farther for Evidence thereof then that Solemn Oath wch he takes at his Coronation, the Iterated Confirmation of the greate Charter and those other Laws and Statutes that Concerne the Liberties of his Subjects.

3. Potestas Irritans, and thus the Laws also in many cases bindes ye Kinges Acts, and make them void if they are agt Lawe. As for Instance the Law Saith that no Grants of Landes under other Seale then the great Seale is good. That grants of Monopolies are void, and the like. The Lawe makes such grants void and the Subjects the Instrumts acting by them to such punishmts as if there were noe such grants. No good Subject that understands what he Sayes can make any Question where the -27- Soveraigne Power of this Kingdome resides. The Laws of the Land and the Oath of Supremacy teach us, that the King is the only Supreame Governour of this Realme, and as Incident to that Supreame Power he hath among othrs these greate Powers of Sovereignty.

1. He hath the only power of makeing Peace and Declareing Warr.

2. He hath alone the Power of giveing the vallue and Legitimation to Coyne.

3. He alone hath the Power of Pardoning the Punishmts of Publique offences.

4. From him Originally is derived all Jurisdiction for the Administration of the Cōmon Justice of the Kingdom whether Civill or Ecclesiasticall, whether Ordinary or Delegate.

5. In him alone is the Power of the Militia of this Kingdome, and the raiseing of Forces both by Land and Sea.

6. In him resides the Power of makeing Lawes. The Laws are his Laws enacted by him.

These are the greate Jura Summi Imperij that the Laws of this Kingdome have fixed in the Crown of England, Butt yett there are certaine Qualifications of these Powers especially of the two latter vizt

-28- 1. Though the only Power of the Militia be in the King and him alone yett it hath these two Qualifications.

(1) That noe Subject can by vertue of that Power be inforced to goe out of the Kingdome vid: Stts 1 Ed. 3 Cap. 5,1 13 Car. 2 Cap. 2.2

(2) That noe ayd or Cōmon Charge can be imposed for the raiseinge or Payeing or furnishing of Soldiers Shipping or other Cōmon Charge without Consent of Parliamt Stt 25 Ed. 1. Cap. 6,3 34 Ed. 1. Cap. 1 1 Ed. 3 Cap. 6.5 The Petition of Right 3 Car. I. Cap. I. Noe not in case of Cōmon necessity 17 Car. I. Cap. 14. So adjudged and declared by the King wth the advise and assent of Lordes and Cōmons in Parliamt, wch is a Judgemt of the greatest weight that can be.

2. Though the Legislative Power be in the King, So that none but he can make Laws oblidgeing the Subjects of this Realme, yett there is a Certaine Solemnitie and Qualification of that Power, namely with the advice and assent of the 2 houses of Parlemt, wthout which no Law can be made. And therefore Proclamations cannot make a Law. Itt is true they may declare and Publish Laws already made & may -29- Serve those Powers wch Lodged in the Kings Person; as to Proclayme Coyne, Peace, Warr, and in times of Publique hostility may prohibite Supply of Enemies wth assistances for Warr, and Some thinges of that nature.

1 I Edw. III. st. 2 c. 5.

3 Confirmatio cartarum, c. 6.

2 13 & 14 Car. II. c. 3 s. 32.

4 Probably this refers to the apocryphal statute De Tallagio non concedendo, which was then generally believed to be authentic; Hale cites it again in this tract PP. 34, 37.

at

I Edw. III. st. 2 c. 6.

616 Car. I. c. 14.

Yett generally the Kings Proclamation cannot make a Law, but Laws are to be made in that Solemnitie and wth the advice of Parlemt tho' these thinges be unquestionably true yett there are certaine Speculators that take upon them to Correct all the Governmts in the world and to govern them by Certaine Notions and Fancies of their owne, and are transported with soe great Confidence and opinion of them that they thinke all States and Kingdomes and Governmts must presently be Conforme to them.

And these are Some of the Notions they Vent.

That there can be noe Qualifications or Modifications of the Power of a Soveraigne Prince but that he may make, Repeale & alter what Laws he please, impose what Taxes he pleases, Derogate from his Subjects propertie how and when he please.

-30- That he alone is the Judge of all publique dangers and may appoint Such remedyes as he please and impose what Charges he thinkes fitt in Order thereunto.

