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
if I take it right that any such Liberty was ever talk'd of For that of the Men of Kent to William the Conqueror was a formal Stipulation with a Conqueror to whom as yet they ow'd no Natural Ligeance and extort a Charter from Him at Running-Mead which laid the Foundation of the Barons Wars However this was expediated for the present and now the erecting of Borroughs and Corporations so many distinct Liberties in a County and Exempt from either of them might one would have thought been a prudent Expedient of lessening both and at first it struck well towards it for as the one got ground the other lost it but it lasted not always without running into worse Henry III. and his Father before Him had been long turmoil'd with those Barons Wars and having at last after a threescore years Rebellion more by Factions amongst themselves than any strength of his own got the better of them began to consider that those Seditious Barons for as yet the Commons were not any Constituent part of a Parliament had brought Subjects to be more than they should be and Kings less than they were and therefore in the 52. of his Reign calls a Parliament and brought in the Commons to counter-ballance them And Edward l. his Son by calling some few of His Barons to Parliament by Writ and that pro hac vice tantum insensibly lessened their number and freed the Crown from the Wardship of His Barons And yet even this answer'd not the Expectation for as those few that remain'd became the more conspicuous so the Staddles being not left too thick the Underwoods got up the easier The Commons fell into a Foreign Trade that Trade brought home Moneys those Moneys gave them footing in the Estates of the Nobility The device of common Recoveries in Edward III's time secur'd those Estates All together gave them Reputation and now who knew but another Rebellion might make them Lords also And now Privilege is set up against Prerogative nor could they long want some Discontent among the Lords to give it Countenance The Crown was become necessitous and indulg'd their Demands and what was the effect of it They take upon them to be Judges of the Right to the Crown and accordingly give up Richard II. to the undue pretences of Henry IV. and though they assisted Richard Duke of York and his Son afterwards King Edward IV. to the recovery of their Right against Henry VI. yet they set up Richard III. against their lawful King Edward V. However Henry VII deeming them of more use to Him than a topping Nobility first clip'd the later's Wings by the Statute against Retainers and then lessened their Grandeur by encreasing their number Since which the Kings his Successors having added more and not the least share of Abbey-Lands fal'n to the Commons what have all these prudent intentions prov'd but a running from one extream to another And of what advantage this last has been let the Rebellion 1640. Witness There is one thing more which I had almost forgotten Gylds Fraternities and Corporations excellently without question design'd at first for the Advancement of Trade by carrying it on with a common Stock Regulating the Abuse of Manufactures keeping their Members in Obedience to the King and the like But have not they also fall'n from the first intention Is Trade in general advanced by it Or has it not been made use of as a double Key to Let-in some few and Lock-out the greater number Are Manufactures either improv'd or rectifi'd Or has not the knack of making them slighter crept in its room And instead of Obedience to the King have they not been the common Sourse and Fomenters of Sedition If this and what I have offered before be true it proves my Assertion and if it be not what means all this Lowing and Bellowing of the Herd The first intention of Physick was for Prevention and Remedy yet it often so happens that it joins with the Disease and both work together to the destruction of the Body And therefore upon this matter it seems to be of absolute necessity that there be this Supreme Power and that it be exerted in counter-working the injuries of Time and Chance by making provision for Contingencies in the due application of occasional Remedies without which there would be a failer in Government Now if this Power were ty'd up to such Dogmata adamantina unalterable Decrees that in no case whatever they were to be vary'd from where were the use of it The contrary has been the practice of all Ages and therefore I shall not labor the Point at present till I come to shew what the Kings of England and that de jure have done in like cases of which in its proper place However yet before I leave it here and because also I am wholly at home it may not be amiss to examin whether the late Usurp'd Powers did not look upon this Power of Dispensing so absolutely necessary to the carrying on their Arms against their Leige-Lord and Sovereign The King that to say nothing of the Divine Law they not only dispens'd with Statue-Law but even the Common-Law too which where it made not against themselves they held indispensible I shall begin with the Parliament I so lately mentioned where Collonel Nath. Fienns afterwards one of their Commissioners for the Seal tells them That it is against the Law and Light of Nature for a Man to Swear never to consent to alter a thing His 2d Speech to the House p. 13. which in its own Nature alterable and may prove inconvenient and fit to be altered And that both Houses were of the same Opinion may be seen in this that they acted accordingly For by the Name of the Lords and Commons in Parliament they Ordain'd and again made non Obstantes to those Ordinances As 9th October 1643. 23th May 47. 22th and 24th April ' 48. 24th July ' 48. and 16th December ' 48. Repeal'd their own Ordinance of 29th August ' 45. which is contra Consuetudinem Parliamenti Then again as they grew higher They Abolish'd Episcopacy Any Letters Patents from the Crown made or to be made or any other Authority whatsoever any Law Statute Usage or Custom to the contrary notwithstanding 9th October ' 46. Sold Bishops Lands with a like Clause 23th September ' 47. And Abrogated the Feast of the Nativity and all other Festivals call'd Holy-days any Law Statute Constitution or Canon to the contrary notwithstanding 3d. June ' 47. Then when they had killed and taken Possession and Enacted themselves the Supreme Authority of the Nation I speak now of the Commons for I find no concurrence of the Lords after the 9th Jan. ' 48. they made non Obstantes to their own Acts As the 8th and 19th June ' 49. Took away Tithes appropriate 8th June ' 49. Recontinu'd Pleas in Durham 19th June ' 49. Sold Fee-farm Rents 27th July ' 50. Set up Marrying by Justices
