Patriarcha, or the Natural Power of Kings
Chapter III: Positive Laws do not Infringe the Natural and Fatherly Power of Kings>
1. HITHERTO I have endeavoured to show the natural institution of regal authority, and to free it from subjection to an arbitrary election of the people. It is necessary also to inquire whether human 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 err; for as kingly power is by the law of God, so it hath no inferior 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, for all this, every father is bound by the law of nature to do his best for the preservation of his family. But much more is a king always tied by the same law of nature to keep this general ground, that the safety of the kingdom be his chief law; he must remember that the profit of every man in particular, and of all together in general, is not always one and the same; and that the public is to be preferred before the private; and that the force of laws must not be so great as natural equity itself, which cannot fully be comprised in any laws whatsoever, but is to be left to the religious achievement of those who know how to manage the affairs of state, and wisely to balance the particular profit with the counterpoise of the public, according to the infinite variety of times, places, persons. A proof unanswerable for the superiority of princes above laws is this, that there were kings long before there were any laws. For a long time the word of a king was the only law; and if practice, as saith Sir Walter Raleigh, declare the greatness of authority, even the best kings of Judah and Israel were not tied to any law; but they did whatsoever they pleased in the greatest matters.
2. The unlimited 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 frightening the Israelites with the mischiefs in monarchy, or else a prophetical description only of the future ill-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 shown 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; no remedy in the text against tyrants, but in crying and praying unto God in that day. But howsoever in a rigorous construction Samuels description be applied to a tyrant, yet the words by a benign 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 Walter Raleigh confesses, all those inconveniences and miseries which are reckoned by Samuel as belonging to kingly government were not intolerable, but such as have been borne, and are still borne, by free consent of subjects towards their princes. Nay, at this day, and in this land, many tenants, by their tenures and services, are tied to the same subjection even to subordinate and inferior 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 itself 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 recompense to the damage of private persons only, it is not to be defended; but if it be upon the public charge and general consent, it might be justified as necessary at the first erection of a kingdom, for those who will have a king are bound to allow him royal maintenance by providing revenues for the Crown, since it is both for the honour, profit, and safety, too, of the people to have their king glorious, powerful, and abounding in riches. Besides, we all know the lands and goods of many subjects may be ofttimes legally taken by the king, either by forfeitures, escheat, attainder, outlawry, confiscation, or the like. Thus we see Samuels character of a king may literally well bear a mild sense, for greater probability there is that Samuel so meant, and the Israelites so understood it; to which this may be added that Samuel tells the Israelites: This will be the manner of the king that shall reign over you, and ye shall cry because of your king which ye shall have chosen you that is to say, thus shall be the common custom or fashion or proceeding of Saul your king; or, as the vulgar Latin renders it, This shall be the right or law of your king not meaning, as some expound it, the casual event or act of some individuum vagum, or indefinite king, that might happen one day to tyrannize over them. So that Saul, and the constant practice of Saul, doth best agree with the literal sense of the text. Now that Saul was no tyrant, we may note that the people 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 had not been to hear their voice in all things, but rather when they asked an egg to have given them a scorpion, unless we will say that all nations had tyrants.