Those wild Propositions are

1. Utterly falce. 2. agst all Natural Justice. 3. Pernicious to the Governm. 4. Destructive to the Cōmon good and safety of the Governmt. 5thly Without any Shaddow of Law or reason to Support them.

1. They are utterly false, in thinges of this Nature the best measures of Truth or Falsehood are not imaginary Notions or Reasons att large, but the Laws and Customes of this Kingdome wch have determined Reasons att large and bound itt up within the boundes of Such Lawes and Usages.

Itt is certain that the King without the Consent of the Lordes and Cōmons in Parlemt neithr by Proclamation nor by Ordinance, Act of Council or Ordinance cannot make a bindeing Law; and this is so known a truth that itt needes noe Instances to confirme itt. But some I shall give and those not of a Cōmon Nature -31- but Such wch have been So declared by ye King himselfe in his Court of Parliamt.

A Restitution in Blood cannot be made but by Act of Parliamt and therefore a speciall Act was made H. 8. to enable the King to doe itt by Letters Patents.1 Stt 31 H. 8. Cap. 8,2 was Specially made to Enable the King by the advice of his Councell to Prohibite certaine thinges under Penalties and the Stt of 34 H. 8. Cap. 23 for ye putting them in Execution. But this Power lasted not long both being Repealed by the Stt of 1 Ed. 6 Cap. 12,3 and therefore altho' the King and Lordes assent to a Law it bindes not, unless the Cōmons also assent. And this is determined by the Judgemt of the King in Parliamt. But Rot Parliamenti 2 H. 5. Sts 2. Num. 20. 10 from henceforth nothing can be enacted att the Petition of the Cōmons contrary to their askeing whereby they should be bound without their assent & to the Same purpose are very many Instances Rot. Parl. 6 Richard 2. pt. 1. N. 52.5

2. And as he cannot make a Law without Consent of Parliamt, Soe neither can he Repeale a Law without the like Consent. -32- This is a most knowne truth yett Some Instances Shall be given wherein the King himselfe hath in Effect concurred in such Declaration 26 H. 8. Cap. 10 a Special Act of Parliament Enabling the King by Proclamacōn to repeale all Lawes toucheing prohibited goodes made after 20 or 21 H. 8 wch needed not if the King might repeale wthout an Act enabling him by Act of Parlemt 34 H. 8. Cap. 26.6 A Speciall Clause to enable King H. 8 to Repeale and alter the Constitution of that Statute.

This Clause in truth dyed wth H. 8. yett because it was a Clause of greate 2 The Statute of Proclamations.

1

14 &

15 Hen. VIII. c. 21.

1 Edw. VI. c. 12 S. 4.

5 This should be no. 53; R.P. iii 141.

634 & 35 Hen. VIII. c. 26 s. 59.

4 R.P. iv 22.

I

importance it was repealed by the Statute 21 Jacobi. Cap. 10 wch Power and Repeale had Signified nothing if the King might Repeale these Lawes without the help of an Act of Parliament Enabling him. The Statute of 1 Ed. 6..Cap. II gave power to that King and all the issues of the bodey of H. 8 to whome ye Crown shall come &c and by these Lres Patents to Repeale all Acts of Parliemt assented to by them before their age of 24 yeares.

-33- Itt is true that in the last Printed booke of Statutes there is a formall revocation made by the King by the advice of his Councell by Proclamacōn of a Statute made the same yeare wch Especially concerned Exclusion of Tryall of Peeres, other then in Parlemt, wch possibly might give some Countenance to kinde [sic] of Revocations of Statutes, but the matter being truly understood doth not only not Countenance any Such Conclusion but plainly Evidence ye Contrary.

For 1, in very truth there was never any full Consent of the King to that Act, nay so farr it was agst his will that the Chancellor, Trearer, and Judges in open Parliamt protested agst it, as Contrary to Law as appeares by the Parlemt Roll 15 E. 3. N. 26. 42.1

3

Secondly the King rested not upon this Repeale by Proclamation, But in the next Parliamt vide Rot. parl. 172 E. 3. 23 a Speciall repeale passed by Act of the entire Parliamt of 15 E. 3 wth Direction that for Such thinges as were usefully passed in that Parlemt -34- a new Law should be penned and passed in this Parlemt. So that the Repeale by Proclamation was not thought then Effectuall without an Act of Parlemt of Repeale.

