SECTION 26
Tho the King may be entrusted with the
power of chusing Judges, yet that by which they act is from the Law.
I confess that no law can be so perfect, to provide exactly for every case that may fall out, so as to leave nothing to the discretion of the judges, who in some measure are to interpret them: But that laws or customs are ever few, or that the paucity is the reason that they cannot give special rules, or that judges do resort to those principles or common law axioms, whereupon former judgments in cases something alike have been given by former judges, who all receive their authority from the king in his right to give sentence,[1] I utterly deny; and affirm,
1. That in many places, and particularly in England, the laws are so many, that the number of them has introduced an uncertainty and confusion which is both dangerous and troublesome; and the infinite variety of adjudged cases thwarting and contradicting each other, has render'd these difficulties inextricable. Tacitus imputes a great part of the miseries suffer'd by the Romans in his time to this abuse, and tells us, that the laws grew to be innumerable in the worst and most corrupt state of things,[2] and that justice was overthrown by them. By the same means in France, Italy, and other places, where the civil law is rendered municipal, judgments are in a manner arbitrary; and tho the intention of our laws be just and good, they are so numerous, and the volumes of our statutes with the interpretations and adjudged cases so vast, that hardly anything is so clear and fixed, but men of wit and learning may find what will serve for a pretence to justify almost any judgment they have a mind to give. Whereas the laws of Moses, as to the judicial part, being short and few, judgments were easy and certain; and in Switzerland, Sweden, and some parts of Denmark, the whole volume that contains them may be read in few hours, and by that means no injustice can be done which is not immediately made evident.
2. Axioms are not rightly grounded upon judged cases, but cases are to be judged according to axioms: the certain is not proved by the uncertain, but the uncertain by the certain; and everything is to be esteemed uncertain till it be proved to be certain. Axioms in law are, as in mathematicks, evident to common sense; and nothing is to be taken for an axiom, that is not so. Euclid does not prove his axioms by his propositions, but his propositions, which are abstruse, by such axioms as are evident to all. The axioms of our law do not receive their authority from Coke or Hales, but Coke and Hales deserve praise for giving judgment according to such as are undeniably true.
3. The judges receive their commissions from the king, and perhaps it may be said, that the custom of naming them is grounded upon a right with which he is entrusted; but their power is from the law, as that of the king also is. For he who has none originally in himself, can give none unless it be first conferred upon him. I know not how he can well perform his oath to govern according to law, unless he execute the power with which he is entrusted, in naming those men to be judges, whom in his conscience, and by the advice of his council, he thinks the best and ablest to perform that office: But both he and they are to learn their duty from that law, by which they are, and which allots to every one his proper work. As the law intends that men should be made judges for their integrity and knowledge in the law, and that it ought not to be imagined that the king will break his trust by chusing such as are not so, till the violation be evident, nothing is more reasonable than to intend that the judges so qualified should instruct the king in matters of law. But that he who may be a child, over aged, or otherwise ignorant and incapable, should instruct the judges, is equally absurd, as for a blind man to be a guide to those who have the best eyes, and so abhorrent from the meaning of the law, that the judges (as I said before) are sworn to do justice according to the laws, without any regard to the king's words, letters or commands: If they are therefore to act according to a set rule, from which they may not depart what command soever they receive, they do not act by a power from him, but by one that is above both. This is commonly confess'd; and tho some judges have been found in several ages, who in hopes of reward and preferment have made little account of their oath, yet the success that many of them have had, may reasonably deter others from following their example; and if there are not more instances in this kind, no better reason can be given, than that nations do frequently fail, by being too remiss in asserting their own rights or punishing offenders, and hardly ever err on the severer side.[3]
4. Judgments are variously given in several states and kingdoms, but he who would find one where they lie in the breast of the king, must go at least as far as Morocco. Nay, the ambassador who was lately here from that place, denied that they were absolutely in him. However 'tis certain that in England, according to the Great Charter, Judgments are passed by equals:[4] no man can be imprison'd, disseiz'd of his freehold, depriv'd of life or limb, unless by the sentence of his peers.[5] The kings of Judah did judge and were judged;[6] and the judgments they gave were in and with the Sanhedrin. In England the kings do not judge, but are judged: and Bracton says, That in receiving justice the king is equal to another man;[7] which could not be, if judgments were given by him, and he were exempted from the judgment of all by that law, which has put all judgments into the hands of the people. This power is executed by them in grand or petty juries, and the judges are assistants to them in explaining the difficult points of the law, in which 'tis presumed they should be learned. The strength of every judgment consists in the verdict of these juries, which the judges do not give, but pronounce or declare: and the same law that makes good a verdict given contrary to the advice or direction of the judges, exposes them to the utmost penalties, if upon their own heads, or a command from the king, they should presume to give a sentence, without or contrary to a verdict; and no pretensions to a power of interpreting the law can exempt them if they break it. The power also with which the judges are entrusted, is but of a moderate extent, and to be executed bona fide. Prevarications are capital, as they proved to Tresilian, Empson, Dudley, and many others. Nay even in special verdicts, the judges are only assistants to the juries who find it specially, and the verdict is from them, tho the judges having heard the point argued, declare the sense of the law thereupon. Wherefore if I should grant that the king might personally assist in judgments, his work could only be to prevent frauds, and by the advice of the judges to see that the laws be duly executed, or perhaps to inspect their behaviour. If he has more than this, it must be by virtue of his politick capacity, in which he is understood to be always present in the principal courts, where justice is always done whether he who wears the crown be young or old, wise or ignorant, good or bad, or whether he like or dislike what is done.