Besides, we do not find in all Scripture that Saul was punished, or so much as blamed, for committing any of those acts which Samuel describes; and if Samuels drift had been only to terrify the people, he would not have forgotten to foretell Sauls bloody cruelty in murdering eighty-five innocent priests, and smiting with the edge of the sword the city of Nob, both man, woman, and child. Again, the Israelites never shrank at these conditions proposed by Samuel, but accepted of them as such as all other nations were bound unto; for their conclusion is: Nay, but we will have a king over us, that we also may be like all the nations, and that our king may judge us, and go out before us to fight our battles meaning he should earn his privileges by doing the work for 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 of their living under a tyrant. No man can say King Solomon was a tyrant, yet all the congregation of Israel complained that Solomon made their yoke grievous, and therefore their prayer to Rehoboam is: Make thou the grievous service of thy father Solomon and his heavy yoke which he put upon us lighter, and we will serve thee. To conclude: it is true Saul lost his kingdom, but not for being too cruel or tyrannical to his subjects, but by being too merciful to his enemies. His sparing Agag when he should 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 power, By giving to Cæsar those things that were Cæsars, and to God those things that were Gods. Obediendum est in quibus mandatum Dei non impeditur. We must obey where the commandment of God is not hindered there is no other law but Gods law to hinder our obedience. It was the answer of a Christian to the Emperor: We only worship God, in other things we gladly serve you. And it seems Tertullian thought whatsoever was not Gods was the Emperors, when he saith: Bene opposuit Cæsari pecuniam, te ipsum Deo, alioqui quid erit Dei, si omnia Cæsaris (Our Saviour hath well apportioned our money for Cæsar, and ourselves for God, for otherwise what shall Gods share be if all be Cæsars). The Fathers mention no reservation of any power to the laws of the land or to the people. St. Ambrose, in his apology for David, expressly saith: He was a king and therefore bound to no laws, because kings are free from the bonds of any fault. St. Augustine also resolves: Imperator non est subjectus legibus, qui habet in potestate alias leges ferre (The Emperor 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 kings 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 Ills days, which was since the institution of Parliaments. His words are, speaking of the King: Omnes sub eo, et ipse sub nullo, nisi tantum sub Deo, etc. (All are under him, and he under none but God.) If he offend, since no writ can go against him, their remedy is by petitioning him to amend his fault, which, if he shall not do, it will be punishment sufficient for him to expect God as a revenger; let none presume to search into his deeds, much less to oppose them.
When the Jews asked our Blessed Saviour whether they should pay tribute, He did not first demand what the law of the land was, or whether there was any statute against it, nor inquired whether the tribute were given by consent of the people, nor advised them 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 Cæsars, therefore give it to Cæsar. 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 conqueror or usurper whatsoever.
Whereas being subject to the higher powers some have strained these words to signify the laws of the land, or else to mean the highest power, as well aristocratical and democratical as regal. It seems St. 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 a monarch that carried a sword: Wilt thou not be afraid of the power? that is, the ruler that carrieth the sword, for he is the minister of God to thee ... for he beareth not the sword in vain. It is not the law that is the minister of God, or that carries the sword, but the ruler or magistrate; so they that say the law governs the kingdom may as well say that the carpenters rule builds a house, and not the carpenter, for the law is but the rule or instrument of the ruler. And St. 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 apidote render or restore tribute as a due. Also St. Peter doth most clearly expound this place of St. Paul, where he saith: Submit yourselves to every ordinance of man for the Lords sake, whether it be to the king as supreme or unto governors as unto them that are sent by him. Here the very self-same word supreme or uperecousaiV which St. Paul coupleth with power, St. Peter conjoineth with the king, Basilei wV upereconti, thereby to manifest that king and power are both one. Also St. Peter expounds his own words of human ordinance, to be the king who is the lex loquens, a speaking law; he cannot mean that kings themselves are a 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 governors that are sent by him, that is, by the king, not by God, as some corruptly would wrest the text, to justify popular governors as authorized by God; whereas, in grammatical 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 governors were sent by kings, for if the governors were sent by God, and the king be a human ordinance, then it follows that the governors were supreme and not the king; or if it be said that both king and governors are sent by God, then they are both equal, and so neither of them supreme. Therefore St. Peters meaning is, in short: obey the laws of the king or of his ministers. By which it is evident that neither St. Peter nor St. Paul intended other form of government than only monarchical, much less any subjection of princes to human laws.
That familiar distinction of the schoolmen, whereby they subject kings to the directive but not to the co-active 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 governed 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 choose 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 busied with wars, or distracted with public cares, so that every private man could not have access to their persons to learn their wills and pleasure, then of necessity were laws invented, that so every particular subject might find his princes pleasure deciphered to him in the tables of his laws, that so there might be no need to resort unto 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 eased. First, the king, by giving laws, doth free himself of great and intolerable troubles, as Moses did himself by choosing elders. Secondly, the people have the law as a familiar admonisher and interpreter of the kings 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 settled 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 commonweal 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 commonwealth. By this means are all kings, even tyrants and conquerors, bound to preserve the lands, goods, liberties, and lives of all their subjects, not by any municipal law of the land so much as the natural law of a father, which binds them to ratify the acts of their forefathers and predecessors in things necessary for the public good of their subjects.