4

3. As to the Kinges Judgeing of publique dangers and imposeing of Assessmt or Charges in Order thereunto Those that will not believe the Statute de Talliagio non Concedendo doth not Extend to Such a Case or thinke that it is under a tacite condition to be repealed when the King thinkes Expedient, Lett them Consult the Judgemt of the Kings themselves in the Petition of Right 3. Caroli primi, and in the Act for the reversall of the Judgemt given in the Case of Shipp money 17 Caroli primi Cap. 14. where the King by the advice and assent of the Lordes and Cōmons doth not only Enact but declare that that Judgmt was agst the Laws and Statutes of the Realme, the Right of Property and Liberty of the Subject, former Resolucōns of Parlemt and the Petition of Right wch is a Judgemt of ye highest and most Solemn Nature -35- that possibly can be, and yett the Judgemt in the Case of Ship money was bottomed upon a Supposition of necessitie and So declared by the King.

And as to the Case of the Kinges Power in Relation to Acts of Parliamt. I. Itt is true as to offences agst Acts of Parlemt already Cōmitted where His Matie is Interessed in the Penaltie the King may unquestionably pardon. 2dly In Some Cases where the Interest of the Subject is not imediately concerned, He may as to particular Persons and Cases by a Non obstante, Dispence with the breach of a penall Law.

3dly But where the Subjects Interest is imediately Concerned as in the Case of Extending the Admirall Jurisdiction he cannot dispence wth a Non obstante, But in noe case can the King wthout an Act of Parlemt Repeale an Act of Parlem whether Penall or other.

2. As to the Second these Petitions [sic] are agst Naturall Justice and Equitie, for Certainly Kinges as well as others are bound to keepe their faith and Promises.

-36- And as it is So much the more oblidgeing when Such Pacts and Concessions are not purely gratuitous, as Some kinds of grants are, But Such as are made uppon Mutuall Contract, Stipulations, and thus for the most part

1 R.P. ii 131.

3 R.P. ii 139.

2 Altered in the MS. from 15.

416 Car. I. c. 14.

are all Acts of Parlemt and Parlamentary Concessions wherein the Subject grants Some thinges to ye King, as Aydes, Supplyes, Subsidies, Tenths, or 15ths and ye King at their Request grants them Laws and Liberties. And thus the greate Charter and the Charter of the Forrest, and the most of the Parliamentary grants were had uppon a kind of Reciprocall Contract & Stipulacōn between the King and his Subjects. But this is not all, most of the important grants in Parlemt of Liberties to the People were not So much new grants of new Liberties but Restitucōns of those very Liberties wch by the Primitive and Radicall Constitution of the English Governmt were of Right belonging to them. Such were the grants of King William of the Laws of -37- Edward the Confessor, The grant of the greate Charters by King John, Henry 3. Edward 1st the Statutes de Tallagio non concedendo & divers others wch were the Originall Rights and Liberties of the Subject. And we have as greate reason to Conclude them to be parts of the Original and Primitive Institution of the English Governmt by their long usage & frequent Concessions & Confirmacōns of Princes in Soe long and Continued Series of time, as if an Authentique Instrumt of the first Articles of the English Governmt were Extant.

And as the obligation of Naturall Justice bindes Princes and Governors as well as othrs to stand to their Pacts and agreemts wth their People, So there is Superadded to that obligation the greate Solemnitie of the Oath wch he takes at his Coronation to observe & keepe those Laws and Liberties. And tho' it is true that the Kinges Person is Sacred, and not under any Externall Coertion, nor to be arraigned by his Subjects for the violation of that Sacred Oath yett no man can make -38- a Question whether he be not in the Sight of God and by the bond of Naturall Justice oblidged to keepe itt.

3. These Positions are the most Pernicious and Dangerous to the Governm1, and generally where yett such Sycophants pretend to gratifie by these Flatteries. For certainly the greate happiness of any Governmt rests Principally in this, namely the Mutuall Confidence that the Governors have in the people as to point of Duty and obedience and that the Governed have in their Governors as to point of Protection, and to Secure this mutuall Confidence was that Ancient and Solemne Institution of Oath of Fidelity of the People to the Prince and of Preotection and upholding their first Liberties & Laws by the Prince to the People. And the first breach that happens in this Golden Knott as by miserable Experience we have learned, when Insinuations of diffidence and distrust and Jealousies are Secretly Nourished or openly made, and most Certainly there is not any one more mischievous and Pernicious Root of Jealousies -39- and Diffidences then to tell ye world yt the Prince is bound to keepe none of the Lawes that he or his Ancestors have by the advice of his greate Councill Established that he may repeale them when he sees cause. That all his Subjects Properties depend upon his Pleasure. That there is noe Law Soe Strictly and prudently Penned for the Secureing of his Subjects Liberties and Properties, but they intrinsically have this Condicon implyed, tho' not Expressed. That when he Judgeth itt fitt he may Suspend or abrogate them. Such a Man that teacheth Such a doctrine as this as much weakens the Soveraigne Power as is imaginable and betrayes it wth a Kisse.

