SECTION 46
The coercive power of the Law proceeds from the Authority of Parliament.

H AVING proved that proclamations are not laws, and that the legislative power, which is arbitrary, is trusted only in the hands of those who are bound to obey the laws that are made, 'tis not hard to discover what it is that gives the power of law to the sanctions under which we live. Our author tells us, that all statutes or laws are made properly by the king alone, at the rogation of the people, as his majesty King James of happy memory affirms in his True Law of Free Monarchy; and as Hooker teaches us, That laws do not take their constraining power from the quality of such as devise them, but from the power that giveth them the strength of law . [1] But if the rogation of the people be necessary, that cannot be a law which proceeds not from their rogation: the power therefore is not alone in the king; for a most important part is confessed to be in the people. And as none could be in them, if our author's proposition, or the principles upon which it is grounded were true, the acknowledgment of such a part to be in the people shews them to be false. For if the king had all in himself, none could participate with him: if any do participate, he hath not all; and 'tis from that law by which they do participate, that we are to know what part is left to him. The preambles of most acts of parliaments manifest this by the words, Be it enacted by the Lords Spiritual and Temporal, and Commons in Parliament assembled, and by authority of the same . But King James, says Filmer, in his Law of Free Monarchy affirms the contrary ; and it may be so, yet that is nothing to us. No man doubts that he desired it might be so in England: but it does not from thence appear that it is so. The law of a free monarchy is nothing to us; for that monarchy is not free which is regulated by a law not to be broken without the guilt of perjury, as he himself confessed in relation to ours. [2] As to the words cited from Hooker, I can find no hurt in them. To draw up the form of a good law, is a matter of invention and judgment, but it receives the force of a law from the power that enacts it. We have no other reason for the payment of excise or customs, than that the parliament has granted those revenues to the king to defray the publick charges. Whatever therefore King James was pleased to say in his books, or in those written for him, we do not so much as know that the killing of a king is treason, or to be punished with death, otherwise than as it is enacted by parliament; and it was not always so: for in the time of Ethelstan, the estimates of lives were agreed in parliament, and that of a king valued at thirty thousand thrimsae. [3] And if that law had not been alter'd by the parliament, it must have been in force at this day. It had been in vain for a king to say he would have it otherwise; for he is not created to make laws, but to govern according to such as are made, and sworn to assent to such as shall be proposed . [4] He who thinks the crown not worth accepting on these conditions, may refuse it. The words le roy le veult , [5] are only a pattern of the French fashions, upon which some kings have laid great stress, and would no doubt have been glad to introduce car tel est nostre plaisir ; [6] but that may prove a difficult matter. Nay in France itself, where that style, and all the ranting expressions that please the vainest of men, are in mode, no edict has the power of a law, till it be registered in parliament. This is not a mere ceremony as some pretend, but all that is essential to a law. Nothing has been more common than for those parliaments to refuse edicts sent to them by the king. When John Chastel had, at the instigation of the Jesuits, stabb'd Henry the fourth in the mouth, and that order had designed or executed many other execrable crimes, they were banished out of the kingdom by an arrest of the parliament of Paris. Some other parliaments registered the same; but those of Toulouse and Bordeaux absolutely refused, and notwithstanding all that the king could do, the Jesuits continued at Tournon and many other places within their precincts, till the arrest was revoked. These proceedings are so displeasing to the court, that the most violent ways have been often used to abolish them. About the year 1650, Seguier then chancellor of France was sent with a great number of soldiers to oblige the parliament of Paris to pass some edicts upon which they had hesitated: but he was so far from accomplishing his design, that the people rose against him, and he thought himself happy that he escaped with his life. [7] If the parliaments do not in all parts of the kingdom continue in the liberty of approving or rejecting all edicts, the law is not altered, but oppressed by the violence of the sword: And the prince of Condé who was principally employ'd to do that work, may, as I suppose, have had leisure to reflect upon those actions, and cannot but find reason to conclude, that his excellent valour and conduct was used in a most noble exploit, equally beneficial to his country and himself. However, those who are skilled in the laws of that nation do still affirm, that all publick acts which are not duly examined and registered, are void in themselves, and can be of no force longer than the miserable people lies under the violence of oppression; which is all that could reasonably be said, if a pirate had the same power over