Nature to do his best for the preâ—ervation of his Family but much more â— a King always tyed by the same Law of Nature to keep this general ground That the safety of the Kingdom be his â—hief Law He must remember That he profit of every man in particular and of all together in general is not always One and the same and that the Publick is to be preferred before the Private â—nd that the force of Laws must not be â— great as Natural Equity it self which â—nnot fully be comprised in any Laws â—hatsoever but is to be left to the Reâ—â—gious Atchievement of those who â—â—ow how to manage the Affaires of â—tate and wisely to Ballance the particular profit with the Counterpoize of â—e Publick according to the infinite Vaâ—ety of Times Places Persons a proof â—nanswerable for the Superiority of Princes above Laws is this That there were â—ings long before there were any Laws or a long time the Word of a King â—as the only Law and if Practice as â—â—th Sir Walter Raleigh declare the â—eatness of Authority even the best Kings of Judah and Israel were not tyed to any Law but they did what-soever they pleased in the greatest matters 2 The Unlimitted Jurisdiction of Kings is so amply described by Samuel that it hath given Occasion to some to Imagine that it was but either a Plot or Trick of Samuel to keep the Government himself and Family by frighting the Israelites with the mischiefs in Monarchy or else a prophetical Description only of the future III Government of Saul But the Vanity of these Conjectures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy Wherein it is evidently shewed that the scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient For by telling them what a King would do he indeed instructs them what a Subject must Suffer yet not so that it is Right for Kings to do Injury but it is Right for them to go Unpunished by the People if they do it So that in this point it is all one whether Samuel describe a King or a Tyrant for Patient Obedience is due to both â—ho Remedy in the Text against Tyrants but in Crying and praying unto God in that Day But howsoever in a Rigorous Construction Samuel's description be applyed to a Tyrant yet the Words by a Benigne Interpretation may agree with the manners of a Just King and the Scope and Coherence of the Text doth best imply the more Moderate or Qualified Sense of the Words for as Sir W. Raleigh confesses all those Inconveniences and Miseries which are reckonâ—ed by Samuel as belonging to Kingly Government were not Intollerable but such as have been born and are still born by free Consent of Subjects towards their Princes Nay at this day and in this Land many Tenants by their Tenures and Services are tyed to the same Subjection even to Subordinate and â—nferior Lords To serve the King in his Wars and to till his ground is not only agreeable to the Nature of Subjects but much desired by them according to their several Births and Conditions The like may be said for the Offices of Women-Servants Confectioners Cooks and Bakers for we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justifyed as necessary at the first Erects on of a Kingdome For those who wiâ—â— have a King are bound to allow hiâ— Royal maintenance by providing Revenues for the CROWN Since it both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in â—iches besides we all know the Lands â—nd Goods of many Subjects may be oftâ—mes Legally taken by the King either â—y Forfeitures Escheat Attainder Outâ—wry Confiscation or the like â—hus we see Samuel's Character of a â—ng may literally well bear a mild â—nse for greater probability there is at Samuel so meant and the Israelites understood it to which this may be â—ded that Samuel tells the Israelites â—s will be the manner of the King that â—ll Reign over you And Ye shall â—â— because of your King which Ye shall â—e chosen you that is to say Thus â—â—ll be the common Custom or Fashiâ— or Proceeding of Saul your King as the Vulgar Latine renders it this â—l be the Right or Law of your King â— meaning as some expound it the â—â—al Event or Act of some individuâ—â—agum or indefinite King that might â—en one day to Tyrannise over them â—hat Saul and the Constant practice Saul doth best agree with the Liteâ— Sense of the Text. Now that Saul â—no Tyrant we may note that the â—le asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King
Errors amongst the Heathen Philosophers Polybius though otherwise a most profound Philosopher and Judicious Historian yet here he stumbles for in searching out the Original of Civil Societies he conceited That Multitudes of Men after a Deluge a Famine or a Pestilence met together like Herds of Cattel without any Dependency untill the strongest Bodies and boldest Minds got the Mastery of their Fellows even as it is saith he among Bulls Bears and Cocks And Aristotle himself forgetting his first Doctrine tells us the first Heroicaâ— Kings were chosen by the People for their deserving well of the Multitude either by teaching them some New Arts or by Warring for them or by Gathering them together or by Dividing Land amongst them also Aristotle had another â—ancy that those Men who prove wise of Mind were by Nature intended to be Lords and Govern and those which were Strong of Body were ordained to obey and to be Servants But this is a dangerous and uncertain