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rule prescribed by a power that is above him. This indeed is the doctrine of Bracton, who, having said, that the power of the king is the power of the law, because the law makes him king, adds, "that if he does injustice, he ceases to be king, degenerates into a tyrant, and becomes the vicegerent of the devil." But I hope this must be understood with moderation, and a due consideration of human frailty, so as to mean only those injuries that are extreme; for otherwise he would terribly shake all the crowns of the world.

But lest our author should be thought once in his life to have dealt sincerely, and spoken truth, the next lines shew the fraud of his last assertion, by giving to the prince a power of "mitigating or interpreting the laws, that he sees to be rigorous or doubtful." But as he cannot degenerate into a tyrant by departing from the law, which proceeds from his own will, so he cannot mitigate or interpret that which proceeds from a superior power, unless the right of mitigating or interpreting be conferred upon him by the same. For as all wise men confess that "† none can abrogate, but those who may institute," and that all mitigation and interpretation varying from the true sense is an alteration, that alteration is an abrogation; for whatsoever is changed, is dis‡

Quia si faciat injuriam, desinit esse rex, et degenerat in tyrannum, & fit vicarius diaboli. BRACT.

† Cujus est instituere, ejus est abrogare.

# Quicquid mutatur, dissolvitur: interit ergo.

solved and therefore the power of mitigating is inseparable from that of instituting. This is sufficiently evinced by Henry the Eighth's answer to the speech made to him by the speaker of the House of Commons 1545, in which he, though one of the most violent princes we ever had, confesses the Parliament to be the law-makers, and that an obligation lay upon him rightly to use the power with which he was entrusted. The right, therefore, of altering being inseparable from that of making laws, the one be. ing in the Parliament, the other must be so also. Fortescue says plainly, the king cannot change any law: magna charta casts all upon the laws of the land, and customs of England: but to say, that the king can by his will make that to be a custom, or an ancient law, which is not, or that not to be so which is, is most absurd. He must, therefore, take the laws and customs as he finds them, and can neither detract from, nor add any thing to, them. The ways are prescribed as well as the end. Judgments are given by equals, "per pares." The judges, who may be assisting to those, are sworn to proceed ac cording to law, and not to regard the king's letters or commands. The doubtful cases are reserved, and to be referred to the Parliament, as in the statute of 35 Edward III, concerning treasons, but never to the king. The law intending that these parliaments should be annual, and leaving to the king a power of calling them more often, if occasion requires, takes away all pretence of a necessity, that there should be any other power to interpret or mitigate laws. For

Leges terræ, & consuetudines Angliæ.


it is not to be imagined, that there should be such a pestilent evil in any ancient law, custom, or later act of Parliament, which, being on the sudden discovered, may not without any great prejudice continue for forty days, till a Parliament may be called; whereas the force and essence of all laws would be subverted, if, under colour of mitigating and interpreting, the power of altering were allowed to kings, who often want the inclination, and for the most part the capacity, of doing it rightly. It is not, therefore, upon the uncertain will or understanding of a prince, that the safety of the nation ought to depend. He is sometimes a child, and sometimes overburdened with years. Some are weak, negligent, slothful, foolish, or vicious; others, who may have something of rectitude in their intentions, and naturally are not uncapable of doing well, are drawn out of the right way by the subtlety of ill men, who gain credit with them. That rule must always be uncertain, and subject to be distorted, which depends upon the fancy of such a man. He always fluctuates, and every passion that arises in his mind, or is infused by others, disorders him. The good of a people ought to be established upon a more solid foundation. For this reason, the law is established which no passion can disturb. It is void of desire and fear, lust and anger. It is "mens sine affectu," written reason, retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man; but, without any regard to persons, commands that which is good, and punishes evil in all, whether rich or poor, high or low. It is deaf, inexorable, inflexible.

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By this means, every man knows when he is safe, or in danger, because he knows whether he has done good or evil. But if all depended upon the will of a man, the worst would be often the most safe, and the best in the greatest hazard; slaves would be often advanced, the good and the brave scorned and neglected. The most generous nations have, above all things, sought to avoid this evil; and the virtue, wisdom, and generosity of each, may be discerned by the right fixing of the rule that must be the guide of every man's life, and so constituting their magistracy that it may be duly observed. Such as have attained to this perfection, have always flourished in virtue and happiness; they are, as Aristotle says, governed by God, rather than by men, whilst those who subject themselves to the will of a man, are governed by a beast.

This being so, our author's next clause, that though a king does frame all his actions to be according unto law, yet he is not bound thereunto, but

as his good will, and for good example, or so far forth

as the general law, for the safety of the commonwealth, doth naturally bind him," is wholly impertinent. For if the king, who governs not according to law, degenerates into a tyrant, he is obliged to frame his actions according to law, or not to be a king; for a tyrant is none, but as contrary to him, as the worst of men is to the best. But if these obligations were united, we may easily guess, what security our author's words can be to us, that the king of his own good will, and for a good


example, will frame his actions according to the laws; when experience instructs us, that notwithstanding the strictest laws, and most exquisite constitutions, that men of the best abilities in the world could ever invent to restrain the irregular appetites of those in power, with the dreadful examples of vengeance taken against such as would not be restrained, they have frequently broken out; and the most powerful have, for the most part, no otherwise distinguished themselves from the rest of men, than by the enormity of their vices, and being the most forward in leading others to all manner of crimes by their example.




OUR author's last clause, acknowledging kings to be bound by a general law to provide for the safety of the people, would be sufficient for my purpose, if it were sincere; for municipal laws do only shew how that should be performed; and if the king by departing from that rule, degenerates, as he into


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