Laws are not made by Kings, not because they are busied in greater matters than doing Justice, but because Nations will be governed by Rule, and not Arbitrarily.
OUR author pursuing the mistakes to which he seems perpetually condemned, says, that when kings were either busied in war, or distracted with publick cares, so that every private man could not have access unto their persons, to learn their wills and pleasures, then of necessity were laws invented, that so every particular subject might find his prince's pleasure. I have often heard that governments were established for the obtaining of justice; and if that be true, 'tis hard to imagine what business a supreme magistrate can have to divert him from accomplishing the principal end of his institution. And 'tis as commonly said, that this distribution of justice to a people, is a work surpassing the strength of any one man. Jethro seems to have been a wise man, and 'tis probable he thought Moses to be so also; but he found the work of judging the people to be too heavy for him, and therefore advised him to leave the judgment of causes to others who should be chosen for that purpose; which advice Moses accepted, and God approved. The governing power was as insupportable to him as the judicial. He desired rather to die than to bear so great a burden; and God neither accusing him of sloth or impatience, gave him seventy assistants. But if we may believe our author, the powers judicial and legislative, that of judging as well as that of governing, is not too much for any man, woman, or child whatsoever: and that he stands in no need, either of God's statutes to direct him, or man's counsel to assist him, unless it be when he is otherwise employ'd; and his will alone is sufficient for all. But what if he be not busied in greater matters, or distracted with publick cares; is every prince capable of this work? Tho Moses had not found it too great for him, or it should be granted that a man of excellent natural endowments, great wisdom, learning, experience, industry, and integrity might perform it, is it certain that all those who happen to be born in reigning families are so? If Moses had the law of God before his eyes, and could repair to God himself for the application or explanation of it; have all princes the same assistance? Do they all speak with God face to face, or can they do what he did, without the assistance he had?
If all kings of mature years are of that perfection, are we assured that none shall die before his heir arrive to the same? Or shall he have the same ripeness of judgment in his infancy? If a child come to a crown, does that immediately infuse the most admirable endowments and graces? Have we any promise from heaven, that women shall enjoy the same prerogatives in those countries where they are made capable of the succession? Or does that law which renders them capable, defend them, not only against the frailty of their own nature, but confer the most sublime virtues upon them? But who knows not, that no families do more frequently produce weak or ill men, than the greatest? and that which is worse, their greatness is a snare to them; so that they who in a low condition might have passed unregarded, being advanced to the highest, have often appeared to be, or became the worst of all beasts; and they who advance them are like to them: For if the power be in the multitude, as our author is forced to confess (otherwise the Athenians and Romans could not have given all, as he says, nor a part, as I say, to Draco, Solon, or the decemviri) they must be beasts also, who should have given away their right and liberty, in hopes of receiving justice from such as probably will neither understand nor regard it, or protection from those who will not be able to help themselves, and expect such virtue, wisdom, and integrity should be, and forever remain in the family they set up as was never known to continue in any. If the power be not conferred upon them, they have it not; and if they have it not, their want of leisure to do justice, cannot have been the cause for which laws are made; and they cannot be the signification of their will, but are that to which the prince owes obedience, as well as the meanest subject. This is that which Bracton calls esse sub lege, and says, that rex in regno superiores habet Deum & legem. Fortescue says, The kings of England cannot change the laws: and indeed, they are so far from having any such power, that the judges swear to have no regard to the king's letters or commands, but if they receive any, to proceed according to law, as if they had not been. And the breach of his oath does not only bring a blemish upon their reputation, but exposes them to capital punishments, as many of them have found. 'Tis not therefore the king that makes the law, but the law that makes the king. It gives the rule for succession, making kingdoms sometimes hereditary, and sometimes elective, and (more often than either simply) hereditary under condition. In some places males only are capable of inheriting, in others females are admitted. Where the monarchy is regular, as in Germany, England, &c. the kings can neither make nor change laws: They are under the law, and the law is not under them; their letters or commands are not to be regarded: In the administration of justice, the question is not what pleases them, but what the law declares to be right, which must have its course, whether the king be busy or at leisure, whether he will or not. The king who never dies, is always present in the supreme courts, and neither knows nor regards the pleasure of the man that wears the crown. But lest he by his riches and power might have some influence upon judicial proceedings, the Great Charter that recapitulates and acknowledges our ancient inherent liberties, obliges him to swear, that he will neither sell, delay, nor deny justice to any man, according to the laws of the land: which were ridiculous and absurd, if those laws were only the signification of his pleasure, or any way depended upon his will. This charter having been confirmed by more than thirty parliaments, all succeeding kings are under the obligation of the same oath, or must renounce the benefit they receive from our laws, which if they do, they will be found to be equal to every one of us.