Rule and not without some Folly for if a man prove both Wise and Strong what will Aristotle have done with him as he was Wise he could be no â—ervant and as he had Strength he could not be a Master besides to speak like a Philosopher Nature intends all things to be perfect both in Wit and strength The Folly or Imbecillity proceeds from some Errour in Generation â—r Education for Nature aims at Perfection in all her Works 2 Suarez the Jesuite riseth up against the Royal Authority of Adam â—â— defence of the Freedom and Liberty of the people and thus argues By â—ight of Creation saith he Adam had only Oeconomical power but not Political he had a power over his Wife and a Fatherly power over his Sons whilst they were not made Free he might also in process of Time have Servants and a Compleat Family and in that Family he might have compleat Oeconomical Power But after that Families began to be multiplied and Men to be separated and become the Head of several Families they had the same power over their Families But Political Power did not begin until Families began to be gathered together into one perfect Community wherefore aâ— the Community did not begin by the Creation of Adam nor by his Will alone but of all them which did agree in this Community So we cannot say that Adam Naturally had Political Primacy in that Community for that cannot be gathered by any Natural Principles because by the Force of the Law oâ— Nature alone it is not due unto anâ— Progenitor to be also King of his Posterity And if this be not gathered out of the Principles of Nature wâ— cannot say God by a special Gift oâ— Providence gave him this Power Foâ— there is no Revelation of this nor Testimony of Scripture Hitherto Suarez Whereas he makes Adam to have a Fatherly power over his Sons and yet shuts up this power within One Family â—he seems either to imagine that all Adam's Children lived within one House and under one Roof with their Father or else as soon as any of his Children â—ived out of his House they ceased to be Subject and did thereby become Free For my part I cannot believe that Adam although he were sole Monarch of the World had any such spacious Palace as might contain any such Considerable part of his Children It is â—ikelier that some mean Cottage or Tent â—id serve him to keep his Court in It were hard he should lose part of his Authority because his Children lay not within the Walls of his House But if Suarez will allow all Adam's Children to be of his Family howsoever they were separate in Dwellings if their Haâ—itations were either Contiguous or â—t such Distance as might easily receive â—is Fatherly Commands And that all â—hat were under his Commands were â—f his Family although they had many Children or Servants married having temselves also Children Then I see no reason but that we may call Adam's Family a Commonwealth except we will wrangle about Words For Adam living 930 years and seeing 7 or 8 Descents from himself he might live to command of his Children and their Posterity a Multitude far bigger than many Commonwealths and Kingdoms 3. I know the Politicians and Civil Lawyers do not agree well about the Definition of a Family and Bodin doth seem in one place to confine it to a House yet in his Definition he doth enlarge his meaning to all Persons under the Obedience of One and the Same Head of the Family and he approves better of the propriety of the Hebrew Word for a Family which is derived from a Word that signifies a Head a Prince or Lord than the Greek Word for a Family which is derived from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies a House Noâ— doth Aristotle confine a Family to One House but esteems it to be made of those that daily converse together whereas before him Charondas called Family Homosypioi those that feed together out of one common Pannier And Epimenides the Cretian terms a Family Homocapnoi those that sit by a Common Fire or Smoak But let Suarez understand what he please by Adam's Family if he will but confess as he needs must that Adam and the Patriarchs had Absolute power of Life and Death of Peace and War and the like within their Houses or Families he must give us leave at least to call them Kings of their Houses or Families and if they be so by the Law of Nature what Liberty will be left to their Children to dispose of Aristotle gives the Lie to Plato and â—hose that say Political and Oeconomical â—ocieties are all one and do not differ â—pecie but only Multitudine Pauciâ—te as if there were no difference betwixt a Great House and a Little City All the Argument I find he brings against them in this The Community of Man and Wise â—iffers from the Community of Master and Servant because they have several Ends. The Intention of Nature by Conjunction of Male and Female is Generation but the Scope of Master and Servant is Preservation so that a Wife and a Servant are by Nature distinguished because Nature does not work like the Cutlers of Delphos for she makes but one thing for one Use If we allow this Argument to be sound nothing doth follow but only this That Conjugal and Despotical communities do differ But it is no consequence That therefore Oeconomical and Political Societies do the like For though it prove a Family to consist of two distinct Communities yet it follows not that a Family and a Commonwealth are distinct because as well in the Commonwealth as in the Families both these Communities are found And as this Argument comes not home to our Point so it is not able to prove that Title which it shews forâ— for if it should be granted which yeâ— is false that Generation and Preservation differ about the Individuum yeâ— they agree in the General and servâ— both for the Conservation
