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SECTION 42
The Person that wears the Crown cannot determine the Affairs which the Law refers to the King.

OUR author, with the rest of the vulgar, seems to have been led into gross errors by the form of writs summoning persons to appear before the king.[1] The common style used in the trial of delinquents; the name of the king's witnesses given to those who accuse them; the verdicts brought in by juries, coram domino rege,[2] and the prosecution made in the king's name, seem to have caused this. And they who understand not these phrases, render the law a heap of the most gross absurdities, and the king an enemy to every one of his subjects, when he ought to be a father to them all; since without any particular consideration or examination of what any witness deposes in a court of justice, tending to the death, confiscation, or other punishment of any man, he is called the king's witness whether he speak the truth or a lie, and on that account favour'd. 'Tis not necessary to allege many instances in a case that is so plain; but it may not be amiss to insert two or three of the most important reasons to prove my assertion.

1. If the law did intend that he or she who wears the crown, should in his or her person judge all causes, and determine the most difficult questions, it must like our author presume that they will always be of profound wisdom to comprehend all of them, and of perfect integrity always to act according to their understanding. Which is no less than to lay the foundation of the government upon a thing merely contingent, that either never was, or very often fails, as is too much verified by experience, and the histories of all nations; or else to refer the decision of all to those who through the infirmities of age, sex, or person, are often uncapable of judging the least, or subject to such passions and vices as would divert them from justice tho they did understand it; both which seem to be almost equally preposterous.

2. The law must also presume that the prince is always present in all the places where his name is used. The king of France is (as I have said already) esteemed to be present on the seat of justice[3] in all the parliaments and sovereign courts of the kingdom: and if his corporeal presence were by that phrase to be understood, he must be in all those distinct and far distant places at the same time; which absurdity can hardly be parallel'd, unless by the popish opinion of transubstantiation. But indeed they are so far from being guilty of such monstrous absurdity, that he cannot in person be present at any trial, and no man can be judged if he be. This was plainly asserted to Lewis the 13th (who would have been at the trial of the duke of Candale)[4] by the president de Bellievre, who told him that as he could judge no man himself, so they could not judge any if he were present: upon which he retired.

3. The laws of most kingdoms giving to kings the confiscation of delinquents' estates, if they in their own persons might give judgment upon them, they would be constituted both judges and parties; which besides the foremention'd incapacities to which princes are as much subject as other men, would tempt them by their own personal interest to subvert all manner of justice.

This therefore not being the. meaning of the law, we are to inquire what it is; and the thing is so plain that we cannot mistake, unless we do it wilfully. Some name must be used in all manner of transactions, and in matters of publick concernment none can be so fit as that of the principal magistrate. Thus are leagues made, not only with kings and emperors, but with the dukes of Venice and Genoa, the avoyer and senate of a canton in Switzerland, the burgermaster of an imperial town in Germany, and the states-general of the United Provinces. But no man thinking, I presume, these leagues would be of any value, if they could only oblige the persons whose names are used, 'tis plain that they do not stipulate only for themselves; and that their stipulations would be of no value if they were merely personal. And nothing can more certainly prove they are not so, than that we certainly know, these dukes, avoyers and burgermasters can do nothing of themselves. The power of the states-general of the United Provinces is limited to the points mentioned in the Act of Union made at Utrecht. The empire is not obliged by any stipulation made by the emperor without their consent. Nothing is more common than for one king making a league with another, to exact a confirmation of their agreement, by the parliaments, diets or general estates; because, says Grotius, a prince does not stipulate for himself, but for the people under his government; and a king deprived of his kingdom, loses the right of sending an ambassador.[5] The powers of Europe shewed themselves to be of this opinion in the case of Portugal. When Philip the second had gained the possession, they treated with him concerning the affairs relating to that kingdom: Few regarded Don Antonio; and no man considered the dukes of Savoy, Parma or Braganza, who perhaps had the most plausible titles: But when his grandson Philip the fourth had lost that kingdom, and the people had set up the duke of Braganza, they all treated with him as king. And the English court, tho then in amity with Spain, and not a little influenced by a Spanish faction, gave example to others, by treating with him and not with Spain touching matters relating to that state. Nay, I have been informed by those who well understood the affairs of that time, that the Lord Cottington advising the late king[6] not to receive any persons sent from the duke of Braganza, rebel to his ally the king of Spain, in the quality of ambassadors; the king answered, that he must look upon that person to be king of Portugal, who was acknowledged by the nation. And I am mistaken if his majesty now reigning did not find all the princes and states of the world to be of the same mind, when he was out of his kingdom, and could oblige no man but himself and a few followers by any treaty he could make.

