ARGUMENT OF CHIEF BARON FLEMING.

=Source.=--_State Trials._ Vol. ii., p. 389.

To the king is committed the government of the realm and his people;

and Bracton saith, that for his discharge of his office, God had

given to him power, the act of government, and the power to govern.

The king's power is double, ordinary and absolute, and they have

several laws and ends. That of the ordinary is for the profit

of particular subjects, for the execution of civil justice, the

determining of _meum_; and this is exercised by equity and justice

in ordinary courts, and by the civilians is nominated _jus privatum_

and with us, common law: and these laws cannot be changed, without

parliament; and although that their form and course may be changed,

and interrupted, yet they can never be changed in substance. The

absolute power of the king is not that which is converted or executed

to private use, to the benefit of any particular person, but is

only that which is applied to the general benefit of the people,

and is _salus populi_; as the people is the body, and the king the

head; and this power is guided by the rules, which direct only at

the common law, and is most properly named Policy and Government;

and as the constitution of this body varieth with the time, so

varieth this absolute law, according to the wisdom of the king, for

the common good; and these being general rules and true as they

are, all things done within these rules are lawful. The matter in

question is material matter of state, and ought to be ruled by

the rules of policy; and if it be so, the king hath done well to

execute his extraordinary power. All customs, be they old or new,

are no other but the effects and issues of trades and commerce with

foreign nations; but all commerce and affairs with foreigners, all

wars and peace, all acceptance and admitting for current foreign

coin, all parties and treaties whatsoever, are made by the absolute

power of the king; and he who hath power of causes, hath power

also of effects. No exportation or importation can be, but at the

king's ports. They are the gates of the king, and he hath absolute

power by them to include or exclude whom he shall please; and ports

to merchants are their harbours, and repose; and for their better

security he is compelled to provide bulwarks and fortresses, and to

maintain, for the collection of his customs and duties, collectors

and customers; and for that charge it is reason, that he should

have this benefit. He is also to defend the merchants from pirates

at sea in their passage. Also, by the power of the king they are

to be relieved, if they are oppressed by foreign princes, for they

shall have his treaty, and embassage; and if he be not remedied

thereby, then _lex talionis_ shall be executed, goods for goods,

and tax for tax; and if this will not redress the matter, then war

is to be attempted for the cause of merchants. In all the king's

courts, and of other princes, the judges in them are paid by the

king, and maintained by him to do justice to the subjects, and

therefore he hath the profits of the said courts. It is reasonable

that the king should have as much power over foreigners and their

goods, as over his own subjects; and if the king cannot impose upon

foreign commodities a custom, as well as foreigners may upon their

own commodities, and upon the commodities of this land when they

come to them, then foreign states shall be enriched and the king

impoverished, and he shall not have equal profit with them; and yet

it will not be denied, but his power herein is equal with other

states.

Puritanism and Liberty (1603-1660) Third Edition · 第 58 / 164 题