Election of a Prince Is there any Example of it ever found in the Whole World To conceit such a thing is to â—magine little less than an Impossibility And so by Consequence no one Form of Government or King was ever established according to this supposed Law of Nature 6. It may be answered by some That if either the Greatest part of a Kingdom or if a smaller part only by Themselves and all the Rest by Proxy or if the part not concurring in Election do after by a Tacit Assent ratifie the Act of Others That in all thesâ— Cases it may be said to be the World of the whole Multitude As to the Acts of the Major part oâ— a Multitude it is true that by Politicâ— Humane Constitutions it is oft ordained that the Voices of the most shall over-rule the Bâ—est and such Ordinances bind because where Men are Assembled by an Humane Power that power that doth Assemble them can also Limit and Direct the manner of the Execution of that Power and by such Derivative Power made known by Law or Custom either the greater part or two Thirds or Three parts of Five or the like have power to oversway the Liberty of their Opposits But in Assemblies that take their Authority from the Law of Nature it cannot be so for what Freedom or Liberty is due to any Man by the Law of Nature no Inferiour Power can alter limit or diminishâ— no One Man nor a Multitude can give away the Natural Right of another The Law of Nature is unchangeable and howsoever One Man may hinder Another in the Use or Exercise of his Natural Right yet thereby No Man â—oseth the Right of it self for the Right â—nd the Use of the Right may be distinguished as Right and Possession are â—oft distinct Therefore unless it can be proved by the Law of Nature that the Major or some other part have Power â—o over-rule the Rest of the Multitude â—t must follow that the Acts of Multitudes not Entire are not Binding to All but only to such as Consent unto them 7. As to the point of Proxy it cannot be shewed or proved That all those that have been Absent from Popular Elections did ever give their Voices to some of their Fellows I ask but one Example out of the History of the whole World let the Commonweal be but named wherever the Multitude or so much as the Greatest part of it consented either by Voice or by Procuration to the Election of a Prince The Ambition sometimes of One Man sometimes of Many or the Faction of a City or Citizens or the Mutiny of an Army hath set up or put down Princes but they have never tarried for this pretended Order by proceeding of the whole Multitude Lastly if the silent Acceptation oâ— a Governour by part of the People be an Argument of their Concurring iâ— the Election of him by the same Reason the Tacit Assent of the whole Commonwealth may be maintained From whence it follows that every Prince that comes to a Crown either by Succession Conquest or Usurpation may be said to be Elected by the People which Inference is too ridiculous for in such Cases the People are so far from the Liberty of Specification that they want even that of Contradiction 8. But it is in vain to argue against the Liberty of the People in the Election of Kings as long as men are perswaded that Examples of it are to be found in Scripture It is fit therefore to discover the Grounds of this Errour It is plain by an Evident Text that it is one thing to choose a King and another thing to set up a King over the People this latter power the Children of Israel had but not the former This Distinction is found most evidenâ— in Deut. 17. 15. where the Law of God saith Him shalt thou set King over thee whom â—â—e Lord shall choose so God must Eliâ—e and the People only do Constituâ—e Mr. Hooker in his Eighth Book â—f Ecclesiastical Policy clearly expounds â—is Distinction the words are worthy â—â—e citing Heaps of Scripture saith he â—e alledged concerning the Solemn Coroâ—â—tion or Inauguration of Saul David Soâ—mon and others by Nobles Ancients and the people of the Commonwealth of Isrâ—el as if these Solemnities were a kind of Deed whereby the Right of Dominion is given which strange untrue and unnatural conceits are set abroad by â—ed-men of Rebellion only to animate â—nquiet Spirits and to feed them with â—ossibilities of Aspiring unto the Thrones they can win the Hearts of the People whatsoever Hereditary Title any other before them may have I say these â—njust and insolent Positions I would â—ot mention were it not thereby to make the Countenance of â—ruth more Orient For unless we will openly proclaim Defiance unto all â—aw Equity and Reason we must for â—here is no other Remedy acknowledg that in Kingdoms Hereditary Birth-right giveth Right unto Sovereign Dominion and the Death of the Predecessoâ— putteth the Successor by Blood in Sâ—sin Those publick Solemnities before mentioned do either serve for an open Testification of the Inheritor's Right or belong to the Form of induciâ—â— of him into possession of that thing â—â— hath Right unto This is Mr. Hooker