7. Others there be that affirm that, although laws of themselves do not bind kings, yet the oaths of kings at their coronations tie them to keep all the laws of their kingdoms. How far this is true, let us but examine the oath of the kings of England at their coronation, the words whereof are these: Art thou pleased to cause to be administered in all thy judgments indifferent and upright justice, and to use discretion with mercy and verity? Art thou pleased that our upright laws and customs be observed, and dost thou promise that those shall be protected and maintained by thee? These two are the articles of the kings oath, which concern the laity or subjects in general, to which the king answers affirmatively, being first demanded by the Archbishop of Canterbury:
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 II, I find evil and unjust laws mentioned which the king swears to abolish; and in the old Abridgment of Statutes, set forth in Henry VIIIs 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 or, as Bracton hath it, æquitatem præcipiat, et 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 joined with mercy, which is properly the office of a chancellor rather than of a judge; and if a king did strictly swear to observe all the laws, he could not, without perjury, give his consent to the repealing or abrogating of any statute by Act of Parliament which would be very mischievable to the state.
But let it be supposed for truth that kings do swear to observe all the laws of their kingdom, yet no man can think it reason that kings should be more bound by their voluntary oaths than common persons are by theirs. Now, if a private person make a contract, either with oath or without oath, he is no further bound than the equity and justice of the contract ties him; for a man may have relief against an unreasonable and unjust promise, if either deceit, or error, or force, or fear induced him thereunto; or if it be hurtful or grievous in the performance. Since the laws in many cases give the king a prerogative above common persons, I see no reason why he should be denied the privilege which the meanest of his subjects doth enjoy.
Here is a fit place to examine a question which some have moved: whether it be a sin for a subject to disobey the king if he command anything contrary to his laws? For satisfaction in this point we must resolve that not only in human laws, but even in divine, a thing may be commanded contrary to law, and yet obedience to such a command is necessary. The sanctifying of the Sabbath is a divine law; yet if a master command his servant not to go to church upon a Sabbath Day, the best divines teach us that the servant must obey this command, though it may be sinful and unlawful in the master; because the servant hath no authority or liberty to examine and judge whether his master sin or no in so commanding; for there may be a just cause for a master to keep his servant from church, as appears Luke xiv. 5. Yet it is not fit to tie the master to acquaint his servant with his secret counsels or present necessity; and in such cases the servants not going to church becomes the sin of the master, and not of the servant. The like may be said of the kings commanding a man to serve him in the wars: he may not examine whether the war be just or unjust, but must obey, since he hath no commission to judge of the titles of kingdoms or causes of war; nor hath any subject power to condemn his king for breach of his own laws.
8. Many will be ready to say it is a slavish and dangerous condition to be subject to the will of any one man who is not subject to the laws. But such men consider not (1) that the prerogative of a king is to be above all laws, for the good only of them that are under the laws, and to defend the peoples liberties, as his Majesty graciously affirmed in his speech after his last answer to the Petition of Right. Howsoever some are afraid of the name of prerogative, yet they may assure themselves the case of subjects would be desperately miserable without it. The Court of Chancery itself is but a branch of the kings prerogative to relieve men against the inexorable rigour of the law which without it is no better than a tyrant, since summum jus is summa injuria. General pardons at the coronation and in parliaments are but the bounty of the prerogative. (2) There can be no laws without a supreme power to command or make them. In all aristocracies the nobles are above the laws, and in all democracies the people. By the like reason, in a monarchy the king must of necessity be above the laws; there can be no sovereign majesty in him that is under them; that which giveth the very being to a king is the power to give laws; without this power he is but an equivocal king. It skills not which way kings come by their power, whether by election, donation, succession, or by any other means; for it is still the manner of the government by supreme power that makes them properly kings, and not the means of obtaining their crowns. Neither doth the diversity of laws nor contrary customs, whereby each kingdom differs from another, make the forms of commonweal different unless the power of making laws be in several subjects.
For the confirmation of this point, Aristotle saith that a perfect kingdom is that wherein the king rules all things according to his own will, for he that is called a king according to the law makes no kind of kingdom at all. This, it seems, also the Romans well understood to be most necessary in a monarchy; for though they were a people most greedy of liberty, yet the senate did free Augustus from all necessity of laws, that he might be free of his own authority and of absolute power over himself and over the laws, to do what he pleased and leave undone what he listed; and this decree was made while Augustus was yet absent. Accordingly we find that Ulpian, the great lawyer, delivers it for a rule of the civil law: Princeps legibus solutus est (The prince is not bound by the laws).