4. And as thus it is mischievous to the Governors So it is as mischievous to the Governed, when People are under this apprehension, but their Properties and Estates are no longer theirs then itt shall please their Governors. Itt destroyes Industry, and care to enrich themselves by trade or adventure and consequently impoverisheth the Kingdome. . . very Sloathfull -40- and Poore Spirited. For tho' it be a false and Invidious Collection and Consequence that because according to the Doctrine proposed a Prince may take

away his Subjects Laws, Liberties, Estate, therefore he will. Nay, tho' upon a just and true accot what ever the Power of the Prince be, yett itt is his Interest to use that Power to the benefitt and not to the Detrimt of his Subjects, To keepe them Rich and thereby make them obedient, rather then to impoverish and make them Desperate, Yett itt is most certaine that if once men be under that Jealousie that the Laws of the Landes doe not sufficiently fix their Properties and Liberties, Mans mindes will be Pendulous and unquiett and Subject to feares and Doubts, and thereupon Industrie and paines will wither and Decay, whatsoever Orations Men of Witt and Eloquence may otherwise make to Secure them.

5. The reasons that those Speculators use to inculcate their Pernitious Doctrine of this kind one [sic] very vaine and frivolous. And they are for the most part such as these.

-41- 1. The Reason and Intention of Governmt is Cōmon Safety, but such Occurrences may happen as upon Sudden Invasion or Rebellion, that if the Prince Should be bound to ye Letter of Laws not to raise Supplyes for an Army till a Parliamt could be Convened, the Kingdome might be overrun, and ye good Subjects loose the Benefitt of that Protection that is due to them for the Strict observation of a Punctilio of a lawe agst raiseing Taxes wthout Consent of Parliamt.

I answer ist that as Lawes So the Method and Modelling of Governmts are to be fitted to what is the Cōmon and Ordinary State of thinges ad Plurimum, because mankind have most Ordinarily to doe wth Such Circumstances of affaires as most usually happen. And it is a Madness to thinke that the Modell of Lawes or Governmt is to be framed according to Such Circumstances as very rarely occurre. Tis as if a Man should make Agarike and Rhubarb his Ordinary Dyett, because it is of use when he is Sicke wch may be once in 7 yeares.1

-42- 2. Itt is not possible for any humane Constitution whatsoever to be so perfect as to answere exactly to every Circumstance of affaires. And therefore in the Estimate and Measure of the goodness or Convenience of Governmt we are to weigh wch answer most Exigences of humane life, and tho' it answer not all, yett it deserves a p'ference before any other that answers Some Occasions but not Soe many or Soe well as the former. Itt is better to be Governed by certaine Laws tho' they bring Some Inconvenience att Some time then under Arbitrary Governmt wch may bring many Inconveniences that the other doth not.

3. But this is but an imaginary feare as appeares by Experience. For this Kingdome hath been now these 500 yeares govern'd by Laws made by Parliamentary advise and noe time yett afford us an Instance wherein a Parliament might not be timely Enough called for such a Supply (unless in those miserable brogles 2 that happened between the King and Parliamt, wch never could have been, if the King had not Consented to a Bill -43- to make it perpetuall. And it is apparent by reason it must needes be so, unless we should imagine that Princes shou'd be so unprovided as not to foresee an imminent Warr above 6 Weekes before itt breakes out. We must not thinke Princes and their Councells, and Ministers, are So Supine and So destitute of Intelligence both at home and abroad as not to have a prospect of such

1 Cp. Burke, Reflections on the French Revolution 93-"I confess to you, Sir, I never liked this continual talk of resistance and revolution, or the practice of making the extreme medicine of the constitution its daily bread. It renders the habit of society dangerously valetudinary: it is taking periodical doses of mercury sublimate and swallowing down repeated provocatives of cantharides to our love of liberty." 2 Qu. "broyles."-F.P.