For

in regno superiores habet Deum & legem."* tescue says, the kings of England cannot change the laws and indeed, they are so far from having any such power, that the judges swear to have no regard to the king's letters or commands, but if they receive any, to proceed according to law, as if they had not been. And the breach of this oath does not only bring a blemish upon their reputation, but exposes them to capital punishments, as many of them have found. It is not, therefore, the king that makes the law, but the law that makes the king. It gives the rule for succession, making kingdoms sometimes hereditary, and sometimes elective, and (more often than either simply) hereditary under condition. In some places males only are capable of inheriting, in others females are admitted. Where the monarchy is regular, as in Germany, England, &c. the kings can neither make nor change laws: they are under the law, and the law is not under them; their letters or commands are not to be regarded: in the administration of justice, the question is not what pleases them, but what the law declares to be right, which must have its course, whether the king be busy, or at leisure, whether he will not. The King who never dies, is always present in the supreme courts, and neither knows nor regards the pleasure of the man that wears the crown. But lest he by his riches and power might have some influence upon judicial proceedings, the "great charter," that recapitulates

and acknowledges our ancient inherent liberties, obliges him to swear, that he will neither sell, delay, nor deny justice to any man, according to the laws of the land; which were ridiculous and absurd, if those laws were only the signification of his pleasure, or any way depended upon his will. This charter having been confirmed by more than thirty parliaments, all succeeding kings are under the obligation of the same oath, or must renounce the benefit they receive from our laws; which if they do, they will be found to be equal to every one of us.

Our author, according to his custom, having laid down a false proposition, goes about to justify it by false examples, as those of Draco, Solon, the decemviri, and Moses, of whom no one had the power he attributes to them; and it were nothing to us, if they had. The Athenians and Romans, it was said before, were so far from resigning the absolute power without appeal to themselves, that nothing done by their magistrates was of any force, till it was enacted by the people. And the power given to the decemviri, "sine provocatione," was only in private cases, there being no superior magistrate, then in being, to whom appeals could be made. They were vested with the same power the kings and dictators enjoyed, from whom there lay no appeal, but to the people, and always to them; as appears by the case of Horatius, in the time of Tullus Hostilius; that of Marcus Fabius, when Papirius Cursor was dictator; and of Nenius the tribune, during that of Q. Fabius Maximus; all which I have cited already, and refer

to them. There was, therefore, a reservation of the supreme power in the people, notwithstanding the creation of magistrates without appeal; and as it was quietly exercised in making strangers, or whom they pleased, kings, restraining the power of dictators to six months, and that of the decemviri to two years; when the last did, contrary to law, endeavour, by force, to continue their power, the people did, by force, destroy it and them.

The case of Moses is yet more clear: he was the most humble and gentle of all men: he never raised his heart above his brethren, and commanded kings to live in the same modesty : he never desired the people should depend upon his will: in giving laws to them he fulfilled the will of God, not his own; and those laws were not the signification of his will, but of the will of God. They were the production of God's wisdom and goodness, not the invention of man; given to purify the people, not to advance the glory of their leader. He was not proud and insolent, nor pleased with that ostentation of pomp, to which fools give the name of majesty; and whoever so far exalts the power of a man, as to make nations depend upon his pleasure, does not only lay a burden upon him, which neither Moses, nor any other, could ever bear, and every wise man will always abhor; but with an impious fury, endeavours to set up a government contrary to the laws of God, presumes to accuse him of want of wisdom, or goodness to

*T. Liv. l. i. c. 8.

his own people, and to correct his errors; which is a work fit to be undertaken by such as our author.

errors.

From hence, as upon a solid foundation, he proceeds, and making use of king James' words, infers, that kings are above the laws, because he so teaches us. But he might have remembered, that having affirmed the people could not judge of the disputes that might happen between them and kings, because they must not be judges in their own case, it is absurd to make a king judge of a case so nearly concerning himself, in the decision of which his own passions and interests may probably lead him into And if it be pretended that I do the same, in giving the judgment of those matters to the people, the case is utterly different, both in the nature and consequences. The king's judgment is merely for himself; and if that were to take place, all the passions and vices, that have most power upon men, would concur to corrupt it. He that is set up for the public good, can have no contest with the whole people, whose good he is to procure, unless he deflect from the end of his institution, and set up an interest of his own in opposition to it. This is in its nature the highest of all delinquencies; and if such a one may be judge of his own crimes, he is not only sure to avoid punishment, but to obtain all that he sought by them; and the worse he is, the more violent will his desires be to get all the power into his hands, that he may gratify his lusts, and execute his pernicious designs. On the other side, in a popular assembly, no man judges for himself, otherwise

than as his good is comprehended in that of the public: nothing hurts him, but what is prejudicial to the commonwealth: such amongst them as may have received private injuries, are so far only considered by others, as their sufferings may have influence upon the public; if they be few and the matters not great, others will not suffer their quiet to be disturbed by them; if they are many and grievous, the tyranny thereby appears to be so cruel, that the nation cannot subsist, unless it be corrected or suppressed. Corruption of judgment proceeds from private passions, which in these cases never govern: and though a zeal for the public good may possibly be misguided, yet till it be so, it can never be capable of excess. The last Tarquin, and his lewd son, exercised their fury and lust in the murders of the best men in Rome, and the rape of Lucretia. Appius Claudius was filled with the like madness. Caligula and Nero were so well established in the power of committing the worst of villainies, that we do not hear of any man that offered to defend himself, or woman that presumed to refuse them. If they had been judges in these cases, the utmost of all villainies and mischiefs had been established by law: but as long as the judgment of these matters was in the people, no private or corrupt passion could take place. Lucius Brutus, Valerius, Horatius, and Virginius, with the people that followed them did not, by the expulsion of the kings, or the suppression of the decemviri, assume to themselves a power of committing rapes and murders, nor any advantages beyond what their equals might think they deserved by their virtues,