9. If the nature of laws be advisedly weighed, the necessity of the princes being above them may more manifest itself. We all know that a law in general is the command of a superior power. Laws are divided as Bellarmine divides the Word of God into written and unwritten, not for that it is not written at all, but because it was not written by the first devisers or makers of it. The common law, as the Lord Chancellor Egerton teacheth us, is the common custom of the realm. Now, concerning customs, this must be considered that for every custom there was a time when it was no custom, and the first precedent we now have had no precedent when it began. When every custom began, there was something else than custom that made it lawful, or else the beginning of all customs were unlawful. Customs at first became lawful only by some superior which did either command or consent unto their beginning. And the first power which we find, as it is confessed by all men, is the kingly power which was both in this and in all other nations of the world long before any laws or any other kind of government was thought of; from whence we must necessarily infer that the common law itself, or common customs of this land, were originally the laws and commands of kings at first unwritten.
Nor must we think the common customs which are the principles of the common law, and are but few to be such, or so many, as are able to give special rules to determine every particular cause. Diversity of cases are infinite, and impossible to be regulated by any law, and therefore we find even in the Divine laws which are delivered by Moses, there be only certain principal laws which did not determine, but only direct, the High Priest or magistrate, whose judgment in special cases did determine what the general law intended. It is so with the common law, for when there is no perfect rule judges do resort to those principles or common law axioms whereupon former judgments in cases somewhat like have been delivered by former judges, who all receive authority from the king in his right and name to give sentence according to the rules and precedents of ancient times; and where precedents 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 there have been precedents to direct, they, upon better reason only, have changed the law both in causes criminal and civil, and have not insisted so much on the examples of former judges, as examined and corrected their reasons; thence it is that some laws are now obsolete and out of use, and the practice 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 witness to this we have Aristotle his testimony in his Ethics and in several places in his Politics. I will cite some of them:
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 easy 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 lawmaker 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 III, 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 et non alius debet judicare, si solus ad id sufficere possit, etc.: The king, and nobody else, ought to give judgment, if he were able, since by virtue 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 burden to more persons, he ought to choose wise men fearing God, etc., and make justices of them. Much to the same purpose are the words of Edward I in the beginning of his book of Laws, written by his appointment by John Briton, Bishop of Hereford:
Neither may this be taken to be meant of an imaginary presence of the kings 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 kings royal person. And that this, then, was no new-made law, or first brought in by the Norman Conquest, appears by a Saxon law made by King Edgar in these words, as I find them in Mr. Lambert:
As the judicial power of kings was exercised before the Conquest, so in those settled times after the Conquest, wherein parliaments were much in use, there was a high court following the king, which was the place of sovereign justice both for matter of law and conscience, as may appear by a parliament in Edward Is time taking order, That the Chancellor 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 sovereign 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 bring forth.
[11.] 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 lawmaking 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 expense of time; so that, although all causes are, and ought to be, referred to the ordinary process 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 damage by false accusations and malicious suggestions made to the king and his council, especially during the time of King Edward III, whilst he was absent in the wars in France, insomuch as in his reign divers statutes were made that provided none should be put to answer before the king and his council without due process. Yet it is apparent the necessity of such proceedings was so great that both before Edward Ills days and in his time, and after his death, several statutes were made to help and order the proceedings of the king and his council. As the parliament in 28 Edward I, cap. 5, did provide: That the Chancellor and Justices of the Kings Bench should follow the King, that so he might have near unto him some that be learned in the laws which be able to order all such matters as shall come unto the court at all times when need shall require. By the statute of 37 Edward III, cap. 18, taliation was ordained, in case the suggestion to the King proved untrue. Then 38 Edward III, cap. 9, takes away taliation and appoints imprisonment till the king and party grieved be satisfied. In the statutes of 17 Richard II, cap. 6, and 15 Henry VI, cap 4, damages and expenses are awarded in such cases. In all these statutes it is necessarily implied that complaints upon just causes might be moved before the king and his council.
