Henry Parker, “Observations …”

Observations upon some of his Majesties late Answers and Expresses

Henry Parker

(1642)

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In this contestation between regal and parliamentary power, for method’s sake it is requisite to consider first of regal then of parliamentary power, and in both to consider the efficient and final causesand the means by which they are supported. The King attributeth the original of his royalty to God and the law, making no mention of the grant, consent or trust of man therein, but the truth is, God is no more the author of regal than of aristocratical power, nor of supreme than of subordinate command. Nay. that dominion which is usurped and not just, whilst it remains dominion and till it be again legally divested, refers to God as its author and donor as much as that which is hereditary. And that law which the King mentioneth is not to be understood to be any special ministry of angels or prophets (as amongst the Jews it sometimes was). It can be nothing else amongst Christians but the pactions and agreements of such and such politic corporations. Power is originally inherent in the people, and it is nothing else but that might and vigor which such or such a society of men contains in itself, and when by such or such a law of common consent and agreement it is derived into such and such hands, God confirms that law. And so man is the free and voluntary author, the law is the instrument, and God is the establisher of both.
… that power is but secondary and derivative in princes, and from hence the inference is just  – the king though he be singulis major [greater than any individual] yet he is universis minor [less than them all]. For if the people be the true, efficient cause of power, it is a rule in nature, quicquid effict tale, est magis tale [whatever produces something is greater than it]. And hence it appears that at the founding of authorities, when the consent of societies conveys rule into such and such hands, it may ordain what conditions and prefix what bounds it pleases …

… If Ship Money, if the Star Chamber, if the High Commission, if the votes of Bishops and popish lords in the Upper House be inconsistent with the welfare of the kingdom, not only honour but justice itself challenges that they be abolished. … his dignity was erected to preserve the commonalty, the commonalty was not created for his service, and that which is the end is far more honorable and valuable in nature and policy than that which is the means. This directs us then to the transcendent”DPZ [final cause] of all politics, to the paramount law that shall give law to all human laws whatsoever, and that is Salus Populi [the public good]. the law of prerogative itself is subservient to this law, and were it not conducing thereunto it were not necessary nor expedient. Neither can the law of conquest be pleaded to acquit princes of that which is due to the people as the authors or ends of all power, for mere force cannot alter the course of nature or frustrate the tenour of law, and if it could, there would be more reason why the people might justify force to regain due liberty than the prince might to subvert the same.

… The charter of nature entitles all subjects of all countries whatsoever to safety by its supreme law. But freedom indeed has diverse degrees of latitude, and all countries therein do not participate alike, but positive laws must everywhere assign those degrees.
The Great Charter of England is not strait in privileges to us, neither is the king’s oath of small strength to that Charter. For that – though it be more precise in the care of canonical privileges and of bishops and clergymen (as having been penned by popish bishops) than of the commonalty – yet it confirms all laws and rightful customs, amongst which we most highly esteem parliamentary privileges;…

But now of Parliaments. Parliaments have the same efficient cause as monarchies, if not higher. For in truth, the whole kingdom is not so properly the author as the essence itself of parliaments, and by the former rule ’tis magis tale because we see ipsum quid quod efficit tale [it is greater because itself produces it]. And it is, I think, beyond all controversy that God and law operate as the same causes both in kings and parliaments, for God favours both and the law establishes both and the act of men still concurs in the sustentation of both. And (not to stay longer upon this) parliaments have also the same final cause of a monarchies if not greater, for indeed public safety and liberty could not be so effectually provided for by monarchs till parliaments were constituted for the supplying of all defects in that government.

Two things especially are aimed at in parliaments, not to be attained to by other means. First that the interest of the people might be satisfied; secondly that kings might be the better counseled.

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And though not all monarchies are subject to the same condition, yet there scarce is any monarchy but is subject to some conditions. And I think to the most absolute  empire in the world this condition is most natural and necessary, that the safety of the people is to be valued above any right of his, as much as the end is to be preferred before the means. It is not just nor possible for any nation so to enslave itself and to resign its own interest to the will of one lord, as that that lord may destroy it without injury, and yet to have no right to preserve itself. For since all natural power is in those which obey, they which contract to obey to their own ruin or, having so contracted, they which esteem such a contract before their own preservation are felonious to themselves and rebellious to nature.