Moreover, as governments are instituted for the obtaining of justice, and the king is in a great measure entrusted with the power of executing it, 'tis probable that the law would have required his presence in the distribution, if there had been but one court; that at the same time he could be present in more than one; that it were certain he would be guilty of no miscarriages; that all miscarriages were to be punished in him as well as in the judges; or that it were certain he should always be a man of such wisdom, industry, experience and integrity as to be an assistance to, and a watch over those who are appointed for the administration of justice. But there being many courts sitting at the same time of equal authority, in several places far distant from each other; impossible for the king to be present in all; no manner of assurance that the same or greater miscarriages may not be committed in his presence than in his absence, by himself than others; no opportunity of punishing every delict in him, without bringing the nation into such disorder, as may be of more prejudice to the publick than an injury done to a private man; the law which intends to obviate offences, or to punish such as cannot be obviated, has directed, that those men should be chosen who are most knowing in it, imposes an oath upon them, not to be diverted from the due course of justice by fear or favour, hopes or reward, particularly by any command from the king; and appoints the severest punishments for them if they prove false to God and their country.
If any man think that the words cited from Bracton by our author upon the question, Quis primo & principaliter possit & debeat judicare, &c. Sciendum est quod rex & non alius, si solus ad haec sufficere possit; cum ad hoc per virtutem sacramenti teneatur,[8] are contrary to what I have said, I desire the context may be considered, that his opinion may be truly understood, tho the words taken simply and nakedly may be enough for my purpose. For 'tis ridiculous to infer that the king has a right of doing anything, upon a supposition that 'tis impossible for him to do it. He therefore who says the king cannot do it, says it must be done by others, or not at all. But having already proved that the king, merely as king, has none of the qualities required for judging all or any cases, and that many kings have all the defects of age and person that render men most unable and unfit to give any sentence, we may conclude, without contradicting Bracton, that no king as king, has a power of judging, because some of them are utterly unable and unfit to do it; and if anyone has such a power, it must be conferr'd upon him by those who think him able and fit to perform that work. When Filmer finds such a man, we must inquire into the extent of that power which is given to him; but this would be nothing to his general proposition, for he himself would hardly have inferr'd, that because a power of judging in some cases was conferred upon one prince on account of his fitness and ability, therefore all of them, however unfit and unable, have a power of deciding all cases. Besides, if he believe Bracton, this power of judging is not inherent in the king, but incumbent upon him by virtue of his oath, which our author endeavours to enervate and annul. But as that oath is grounded upon the law, and the law cannot presume impossibilities and absurdities, it cannot intend, and the oath cannot require, that a man should do that which he is unable and unfit to do. Many kings are unfit to judge causes, the law cannot therefore intend they should do it. The context also shews, that this imagination of the king's judging all causes, if he could, is merely chimerical: for Bracton says in the same chapter, that the power of the king is the power of the law; that is, that he has no power but by the law. And the law that aims at justice, cannot make it to depend upon the uncertain humour of a child, a woman, or a foolish man; for by that means it would destroy itself. The law cannot therefore give any such power, and the king cannot have it.
If it be said that all kings are not so; that some are of mature age, wise, just and good; or that the question is not what is good for the subject, but what is glorious to the king, and that he must not lose his right tho the people perish; I answer, first, that whatsoever belongs to kings as kings, belongs to all kings: this power of judging cannot belong to all for the reasons above mentioned: it cannot therefore belong to any as king, nor without madness be granted to any, till he has given testimony of such wisdom, experience, diligence and goodness, as is required for so great a work. It imports not what his ancestors were; virtues are not entail'd; and it were less improper for the heirs of Hales and Harvey, to pretend that the clients and patients of their ancestors should depend upon their advice in matters of law and physick, than for the heirs of a great and wise prince to pretend to powers given on account of virtue, if they have not the same talents for the performance of the works required.