Our author, according to his custom, having laid down a false proposition, goes about to justify it by false examples, as those of Draco, Solon, the decemviri, and Moses, of whom no one had the power he attributes to them, and it were nothing to us if they had. The Athenians and Romans, as was said before, were so far from resigning the absolute power without appeal to themselves, that nothing done by their magistrates was of any force, till it was enacted by the people. And the power given to the decemviri, sine provocatione, was only in private cases, there being no superior magistrate then in being, to whom appeals could be made. They were vested with the same power the kings and dictators enjoy'd, from whom there lay no appeal, but to the people, and always to them; as appears by the case of Horatius in the time of Tullus Hostilius, that of Marcus Fabius when Papirius Cursor was dictator, and of Nenius the tribune during that of Q. Fabius Maximus, all which I have cited already, and refer to them. There was therefore a reservation of the supreme power in the people, notwithstanding the creation of magistrates without appeal; and as it was quietly exercised in making strangers, or whom they pleased kings, restraining the power of dictators to six months, and that of the decemviri to two years; when the last did, contrary to law, endeavour by force to continue their power, the people did by force destroy it and them.
The case of Moses is yet more clear: he was the most humble and gentle of all men: he never raised his heart above his brethren, and commanded kings to live in the same modesty: he never desired the people should depend upon his will: In giving laws to them he fulfill'd the will of God, not his own; and those laws were not the signification of his will, but of the will of God. They were the production of God's wisdom and goodness, not the invention of man; given to purify the people, not to advance the glory of their leader. He was not proud and insolent, nor pleas'd with that ostentation of pomp, to which fools give the name of majesty; and whoever so far exalts the power of a man, to make nations depend upon his pleasure, does not only lay a burden upon him, which neither Moses, nor any other could ever bear, and every wise man will always abhor; but with an impious fury, endeavours to set up a government contrary to the laws of God, presumes to accuse him of want of wisdom, or goodness to his own people, and to correct his errors, which is a work fit to be undertaken by such as our author.
From hence, as upon a solid foundation, he proceeds, and making use of King James's words, infers, that kings are above the laws, because he so teaches us. But he might have remembered, that having affirmed the people could not judge of the disputes that might happen between them and kings, because they must not be judges in their own case, 'tis absurd to make a king judge of a case so nearly concerning himself, in the decision of which his own passions and interests may probably lead him into errors. And if it be pretended that I do the same, in giving the judgment of those matters to the people, the case is utterly different, both in the nature and consequences. The king's judgment is merely for himself; and if that were to take place, all the passions and vices that have most power upon men, would concur to corrupt it. He that is set up for the publick good, can have no contest with the whole people whose good he is to procure, unless he deflect from the end of his institution, and set up an interest of his own in opposition to it. This is in its nature the highest of all delinquencies; and if such a one may be judge of his own crimes, he is not only sure to avoid punishment, but to obtain all that he sought by them; and the worse he is, the more violent will his desires be, to get all the power into his hands, that he may gratify his lusts, and execute his pernicious designs. On the other side, in a popular assembly, no man judges for himself, otherwise than as his good is comprehended in that of the publick: Nothing hurts him, but what is prejudicial to the commonwealth: such amongst them as may have received private injuries, are so far only considered by others, as their sufferings may have influence upon the publick; if they be few, and the matters not great, others will not suffer their quiet to be disturbed by them; if they are many and grievous, the tyranny thereby appears to be so cruel, that the nation cannot subsist, unless it be corrected or suppress'd. Corruption of judgment proceeds from private passions, which in these cases never govern: and tho a zeal for the publick good may possibly be misguided, yet till it be so, it can never be capable of excess. The last Tarquin, and his lewd son, exercised their fury and lust in the murders of the best men in Rome, and the rape of Lucretia. Appius Claudius was filled with the like madness. Caligula and Nero were so well established in the power of committing the worst of villainies, that we do not hear of any man that offer'd to defend himself, or woman that presumed to refuse them. If they had been judges in these cases, the utmost of all villainies and mischiefs had been established by law: but as long as the judgment of these matters was in the people, no private or corrupt passion could take place. Lucius Brutus, Valerius, Horatius and Virginius, with the people that followed them, did not by the expulsion of the kings, or the suppression of the decemviri, assume to themselves a power of committing rapes and murders, nor any advantages beyond what their equals might think they deserved by their virtues, and services to the commonwealth; nor had they more credit than others for any other reason, than that they shewed themselves most forward in procuring the publick good, and by their valour and conduct best able to promote it.