them. But whether the French have willingly offer'd their ears to be bor'd, or have been subdued by force, it concerns us not. Our liberties depend not upon their will, virtue, or fortune: how wretched and shameful soever their slavery may be, the evil is only to themselves. We are to consider no human laws but our own; and if we have the spirit of our ancestors we shall maintain them, and die as free as they left us. Le roy le veult , tho written in great letters, or pronounced in the most tragical manner, can signify no more than that the king in performance of his oath does assent to such laws as the lords and commons have agreed. Without prejudice to themselves and their liberties, a people may suffer the king to advise with his council upon what they propose. Two eyes see more than one, and human judgment is subject to errors. Tho the parliament consist of the most eminent men of the nation, yet when they intend good, they may be mistaken. They may safely put a check upon themselves, that they may farther consider the most important matters, and correct the errors that may have been committed, if the king's council do discover them: but he can speak only by the advice of his council; and every man of them is with his head to answer for the advices he gives. If the parliament has not been satisfied with the reasons given against any law that they offer'd, it has frequently pass'd; and if they have been satisfied, 'twas not the king, but they that laid it aside. He that is of another opinion, may try whether le roy le veult can give the force of a law to anything conceived by the king, his council, or any other than the parliament. But if no wise man will affirm that he can do it, or deny that by his oath he is obliged to assent to those that come from them, he can neither have the legislative power in himself, nor any other part in it than what is necessarily to be performed by him, as the law prescribes. I know not what our author means by saying, le roy le veult is the interpretative [8] phrase pronounced at the passing of every act of parliament : For if there be difficulty in any of them, those words do no way remove it. But the following part of the paragraph better deserves to be observed. It was , says he, the ancient custom for a long time, until the days of Henry the fifth, for the kings when any bill was brought to them that had passed both houses, to take and pick out what they liked not; and so much as they chose was enacted as a law: But the custom of the latter kings hath been so gracious, as to allow always of the entire bill as it passed both houses . [9] He judiciously observes when our kings began to be gracious, and we to be free. That king (excepting the persecution for religion in his time, which is rather to be imputed to the ignorance of that age, than to any evil in his own nature) governed well; and as all princes who have been virtuous and brave have always desired to preserve their subjects' liberty, which they knew to be the mother and nurse of their valour, fitting them for great and generous enterprises, his care was to please them, and to raise their spirits. But about the same time, those detestable arts by which the mixed monarchies in this part of the world have been everywhere terribly shaken, and in many places totally overthrown, began to be practised. Charles the seventh of France, under pretence of carrying on a war against him and his son, took upon him to raise money by his own authority, and we know how well that method has been pursued. The mischievous sagacity of his son Lewis the nth, which is now called king-craft, was wholly exerted in the subversion of the laws of France, and the nobility that supported them. His successors, except only Lewis the 12th, followed his example; and in other nations, Ferdinand of Aragon, James the third of Scotland, and Henry the seventh of England, were thought to imitate him the most. Tho we have little reason to commend all the princes that preceded Henry the fifth; yet I am inclined to date the general impairing of our government from the death of that king, and his valiant brothers. His weak son [10] became a prey to a furious French woman, who brought the maxims of her own country into ours, and advanced the worst of villains to govern according to them. These measures were pursued by Edward the fourth, whose wants contracted by prodigality and debauchery, were to be supplied by fraud and rapine. The ambition, cruelty and perfidiousness of Richard the third; the covetousness and malicious subtlety of Henry the seventh; the violent lust, rage and pride of Henry the 8th, and the bigoted fury of Queen Mary, instigated by the craft and malice of Spain, persuaded me to believe that the English liberty did not receive birth or growth from the favour and goodness of their gracious princes. But it seems all this is mistaken; Henry the sixth was wise, valiant, and no way guided by his wife; Edward the fourth continent, sober, and contented with what the nation gave him; Richard the third mild, gentle and faithful; Henry the 7th sincere, and satisfied with his own; Henry the 8th humble, temperate and just; and Queen Mary a friend to our country and religion. No less praises sure can be due to those who were so gracious to recede from their own right of picking what they pleased out of our laws, and to leave them entirely to us as they passed both houses. We are beholden to our author for the discovery of these