Common sense declares, that governments are instituted, and judicatures erected for the obtaining of justice. The king's bench was not established that the chief justice should have a great office, but that the oppressed should be relieved, and right done. The honor and profit he receives, comes in as it were by accident, as the rewards of his service; if he rightly perform his duty: but he may as well pretend he is there for his own sake, as the king. God did not set up Moses or Joshua, that they might glory in having six hundred thousand men under their command, but that they might lead the people into the land they were to possess: that is, they were not for themselves but for the people; and the glory they acquir'd was by rightly performing the end of their institution. Even our author is obliged to confess this, when he says, that the king's prerogative is instituted for the good of those that are under it. 'Tis therefore for them that he enjoys it, and it can no otherwise subsist than in concurrence with that end. He also yields that the safety of the people is the supreme law.[9] The right therefore that the king has must be conformable and subordinate to it. If anyone therefore set up an interest in himself that is not so, he breaks this supreme law; he doth not live and reign for his people but for himself, and by departing from the end of his institution destroys it: and if Aristotle (to whom our author seems to have a great deference) deserves credit, such a one ceases to be a king, and becomes a tyrant; he who ought to have been the best of men is turned into the worst; and he who is recommended to us under the name of a father, becomes a publick enemy to the people.[10] The question therefore is not, what is good for the king, but what is good for the people, and he can have no right repugnant to them.
Bracton is not more gentle. The king, says he, is obliged by his oath, to the utmost of his power, to preserve the church, and the Christian world in peace; to hinder rapine, and all manner of iniquity; to cause justice and mercy to be observed: He has no power but from the law: that only is to be taken for law, quod recté fuerit definitum:[11] he is therefore to cause justice to be done according to that rule, and not to pervert it for his own pleasure, profit or glory. He may chuse judges also, not such as will be subservient to his will, but viros sapientes, timentes Deum, in quibus est veritas eloquiorum, & qui oderunt avaritiam.[12] Which proves that kings and their officers do not possess their places for themselves, but for the people, and must be such as are fit and able to perform the duties they undertake. The mischievous fury of those who assume a power above their abilities is well represented by the known fable of Phaeton: they think they desire fine things for themselves when they seek their own ruin. In conformity to this the same Bracton says, that If any man who is unskilful assume the seat of justice, he falls as from a precipice, &c. and 'tis the same thing as if a sword be put into the hand of a mad man;[13] which cannot but affect the king as well as those who are chosen by him. If he neglect the functions of his office, be does unjustly, and becomes the vicegerent of the Devil; for he is the minister of him whose works he does.[14] This is Bracton's opinion, but desiring to be a more gentle interpreter of the law, I only wish, that princes would consider the end of their institution; endeavour to perform it; measure their own abilities; content themselves with that power which the laws allow, and abhor those wretches who by flattery and lies endeavour to work upon their frailest passions, by which means they draw upon them that hatred of the people, which frequently brings them to destruction.
Tho Ulpian's words, princeps legibus non tenetur,[15] be granted to have been true in fact, with relation to the Roman empire, in the time when he lived; yet they can conclude nothing against us. The liberty of Rome had been overthrown long before by the power of the sword, and the law render'd subservient to the will of the usurpers. They were not Englishmen, but Romans, who lost the battles of Pharsalia and Philippi: The carcasses of their senators, not ours, were exposed to the wolves and vultures: Pompeius, Scipio, Lentulus, Afranius, Petreius, Cato, Cassius and Brutus were defenders of the Roman, not the English liberty; and that of their country, not ours, could only be lost by their defeat. Those who were destroy'd by the proscriptions, left Rome, not England to be enslaved. If the best had gained the victory, it could have been no advantage to us, and their overthrow can be no prejudice. Every nation is to take care of their own laws; and whether any one has had the wisdom, virtue, fortune and power to defend them or not, concerns only themselves. The examples of great and good men acting freely deserve consideration, but they only perish by the ill success of their designs; and whatsoever is afterwards done by their subdued posterity ought to have no other effect upon the rest of the world, than to admonish them so to join in the defence of their liberties, as never to be brought under the necessity of acting by the command of one, to the prejudice of themselves and their country. If the Roman greatness persuade us to put an extraordinary value upon what passed among them, we ought rather to examine what they did, said, or thought when they enjoy'd that liberty which was the mother and nurse of their virtue, than what they suffer'd, or were forc'd to say, when they were fallen under that slavery which produced all manner of corruption, and made them the most base and miserable people of the world.
For what concerns us, the actions of our ancestors resemble those of the ancient rather than the later Romans: tho our government be not the same with theirs in form, yet it is in principle; and if we are not degenerated, we shall rather desire to imitate the Romans in the time of their virtue, glory, power and felicity, than what they were, in that of their slavery, vice, shame and misery. In the best times, when the laws were more powerful than the commands of men,[16] fraud was accounted a crime so detestable as not to be imputed to any but slaves; and he who had sought a power above the law under colour of interpreting it, would have been exposed to scorn, or greater punishments, if any can be greater than the just scorn of the best men. And as neither the Romans, nor any people of the world, have better defended their liberties than the English nation when any attempt has been made to oppress them by force, they ought to be no less careful to preserve them from the more dangerous efforts of fraud and falsehood.
