Jus imponendi vectigana, or, The learning touching customs, tonnage, poundage, and impositions on merchandizes, asserted as well from the rules of the common and civil law, as of generall reason and policy of state / by Sir John Davis ...

CHAP. VII.

Of the Kings Prerogatives in general, and that the same do consist in certain speciall points or cases reserved to the absolute power of the Crown; when the Positive Law was first established, and that the Ca∣non Law of England doth acknowledge and submit it self to these Prerogatives.

BY the Law of Nature all things were cōmon, and all persons equal, there was neither Meum nor Tuum, there was neither King nor Subject; then came in the Law of Nations, which did limit the Law of Nature, and brought in proper∣ty, which brought in community of things, which brought in Kings and Ru∣lers, which took away equality of per∣sons, for property caused Contracts, Trade, and Traffique, which could not be ministred without a King or Magi∣strate; so as the first and principal cause of making Kings, was to maintain pro∣perty and Contracts, and Traffique, and Commerce amongst men. Hereupon by

the same Law of Nations, Tributes and Cust̄omes became due to the King or Prince to maintain him in his place of Government, quasi Ministerii sui stipen∣dia, saith the School-man, Deo Minister est tibi in bonum ideo & tributa potestas, saith Saint Paul, and all these things, namely Property, and Contract, and Kings, and Customes, were before any positive Law was made; then came the positive Law, and limited the Law of Nations, whereas by the Law of Nations the King had an absolute and unlimited power in all matters whatsoever. By the positive Law the King himself was pleased to limit and stint his absolute power, and to tye himself to the ordinary rules of the Law, in common and ordinary cases, worthily and princely, according to the Roman Emperour, Dignissimum Principe Rex se allegatum legibus consiteri, retaining and reserving notwithstanding in many points that absolute & unlimited power which was given unto him by the Law of Nations, and in these cases or points, the Kings Prerogatives do consist; so as the Kings Prerogatives were not grant∣ed unto him by the people, but reserved by himself to himself, when the positive

Law was first established; and the King doth exercise a double power, viz. an absolute power, or Merum Imperium, when he doth use Prerogatives onely, which is not bound by the positive Law; and an ordinary power of Jurisdiction, which doth co-operate with the Law, & whereby he doth minister Justice to the people, according to the prescript rule of the positive Law; as for example, the King doth not condemn all Malefactors, but by the rule of the positive Law; but when the Malefactor is condemned by the Law, he giveth him a pardon by his absolute Prerogative.

Again, the King doth punish the breach of the Peace within the Land, by the ordinary course of the Cōmon Law, but he doth make War and Peace with Forreign Nations, Quod pertinet ad libe∣rum jus gladii, as a Doctor speaketh, by that absolute and unlimited power, which the Law of Nations hath given unto him.

Again, the King doth establish the Standard of Money by vertue of his Prerogative only, for the Common Law doth give no rule touching the matter, or form, or value thereof; but when

those Monies are dispersed into the hands of the Subjects, the same do be∣come subject in respect of the property thereof, to the ordinary rules of the Common Law.

Again, the right of Free-hold and all Inheritance, and all Contracts reall and personall, arising within the Land, are left to be decided by the positive Law of the Land; but the Government and ordering of Traffique, Trade, and Commerce, both within the Land and without, doth rest in the Crown as a principall Prerogative, wherein the King is like to Primum mobile, which car∣rieth about all the inferiour Spheres in his superiour Course, and yet doth suf∣fer all the Planets underneath him to finish all their divers and particular courses; or rather he doth imitate the Divine Majesty, which in the Govern∣ment of the world doth suffer things for the most part to passe according to the order and course of Nature, yet many times doth shew his extraordinary power in working of miracles above Nature.

And truly, as the King doth suffer the customary Law of England to have

her course on the one side, so doth the same Law yeeld, submit, and give way to the Kings Prerogative over the o∣ther; and therefore in the 1 Hen. 7. fol. 23. there is a rule, That every Custome is void in Law quae exaltat in praerogativum Regis, which is an argument, that the Kings Prerogative is more ancient than the customary Law of the Realm; be∣sides, the power of the Kings Prerogative above the Common Law doth appear in this, That whereas all privileges do flow, and are derived from the Kings Prerogative, and every privilege in one point or other privat communem legem, yet the Common Law doth admit and al∣low of privileges granted by vertue of the King Prerogative.

Notes

• 1H.7.fol.23.