Robert Filmer

“ There can be no Laws without a Supreme Power to command or make them. In all Aristocraties the Nobles are above the Laws, and in all Democraties the People. By the like Reason, in a Monarchy the King must of necessity be above the Laws; there can be no Soveraign Majesty in him that is under them; that which giveth the very Being to a King, is the Power to give Laws; without this Power he is but an Equivocal King. ”

“ The Court of Chancery it self is but a Branch of the King’s Prerogative, to Relieve men against the inexorable rigour of the Law, which without it is no better than a Tyrant, since Summum Jus, is Summa Injuria. ”

“ If any desire the direction of the New Testament, he may find our Saviour limiting and distinguishing Royal Power, By giving to Cæsar those things that were Cæsar’s, and to God those things that were God’s. Obediendum est in quibus mandatum Dei non impeditur. We must obey where the Commandment of God is not hindred; there is no other Law but God’s Law to hinder our Obedience. ”

“ It is not the Law that is the Minister of God, or that carries the Sword, but the Ruler or Magistrate; so they that say the Law governs the Kingdom, may as well say that the Carpenters Rule builds an House, and not the Carpenter ”

“ Nor must we think the Common Customs (which are the Principles of the Common Law, and are but few) to be such, or so many, as are able to give special Rules to determine every particular Cause. Diversity of Cases are infinite, and impossible to be regulated by any Law; and therefore we find, even in the Divine Laws which are delivered by Moses, there be only certain Principal Laws, which did not determine, but only direct the High-priest or Magistrate, whose Judgment in special Cases did determine, what the General Law intended. ”

“ That familiar Distinction of the School-men, whereby they subject Kings to the Directive, but not to the Coactive Power of Laws, is a Confession, that Kings are not bound by the positive Laws of any Nation, since the compulsory Power of Laws is that which properly makes Laws to be Laws by binding Men by Rewards or Punishment to Obedience; whereas the Direction of the Law is but like the Advice and Direction which the Kings Council gives the King, which no Man says is a Law to the King. ”

“ A third consideration must be, that in the former Parliaments, instituted and continued since King Henry the First’s time, is not to be found the Usage of any natural Liberty of the People; for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King, and not the Liberties of Nature to the People; for if the Liberty were natural, it would give Power to the Multitude to assemble themselves When and Where they please, to bestow Soveraignty, and by Pactions to limit and direct the Exercise of it. ”

“ Now that Saul was no Tyrant, we may note that the People asked a King, as All Nations had. God answers, and bids Samuel to hearthe Voice of the People, in all things which they spake, and appoint them a King. They did not ask a Tyrant, and to give them a Tyrant, when they asked a King, had not been to hear their Voice in all things, But rather when they asked an Egge, to have given them a Scorpion: Unless we will say, that all Nations had Tyrants. ”

“ Now if a private person make a Contract, either with Oath or without Oath, he is no further bound than the Equity and Justice of the Contract ties him; for a Man may have Relief against an unreasonable and unjust Promise, if either Deceit, or Error, or Force, or Fear induced him thereunto: Or if it be hurtful or grievous in the performance. Since the Laws in many Cases give the King a Prerogative above common Persons, I see no Reason why he should be denied the Priviledg which the meanest of his Subjects doth enjoy. ”

“ Many will be ready to say, It is a Slavish and Dangerous Condition to be subject to the Will of any One Man, who is not subject to the Laws. But such Men consider not, 1. That the Prerogative of a King is to be above all Laws, for the good only of them that are under the Laws, and to defend the Peoples Liberties, as His Majesty graciously affirmed in His Speech after His last Answer to the Petition of Right: Howsoever some are afraid of the Name of Prerogative, yet they may assure themselves the Case of Subjects would be desperately miserable without it. ”

“ The Power which the King giveth, in all his Courts, to his Judges or others to punish, doth not exclude Him from doing the like, by way of Prevention, Concurrence, or Evocation, even in the same point which he hath given in charge by a delegated Power; for they who give Authority by Commission, do always retain more than they grant: Neither of the two Houses claim an Infallibility of not Erring, no more than a General Council can. It is not impossible but that the greatest may be in Fault, or at least interested or engaged in the Delinquency of one particular Member. ”

