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Discourses on Government.
OUR OWN LAWS CONFIRM TO US THE ENJOYMENT OF OUR NATIVE RIGHTS.
If that which our author calls divinity did reach the things in dispute between us, or that the opinions of the fathers, which he alledges, related to them, he might have spared the pains of examining our laws; for a municipal sanction were of little force to confirm a perpetual and universal law, given by God to mankind; and of no value against it, since man cannot abrogate what God hath instituted, nor one nation free itself from a law that is given to all. But having abused the scriptures, and the writings of the fathers (whose opinions are to be valued only so
far as they rightly interpret them) he seems desirous to try, whether he can as well put a false sense upon our law, and has fully compassed his design. According to his custom, he takes pieces of passages from good books, and turns them directly against the plain meaning of the authors, expressed in the whole scope and design of their writings. To shew that he intends to spare none, he is not ashamed to cite Bracton, who of all our ancient law-writers, is most opposite to his maxims. He lived, says he, in Henry the Third's time, since parliaments were instituted: as if there had been a time when England had wanted them; or that the establishment of our liberty had been made by the Normans, who, if we will believe our author, came in by the force of arms, and oppressed us. But we have already proved the essence of parliaments to be as ancient as our nation, and that there was no time in which there were not such councils or assemblies of the people as had the power of the whole, and made or unmade such laws as best pleased themselves. We have indeed a French word from a people that came from France, but the power was always in ourselves: and the Norman kings were obliged to swear they would govern according to the laws that had been made by those assemblies. It imports little, whether Bracton lived before or after they came amongst us. His words are, "Omnes sub eo, & ipse sub nullo, sed tantum sub Deo; all are under him, and he under none but God only. If he offend, since no writ can go out against him, their remedy is by petitioning him to amend his faults; which if he will not do, it is pun
ishment enough for him to expect God as an avenger. Let none presume to look into his deeds, much less to oppose him." Here is a mixture of sense and nonsense, truth and falsehood, the words of Bracton, with our author's foolish inferences from them. Bracton spoke of the political capacity of the king, when no law had forbidden him to divide it from his natural. He gave the name of king to the sovereign power of the nation, as Jacob called that of his descendants the sceptre; which he said should not depart from Judah till Shiloh came, though all men know, that his race did not reign the third part of that time over his own tribe, nor full fourscore years over the whole nation. The same manner of speech is used in all parts of the world. Tertullian, under the name of Cæsar comprehended all magistratical power, and imputed to him the acts, of which in his person he never had any knowledge. The French say, their king is always present, "sur son lit de justice,” in all the sovereign courts of the kingdom, which are not easily numbered; and that maxim could have in it neither sense nor truth, if by it they meant a man, who can be but in one place at one time, and is always comprehended within the dimensions of his own skin. These things could not be unknown to Bracton, the like being in use amongst us; and he thought it no offence so far to follow the dictates of reason, prohibited by no law, as to make a difference between the invisible and omnipresent King, who never dies, and the person that wears the crown, whom no man, without the guilt of treason, may endeavour to kill,
since there is an act of Parliament in the case. I will not determine whether he spoke properly or no as to England; but if he did not, all that he said upon a false supposition, is nothing to our purpose. The same Bracton says, "the king doth no wrong," inasmuch as he doth nothing but by law." The power of the king is the power of the law, a power of right, not of wrong." Again, "if† the king does injustice, he is not king." In another place he has these words; "the king therefore ought to exercise the power of the law, as becomes the vicar and minister of God upon earth, because that power is the power of God alone; but the power of doing wrong is the power of the devil, and not of God. And the king is his minister, whose work he does : whilst he does justice he is the vicar of the eternal King; but if he deflects from it to act unjustly, he is the minister of the devil." He also says that the king is "singulis major, universis minor ;" and that he who is, "in justitia exequenda omnibus major, in justitia recipienda cuilibet ex plebe fit æqualis." I shall not say Bracton is in the right
* Potestas regis est potestas legis, potestas juris, non injuriæ. BRACT. de leg. Angl.
+ Qui si facit injuriam, non est rex.
Exercere igitur debet rex potestatem juris, sicut Dei vicarius & minister in terra, quia illa potestas solius Dei est: potestas autem injuriæ diaboli est, non Dei; & cujus horum opera fecerit rex, ejus minister erit: igitur dum facit justitiam, vicarius est Regis æterni: minister autem diaboli dum declinet ad injuriam. Ibid. 1. 3.
when he speaks in this manner; but it is strange impudence in Filmer to cite him as a patron of the absolute power of kings, who does so extremely depress them. But the grossest of his follies is yet more pardonable than his detestable fraud in falsifying Bracton's words, and leaving out such as are not for his purpose, which shew his meaning to be directly contrary to the sense put upon them. That this may appear, I shall set down the words as they are found in Bracton: "Ipse autem rex non debet esse sub homine, sed sub Deo, & sub lege, quia lex facit regem. Attribuat ergo rex legi quod lex attribuit ei, id est dominationem & potestatem: non est enim rex ubi dominatur voluntas & non lex; & quod sub lege esse debeat, cum sit Dei vicarius, evidenter apparet." If Bracton therefore be a competent judge, the king is under the law; and he is not a king, nor God's vicegerent, unless he be so; and we all know how to proceed with those, who, being under the law, offend against it. For the law is not made in vain. In this case something more is to be done than petitioning; and it is ridiculous to say, that if he will not amend, it is punishment enough for him to expect God as an avenger;" for the same may be said of all malefactors. God can sufficiently punish thieves and murderers: but the future judgment, of which perhaps they have no belief, is not sufficient to restrain them from committing more crimes, nor to deter others from following their example. God was always able to punish murderers, but yet by his law he commands man to shed the blood of him who should shed man's blood; and de