Judgment of the Israelites Power tâ— set a King over themselves No doubt but if the people of Israel had had power to choose their King they would never have made Choice of Joas a Child but of Seven years old nor of Manases a Boy of Twelve since as Solomon saith Wo to the Land whose King a Child Nor is it probable they would have elected Josias but a very Child and a Son to so Wicked and Idoâ—trous a Father as that his own Servants murthered him and yet all thâ— people set up this young Josias anâ— slew the Conspirators of the Death oâ— Ammon his Father which Justice of the People God rewarded by making this Josias the most Religious King thaâ— ever that Nation enjoyed 9. Because it is affirmed that â—e People have power to choose as â—ell what Form of Government as â—hat Governours they please of which mind is Bellarmine in those â—aces we cited at first Therefore it necessary to Examine the Strength â— what is said in Defence of popular Commonweals against this Natural Form of Kingdoms which I maintain'd Here I must first put the â—ardinal in mind of what he affirms Cold Blood in other places where saith God when he made all Manâ—d of One Man did seem openly to â—â—nifie that he rather approved the Goâ—â—rnment of One Man than of Many â—â—ain God shewed his Opinion â—â—en he endued not only Men but Creatures with a Natural Propensiâ—â— to Monarchy neither can it be â—â—ubted but a Natural Propensity is be referred to God who is Auâ—â—or of Nature And again in a â—â—ird place What Form of Government God confirmed by his Authoriâ—â— may be gathered by that Commonâ—al which he instituted amongst the Hebrews which was not Aristocratical as
had not been to hear their Voice in all things but rather when they asked an Egge to have given them a Scorpion Unless we will say that all Nations had Tyrantâ— Besides we do not find in all Scripture that Saul was Punished or so much aâ— Blamed for committing any of thoâ—â— Acts which Samuel describes and if Sâ—muel's drift had been only to terrifie thâ— People he would not have forgottâ— to foretell Saul's bloody Cruelty â—â— Murthering 85 innocent Priests aâ— smiteing with the Edge of the Swoâ— the City of Nob both Man Woman and Child Again the Israelites neâ— shrank at these Conditions proposed bâ— Samuel but accepted of them as such â—â— all other Nations were bound uâ—â— For their Conclusion is Nay but we â—â— have a King over Us that We also may â—â— like all the Nations and that Our Kâ—â—â— may Judge us and go out before us to â—â— our Battels Meaning he should â—â— his Privileges by doing the work â—â— them by Judging them and Fighting for them Lastly Whereas the mention of the Peoples Crying unto the Lord argues they should be under some Tyrannical Oppression we may remember that the Peoples Complaints and Cries are not always an Argument â—f their Living under a Tyrant No man can say King Solomon was a Tyrant yet all the Congregation of Israel complain'd that Solomon made their Yoke grievous and therefore their Prayer to â—ehoboam is Make thou the grievous Serâ—ice of thy Father Solomon and his heaâ—y Yoke which he put upon us lighter and â—e will serve thee To conclude it is â—rue Saul lost his Kingdom but not â—or being too Cruel or Tyrannical to his â—ubjects but by being too Merciful to â—is Enemies his sparing Agag when he â—hould have slain him was the Cause why the Kingdom was torn from him 3. If any desire the direction of the New Testament he may find our Saviour limiting and distinguishing Royal â—ower By giving to Caesar those things â—at were Caesar 's and to God those things that were God's Obediendum est in quibus mandatum Dei non impeditur We must obey where the Commandment of God is not hindred there is no other Law but Gods Law to hinder our Obedience It was the Answer of a Christian to the Emperour We only worship God in other things we gladly serve you And it seems Tertullian thought whatsoever was not God's was the Emperours when he saith Bene opposuit Caesari pecuniam te ipsum Deo alioqui quid erit Deisi omnia Caesaris Our Saviour hath well apportioned our Money for Coesar and our selves for God for otherwise what shall God's share be if all be Coesar's The Fathers mention no Reservation of any Power to the Laws of the Land or to the People S. Ambrose in his Apologie for David expresly saith He was a King and therefore bound to no Laws because Kings are free from the Bonds of any Fault S. Augustine also resolves Imperator non est subjectus Legâ— bus qui habet in potestate alias Leges ferrâ— The Emperour is not subject to Laws who hath Power to make other Laws For indeed it is the Rule of Solomon that We must keep the King's Commandment and not to say What dost Thou because Where the Word of a King is there is Power and All that he pleaseth he will do If any mislike this Divinity in England let him but hearken to Bracton Chief Justice in Henry the Third's days which was since the Institution of Parliaments his words are speaking of the â—ing Omnes sub Eo Ipse sub nullo â—â—si tantum sub Deo c. All are under â—m and he under none but God onâ—â— If he offend since no Writ can go â—ainst him their Remedy is by Petiâ—ning him to amend his Fault which he shall not do it will be Punishment sufficient for him to expect God as Revenger Let none presume to Search to his Deeds much less