“ Now albeit Kings, who make the Laws, be (as King James teacheth us) above the Laws; yet will they Rule their Subjects by the Law; and a King, governing in a setled Kingdom, leaves to be a King, and degenerates into a Tyrant, so soon as he seems to Rule according to his Laws; yet where he sees the Laws Rigorous or Doubtful, he may mitigate and interpret. General Laws made in Parliament, may, upon known Respects to the King, by his Authority be Mitigated or Suspended, upon Causes only known to him. ”

“ The People cannot assemble themselves, but the King, by his Writs, calls them to what place he pleases; and then again scatters them with his Breath at an instant, without any other Cause shewed than his Will. Neither is the whole summoned, but only so many as the King’s Writs appoint. The prudent King Edward the First, summoned always those Barons of ancient Families, that were most wise to his Parliament, but omitted their Sons after their Death, if they were not answerable to their Parents in Understanding. ”

“ For their Conclusion is, Nay, but we will have a King over Us, that We also may be like all the Nations, and that Our King may Judge us, and go out before us to fight our Battels. Meaning he should earn his Privileges, by doing the work for them, by Judging them, and Fighting for them. Lastly, Whereas the mention of the Peoples crying unto the Lord, argues they should be under some Tyrannical Oppression; we may remember, that the Peoples Complaints and Cries are not always an Argument of their living under a Tyrant. ”

“ Great are the Advantages which both the King and People may receive by a well-ordered Parliament; there is nothing more expresseth the Majesty and Supream Power of a King, than such an Assembly, wherein all his People acknowledg him for Soveraign Lord, and make all their Addresses to him by humble Petition and Supplication; and by their Consent and Approbation do strengthen all the Laws, which the King, at their Request and by their Advice and Ministry, shall ordain. ”

“ The King, and no body else, ought to give Judgment, if he were able, since by virtue of his Oath he is bound to it; therefore the King ought to exercise Power as the Vicar or Minister of God: But if our Lord the King be not able to determine every Cause, to ease part of his Pains, by distributing the Burthen to more ‘Persons, he ought to chuse Wise-Men fearing God, &c. ”

“ As the Judicial Power of Kings was exercised before the Conquest, so in those setled times after the Conquest, wherein Parliaments were much in use, there was a High-Court following the King, which was the place of Soveraign Justice, both for matter of Law and Conscience, as may appear by a Parliament in Edward the First’s time, taking Order, That the Chancellour and the Justices of the Bench should follow the King, to the end that he might have always at hand Able Men for his Direction in Suits that came before Him. ”

“ Especially the Laws, Liberties, and Customs granted unto the Clergy and Laity by the famous King Edward. We may observe, in these Words of the Articles of the Oath, that the King is required to observe not all the Laws, but only the Upright, and that with Discretion and Mercy. The Word Upright cannot mean all Laws, because in the Oath of Richard the Second, I find Evil and Unjust Laws mentioned, which the King swears to abolish; and in the Old Abridgment of Statues, set forth in Henry the Eighth’s days, the King is to swear wholly to put out Evil Laws ”

“ But let it be supposed for Truth, that Kings do swear to observe all the Laws of their Kingdom, yet no man can think it reason that Kings should be more bound by their Voluntary Oaths than Common Persons are by theirs. ”

“ Secondly, The People have the Law as a Familiar Admonisher and Interpreter of the King’s Pleasure, which being published throughout the Kingdom, doth represent the Presence and Majesty of the King: Also the Judges and Magistrates, (whose help in giving Judgment in many Causes Kings have need to use) are restrained by the Common Rules of the Law from using their own Liberty to the Injury of others, since they are to judge according to the Laws, and not follow their own Opinions. ”

“ Every Law, saith he, is in the General, but of some things there can be no General Law — when therefore the Law speaks in General, and something falls out after besides the General Rule: Then it is fit that what the Law maker hath omitted, or where he hath erred by speaking generally, it should be corrected or supplied, as if the Law-maker himself were present to Ordain it. ”