At a parliament at Gloucester, 2 Richard II, when the Commons made petition, That none might be forced by writ out of Chancery or by Privy Seal to appear before the King and his Council to answer touching freehold, the kings answer was:
Also in the thirteenth year of his reign, when the Commons did pray that, upon pain of forfeiture, the chancellor or council of the king should not, after the end of the parliament, make any ordinance against the common law, the king answered:
Again, in the fourth year of Henry IV, when the Commons complained against subpoenas and other writs grounded upon false suggestions, the king answered:
Likewise when, for the same cause, complaint was made by the Commons, anno 3, Henry V, the kings answer was: Le roy sadvisera (The king will be advised), which amounts to a denial for the present by a phrase peculiar for the kings denying to pass any Bill that hath passed the Lords and Commons.
These complaints of the Commons, and the answers of the king, discover that such moderation should be used that the course of the common law be ordinarily maintained, lest subjects be convented before the king and his council without just cause, that the proceedings of the council-table be not upon every slight suggestion, nor to determine finally concerning freehold of inheritance. And yet that upon cause reasonable, upon credible information in matters of weight, the kings regality or prerogative in sending for his subjects be maintained, as of right it ought, and in former times hath been constantly used.
King Edward I, finding that Bogo de Clare was discharged of an accusation brought against him in parliament, for that some formal imperfections were found in the complaint, commanded him nevertheless to appear before him and his council, ad faciendum et recipiendum quod per regem et ejus concilium fuerit faciendum; and so proceeded to an examination of the whole cause. 8 Edward I.
Edward III, in the Star Chamber which was the ancient Council Chamber at Westminster upon the complaint of Elizabeth Audley, commanded James Audley to appear before him and his council, and determined a controversy between them touching lands contained in the covenants of her jointure Rot. Clause, de anno 41, Edward III. Henry V, in a suit before him and his council for the titles of the manors of Seere and St. Lawrence, in the Isle of Thanet in Kent, took order for sequestering the profits till the right were tried, as well for avoiding the breach of the peace, as for prevention of waste and spoil Rot. Patin, anno 6, Henry V.
Henry VI commanded the justices of the bench to stay the arraignment of one Verney, of London, till they had other commandment from him and his council, because Verney, being indebted to the king and others, practised to be indicted of felony, wherein he might have his clergy, and make his purgation, of intent to defraud his creditors 34 Henry VI Rot. 37 in Banco Regis."
Edward IV and his council in the Star Chamber heard the cause of the master and poor brethren of St. Leonards in York, complaining that Sir Huge Hastings and others withdrew from them a great part of their living, which consisted chiefly upon the having of a thrave of corn of every plough land within the counties of York, Westmoreland, Cumberland, and Lancashire Rot. Paten de anno 8, Edward IV part iii., memb. 14.
Henry VII and his council, in the Star Chamber, decreed that
What is hitherto affirmed of the dependency and subjection of the common law to the sovereign prince, the same may be said as well of all statute laws; for the king is the sole immediate author, corrector, and moderator of them also; so that neither of these two kinds of laws are or can be any diminution of that natural power which kings have over their people by right of fatherhood, but rather are an argument to strengthen the truth of it; for evidence whereof we may in some points consider the nature of parliaments, because in them only all statutes are made.
12. Though the name of parliament, as Mr. Camden saith, be of no great antiquity, but brought in out of France, yet our ancestors, the English Saxons, had a meeting which they called the assembly of the wise, termed in Latin, conventum magnatum, or praesentia regis, procerumq., prelaterumq. collectorum (The meeting of the nobility, or the presence of the king, prelates, and peers assembled), or, in general, magnum concilium or commune concilium; and many of our kings in elder times made use of such great assemblies for to consult of important affairs of state, all which meetings in a general sense may be termed parliaments."
Great are the advantages which both the king and people may receive by a well-ordered parliament. There is nothing more expresseth the majesty and supreme power of a king than such an assembly, wherein all his people acknowledge him for sovereign lord, and make all their addresses to him by humble petition and supplication; and by their consent and approbation do strengthen all the laws which the king at their request and by their advice and ministry shall ordain. Thus they facilitate the government of the king by making the laws unquestionable either to the subordinate magistrates or refractory multitude. The benefit which accrues to the subject by parliaments is that by their prayers and petitions kings are drawn many times to redress their just grievances, and are overcome by their importunity to grant many things which otherwise they would not yield unto; for the voice of a multitude is easier heard. Many vexations of the people are without the knowledge of the king, who in parliament seeth and heareth his people himself; whereas at other times he commonly useth the eyes and ears of other men.
