A general presumption that Kings will govern well, is not a sufficient security to the People.

BUT says our author, 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 ceases to rule according unto his laws: Yet where he sees them rigorous or doubtful, he may mitigate or interpret.[1] This is therefore an effect of their goodness; they are above laws, but will rule by law, we have Filmer's word for it. But I know not how nations can be assured their princes will always be so good: Goodness is always accompanied with wisdom, and I do not find those admirable qualities to be generally inherent or entail'd upon supreme magistrates. They do not seem to be all alike, and we have not hitherto found them all to live in the same spirit and principle. I can see no resemblance between Moses and Caligula, Joshua and Claudius, Gideon and Nero, Samson and Vitellius, Samuel and Otho, David and Domitian; nor indeed between the best of these and their own children. If the sons of Moses and Joshua had been like to them in wisdom, valour and integrity, 'tis probable they had been chosen to succeed them; if they were not, the like is less to be presumed of others. No man has yet observed the moderation of Gideon to have been in Abimelech; the piety of Eli in Hophni and Phineas; the purity and integrity of Samuel in Joel and Abiah, nor the wisdom of Solomon in Rehoboam. And if there was so vast a difference between them and their children, who doubtless were instructed by those excellent men in the ways of wisdom and justice, as well by precept as example, were it not madness to be confident, that they who have neither precept nor good example to guide them, but on the contrary are educated in an utter ignorance or abhorrence of all virtue, will always be just and good; or to put the whole power into the hands of every man, woman, or child that shall be born in governing families upon a supposition, that a thing will happen, which never did; or that the weakest and worst will perform all that can be hoped, and was seldom accomplished by the wisest and best, exposing whole nations to be destroy'd without remedy, if they do it not? And if this be madness in all extremity, 'tis to be presumed that nations never intended any such thing, unless our author prove that all nations have been mad from the beginning, and must always continue to be so. To cure this, he says, They degenerate into tyrants; and if he meant as he speaks, it would be enough. For a king cannot degenerate into a tyrant by departing from that law, which is only the product of his own will. But if he do degenerate, it must be by departing from that which does not depend upon his will, and is a rule prescribed by a power that is above him. This indeed is the doctrine of Bracton, who having said that the power of the king is the power of the law, because the law makes him king, adds, That if he do injustice, he ceases to be king, degenerates into a tyrant, and becomes the vicegerent of the Devil.[2] But I hope this must be understood with temperament, and a due consideration of human frailty, so as to mean only those injuries that are extreme; for otherwise he would terribly shake all the crowns of the world.

