SECTION 27
Magna Charta was not the Original, but
a Declaration of the English Liberties. The King's Power is not restrained, but
created by that and other Laws; and the Nation that made them can only correct
the defects of them.
I agree with our author that Magna Charta was not made to restrain the absolute authority;[1] for no such thing was in being or pretended (the folly of such visions seeming to have been reserved to complete the misfortunes and ignominy of our age) but it was to assert the native and original liberties of our nation by the confession of the king then being, that neither he nor his successors should any way encroach upon them: and it cannot be said that the power of kings is diminished by that or any other law; for as they are kings only by law, the law may confer power upon one in particular, or upon him and his successors, but can take nothing from them, because they have nothing except what is given to them. But as that which the law gives, is given by those who make the law, they only are capable of judging, whether he to whom they gave it, do well or ill employ that power, and consequently are only fit to correct the defects that may be found in it. Therefore tho I should confess that faults may be found in many statutes, and that the whole body of them is greatly defective, it will not follow that the compendious way of referring all to the will of the king should be taken. But what defects soever may be in our law, the disease is not so great to require extreme remedies, and we may hope for a cheaper cure. Our law may possibly have given away too much from the people, and provided only insufficient defences of our liberties against the encroachments of bad princes; but none who are not in judgment and honesty like to our author, can propose for a remedy to the evils that proceed from the error of giving too much, the resignation of all the rest to them. Whatever he says, 'tis evident that he knows this to be true, when, tho he denies that the power of kings can be restrained by acts of parliament, he endeavours to take advantage of such clauses as were either fraudulently inserted by the king's officers, who till the days of Henry the fifth for the most part had the penning of the publick acts, or through negligence did not fully explain the intentions of the legislators; which would be to no purpose if all were put into the hands of the king by a general law from God, that no human power could diminish or enlarge; and as his last shift would obliquely put all into the power of the king by giving him a right of interpreting the law, and judging such cases as are not clearly decided; which would be equally impertinent, if he had openly and plainly a right of determining all things according to his will.
But what defects soever may be in any statutes, no great inconveniences could probably ensue, if that for annual parliaments was observed, as of right it ought to be. Nothing is more unlikely, than that a great assembly of eminent and chosen men should make a law evidently destructive to their own designs; and no mischief that might emerge upon the discovery of a mistake, could be so extreme that the cure might not be deferr'd till the meeting of the parliament, or at least forty days (in which time the king may call one) if that which the law has fixed seem to be too long. If he fail of this, he performs not his trust; and he that would reward such a breach of it with a vast and uncontrollable power, may be justly thought equal in madness to our author, who by forbidding us to examine the titles of kings, and enjoining an entire veneration of the power, by what means soever obtained,[2] encourages the worst of men to murder the best of princes, with an assurance that if they prosper they shall enjoy all the honors and advantages that this world can afford.
Princes are not much more beholden to him for the haughty language he puts into their mouths, it having been observed that the worst are always most ready to use it; and their extravagances having been often chastised by law, sufficiently proves, that their power is not derived from a higher original than the law of their own countries.
If it were true, that the answer sometimes given by kings to bills presented for their assent, did, as our author says, amount to a denial,[3 ]it could only shew that they have a negative voice upon that which is agreed by the parliament, and is far from a power of acting by themselves, being only a check upon the other parts of the government. But indeed it is no more than an elusion; and he that does by art obliquely elude, confesses he has not a right absolutely to refuse. 'Tis natural to kings, especially to the worst, to screw up their authority to the height; and nothing can more evidently prove the defect of it, than the necessity of having recourse to such pitiful evasions, when they are unwilling to do that which is required. But if I should grant that the words import a denial, and that (notwithstanding those of the coronation oath, quas vulgus elegerit[4]) they might deny; no more could be inferred from thence, than that they are entrusted with a power equal in that point, to that of either house, and cannot be supreme in our author's sense, unless there were in the same state at the same time three distinct supreme and absolute powers, which is absurd.
His cases relating to the proceedings of the Star-Chamber and Council-Table, do only prove that some kings have encroached upon the rights of the nation, and been suffer'd till their excesses growing to be extreme, they turn'd to the ruin of the ministers that advised them, and sometimes of the kings themselves. But the jurisdiction of the Council having been regulated by the statute of the 17 Car. I.[5] and the Star-Chamber more lately abolished, they are nothing to our dispute.
Such as our author usually impute to treason and rebellion the changes that upon such occasions have ensued; but all impartial men do not only justify them, but acknowledge that all the crowns of Europe are at this day enjoy'd by no other title than such acts solemnly performed by the respective nations, who either disliking the person that pretended to the crown (tho next in blood) or the government of the present possessor, have thought fit to prefer another person or family. They also say, that as no government can be so perfect but some defect may be originally in it, or afterwards introduced, none can subsist unless they be from time to time reduced to their first integrity, by such an exertion of the power of those for whose sake they were instituted, as may plainly shew them to be subject to no power under heaven, but may do whatever appears to be for their own good. And as the safety of all nations consists in rightly placing and measuring this power, such have been found always to prosper who have given it to those from whom usurpations were least to be feared, who have been least subject to be awed, cheated or corrupted; and who having the greatest interest in the nation, were most concerned to preserve its power, liberty and welfare. This is the greatest trust that can be reposed in men. This power was by the Spartans given to the ephori and the senate of twenty eight; in Venice to that which they call Concilio de Pregadi; in Germany, Spain, France, Sweden, Denmark, Poland, Hungary, Bohemia, Scotland, England, and generally all the nations that have lived under the Gothick polity, it has been in their general assemblies, under the names of diets, cortes, parliaments, senates, and the like. But in what hands soever it is, the power of making, abrogating, changing, correcting and interpreting laws, has been in the same; kings have been rejected or deposed; the succession of the crown settled, regulated, or changed: and I defy any man to shew me one king amongst all the nations abovementioned, that has any right to the crown he wears, unless such acts are good.
If this power be not well placed, or rightly proportioned to that which is given to other magistrates, the state must necessarily fall into great disorders, or the most violent and dangerous means must be frequently used to preserve their liberty. Sparta and Venice have rarely been put to that trouble, because the senates were so much above the kings and dukes in power, that they could without difficulty bring them to reason. The Gothick kings in Spain never ventur'd to dispute with the nobility; and Witiza and Rodrigo exposed the kingdom as a prey to the Moors, rather by weakening it through the neglect of military discipline, joined to their own ignorance and cowardice, and by evil example bringing the youth to resemble them in lewdness and baseness, than by establishing in themselves a power above the law. But in England our ancestors who seem to have had some such thing in their eye, as balancing the powers, by a fatal mistake placed usually so much in the hands of the king, that whensoever he happened to be bad, his extravagances could not be repress'd without great danger. And as this has in several ages cost the nation a vast proportion of generous blood, so 'tis the cause of our present difficulties, and threatens us with more, but can never deprive us of the rights we inherit from our fathers.
[1] [Patriarcha, ch. 28.]
[2] [Patriarcha, ch. 26.]
[3] [Patriarcha, ch. 31.]
[4] [(Laws) which the common people shall have chosen.]
[5] [Actually, 16 Charles I.]