to Oppose â—â—em When the Jews asked our Blessed Saâ—ur whether they should pay Triâ—e he did not first demand what the â—w of the Land was or whether there â—â— any Statute against it nor enquired â—ether the Tribute were given by â—â—nsent of the people nor advised â—â— to stay their payment till they should grant it he did no more but look upon the Superscription and concluded This Image you say is Caesar's therefore give it to Caesar Nor must it here be said that Christ taught this Lesson only to the conquered Jews for in this he gave direction for all Nations who are bound as much in Obedience to their Lawful Kings as to any Conquerour or Usurper whatsoever Whereas being subject to the Higher Powers some have strained these word to signifie the Laws of the Land or else to mean the Highest Power as well Aristocratical and Democratical as Regal It seems S. Paul looked for such Interpretation and therefore thought fit to be his own Expositor and to let it be known that by Power he understood Monarch that carryed a Sword Wiâ—â— thou not be afraid of the Power that iâ— the Ruler that carryeth the Sword foâ— he is the Minister of God to thee â—â— he beareth not the Sword in vain It not the Law that is the Minister of God or that carries the Sword but the Râ—ler or Magistrate so they that say thâ—â— Law governs the Kingdom may as weâ—â— say that the Carpenters Rule builds an House and not the Carpenter for the Law is but the Rule or Instrument of the Ruler And S. Paul concludes for this cause pay you tribute also for they are Gods Ministers attending continually upon this very thing Render therefore Tribute to whom Tribute is due Custom to whom Custom He doth not say give as a gift to Gods Minister But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Render or Restore Tribute as a due Also St. Peter doth most clearly expound this place of St. Paul where he saith Submit your selves to every Ordinance of Man for the Lords sake whether it be to the King as Supreme or unto Governours as unto them that are sent by him Here the very self same Word Supreme or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which St. Paul coupleth with Power St. Peter conjoineth with the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby to maniest that King and Power are both one Also St. Peter expounds his own Words of Humane Ordinance to be the King who is the Lex Loquens a Speaking Law he cannot mean that Kings themselves are an human Ordinance since St. Paul calls the Supreme Power The Ordinance of God and the Wisdom of God saith By me Kings Reign But his meaning must be that the Laws of Kings are Human Ordinances Next the Governours that are sent by him that is by the King not by God as some corruptly would wrest the Text to justifie Popular Governours as authorized by God whereas in Gramatical Construction Him the Relative must be referred to the next Antecedent which is King Besides the Antithesis between
Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's meaning is in short obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor S. Paul intended other-Form of Government than only Monarchical much less any Subjecton of Princes to Humane Laws That familiar distinction of the Schoolmen whereby they Subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the Positive Laws of any Nation Since the Compulsory Power of Laws is that which properly makes Laws to be Laws by binding men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the advice and direction which the Kings Council gives the King which no man says is a Law to the King 4 There want not those who Believe that the first invention of Laws was to Bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in Order Popular Estates could not Subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens as soon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and though many of their Laws were very Severe and Bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves So the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the people 5. The reason why Laws have been also made by Kings was this when Kings were either busyed with Wars or distracted with Publick Cares so that every private man could not have accesse to their persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered unto him in the Tables of his Laws that so there might be no need to resort to the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things â—eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The people have the Law as a Familiar Admonisher and Interpreter of the King's pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-Weale doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so much as the Natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm That â—lthough Laws of themselves do not â—ind Kings yet the Oaths of Kings at â—heir Coronations tye them to keep all â—he Laws of their Kingdoms How far this is true let us but examine the Oath of â—he Kings of England at their Coronation â—he words whereof are these Art thou â—leased to cause to be administred in all thy â—udgments indifferent and upright Justice â—nd to use Discretion with Mercy and Veâ—ity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected â—nd maintained by thee These two are â—he Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-bishop of Canterbury Pleaseth it â—ou to confirm and observe the Laws and â—ustoms of Ancient Times granted from â—od by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity â—y the famous King Edward We may observe in these words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall judge but the King since he swears to administer Upright Justice with Discretion and Mercy oâ— as Bracton hath it oequitatem proecipiaâ— misericordiam So that in effect the King doth swear to keep no Laws but such as in His Judgment are Upright and those not literally always but according to Equity of his Conscience join'd with Mercy which is properly the Office of a Chancellour rather than of Judge and if a King did strictly sweat to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Stâ—tute by