Our ancestors were certainly in a low condition in the time of William the First: Many of their best men had perished in the civil wars or with Harold: their valour was great, but rough, and void of skill: The Normans by frequent expeditions into France, Italy and Spain, had added subtlety to the boisterous violence of their native climate: William had engaged his faith, but broke it, and turned the power with which he was entrusted to the ruin of those that had trusted him. He destroy'd many worthy men, carried others into Normandy, and thought himself master of all. He was crafty, bold, and elated with victory; but the resolution of a brave people was invincible. When their laws and liberties were in danger, they resolved to die or to defend them, and made him see he could no otherwise preserve his crown and life than by the performance of his oath, and accomplishing the ends of his election. They neither took him to be the giver or interpreter of their laws, and would not suffer him to violate those of their ancestors. In this way they always continued; and tho perhaps they might want skill to fall upon the surest and easiest means of restraining the lusts of princes, yet they maintained their rights so well, that the wisest princes seldom invaded them; and the success of those who were so foolish to attempt it was such, as may justly deter others from following their unprosperous examples. We have had no king since William the First more hardy than Henry the 8th, and yet he so entirely acknowledged the power of making, changing and repealing laws to be in the parliament, as never to attempt any extraordinary thing otherwise than by their authority. It was not he, but the parliament, that dissolved the abbies: He did not take their lands to himself, but receiv'd what the parliament thought fit to give him: He did not reject the supremacy of the pope, nor assume any other power in spiritual matters, than the parliament conferred upon him. The intricacies of his marriages, and the legitimation of his children was settled by the same power: at least one of his daughters could not inherit the crown upon any other title; they who gave him a power to dispose of the crown by will might have given it to his groom; and he was too haughty to ask it from them, if he had it in himself, which he must have had, if the laws and judicatures had been in his hand.
This is farther evidenced by what passed in the Tower between Sir Thomas More and Rich the king's solicitor, who asking, if it would not be treason to oppose Richard Rich, if the parliament should make him king, More said that was casus levis;[17] for the parliament could make and depose kings as they thought fit; and then (as more conducing to his own case) asked Rich if the parliament should enact that God should not be God, whether such as did not submit should be esteemed traitors?[18] 'Tis evident that a man of the acuteness and learning of Sir Tho. More would not have made use of such an argument to avoid the necessity of obeying what the parliament had ordained, by shewing his case to be of a nature far above the power of man, unless it had been confessed by all men that the parliament could do whatsoever lay within the reach of human power. This may be enough to prove that the king cannot have a power over the law; and if he has it not, the power of interpreting laws is absurdly attributed to him, since it is founded upon a supposition that he can make them, which is false.
[1] [Patriarcha, ch. 27.]
[2] Et in corruptissima republica plurimae leges. [Tacitus, Annals, bk. 3, ch. 27.]
[3] Jure igitur plectimur; nisi enim multorum impunita scelera tulissemus, nunquam ad unum tanta pervenisset licentia. Cicero. [Cicero, De Officiis, bk. 2, sec. 28.]
[4] Judicia fiunt per pares. Mag. Chart. [Magna Charta, ch. 21.]
[5] Nisi per judicium parium suorum. Ibid. [Ch. 29.]
[6] Judicabant & judicabantur. Maimonid. [The Code of Maimonides. Book 14: The Book of Judges, Treatise One: Sanhedrin, ch. 2, p. 8.]
[7] In justitia recipienda rex cuilibet ex plebe aequalis est. [Bracton, On the Laws and Customs of England, fol. 107.]
[8] [Ibid., cited in Patriarcha, ch. 28.]
[9] [Patriarcha, ch. 24.]
[10] Polit. I. 1. [Aristotle, Politics, bk. 3, bk. 4.]
[11] [Bracton, On the Laws and Customs of England, fol. 107.]
[12] Bract. 1. 3. c. 10. [Ibid., fol. 108.]
[13] Si quis minus sapiens & indoctus sedem judicandi & honestatem judicandi sibi praesumserit, exalto corruit, &c. & perinde erit ac si gladium poneret in manu furentis. Ibid. []
[14] [Ibid., fol. 107.]
[15] [Patriarcha, ch. 26.]
[16] [Livy, History of Rome, bk. 2, ch. 1.]
[17] [An easy case.]
[18] Herbert's Hen. 8. [Lord Edward Herbert, Life and Reign of King Henry the Eighth (1649), (for year 1535).]