“ For those who will have a King, are bound to allow him Royal maintenance, by providing Revenues for the CROWN, Since it is both for the Honour, Profit, and Safety too of the People, to have their King Glorious, Powerful, and abounding in Riches, besides, we all know the Lands and Goods of many Subjects may be ofttimes Legally taken by the King, either by Forfeitures, Escheat, Attainder, Outlawry, Confiscation, or the like. ”

“ Nor did the People give any Limited Power to Solon, but an Absolute Jurisdiction, at his Pleasure to Abrogate and Confirm what he thought fit, the People never challenging any such Power to themselves: so the People of Rome gave to the Ten Men, who were to chuse and correct their Laws for the Twelve Tables, an Absolute Power, without any Appeal to the People. ”

“ Peter expounds his own Words of Humane Ordinance, to be the King, who is the Lex Loquens, a speaking Law; he cannot mean that Kings themselves are an humane Ordinance, since St. Paul calls the Supreme Power, The Ordinance of God; and the Wisdom of God saith, By me Kings Reign: But his meaning must be, that the Laws of Kings are humane Ordinances. Next, the Governours that are sent by him; that is by the King, not by God, as some corruptly would wrest the Text, to justifie Popular Governours as authorized by God ”

“ There want not those who Believe, that the first Invention of Laws was to bridle and moderate the overgreat Power of Kings; but the truth is, the Original of Laws was for the keeping of the Multitude in order: Popular Estates could not subsist at all without Laws, whereas Kingdoms were Govern’d many Ages without them. The People of Athens, assoon as they gave over Kings, were forced to give Power to Draco first, then to Solon, to make them Laws, not to bridle Kings, but themselves ”

“ And that the force of Laws must not be so great as natural Equity it self, which cannot fully be comprised in any Laws whatsoever, but is to be left to the Religious Atchievement of those who know how to manage the Affairs of State, and wisely to Ballance the particular Profit with the Counterpoize of the Publick, according to the infinite variety of Times, Places, Persons; a Proof unanswerable, for the superiority of Princes above Laws, is this, That there were Kings long before there were any Laws: For a long time the Word of a King was the only Law ”

“ And this was after the time that the Court of Common-Pleas was made stationary, which is an Evidence that the King reserved a Soveraign Power, by which he did supply the Want, or correct the Rigour of the Common Law; because the Positive Law, being grounded upon that which happens for the most part, cannot foresee every particular which Time and Experience brings forth. ”

“ The Governour, whether he be one Man, or more, ought to be Lord over all those things whereof it was impossible the Law should exactly speak, because it is not easie to comprehend all things under General Rules—what soever the Law cannot determine, it leaves to the Governours to give Judgment therein, and permits them to rectify what soever upon Tryal thy find to be better than the Written Laws. ”

“ Besides, we do not find in all Scripture that Saul was Punished, or so much as Blamed, for committing any of those Acts which Samuel describes: and if Samuel’s drift had been only to terrifie the People, he would not have forgotten to foretell Saul’s bloody Cruelty, in Murthering 85 innocent Priests, and smiting with the Edge of the Sword the City of Nob, both Man, Woman, and Child. Again, the Israelites never shrank at these Conditions proposed by Samuel, but accepted of them, as such as all other Nations were bound unto. ”

“ It skills not which way Kings come by their Power, whether by Election, Donation, Succession, or by any other means; for it is still the manner of the Government by Supreme Power that makes them properly Kings, and not the means of obtaining their Crowns. ”

“ Some are of Opinion, that though none of the Saxon Laws do mention the Commons, yet it may be gathered by the word Wisemen, the Commons are intended to be of those Assemblies, and they bring (as they conceive) probable arguments to prove it, from the Antiquity of some Burroughs that do yet send Burgesses, and from the Proscription of those in Ancient Demesne, not to send Burgesses to Parliament. If it be true, that the West-Saxons had a Custom to assemble Burgesses out of some of their Towns, yet it may be doubted, whether other Kingdoms had the same usage ”