mysteries: but tho he seems to have taken an oath like that of the gypsies when they enter into that virtuous society, never to speak one word of truth, he is not so subtle in concealing his lies. All kings were trusted with the publication of the laws, but all kings did not falsify them. Such as were not wicked and vicious, or so weak as to be made subservient to the malice of their ministers and flatterers, could never be drawn into the guilt of so infamous a cheat, directly contrary to the oath of their coronation. They swear to pass such laws as the people chuse ; [11] but if we will believe our author, they might have pick'd out whatever they pleased, and falsely imposed upon the nation, as a law made by the lords and commons, that which they had modeled according to their own will, and made to be different from, or contrary to the intention of the parliament. The king's part in this fraud (of which he boasts) was little more than might have been done by the speaker or his clerks. They might have falsified an act as well as the king, tho they could not so well preserve themselves from punishment. 'Tis no wonder if for a while no stop was put to such an abominable custom. 'Twas hard to think a king would be guilty of a fraud, that were infamous in a slave: But that proved to be a small security, when the worst of slaves came to govern them. Nevertheless 'tis probable they proceeded cautiously: the first alterations were perhaps innocent, or, it may be, for the best. But when they had once found out the way, they stuck at nothing that seemed for their purpose. This was like the plague of leprosy, that could not be cured; the house infected was to be demolished; the poisonous plant must be torn up by the root; the trust that had been broken was to be abolished; they who had perverted or frustrated the law, were no longer to be suffered to make the least alteration; and that brave prince readily joined with his people to extinguish the mischievous abuse that had been introduced by some of his worthless predecessors. The worst and basest of them had continual disputes with their parliaments, and thought that whatever they could detract from the liberty of the nation, would serve to advance their prerogative. They delighted in frauds, and would have no other ministers but such as would be the instruments of them. Since their word could not be made to pass for a law, they endeavoured to impose their own or their servants' inventions as acts of parliaments, upon the deluded people, and to make the best of them subservient to their corrupt ends and pernicious counsels. This, if it had continued, might have overthrown all our rights, and deprived us of all that men can call good in the world. But the providence of God furnished our ancestors with an opportunity of providing against so great, so universal a mischief. They had a wise and valiant prince, who scorned to encroach upon the liberties of his subjects, and abhorred the detestable arts by which they had been impair'd. He esteemed their courage, strength, and love, to be his greatest advantage, riches and glory. He aimed at the conquest of France, which was only to be effected by the bravery of a free and well-satisfied people. Slaves will always be cowards, and enemies to their master: By bringing his subjects into that condition, he must infallibly have ruined his own designs, and made them unfit to fight either for him or themselves. He desired not only that his people should be free during his time, but that his successors should not be able by oblique and fraudulent ways to enslave them. If it be a reproach to us that women have reigned over us, 'tis much more to the princes that succeeded our Henry, that none of them did so much imitate him in his government as Queen Elizabeth. She did not go about to mangle acts of parliament, and to pick out what might serve her turn, but frequently passed forty or fifty in a session, without reading one of them. She knew that she did not reign for herself, but for her people; that what was good for them, was either good for her, or that her good ought not to come into competition with that of the whole nation; and that she was by oath obliged to pass such laws as were presented to her on their behalf. This not only shews that there is no such thing as a legislative power placed in kings by the laws of God and nature, but that nations have it in themselves. It was not by law nor by right, but by usurpation, fraud and perjury that some kings took upon them to pick what they pleased out of the publick acts. Henry the fifth did not grant us the right of making our own laws; but with his approbation we abolished a detestable abuse that might have proved fatal to us. And if we examine our history we shall find, that every good and generous prince has sought to establish our liberties, as much as the most base and wicked to infringe them.

[1] [Patriarcha, ch. 31.]

[2] Speech in Star-Chamber, 1616. [Political Works of James I.]

[3] Leg. Aethelstani, fol. 71. [Leges Aethelstani, in Lambarde, Archaionomia. Thrimsa was an ancient English coin.]

[4] Quas vulgus elegerit.

[5] [Patriarcha]

[6] [For such is our pleasure.]

[7] Mem. de L. R. F. [Memoires de Louis, Roi de France.]

[8] [The 1680 edition of Patriarcha mistakenly printed "interpretative" for "imperative".]

[9] [Patriarcha, ch. 31.]

[10] [Henry VI.]

[11] Quas vulgus elegerit.

THE END.


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