Cases some-what â—ike have been delivered by former â—udges who all receive Authority from the King in his Right and Name to give sentence according to the Rules and Presidents of Antient Times And where Presidents have failed the Judges have resorted to the General Law of Reason and accordingly given Judgment without any Common Law to direct them Nay many times where â—here have been Presidents to direct â—hey upon better Reason only have Changed the Law both in Causes Crimical and Civil and have not insisted so much on the Examples of former Judges as examined and corrected their â—easons thence it is that some Laws are â—ow obsolete and out of use and the â—ractice quite contrary to what it was in Former Times as the Lord Chancellor Egerton proves by several Instances Nor is this spoken to Derogate from the Common Law for the Case standeth so with the Laws of all Nations although some of them have their Laws and Principles Written and Established for witnesse to this we have Aristotle his Testimony in his Ethiques and in several places in his Politiques I will cite some of them Every Law saith he is in the General but of some things there can be no General Law when therefore the Law sqeaks in General and something falls out after besides the General Rule Then it is fit that what the Law-maker hath omitted or where he hath Erred by speaking Generally it should be corrected or supplyed as if the Law-maker himself were Present to Ordain it The Governour whether hâ— be one Man or more ought to be Lord â—ver all those things whereof it was impossible the Law should exactly speak because it is not easie to comprehend all things under General Rules whatsoever the Law cannot Determine it leaves to the Governours to give Judgment therein and permits them to rectifie whatsoever upon Tryal they find to be better than the Written Laws Besides all Laws are of themselves Dumb and some or other must be trusted with the Application of them to Particulars by examining all Circumstances to pronounce when they are broken or by whom This work of right Application of Laws is not a thing easie or obvious for ordinary capacities but requires profound Abilities of Nature for the beating out of the truth witness the Diversity and sometimes the contrariety of Opinions of the learned Judges in some difficult Points 10 Since this is the common Condition of Laws it is also most reasonable that the Law-maker should be trusted with the Application or Interpretation of the Laws and for this Cause anciently the Kings of this Land have sitten personally in Courts of Judicature and are still Representatively present in all Courts the Judges are but substituted and called the Kings Justices and their Power ceaseth when the King is in place To this purpose Bracton that learned Chief Justice in the Reign of Henry the Third saith in express terms In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected since it is his part to interpret who made the Law for as he saith in another place Rex non Alius debet Judicare si Solus ad id sufficere possit c. The King and no body else ought to give Judgment if He were able since by vertue of his Oath he is Bound to it therefore the King ought to exercise Power as the Vicar or Minister of God but if our Lord the King be not able to determine every cause to ease part of his Pains by distributing the Burthen to more Persons he ought to chuse Wise men fearing God c and make Justices of them Much to the same purpose are the words of Edward the First in the beginning of his Book of Laws written by his appointment by John Briton Bishop of Hereford We will saith he that our own Jurisdiction be above all the Jurisdictions of our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions Personal or Real We have power to yield such Judgments as do appertain without other Process wheresoever we know the right truth as Judges Neither may this be taken to be meant of an imaginary Presence of the King's Person in His Courts because he doth immediately after in the same place severally set forth by themselves the Jurisdictions of his Ordinary Courts but must necessarily be understood of a Jurisdiction remaining in the King 's Royal Person And that this then was no New-made Law or first brought in by the Norman Conquests appears by a Saxon Law made by King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Justitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Justices of the Bench should follow the King to the end that He might have always at hand able men for His Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made Stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Processe of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False
