The rigour of the Law is to be temper'd by men of known integrity and judgment, and not by the Prince who may be ignorant or vicious.

OUR author's next shift is to place the king above the law, that he may mitigate the rigour of it, without which he says, The case of the subject would be desperately miserable.[1] But this cure would prove worse than the disease. Such pious fathers of the people as Caligula, Nero or Domitian, were not like to mitigate the rigour; nor such as inherit crowns in their infancy (as the present kings of Spain, France and Sweden)[2] so well to understand the meaning of it as to decide extraordinary cases. The wisdom of nations has provided more assured helps; and none could have been so brutish and negligent of the publick concernments, to suffer the succession to fall to women, children, &c. if they had not reserved a power in themselves to prefer others before the nearest in blood, if reason require; and prescribed such rules as might preserve the publick from ruin, notwithstanding their infirmities and vices. These helps provided by our laws, are principally by grand and petty juries, who are not only judges of matters of fact, as whether a man be kill'd, but whether he be kill'd criminally. These men are upon their oaths, and may be indicted of perjury if they prevaricate: The judges are present, not only to be a check upon them, but to explain such points of the law as may seem difficult. And tho these judges may be said in some sense to be chosen by the king, he is not understood to do it otherwise than by the advice of his council, who cannot perform their duty, unless they propose such as in their consciences they think most worthy of the office, and most capable of performing the duty rightly; nor he accomplish the oath of his coronation, unless he admit those, who upon deliberation seem to be the best. The judges being thus chosen, are so far from depending upon the will of the king, that they swear faithfully to serve the people as well as the king, and to do justice to every man according to the law of the land, notwithstanding any writs, letters or commands received from him; and in default thereof they are to forfeit their bodies, lands and goods, as in cases of treason.[3] These laws have been so often, and so severely executed, that it concerns all judges well to consider them; and the cases of Tresilian, Empson, Dudley, and others shew, that neither the king's preceding command nor subsequent pardon could preserve them from the punishment they deserved. All men knew that what they did was agreeable to the king's pleasure, for Tresilian advanced the prerogative of Edward the 2d, and Empson brought great treasures into the coffers of Henry the 7th. Nevertheless they were charged with treason, for subverting the laws of the land, and executed as traitors. Tho England ought never to forget the happy reign of Q. Elizabeth, yet it must be acknowledged, that she as well as others had her failings. She was full of love to the people, just in her nature, sincere in her intentions; but could not so perfectly discover the snares that were laid for her, or resist the importunity of the persons she most trusted, as not sometimes to be brought to attempt things against law. She and her counsellors pressed the judges very hardly to obey the patent under her great seal, in the case of Cavendish: but they answered, That both she and they had taken an oath to keep the law, and if they should obey her commands, the law would not warrant them, &c. And besides the offence against God, their country, and the commonwealth, they alleged the example of Empson and Dudley, whereby, they said, they were deterred from obeying her illegal commands.[4] They who had sworn to keep the law notwithstanding the king's writs, knew that the law depended not upon his will; and the same oath that obliged them not to regard any command they should receive from him, shewed that they were not to expect indemnity by it, and not only that the king had neither the power of making, altering, mitigating or interpreting the law, but that he was not at all to be heard, in general or particular matters, otherwise than as he speaks in the common course of justice, by the courts legally established, which say the same thing, whether he be young or old, ignorant or wise, wicked or good: and nothing does better evidence the wisdom and care of our ancestors, in framing the laws and government we live under, than that the people did not suffer extremities by the vices or infirmities of kings, till an age more full of malice than those in which they lived, had found tricks to pervert the rule, and frustrate their honest intentions. It was not safe for the kings to violate their oaths by an undue interposition of their authority; but the ministers who served them in those violations, have seldom escaped punishment. This is to be understood when the deviations from justice are extreme and mischievous, for something must always be allow'd to human frailty: The best have their defects, and none could stand if a too exact scrutiny were made of all their actions. Edward the third, about the twentieth year of his reign, acknowledged his own in parliament, and as well for the ease of his conscience, as the satisfaction of his people, promoted an act, Commanding all judges to do justice, notwithstanding any writs, letters or commands from himself, and forbidding those that belonged to the king, queen and prince, to intermeddle in those matters.[5] But if the best and wisest of our princes, in the strength and maturity of their years, had their failings, and every act proceeding from them that tended to the interruption of justice was a failing, how can it be said that the king in his personal capacity, directly or indirectly, may enter into the discussion of these matters, much less to determine them according to his will?