For the same reason the names of kings are used in treaties, when they are either children, or otherwise uncapable of knowing what alliances are fit to be made or rejected; and yet such treaties do equally oblige them, their successors and people, as if they were of mature age and fit for government. No man therefore ought to think it strange, if the king's name be used in domestick affairs, of which he neither ought nor can take any cognizance. In these cases he is perpetually a minor: He must suffer the law to take its due course; and the judges, tho nominated by him, are obliged by oath not to have any regard to his letters or personal commands. If a man be sued, he must appear; and a delinquent is to be tried coram rege, but no otherwise than secundum legem terrae, according to the law of the land, not his personal will or opinion. And the judgments given must be executed, whether they please him or not, it being always understood that he can speak no otherwise than the law speaks, and is always present as far as the law requires. For this reason a noble lord who was irregularly detain'd in prison in 1681, being by habeas corpus brought to the bar of the king's bench, where he sued to be releas'd upon bail; and an ignorant judge telling him he must apply himself to the king, he replied, that he came thither for that end; that the king might eat, drink, or sleep where he pleased, but when he render'd justice he was always in that place. The king that renders justice is indeed always there: He never sleeps; he is subject to no infirmity; he never dies unless the nation be extinguished, or so dissipated as to have no government. No nation that has a sovereign power within itself, does ever want this king. He was in Athens and Rome, as well as at Babylon and Susa; and is as properly said to be now in Venice, Switzerland or Holland, as in France, Morocco or Turkey. This is he to whom we all owe a simple and unconditional obedience. This is he who never does any wrong: 'Tis before him we appear, when we demand justice, or render an account of our actions. All juries give their verdict in his sight: They are his commands that the judges are bound and sworn to obey, when they are not at all to consider such as they receive from the person that wears the crown. 'Twas for treason against him that Tresilian and others like to him in several ages were hanged. They gratified the lusts of the visible powers, but the invisible king would not be mock'd. He caused justice to be executed upon Empson and Dudley. He was injured when the perjur'd wretches who gave that accursed judgment in the case of ship money, were suffered to escape the like punishment by means of the ensuing troubles which they had chiefly raised. And I leave it to those who are concerned, to consider how many in our days may expect vengeance for the like crimes.

I should here conclude this point, if the power of granting a noli prosequi: cesset processus,[7] and pardons, which are said to be annexed to the person of the king, were not taken for a proof that all proceedings at law depend upon his will. But whoever would from hence draw a general conclusion, must first prove his proposition to be universally true. If it be wholly false, no true deduction can be made; and if it be true only in some cases, 'tis absurd to draw from thence a general conclusion; and to erect a vast fabrick upon a narrow foundation is impossible. As to the general proposition I utterly deny it. The king cannot stop any suit that I begin in my own name, or invalidate any judgment I obtain upon it: He cannot release a debt of ten shillings due to me, nor a sentence for the like sum given upon an action of battery, assault, trespass, publick nuisance, or the like. He cannot pardon a man condemned upon an appeal, nor hinder the person injured from appealing. His power therefore is not universal: if it be not universal, it cannot be inherent, but conferred upon him, or entrusted by a superior power that limits it.