But lest our author should be thought once in his life to have dealt sincerely, and spoken truth, the next lines shew the fraud of his last assertion, by giving to the prince a power of mitigating or interpreting the laws that he sees to be rigorous or doubtful. But as he cannot degenerate into a tyrant by departing from the law which proceeds from his own will, so he cannot mitigate or interpret that which proceeds from a superior power, unless the right of mitigating or interpreting be conferred upon him by the same. For as all wise men confess that none can abrogate but those who may institute,[3] and that all mitigation and interpretation varying from the true sense is an alteration, that alteration is an abrogation; for whatsoever is changed is dissolved,[4] and therefore the power of mitigating is inseparable from that of instituting. This is sufficiently evidenced by Henry the Eighth's answer to the speech made to him by the speaker of the House of Commons 1545, in which he, tho one of the most violent princes we ever had, confesses the parliament to be the law-makers, and that an obligation lay upon him rightly to use the power with which he was entrusted. The right therefore of altering being inseparable from that of making laws, the one being in the parliament, the other must be so also. Fortescue says plainly, the king cannot change any law: Magna Charta casts all upon the laws of the land and customs of England:[5] but to say that the king can by his will make that to be a custom, or an ancient law, which is not, or that not to be so which is, is most absurd. He must therefore take the laws and customs as he finds them, and can neither detract from, nor add anything to them. The ways are prescribed as well as the end. Judgments are given by equals, per pares. The judges who may be assisting to those, are sworn to proceed according to law, and not to regard the king's letters or commands. The doubtful cases are reserved, and to be referred to the parliament, as in the statute of 35 Edw. 3d concerning treasons, but never to the king.[6] The law intending that these parliaments should be annual, and leaving to the king a power of calling them more often, if occasion require, takes away all pretence of a necessity that there should be any other power to interpret or mitigate laws. For 'tis not to be imagined that there should be such a pestilent evil in any ancient law, custom, or later act of parliament, which being on the sudden discover'd, may not without any great prejudice continue for forty days, till a parliament may be called; whereas the force and essence of all laws would be subverted, if under colour of mitigating and interpreting, the power of altering were allow'd to kings, who often want the inclination, and for the most part the capacity of doing it rightly. 'Tis not therefore upon the uncertain will or understanding of a prince, that the safety of a nation ought to depend. He is sometimes a child, and sometimes overburden'd with years. Some are weak, negligent, slothful, foolish or vicious: others, who may have something of rectitude in their intentions, and naturally are not incapable of doing well, are drawn out of the right way by the subtlety of ill men who gain credit with them. That rule must always be uncertain, and subject to be distorted, which depends upon the fancy of such a man. He always fluctuates, and every passion that arises in his mind, or is infused by others, disorders him. The good of a people ought to be established upon a more solid foundation. For this reason the law is established, which no passion can disturb. 'Tis void of desire and fear, lust and anger. 'Tis mens sine affectu,[7] written reason, retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but without any regard to persons commands that which is good, and punishes evil in all, whether rich or poor, high or low. 'Tis deaf, inexorable, inflexible.

By this means every man knows when he is safe or in danger, because he knows whether he has done good or evil. But if all depended upon the will of a man, the worst would be often the most safe, and the best in the greatest hazard: Slaves would be often advanced, the good and the brave scorn'd and neglected. The most generous nations have above all things sought to avoid this evil: and the virtue, wisdom and generosity of each may be discern'd by the right fixing of the rule that must be the guide of every man's life, and so constituting their magistracy that it may be duly observed. Such as have attained to this perfection, have always flourished in virtue and happiness: They are, as Aristotle says, governed by God, rather than by men, whilst those who subjected themselves to the will of a man were governed by a beast.

This being so, our author's next clause, that tho a king do frame all his actions to be according unto law, yet he is not bound thereunto, but as his good will, and for good example, or so far forth as the general law for the safety of the commonwealth doth naturally bind him,[8] is wholly impertinent. For if the king who governs not according to law, degenerates into a tyrant, he is obliged to frame his actions according to law, or not to be a king; for a tyrant is none, but as contrary to him, as the worst of men is to the best. But if these obligations were untied, we may easily guess what security our author's word can be to us, that the king of his own good will, and for a good example, will frame his actions according to the laws; when experience instructs us, that notwithstanding the strictest laws, and most exquisite constitutions, that men of the best abilities in the world could ever invent to restrain the irregular appetites of those in power, with the dreadful examples of vengeance taken against such as would not be restrained, they have frequently broken out; and the most powerful have for the most part no otherwise distinguished themselves from the rest of men, than by the enormity of their vices, and being the most forward in leading others to all manner of crimes by their example.

[1] [Patriarcha, ch. 24, quoting James I, The True Law of Free Monarchies (1598) and one sentence from his Speech to the Lords and Commons (1609), in Political Works of James I.]

[2] Quia si faciat injuriam definit esse rex, & degenerat in tyrannum, et sit vicarius diaboli. [Bracton, On the Laws and Customs of England, fol. 107.]

[3] Cujus est instituere, ejus est abrogare.

[4] Quicquid mutatur dissolvitur, interit ergo.

[5] Leges terrae & consuetudines Angliae.

[6] [Actually 25 Edward III.]

[7] [Mind without passion.]

[8] [Patriarcha, up to "example, "quoted from James I, The True Law.]

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