A twofold power in the king.

1. His absolute power, whereby he may levy forces against any nation.

2. His limited power, which is declared and expressed in the laws what he may do.

AN

EXPLANATION

WHAT MANNER OF PERSONS THOSE SHOULD BE,

That are to execute the Power or Ordinance of the

KING'S PREROGATIVE.

1. THAT absolute prerogative, according to the king's pleasure, revealed by his laws, may be exercised and executed by any subject, to whom power may be given by the king, in any place of judgment or commission, which the king by his law hath ordained: in which the judge subordinate cannot wrong the people, the law laying down a measure by which every judge should govern and execute; against which law if any judge proceed, he is by the law questionable, and punishable for his transgressions.

In this nature are all the judges and commissioners of the land, no otherwise than in their courts, in which the king in person is supposed to sit, who cannot make that trespass, felony, or treason, which the law hath not made so to be, neither can punish the guilty by other punishment than the laws have appointed.

This prerogative or power as it is over all the subjects, so being known by the subjects, they are without excuse if they offend, and suffer no wrong, if they be justly punished; and by this prerogative the king governeth all sorts of people according unto known will.

2. The absolute prerogative, which is in kings according to their private will and judgment, cannot be executed by any subject; neither is it possible to give such power by commission; or fit to subject the people to the same; for the king in that he is the substitute of God immediately, the father of his people,

and head of the commonwealth, hath, by participation with God, and with his subjects, a discretion, judgment, and feeling love towards those, over whom he reigneth, only proper to himself, or to his place and person; who, seeing he cannot in any others infuse his wisdom, power, or gifts, which God, in respect of his place and charge, hath enabled him withal, can neither subordinate any other judge to govern by that knowledge, which the king can no otherwise, than by his known will, participate unto him: and if any such subordinate judge shall obtain commission according to the discretion of such judge to govern the people, that judge is bound to think that to be his soundest discretion, which the law, in which is the king's known will, sheweth unto him to be that justice which he ought to administer: otherwise he might seem to esteem himself above the king's law, who will not govern by it, or to have a power derived from other than from the king, which in the kingdom will administer justice contrary unto the justice of the land neither can such a judge or commissioner under the name of the king's authority shroud his own high action, seeing the conscience and discretion of every man is particular and private to himself, so as the discretion of the judge cannot be properly or possibly the discretion or the conscience of the king; and if not his discretion, neither the judgment that is ruled by another man's only.

Therefore it may seem they rather desire to be kings, than to rule the people under the king, which will not administer justice by law, but by their own

will.

3. This administration in a subject is derogative to the king's prerogative; for he administereth justice out of a private direction, being not capable of a general direction how to use the king's subjects at pleasure, in causes of particular respect; which if no other than the king himself can do, how can it be so that any man should desire that which is unfit and impossible, but that it must proceed out of some exorbitant affection? the rather, seeing such places be full of trouble and altogether unnecessary, no man

H

will seek to thrust himself into them but for hopes of gain. Then is not any prerogative oppugned, but maintained, though it be desired, that every subordinate magistrate may not be made supreme, whereby he may seize upon the hearts of the people, take from the king the respect due unto him only, or judge the people otherwise than the king doth himself.

4. And although the prince be not bound to render any account to the law, which in person he administereth himself, yet every subordinate judge must render an account to the king, by his laws, how he hath administered justice in his place where he is set. But if he hath power to rule by private direction, for which there is no law, how can he be questioned by a law, if in his private censure he offends?

5. Therefore, it seemeth, that in giving such authority, the king ordaineth not subordinate magistrates, but absolute kings: and what doth the king leave to himself, who giveth so much to others, as he hath himself? Neither is there a greater bond to tie the subject to his prince in particular, than when he shall have recourse unto him, in his person, or in his power, for relief of the wrongs which from private men be offered; or for reformation of the oppressions which any subordinate magistrate shall impose upon the people. There can be no offence in the judge, who hath power to execute according to his discretion, when the discretion of any judge shall be thought fit to be limited, and therefore there can be therein no reformation; whereby the king in this useth no prerogative to gain his subjects right; then the subject is bound to suffer helpless wrong; and the discontent of the people is cast upon the king; the laws being neglected, which with their equity in all other causes and judgments, saving this, interpose themselves and yield remedy.

6. And to conclude, custom cannot confirm that which is any ways unreasonable of itself.

Wisdom will not allow that, which is many ways dangerous, and no ways profitable.

Justice will not approve that government, where it cannot be but wrong must be committed.

Neither can there be any rule by which to try it, nor means of reformation of it.

7. Therefore, whosoever desireth government must seek such as he is capable of, not such as seemeth to himself most easy to execute; for it is apparent, that it is easy to him that knoweth not law nor justice, to rule as he listeth, his will never wanting a power to itself: but it is safe and blameless, both for the judge and people, and honour to the king, that judges be appointed who know the law, and that they be limited to govern according to the law.