Against the antiquity of parliaments we need not dispute, since the more ancient they be, the more they make for the honour of monarchy; yet there be certain circumstances touching the forms of parliaments which are fit to be considered.
First, We are to remember that until about the time of the Conquest there could be no parliaments assembled of the general states of the whole kingdom of England, because till those days we cannot learn it was entirely united into one kingdom, but it was either divided into several kingdoms or governed by several laws. When Julius Cæsar landed, he found four kings in Kent, and the British names of Dammonii, Durotriges, Belgæ, Attrebatii, Trinobantes, Iceni, Silures, and the rest, are plentiful testimonies of the several kingdoms of Britains when the Romans left us. The Saxons divided us into seven kingdoms. When the Saxons were united all into a monarchy, they had always the Danes their companions or their masters in the empire till Edward the Confessors days, since whose time the kingdom of England hath continued united as now it doth; but for a thousand years before we cannot find it was entirely settled during the time of any one kings reign. As under the Mercian law, the West Saxons were confined to the Saxon laws, Essex, Norfolk, Suffolk, and some other places were vexed with Danish laws; the Northumbrians also had their laws apart. And until Edward the Confessors reign, who was next but one before the Conqueror, the laws of the kingdom were so several and uncertain that he was forced to cull a few of the most indifferent and best of them, which were from him called St. Edwards laws. Yet some say that Edgar made those laws, and that the Confessor did but restore and mend them. Alfred also gathered out of Mulmutius laws such as he translated into the Saxon tongue. Thus during the time of the Saxons the laws were so variable that there is little or no likelihood to find any constant form of parliaments of the whole kingdom.
13. A second point considerable is whether in such parliaments as was in the Saxons times the nobility and clergy only were of those assemblies, or whether the Commons were also called? Some are of the opinion that though none of the Saxon laws do mention the Commons, yet it may be gathered by the word wisemen, the Commons are intended to be of those assemblies, and they bring, as they conceive, probable arguments to prove it from the antiquity of some boroughs that do yet send burgesses, and from the proscription of those in ancient demesne not to send burgesses to parliament. If it be true that the West Saxons had a custom to assemble burgesses out of some of their towns, yet it may be doubted whether other kingdoms had the same usage, but sure it is that during the Heptarchy the people could not elect any knights of the shire because England was not then divided into shires.
On the contrary, there be of our historians who do affirm that Henry I caused the Commons first to be assembled by knights and burgesses of their own appointment, for before his time only certain of the nobility and prelates of the realm were called to consultation about the most important affairs of state. If this assertion be true, it seems a mere matter of grace of this king, and proves not any natural right of the people originally to be admitted to choose their knights and burgesses of parliament, though it had been more for the honour of parliaments if a king, whose title to the Crown had been better, had been author of the form of it, because he made use of it for his unjust ends. For thereby he secured himself against his competitor and elder brother by taking the oaths of the nobility in parliament and getting the crown to be settled upon his children. And as the king made use of the people, so they, by colour of parliament, served their own turns; for after the establishment of parliaments by strong hand and by the sword, they drew from him the Great Charter, which he granted the rather to flatter the nobility and people, as Sir Walter Raleigh, in his Dialogue of Parliaments, doth affirm in these words:
[14.] A third consideration must be that in the former parliaments, instituted and continued since King Henry Is time, is not to be found the usage of any natural liberty of the people; for all those liberties that are claimed in parliament are the liberties of grace from the king, and not the liberties of nature to the people; for if the liberty were natural, it would give power to the multitude to assemble themselves when and where they please, to bestow sovereignty, and by pactions to limit and direct the exercise of it. Whereas the liberties of favour and grace which are claimed in parliaments are restrained both for time, place, persons, and other circumstances, to the sole pleasure of the king, the people cannot assemble themselves, but the king, by his writs, calls them to what place he pleases; and then again scatters them with his breath at an instant, without any other cause shown than his will. Neither is the whole summoned, but only so many as the kings writs appoint. The prudent King Edward I summoned always those barons of ancient families that were most wise to his parliament, but omitted their sons after their death if they were not answerable to their parents in understanding. Nor have the whole people voices in the election of knights of the shire or burgesses, but only freeholders in the counties, and freemen in the cities and boroughs; yet in the City of Westminster all the householders, though they be neither freemen nor freeholders, have voices in their election of burgesses. Also during the time of parliament, those privileges