Whatsoever happen'd after the overthrow of their liberty, belongs not to my subject, for there was nothing of popularity in the judgments that were made. One tyrant destroy'd another; the same passions and vices for the most part reigned in both: The last was often as bad as his predecessor whom he had overthrown; and one was sometimes approved by the people for no other reason, than that it was thought impossible for him to be worse than he who was in possession of the power. But if one instance can be of force amongst an infinite number of various accidents, the words of Valerius Asiaticus, who by wishing he had been the man that had kill'd Caligula, did in a moment pacify the fury of the soldiers who were looking for those that had done it, shew, that as long as men retain anything of that reason which is truly their nature, they
never fail of judging rightly of virtue and vice; whereas violent and ill princes have always done the contrary, and even the best do often deflect from the rules of justice, as appears not only by the examples of Edward the first and third, who were brought to confess it, but even those of David and Solomon.
Moreover to shew that the decision of these controversies cannot belong to any king, but to the people, we are only to consider, that as kings and all other magistrates, whether supreme or subordinate, are constituted only for the good of the people, the people only can be fit to judge whether the end be accomplished. A physician does not exercise his art for himself, but for his patients; and when I am, or think I shall be sick, I send for him of whom I have the best opinion, that he may help me to recover, or preserve my health; but I lay him aside if I find him to be negligent, ignorant, or unfaithful; and it would be ridiculous for him to say, I make myself judge in my own case, for I only, or such as I shall consult, am fit to be the judge of it. He may be treacherous, and through corruption or malice endeavour to poison me, or have other defects that render him unfit to be trusted: but I cannot by any corrupt passion be led wilfully to do him injustice, and if I mistake, 'tis only to my own hurt. The like may be said of lawyers, stewards, pilots, and generally of all that do not act for themselves, but for those who employ them. And if a company going to the Indies, should find that their pilot was mad, drunk, or treacherous, they whose lives and goods are concerned, can only be fit to judge, whether he ought to be trusted or not, since he cannot have a right to destroy those he was chosen to preserve; and they cannot be thought to judge perversely, because they have nothing to lead them but an opinion of truth, and cannot err but to their own prejudice. In the like manner, not only Solon and Draco, but Romulus, Numa, Hostilius, the consuls, dictators, and decemviri, were not distinguished from others, that it might be well with them, sed ut bonum, faelix, faustumque sit populo Romano, but that the prosperity and happiness of the people might be procured; which being the thing always intended, it were absurd to refer the judgment of the performance to him who is suspected of a design to overthrow it, and whose passions, interests, and vices, if he has any, lead him that way. If King James said anything contrary to this, he might be answered with some of his own words; I was, says he, sworn to maintain the laws of the land, and therefore had been perjured if I had broken them. It may also be presumed, he had not forgotten what his master Buchanan had taught in the books he wrote chiefly for his instruction, that the violation of the laws of Scotland could not have been so fatal to most of his predecessors, kings of that country (nor as he himself had made them to his mother) if kings as kings were above them.
 [Patriarcha, ch. 24.]
 Exod. 18.
 [Bracton, On the Laws and Customs of England, bk. 1, ch. 8, fol. 5.]
 [Ibid., bk. 2, ch. 16, fol. 33.]
 De laud. leg. Angl. c. 9. [John Fortescue, De laudibus legum Angliae (1545-46), ch. 9.]
 [Magna Charta, sec. 29.]
 [Not subject to appeal.]
 T. Liv. 1. 1. [Livy, History of Rome, bk. 1, ch. 26.]
 L. 8. [Ibid., bk. 8, ch. 33.]
 [Ibid., bk. 22, ch. 25. Metellus, not Nenius, was tribune while Fabius Maximus was tribune.]
 [Patriarcha, ch. 24.]
 [Livy, History of Rome, bk. 3, ch. 34.]
 Speech in Star-Chamber, 1616.
 Hist. Scot. [History of Scotland.] De jure Reg. apud Scot. [De jure regni apud Scotos, dialogus (1579).]