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
no Authority to examine it Take away Knowledge to discern Judgment to weigh and Resolution to determine and what will ye make of a Prince His Majesty foresaw a Storm coming lay close for it and wrought it thro' with Resolution A Hand or two might be enough at Helm but it required many to work the Ship And whom in such a case would a Skipper chuse Such as had stuck to him in former Storms or such as had been for throwing him over-board in a Calm They might have been as handy perhaps or better qualify'd but the Ship was in danger and what talk we of Formalities 2. Object But the King had other hands A Loyal City a trusty Militia c. Answ But is he bound to make use of them in extraordinary Cases Has not that City grown too fast May the King yet March thro' London without leave Or take up Monys upon his Revenue without License I begin now to be of opinion he may and withal hope it shall long continue so Then for the Militia To give them their due they were generally up on the late Western occasion but of no great use what good did their numbers against William the Conquerour's form'd Army Or what 's the reason the Crown of England has so often follow'd the Fortune of a single Battle But that it has been fought by an Uncommanded Multitude who knowing nothing but their own Inclinations believe God is departed from the beaten side and consequently deem it a sin to tempt Providence with a Second I will not say but they may be made more serviceable however till that be what hurt if the King make use of such as are In short as the Subject has his Liberty by the same Laws also has the King his i. e. His Prerogative Nay to imagine the contrary were a Condradiction in Terminis And what better were that Prerogative if restrain'd in the legal use than a Long-wing'd Hawk but ty'd to Fist Shall a Man do nothing without consulting his Wife Or must the King call a Parliament upon every Emergency I think not For Omnis Rex Angliae est solus Rex Stam. pl. cor 99. semper Rex and there are many things he may do of himself without Parliament The power of Peace and War is 9 E. 4.4 and was the King's at Common Law and our later Acts of Parliament are but declaratory of that Ancient Law. He may charge the Subject for defence of the Kingdom without Parliament 13 E. 4.14 And the same did Queen Eliz. in 1588. Grant a Toll upon the erection of a new Fair Market Bridge Ferry Grant Pontage Murage Paveage Rolls Abridg. 2d part 171. c. As there are many ancient Instances of it in the 3d. 7th and 32d of Edw. the 1st It may be said 't is true the Subject here has a Quid pro Quo but what Quid pro Quo is it That the King grants to one or more Subjects to have more priviledge than others That he Erects Cities Corporations Gylds Founds Bishopricks Colleges Hospitals Grants Priviledge to make By-Laws Hold Courts send Burgesses to Parliament no Positive Law that I remember stints the number to two Wales for the most part send but one and London four Is not all this by His Royal Charter And what is it that enables Him to that but His Prerogative which is the antientest part of the Law of the Land and consequently the most Principal Nor is this all The King by His Writ may Ordain alone 9 E. 3.16 A Writ of Cessavit was brought against the Tenants of Northumberland They Petition the King and shew that they had been so harrast by Incursions of the Scots that they could not pay their Rents The King by His Writ Ordain'd a stay of Sute The King before the convenience of Colleges grants to the Scholars of Oxford 49 E. 3.18 That they should have the choice of Inns there This is my Free-hold says the Towns-Man and the King cannot do it But it is the King's Patent said the Judges and in favour of Learning and therefore a good Ordinance Much more to which purpose may be had in the Case of Ship-Mony where because the Arguments are hard to be got by themselves they may be found in the Annals of King Charles the First 3. Object But was not the Judgment for the King in that Case afterwards vacated in Parliament Answ That it was so de facto is true But that the Arguments of Sir Robert Holborn and Mr. St. Johns who argu'd it against the King and of the Judges Hutton and Crooke who had first under-written for the King and afterwards gave their Opinions against what they had so under-written were by that Parliament held for Law is also as true And therefore if I have taken any of their Concessions to prove my point for the King as Eas est ab hoste doceri I know not why it may not be the same Law now And for the rest of the Judges that gave their Opinions for the King according to what they had first underwritten they were accounted Men Eminent in their time and if the Lord Chief Justice Finch a Gentleman in whom Art and Nature concurr'd to make him Eloquent and a long experience dexterous and who had been speaker of the Parliament of 3d. Car. 1. at what time the Petition of Right past may be credited Those first Opinions were so delivered to His Majesty that no one Judge knew the Opinion of the rest or the reason that induc'd His Majesty to demand it And now that I am upon this Matter it is but a Justice due to that King's Memory that I open the History of it The Cards had long shuffling for some plausible Trump whereby to engage the People into a Rebellion None more luckily turn'd up wherein their Properties seem'd to be concern'd than this of Mr. Hambden where the Case lay thus The Dutch in the 9th Car. 1. 1634. had set up the Northern Herring-fishing on our Sea Grotius had put out three or four sheets of Paper which he calls Mare Liberum Mr. Selden learnedly encounter'd him and as fully answer'd it in his Mare Clausum by shewing That before the Romans had ever to do in Britain during their time and ever since the Dominion of the Narrow Seas was the Ancient undoubted Right of the Crown of England Pens were too weak to decide the Matter Mr. Noy finds Precedents of Naval-aids by sole Authority of the King Some few of the Commons except against it as being out of Parliament and against the Petition of Right The first Writ is directed to the Major c. of London to equip seven Ships of War by a day certain sufficiently provided at their own Charges of all things necessary for 26 Weeks From thence Writs are sent into the inland Counties Most pay their proportion which in the whole amounted to but 20000 per Mens thro' England Mr.