of the House of Commons of freedom of speech, power to punish their own members, to examine the proceedings and demeanour of courts of justice and officers, to have access to the kings person, and the like, are not due by any natural right, but are derived from the bounty or indulgence of the king, as appears by a solemn recognition of the House; for at the opening of the parliament, when the Speaker is presented to the king, he, in the behalf and name of the whole House of Commons, humbly craves of his Majesty, That he would be pleased to grant them their accustomed liberties of freedom of speech, of access to his person, and the rest. These privileges are granted with a condition implied that they keep themselves within the bounds and limits of loyalty and obedience; for else why do the House of Commons inflict punishment themselves upon their own members for transgressing in some of these points; and the king, as head, hath many times punished the members for the like offences. The power which the king giveth in all his courts to his judges or others to punish doth not exclude him from doing the like by way of prevention, concurrence or evocation, even in the same point which he hath given in charge by a delegated power; for they who give authority by commission do always retain more than they grant. Neither of the two Houses claim an infallibility of not erring, no more than a general council can. It is not impossible but that the greatest may be in fault, or at least interested or engaged in the delinquency of one particular member. In such cases it is most proper for the head to correct, and not to expect the consent of the members, or for the parties peccant to be their own judges. Nor is it needful to confine the king in such cases within the circle of any one court of justice, who is supreme judge in all courts. And in rare and new cases rare and new remedies must be sought out; for it is a rule of the common law: In novo casu, novum remedium est apponendum; and the Statute of Westminster, 2, cap. 24 giveth power, even to the clerks of the Chancery, to make new forms of writs in new cases, lest any man that came to the Kings Court of Chancery for help should be sent away without remedy. A precedent cannot be found in every case; and of things that happen seldom and are not common, there cannot be a common custom. Though crimes exorbitant do pose the king and council in finding a precedent for a condign punishment, yet they must not therefore pass unpunished.
I have not heard that the people by whose voices the knights and burgesses are chosen did ever call to an account those whom they had elected. They neither give them instructions or directions what to say or what to do in parliament; therefore they cannot punish them when they come home for doing amiss. If the people had any such power over their burgesses, then we might call it the natural liberty of the people with a mischief. But they are so far from punishing that they may be punished themselves for intermeddling with parliamentary business; they must only choose, and trust those whom they choose to do what they list, and that is as much liberty as many of us deserve for our irregular elections of burgesses.
15. A fourth point to be considered is that in parliament all statutes or laws are made properly by the king alone, at the rogation of the people, as his Majesty King James, of happy memory, affirms in his true Law of Free Monarchy, and, as Hooker teacheth us, That laws do not take their constraining force from the quality of such as devise them, but from the power that doth give them the strength of laws. Le roy le veult (the king will have it so) is the interpretive phrase pronounced at the kings passing of every Act of Parliament. And it was the ancient custom for a long time, till the days of Henry V, that the kings, when any Bill was brought unto them that had passed both Houses, to take and pick out what they liked not, and so much as they chose was enacted for a law; but the custom of the later kings hath been so gracious as to allow always of the entire Bill as it hath passed both Houses.
16. The parliament is the kings court, for so all the oldest statutes called it, the king in his parliament. But neither of the two Houses are that supreme court, nor yet both of them together; they are only members and a part of the body whereof the king is the head and ruler. The kings governing of this body of the parliament we may find most significantly proved, both by the statutes themselves as also by such precedents as expressly show us how the king, sometimes by himself, sometimes by his council, and other times by his judges, hath overruled and directed the judgments of the Houses of Parliament. For the king, we find that Magna Charta and the Charter of Forests, and many other statutes about those times, had only the form of the kings letters-patents, or grants under the great seal, testifying those great liberties to be the sole act and bounty of the king. The words of Magna Charta begin thus: Henry, by the grace of God, etc. To all our Archbishops, etc., and our faithful subjects, greeting. Know ye, that we, of our mere free will, have granted to all freemen these liberties. In the same style goeth the Charter of Forests and other statutes. Statutum Hiberniæ, made at Westminster, 9 February, 14 Henry III, is but a letter of the king to Gerard, son of Maurice, Justice of Ireland. The Statute de anno bissextili begins thus: The King to his Justices of the Bench, greeting, etc. Explanationes statuti Glocestriæ, made by the king and his justices only, were received always as statutes, and are still printed amongst them.
