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
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
right of Primogeniture â—â—d 4.7 His desire shall be to thee and thou shalt rule over him And from thence it Succeeded in Jacob's Family for almost 2000 years â—â—d 49.3 Reuben Thou art my First-born the Excellence of Dignity and Power 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Honor and Authority i.e. the Supremacy of both Or as the Vulgar Latin Prior in donis Major in Imperio And when he with Simeon and Levi were for several Crimes disinherited by their Father and the Primogeniture fall'n to Judah to him it is said Thy Brethren shall Honor thee Thy Father's Children shall bow down to thee And ver 10. the Scepter entail'd to him Thus far in the World and the People had no Sovereignty in them and if they cannot shew when or how they got it since it remains that it lie radically in the Prince as innate and inherent in his Person and not deriv'd from the People or given in Trust by them but reserv'd from the first Origin of Power Nor need I run from Home to prove it such among our selves For whence is it that all Lands are mediately or immediately held of the King 1 Inst f. 1. f. 65. f. 85. as Lord Paramount but that they came first from the Crown 12 H. 7.17 Or that at the beginning all Administration of Justice was in one Hand i.e. the Crown But that it was innate in it 7 Coke 13. All Dominion was deriv'd from it and what has not been granted from it remains in it There were Kings Ibid. 12 H. 7. before any Positive or written Laws and Men were then Govern'd by a Natural Equity And what more consonant to it than that a Sovereign Prince should not be defective in any thing requisite to the support of that Sovereignty When without it He were but as a common Person Nay how truly might it be said in another sense Ecce homo factus est sicut unus è nobis Yet such must the King be if he cannot temper the rigor or dispense with the inconvenience of a Penal Statute And there being a natural Equity also that some such Supreme Power be for the common convenience of all Men which for as much as it cannot lie in the People it follows that it be in the King as innate in Him and a Branch of His Prerogative which was before Laws were and is now become a part of the Law of the Realm 2 Inst 496. Stan. pl. c. 162. Cow. Tit. Prerog And this Cowel defines to be That especial Power Preheminence or Privelege that the King hath in any kind over and above other persons and above the Ordinary Course of the Common Law in the Right of His Crown Nor without Reason Lib. 2. f. 55. for as Bracton Dominus Rex est supra omnes qui ad Coronam pertinent And in another place Rex non habet parem in regno Lib. 4. S 1. bid S. 5. And again Nec Superiorem nisi Deum Our Lord the King saith he is above all His Subjects E. 3.19 He has no Equal in his Realm Nor Superior but God. Now if Acts of Mercy and Goodness draw nighest God how necessary is it that were they lost every where else they should be found in a King A chescun Roy saith the Book apent per reason de son Office E. 3. f. 2.9 à faire Justice Grace It belongs to every King by reason of his Office to do Justice and shew Mercy And what is Mercy but a rebating the edge of the Law Quibus tamen qualiter miserendum est â—ract l. 2. doceant eum merita vel immerita personarum But unto whom and to what degree he shall be merciful let the good or ill desert of the Persons direct him Which fully proves that the King is sole Judge of this Mercy When the King Pardons He makes a total Remission of the Offence but when He Dispenses He only prevents a matter not otherwise evil but as prohibited from becoming an Offence A Branch of an Act 11 R. 2. c. 3. That no one against whom any Judgment Inst 42. or Forfeiture was given should sue for Pardon or Grace was made void And it was an Article against Cardinal Woolsey Ibid. 93. Art. 37. That he had forbidden to sue for the Kings Favor or Pardon which amongst other things is there said to be contrary to the King 's High Honor Prerogative Crown Estate and Dignity Regal Nor without Reason for as a King 's being tender of his People is not the least part of His Glory so the intercepting those Beams gathers a Cloud between Him and His People and in a manner robs Him of the advantage of being kind to Himself To close this I have prov'd it of absolute Necessity for the common convenience of all Men that there be some Supreme Power to temper the rigor of Temporary Laws and dispense with their inconvenience And as fully prov'd where this Power lies That the Kings of England have anciently been and now are Absolute Monarchs That the King's Prerogative is a part of the Law of the Land And that to Him only belongs Mercy as well as Justice In the next place we 'll consider it more particularly as it relates to the King's Power of Dispensing SECT III. That without this Supreme Power the King were in a worse Condition than the Subject c. THe Word King 4 Inst 352. is Nomen Politicum and imports that Politic Capacity which never dies but extends to all his Successors as well Kings as Queens of England Now if this Supreme Power as before and shall be further shewn in its proper place be Innate and Inherent in the Person of the King and not deriv'd from the People the same Reason that has in all times supported the Liberty of the Subject makes stronger for this Power without which that Liberty had never been at best indesensible For neither can any Man grant what he has not nor defend without the means of doing it The Subject has receiv'd But how Ex Gratia And can Favor be said to destroy an ancient Right which runs in Succession Trees and Plants give us Fruit and Flowers but the productive Virtue still remains in the Root The Liberty of the Subject is a precious thing But to talk of Liberty yet deny the Prae-existence of a Prerogative which first gave and has ever since supported that Liberty what were it but to reimagin That House on the Sand The same Causes must and will have the same Effects Nor is this all The King has common justice on his side Cap. 29. No Free-man saith Magna Charta shall be Disseiss'd of his Freehold or Liberties Which Sir Edward Coke thus glosses Liberty saith he is that Freedom which Subjects have And if any Statute be made contrary to Magna Charta it shall be holden for none I leave this last to the Learned But if a Subject shall not be
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