â—re still Printed amongst them The Statute made for Correction â—f the 12 th Chapter of the Statute of â—locester was Signed under the Great â—eal and sent to the Justices of the â—ench after the manner of a Writ Paâ—â—nt with a certain Writ closed dated â—y the Kings Hand at Westminster reâ—iring that they should do and Execute â—â— and every thing contained in it although the same do not accord with the â—atute of Glocester in all things The Statute of Rutland is the Kings â—tters to his Treasurer and Barons of his â—cchequer and to his Chamberlain The Statute of Circumspecte Agis â—â—s The King to his Judges sendeth â—eeting There are many other Statutes of the â—he Form and some of them which â— only in the Majestique Terms of The â—g Commands or The King Wills or â— Lord the King hath established or Our Lord the King hath ordained or His Especial Grace hath granted Without mention of Consent of the Commons or People insomuch that some Statutes rather resemble Proclamations than Acts of Parliament And indeed some of them were no other than meeâ— Proclamations as the Provisions of Merton made by the King at an Assembly oâ— the Prelates and Nobility for the Cornation of the King and his Queen Eleanoâ— which begins Provisum est in Câ—ria Domini Regis apud Merton Also a Provision was made 19. Hen. 3. de Assisa ultimoe Prâ—sentationis which was continued and allowed for Law until Tit. West 2. an 13. Eâ—â— 1. cap. 5. which provides the contrary iâ— express words This Provision begins Prâ—visum fuit coram Dom. Rege Archiepiscopiâ— Episcopis Baronibus quod c. It seeâ— Originally the difference was not greâ—â— between a Proclamation and a Statutâ— this latter the King made by Commâ—â— Council of the Kingdom In the form he had but the advice only of his greâ—â— Council of the Peers or of his Privâ—â—â— Council only For that the King had great Council besides his Parliament aâ—pears by a Record of 5. Hen. 4. aboâ—â— an Exchange between the King and the Earl of Northumberland Whereby the King promiseth to deliver to the Earl Lands to the value by the advice of Parliament or otherwise by the Advice of his Grand Council and other Estates of the Realm which the King will Assemble in case the Parliament do not meet We may find what Judgment in later times Parliaments have had of Proclamations by the Statute of 31. of Hen. Cap. 8. in these Words Forasmuch as the King by the advice of his Council hath set forth Proclamations which obstinate Persons have contemned not considering what a King by his Royal Power may do Considering that sudden Causes and Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm And weighing also that his Majesty which by the Kingly and Reâ—al Power given him by God may do many things in such Cases should not be driâ—en to extend the Liberties and Supreâ—ity of his Regal Power and Dignity by willfulness of froward Subjects It is therefore thought fit that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People and defence of his Royal Dignity as necessity shall require This Opinion of a House of Parliament was confirmed afterwards by a Second Parliament and the Statute made Proclamations of as great validity as if they had been made in Parliament This Law continued until the Government of the State came to be under aâ— Protector during the Minority of Edward the Sixth and in his first year it was Repealed I find also that a Parliament in the 11th year of Henry the Seventh did so great Reverence to the Actions or Ordinances of the King that by Statutâ— they provided a Remedy or Means to levy a Benevolence granted to the King although by a Statute made not long before all Benevolences were Damneâ— and Annulled for ever Mr. Fuller in his Arguments against the proceedings of the High-Commission Court affirms that the Statute of 2. H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects was made without the Assent of the Commons because they are not mentioned in the Act. If this Argument be good we shall find very many Statutes of the same kind for the Assent of the Commons was seldom mentioned in the Elder Parliaments The most usual Title of Parliaments in Edward the 3d Rich. 2. the three Henries 4. 5. 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earles and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted â—y the Commons but that which was done â—herein was done without their Assent 17. How far the Kings Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edward 1. made at His First Parliament General by His Council and by the assent of Bishops Abbots Priors Earles Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the Kings Council for as much as all the King's Council as well Justices as others did agree that they should be put in Writing and observed The Statute of Acton Burnell saith The King for Himself and by His Council hath Ordained and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and His Council do not intend by reason of this Statute to diminish the King Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the Kings Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and Ordained by the King himself and all his Council The Statute made at York