The statute made for correction of the twelfth chapter of the Statute of Gloucester was signed under the great seal and sent to the justices of the bench, after the manner of a writ-patent, with a certain writ closed, dated by the kings hand at Westminster, requiring that they should do and execute all and everything contained in it, although the same do not accord with the Statute of Gloucester in all things."
The Statute of Rutland is the kings letters to his treasurer and barons of his Exchequer and to his chamberlain.
The Statute of Circumspecte Agis runs: The King to his judges sendeth greeting."
There are many other statutes of the same form, and some of them which run only in the majestic terms of, The King commands, or The King wills, or, Our 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 mere proclamations, as the Provisions of Merton, made by the king at an assembly of the prelates and nobility, for the coronation of the king and his Queen Eleanor which begins: Provisum est in curia domini regis apud Merton. Also a provision was made 19 Henry III, De assisa ultimæ præsentationis, which was continued, and allowed for law, until Tit. West 2 an. 13 Edward I, cap. 5, which provides the contrary in express words. This provision begins: Provisum fuit coram dom, rege, archiepiscopis, episcopis et baronibus quod, etc. It seems originally the difference was not great between a proclamation and a statute. This latter the king made by common council of the kingdom. In the former he had but the advice only of his great council of the peers or of his privy council only. For that the king had a great council besides his parliament appears by a record of 5 Henry IV about 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 Henry VI, cap 8, in these words:
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 a Protector, during the minority of Edward VI, and in his first year it was repealed.
I find also that a parliament in the eleventh year of Henry VII did so great reverence to the actions or ordinances of the king that by statute 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 damned and annulled for ever.
Mr. Fuller, in his arguments against the proceedings of the High Commission Court, affirms that the statute of 2 Henry IV, 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 III, Richard II, the three Henrys, IV, V, VI, in Edward IV and Richard Ills days, was: The King and his Parliament, with the assent of the Prelates, Earls, 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, etc., which was never assented nor granted by the Commons, but that which was done therein 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:
The Statute of Bigamy saith:
The Statute of Acton, Burnel 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:
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 Sovereign 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 Edward III, saith,
In the parliament primo Edward III, where Magna Charta was confirmed, I find this preamble:
The Commons, presenting a petition unto the King which the Kings council did mislike, were content thereupon to mend and explain their petition; the form of which petition is in these words:
In the time of Henry III an order or provision was made by the kings council, and it was pleaded at the common law in bar to a writ of dower. The plaintiffs attorney could not deny it, and thereupon the judgment was ideo 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 kings 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 Edward III, 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 Thomas Oghtred, knight, who brought a formedon against a poor man and his wife, they came and yielded to the demandant, which seemed suspicious 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 et comment ils voillet que nous devomus faire, nous volume faire, et 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 Henry VI, the Commons made suit:
This opinion was allowed.
In another parliament, 31 Henry VI which was prorogued in the vacation the Speaker of the House of Commons was condemned in a thousand pounds damages in an action of trespass, and was committed to prison in execution for the same, when parliament was reassembled 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 privilege of parliament? Upon the judges answer it was concluded: That the Speaker should still remain in prison according to the law, notwithstanding the privilege of parliament and that he was the Speaker, which resolution was declared to the Commons by Moyle, the kings serjeant-at-law; and the Commons were commanded, in the kings name, by the Bishop of Lincoln in the absence of the Archbishop of Canterbury, then Chancellor to choose another Speaker.
In septimo of Henry VIII a question was moved in parliament, Whether spiritual persons might be convented before temporal judges for criminal cases. 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 error 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 errors; 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 error brought in parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel, as appeareth by record. See Flower Dews case, p. l, h. 7, fol. 19.
First published 1680.
Contributed by Robert Clark.