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We have had almost forty years experience that the court way of preferment has been by doing ill public offices, and we can nominate what dukes, what earls, what lords, what knights have been made great and rich by base disservices to the state. And except Master Hollis, his rich widow, I never heard that promotion came to any man by serving in Parliament, but I have heard of trouble and imprisonment. But now see the traverse of fortune! The court is turned honest; my Lord of Strafford’s death hath wrought a sudden conversion amongst them, and there is no other fear now, but that a few hypocrites in Parliament will beguile the major part there and so usurp over king, kingdom and parliament for ever. Sure this is next to a prodigy f it be not one!

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So much for the ends of parliamentary power. I come now to the true nature of it – public consent. We see consent as well as counsel is requisite and due in Parliament, and that being the proper foundation of all power (for omnis potestas fundata est in voluntate [all power is founded on the will]), we cannot imagine that public consent should be anywhere more vigorous or more orderly than it is in Parliament. Man being depraved by the Fall of Adam grew so untame and uncivil a creature that the law of God written in his breast was not sufficient to restrain him from mischief or to make him sociable. An therefore without some magistracy to provide new orders and to judge of old and to execute according to justice, no society could be upheld. Without society men could not live and without laws men could not be sociable. And without authority somewhere invested, to judge according to law and execute according to judgment, law was a vain and void thing. It was soon therefore provided that laws agreeable to the dictates of reason should be ratified by common consent, and that the execution and interpretation of those laws should be entrusted to some magistrate for the preventing of common injuries betwixt subject and subject. But when it after appeared that man was yet subject to unnatural destruction by the tyranny of entrusted magistrates (a mischief almost as fatal as to be without all magistracy) how to provide a wholesome remedy therefore was not so easy to be prevented.

‘Twas not difficult to invent laws for the limiting of supreme governors, but to invent how those laws should be executed or by whom interpreted was almost impossible, name quis custodiat ipsos custodes? [for who shall guard the guards?]. To place a superior above a supreme was held unnatural, yet what a lifeless, fond thing would law be without any judge to determine it or power to enforce it? And how could human consociation be preserved without some such law? Besides, if it be agreed upon that limits should be prefixed to princes and judges appointed to decree according to those limits, yet another great inconvenience will presently affront us. For we cannot restrain princes too far but we shall disable them from some good as well as inhibit them from some evil; and to be disabled from doing good in some things may be as mischievous as to be enabled for all evils at mere discretion. Long it was ere the world could extricate itself out of all these extremities, or find out an orderly means whereby to avoid the danger of unbounded prerogative on this hand and excessive liberty on the other:  and scarce has long experience yet fully satisfied the minds of all men in it. In the infancy of the world, when man was not so artificial and obdurate in cruelty and oppression as now and when policy was more rude, most nations did choose rather to submit themselves to the mere discretion of their lords than to rely upon any limits and to be ruled by arbitrary edicts [rather] than written statutes. But since tyranny being grown more exquisite and policy more perfect, (especially in countries where learning and religion flourish) few nations will endure that thralldom which uses to accompany unbounded and unconditionate royalty. Yet long it was ere the bounds and conditions of supreme lords were so wisely determined or quietly conserved as now they are. For at first, when ephori, tribuni, curatores &c. were erected to poise against the scale of sovereignty, much blood was shed about them, and states were put into new broils by them, and in some places the remedy proved worse than the disease.

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… it is left unquestioned that the legislative power of this kingdom is partly in the king and partly in the kingdom, and that in ordinary cases, when it concerns not the saving of the people from some great danger or inconvenience, neither the king can make a general binding law or ordinance without the parliament, or the parliament without the king …

…If kings [who] be so inclinable to follow private advice rather than public, and to prefer that which closes with their natural impotent ambition before that which crosses the same, are without all limits, then they may destroy their best subjects at pleasure, and all charters and laws of public safety and freedom are void, and God hath not left human nature any means of sufficient preservation. But, on the contrary, if there be any benefit in laws to limit princes when they are seduced by privadoes and will not hearken to the Great Council of the land, doubtless there must be some court to judge of that seducement and some authority to enforce that judgment, and that court and authority must be the Parliament or some higher tribunal. There can be no more certain crisis of seducement than of preferring private advice before public.

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