9. Ed. 3. saith Whereas the Knights Citizens and Burgesses desired our Soveraign Lord the King in his Parliament by their Petition that for his Profit and the Commodity of his Prelates Earls Barons and Commons it may please him to provide remedy our Soveraign Lord the King desiring the profit of his people by the assent of his Prelates Earles Barons and other Nobles of his Council being there hath ordained In the Parliament primo Edwardi the Third where Magna Charta was confirmed I find this Preamble At the Request of the Commonalty by their Petition made before the King and His Council in Parliament by the assent of the Prelates Earles Barons and other Great Men Assembled it was Granted The Commons presenting a Petition unto the King which the King's Council did mislike were content thereupon to mend and explain their Petition the Form of which Petition is in these words To their most redoubted Soveraign Lord the King praying the said Commons That whereas they have pray'd Him to be discharged of all manner of Articles of the Eyre c. Which Petition seemeth to His Council to be prejudicial unto Him and in Disinherison of His Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him which should fall in Disinherison of Him or His Crown perpetually as of Escheators c. but of Trespasses Misprisions Negligences and Ignorances c. In the time of Henry the Third an Order or Provision was made by the King's Council and it was pleaded at the Common Law in Bar to a Writ of Dower The Plantiffs Attorney could not deny it and thereupon the Judgment was ideo â—sine die It seems in those days an Order of the Council-Board was either parcel of the Common-Law or above it The Reverend Judges have had regard in their Proceedings that before they would resolve or give Judgment in new Cases they consulted with the King 's Privy Council In the Case of Adam Brabson who was assaulted by R. W. in the presence of the Justices of Assize at Westminster the Judges would have the Advice of the Kings Council For in a like Case because R. C. did strike a Juror at Westminster which passed in an Inquest against one of his Friends It was adjudged by all the Council that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by Judges of the Bench to the Kings Council to demand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amended in a Writ and it was answered that a Word may well be amended although the Statute speak but of a Letter or Syllable In the Case of Sir Tho. Oghtred Knight who brought a Formedon against a poor Man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was stayed and Thorp said That in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like Case should come we should not go to Judgment without good advice therefore the Judges Conclusion was Sues au Counseil comment ils voillet que nous devomus faire nous volume faire auterment nient en cest case Sue to the Council and as they will have us to do we will and otherwise not in this Case 18. In the last place we may consider how much hath been attributed to the Opinions of the Kings Judges by Parliaments and so find that the Kings Council hath guided and ruled the Judges and the Judges guided the Parliament In the Parliament of 28. Hen. 6. The Commons made Suit That William de la Poole D. of Suffolke should be committed to Prison for many Treasons and other Crimes The Lords of the Higher House were doubtful what Answer to give the Opinion of the Judges was demanded Their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with General Reports and Slanders This Opinion was allowed In another Parliament 31. Hen. 6. which was prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand pound dammages in an Action of Trespass and was committed to Prison in Execution for the same When the Parliament was re-assembled the Commons made suit to the King and Lords to have their Speaker delivered the Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by priviledge of Parliament upon the Judges answer it was concluded That the Speaker should still remain in Prison according to the Law notwithstanding the priviledge of Parliament and that he was the Speaker Which Resolution was declared to the Commons by Moyle the King's Serjeant at Law and the Commons were commanded in the Kings Name by the Bishop of Lincolne in the absence of the Arch-bishop of Canterbury then Chancellour to chuse another Speaker In septimo of Hen. 8. a question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes There Sir John Fineux and the other Judges delivered their Opinion That they might and ought to be and their Opinion was allowed and maintained by the King and Lords and Dr. Standish who before had holden it the same Opinion was delivered from the Bishops If a Writ of Errour be sued in Parliament upon a Judgment given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours the Lords are to proceed according to Law and for their Judgment therein they are to be informed by the advice and counsel of the Judges who are to inform them what the Law is and so to direct them in their Judgment for the Lords are not to follow their own Opinions or Discretions otherwise So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel as appeareth by Record See Flower Dew's Case P. 1. H. 7. fol. 19. FINIS 1 Kings 20. 16. Gen. 27 29. Arist Pol. Lib. 1. c. 2.