But, says our author, the law is no better than a tyrant; general pardons at the coronation and in parliament, are but the bounty of the prerogative, &c. There may be hard cases; and citing some perverted pieces from Aristotle's Ethicks and Politicks, adds, That when something falls out besides the general rule, then it is jit that what the lawmaker hath omitted, or where he hath erred by speaking generally, it should be corrected and supplied, as if the lawmaker were present that ordained it. The governor, whether he be one man or more, ought to be lord of these things, whereof it was impossible that the law should speak exactly.[6] These things are in part true; but our author makes use of them as the Devil does of Scripture, to subvert the truth. There may be something of rigour in the law that in some cases may be mitigated; and the law itself (in relation to England) does so far acknowledge it, as to refer much to the consciences of juries, and those who are appointed to assist them; and the most difficult cases are referred to the Parliament as the only judges that are able to determine them. Thus the statute of the 35 Edw. 3d, enumerating the crimes then declared to be treason, leaves to future parliaments to judge what other facts equivalent to them may deserve the same punishment: and 'tis a general rule in the law, which the judges are sworn to observe, that difficult cases should be reserved till the Parliament meet, who are only able to decide them: and if there be any inconvenience in this, 'tis because they do not meet so frequently as the law requires, or by sinister means are interrupted in their sitting. But nothing can be more absurd than to say, that because the king does not call parliaments as the law and his oath requires, that power should accrue to him, which the law and the consent of the nation has placed in them.

There is also such a thing in the law as a general or particular pardon, and the king may in some degree be entrusted with the power of giving it, especially for such crimes as merely relate to himself, as every man may remit the injuries done to himself; but the confession of Edward the third, That the oath of the crown had not been kept by reason of the grant of pardons contrary to statutes, and a new act made, that all such charters of pardon from henceforth granted against the oath of the crown and the said statutes, should be held for none,[7] demonstrates that this power was not in himself, but granted by the nation, and to be executed according to such rules as the law prescribed, and the Parliament approved.

Moreover, there having been many, and sometimes bloody contests for the crown, upon which the nation was almost equally divided; and it being difficult for them to know, or even for us who have all the parties before us, to judge which was the better side, it was understood that he who came to be crown'd by the consent of the people, was acceptable to all: and the question being determined, it was no way fit that he should have a liberty to make use of the publick authority then in his hands, to revenge such personal injuries as he had, or might suppose to have received, which might raise new, and perhaps more dangerous troubles, if the authors of them were still kept in fear of being prosecuted; and nothing could be more unreasonable than that he should employ his power to the destruction of those who had consented to make him king. This made it a matter of course for a king, as soon as he was crown'd, to issue out a general pardon, which was no more than to declare, that being now what he was not before, he had no enemy upon any former account. For this reason Lewis the twelfth of France, when he was incited to revenge himself against those, who in the reign of his predecessor Charles the eighth, had caused him to be imprisoned with great danger of his life, made this answer, That the king of France did not care to revenge the injuries done to the duke of Orleans:[8] and the last king of Sweden seemed no otherwise to remember who had opposed the queen's abdication, and his election, than by conferring honours upon them; because he knew they were the best men of the nation, and such as would be his friends when they should see how he would govern, in which he was not deceived. But lest all those who might come to the crown of England, should not have the same prudence and generosity, the kings were obliged by a custom of no less force than a law, immediately to put an end to all disputes, and the inconveniences that might arise from them. This did not proceed from the bounty of the prerogative (which I think is nonsense, for tho he that enjoys the prerogative may have bounty, the prerogative can have none) but from common sense, from his obligation, and the care of his own safety; and could have no other effect in law, than what related to his person, as appears by the forementioned statute.

Pardons granted by act of Parliament are of another nature: For as the king who has no other power than by law, can no otherwise dispense with the crimes committed against the laws, than the law does enable him; the Parliament that has the power of making laws, may entirely abolish the crimes, and unquestionably remit the punishment as they please.

Tho some words of Aristotle's Ethicks are without any coherence shuffled together by our author, with others taken out of his Politicks, I do not much except against them. No law made by man can be perfect, and there must be in every nation a power of correcting such defects as in time may arise or be discovered. This power can never be so rightly placed as in the same hand that has the right of making laws, whether in one person or in many.[9] If Filmer therefore can tell us of a place, where one man, woman or child, however he or she be qualified, has the power of making laws, I will acknowledge that not only the hard cases, but as many others as he pleases, are referr'd to his or her judgment, and that they may give it, whether they have any understanding of what they do or not, whether they be drunk or sober, in their senses or stark mad. But as I know no such place, and should not be much concerned for the sufferings of a people that should bring such misery upon themselves, as must accompany an absolute dependence upon the unruly will of such a creature, I may leave him to seek it, and rest in a perfect assurance that he does not speak of England, which acknowledges no other law than its own; and instead of receiving any from kings, does to this day obey none, but such as have been made by our ancestors, or ourselves, and never admitted any king that did not swear to observe them. And if Aristotle deserve credit, the power of altering, mitigating, explaining or correcting the laws of England, is only in the Parliament, because none but the Parliament can make them.

[1] [Patriarcha, ch. 26.]

[2] [Charles II, Louis XIV, and Charles XI.]

[3] 18 Edw. 3. cap. 1. [18 Edward III, statute 4 (1344).]

[4] Anderson's Rep. p. 155. [Law Reports of Sir Edmund Anderson (1605), ch. 201.]

[5] [20 Edward III, ch. 1, 4.]

[6] [Patriarcha, ch. 26.]

[7] 14 Edw. 3.15. [14 Edward III, ch. 15.]

[8] [De Serres, General History of France (chapter on Louis XII).]

[9] [Patriarcha, ch. 27.]