These limits are fixed by the law, the law therefore is above him. His proceedings must be regulated by the law, and not the law by his will. Besides, the extent of those limits can only be known by the intention of the law that sets them; and are so visible, that none but such as are wilfully blind can mistake. It cannot be imagined that the law, which does not give a power to the king of pardoning a man that breaks my hedge, can intend he should have power to pardon one who kills my father, breaks my house, robs me of my goods, abuses my children and servants, wounds me, and brings me in danger of my life. Whatever power he has in such cases, is founded upon a presumption, that he who has sworn not to deny or delay justice to any man, will not break his oath to interrupt it. And farther, as he does nothing but what he may rightly do, cum magnatum & sapientum consilio;[8] and that 'tis supposed, they will never advise him to do anything, but what ought to be done, in order to attain the great ends of the law, justice, and the publick safety; nevertheless lest this should not be sufficient to keep things in their due order, or that the king should forget his oath, not to delay or deny justice to any man, his counsellors are exposed to the severest punishments, if they advise him to do anything contrary to it, and the law upon which it is grounded. So that the utmost advantage the king can pretend to in this case, is no more than that of the Norman, who said he had gained his cause, because it depended upon a point that was to be decided by his oath; that is to say, if he will betray the trust reposed in him, and perjure himself, he may sometimes exempt a villain from the punishment he deserves, and take the guilt upon himself. I say sometimes; for appeals may be brought in some cases, and the waterman who had been pardoned by his majesty in the year 1680, for a murder he had committed, was condemned and hanged at the assizes upon an appeal. Nay, in cases of treason, which some men think relate most particularly to the person of the king, he cannot always do it. Gaveston, the two Spencers, Tresilian, Empson, Dudley, and others, have been executed as traitors for things done by the king's command; and 'tis not doubted they would have been saved, if the king's power had extended so far. I might add the cases of the earls of Strafford and Danby; for tho the king signed a warrant for the execution of the first, no man doubts he would have saved him, if it had been in his power. The other continues in prison notwithstanding his pardon; and for anything I know he may continue where he is, or come out in a way that will not be to his satisfaction unless he be found innocent, or something fall out more to his advantage than his majesty's approbation of what he has done. If therefore the king cannot interpose his authority to hinder the course of the law in contests between private men, nor remit the debts adjudged to be due, or the damages given to the persons aggriev'd, he can in his own person have no other power in things of this nature, than in some degree to mitigate the vindictive power of the law; and this also is to be exercised no other way than as he is entrusted. But if he acts even in this capacity by a delegated power, and in few cases, he must act according to the ends for which he is so entrusted, as the same law says, cum magnatum & sapientum consilio, and is not therein to pursue his own will and interests: If his oath farther oblige him not to do it; and his ministers are liable to punishment, if they advise him otherwise: If in matters of appeal he have no power; and if his pardons have been of no value, when contrary to his oath he has abused that with which he is entrusted, to the patronizing of crimes, and exempting such delinquents from punishment, as could not be pardoned without prejudice to the publick, I may justly conclude, that the king, before whom every man is bound to appear, who does perpetually and impartially distribute justice to the nation, is not the man or woman that wears the crown; and that he or she cannot determine those matters, which by the law are referr'd to the king. Whether therefore such matters are ordinary or extraordinary, the decision is and ought to be placed where there is most wisdom and stability, and where passion and private interest does least prevail to the obstruction of justice. This is the only way to obviate that confusion and mischief, which our author thinks it would introduce. In cases of the first sort, this is done in England by judges and juries: In the other by the parliament, which being the representative body of the people, and the collected wisdom of the nation, is least subject to error, most exempted from passion, and most free from corruption, their own good both publick and private depending upon the rectitude of their sanctions. They cannot do anything that is ill without damage to themselves and their posterity; which being all that can be done by human understanding, our lives, liberties and properties are by our laws directed to depend upon them.

[1] [Patriarcha, ch. 28.]

[2] [In the presence of the lord king.]

[3] Sur son lit de justice.

[4] [Bernard de Nogaret, Duke of LaValette. Duke of Candale was Henri de Nogaret.]

[5] De jur. bell. 1. 3. [Grotius, De jure, bk. 2, ch. 18, sec. 2.]

[6] [Charles I.]

[7] [Do not proceed; let the trial cease.]

[8] [With the advice of the great and wise.]


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