LXXI.

KING OF ENGLAND.

I. THE king can do no wrong: that is, no process can be granted against him, you can have no remedy against him. What must be done then? Petition him, and the king writes upon the petition Soit droit fait, and sends it to the chancery, and then the business is heard. His confessor will not tell him he can do no wrong.

2. There's a great deal of difference between head of

1. 2. The king can do no wrong] Explained by Blackstone as meaning only 'that in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the king; nor is he, but his ministers, accountable for it to the people: and secondly, that the prerogative of the Crown extends not to do any injury.' Commentaries, bk. iii. ch. 17, sec. 1. Selden's remark deals only with one incident of the maxim, and guards, in the last clause, against one possible misinterpretation of it.

1.8. There's a great deal of difference &c.] By 26 Henry VIII, cap. i. it is declared and enacted that the King's Majesty is the only supreme head in erthe of the Church of England. This Act was confirmed, with penalties, by 1 Edward VI, cap. 12.

In 'our Canons,' i. e. in the Constitutions and Canons Ecclesiastical of 1640, sec. 1, Concerning the Regal Power, the words used are 'The most high and sacred order of Kings is of divine right. . . . A supreme power is given to this most excellent order by God himself in the Scriptures, which is that kings should rule and command in their several dominions all persons of what rank and estate soever, whether ecclesiastical or civil. . . .

'The care of God's church is so committed to Kings in the scripture that they are commended when the church keeps the right way, and taxed when it runs amiss, and therefore her government belongs in chief unto Kings.' Wilkins, Concilia, iv. 545.

The difference of which Selden speaks is that the King, as head of the Church, is the fountain or original of all spiritual authority in his dominions, in the full sense in which he is the fountain of honour and the fountain of law; while the words of the Canon mean no more than that the Church and its ecclesiastical rulers are subject to the civil power. This latter is all that was claimed by Elizabeth, and all that was expressed in Article 37. On the other hand, every Bishop in his Oath of Homage, taken when he obtains the tem

the church, and supreme governor, as our canons call the king. Conceive it thus; There is in the kingdom of England a college of physicians, the king is supreme governor of these, because they live under him, but not head of them, nor president of the college, nor the best physician.

3. After the dissolution of the abbeys, they did much advance the king's supremacy, for they only cared to exclude the pope: hence have we had several translations of the Bible put upon us. But now we must look to it, Io otherwise the king may put upon us what religion he pleases.

4. 'Twas the old way when the king of England had his house, there were canons to sing service in his chapel: so at Westminster, in St. Stephen's chapel, (where the House of Commons sits) from which canons the street Canon-row has its name, because they lived there; and he had also the abbot and his monks, and all these the king's house.

5. The three estates are the lords temporal, the bishops

poralities of his see, acknowledges that I hold the said Bishopric, as well the spiritualities as the temporalities thereof, only of your Majesty.' This appears to be a survival of the earlier view.

1. 12. 'Twas the old way &c.] On the King's Chapel Establishment see Excursus C.

1. 19. The three estates are &c.] Who formed the three estates was one of the disputed questions of the time. See, e. g., a speech by Bagshaw (Feb. 9, 1640): '(It was said) that episcopacy was a third estate in Parliament, and therefore the King and Parliament could not be without them; this I utterly deny, for there are three estates without them, as namely the King, who is the first estate; the Lords Temporal is the second; and the Commons the third. Nalson, Collections, i. 762.

Nalson quotes, on the other hand, from the Parliamentary Roll, 1 Richard III, ‘at the request and by the assent of the three estates of the realm, that is to say the Lords Spiritual and Temporal and the Commons of this land assembled in this present Parliament,' &c., i. 764. See, also, a proclamation by Queen Elizabeth (1588) which speaks of 'the estate of the prelacy, being one of the three ancient estates of this realm under her Highness.' Wilkins, Concilia, iv. 340.

are the clergy, and the commons. The king is not one of the three estates, as some would have it, [take heed of that], for then if two agree, the third is involved; but he is king of the three estates.

6. The king has a seal in every court; and though the great seal be called sigillum Angliae, the great seal of England, yet 'tis not because 'tis the kingdom's seal, and not the king's, but to distinguish it from sigillum Hiberniae, sigillum Scotiae.

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7. The court of England is much altered. At a solemn 10 dancing, first you had the grave measures, then the corantoes, and the galliards, and all this is kept up with ceremony; at length they fall to Trench-more1, and so to the cushion dance, and then all the company dance, lord and groom, lady and kitchen-maid, no distinction. So in our court in Queen Elizabeth's time, gravity and state was kept up; in King James's time things were pretty well;

1 Trenchmore] Frenchmore, MSS.

Nalson, in his remarks on Lord Say and Seal's speech (1641) against Bishops, points out, as Selden does, the consequence which would follow from counting the King as one of the three estates. The opinion, he says, that the Bishops are not one of the three estates, in Parliament, has been deservedly exploded by all persons of sense and honour' except such as would therefore have the King to be the third estate, that so by bringing in a co-ordinancy of power, they may the better accomplish their anti-monarchical designs, or at least reduce the ancient and imperial Crown of these realms to the condition of a Venetian seigniory.' Collections, ii. 269.

1. 13. Trench-more] A kind of lively dance, in triple time, to which it was usual to dance in a rough and boisterous manner. Nares, Glossary.

The reading in the MSS. is 'Frenchmore,' but there is no dance so named, while 'Trenchmore,' the reading in the early printed editions, is, as Nares shows, a name in common use.

1. 14. cushion dance] 'A dance of a rather free character, used chiefly, it would appear, at weddings.' Its character is distinctly shown by a passage which Nares quotes from Taylor (1630):—' There are many pretty provocatory dances, as the kissing dance, the cushion dance, the shaking of the sheets, and such like.' Nares, Glossary.

but in King Charles's time, there has been nothing but Trench-more and the cushion dance, omnium gatherum, tolly polly, hoyte cum toyte.

LXXII.

THE KING.

I. 'Tis hard to make an accommodation betwixt the king and the parliament. If you and I fell out about money, you said I owed you twenty pounds, I said I owed you but ten pounds, it may be a third party allowing me 20 marks, might make us friends. But if I said, 10 I owed you twenty pounds of silver, and you said I owed you twenty pounds of diamonds, which is a sum innumerable, 'tis impossible we should ever agree; this is the case.

2. The king using the House of Commons, as he did in Mr. Pym and his company; that is, charging them with treason, because they charged1 my lord of Canterbury and Sir George Ratcliffe, it was just as much logic as the boy, that would have lain with his grandmother, used to his father: You lay with my mother, why should not I lie 20 with your's?

3. There is not the same reason for the king's accusing men of treason, and carrying them away, as there is for the houses themselves, because they accuse one of themselves. For every one that is accused, is either a peer or a commoner; and he that is accused has his consent going along with them; but if the king accuses, there is nothing of this in it.

4. The king is equally abused now as before; then they flattered him, and made him do ill things, now they would 30 force him against his conscience. If a physician should tell me that every thing I had a mind to was good for 1 Because they charged] 'because' omitted in MSS.

me, though in truth 'twas poison, he abused me; and he abuses me as much, that would force me to take something whether I will or no.

5. The king, so long as he is our king, may do with his officers what he pleases; as the master of the house may turn away all his servants, and take whom he please.

6. The king's oath is not security enough for our property, for he swears to govern according to law; now the judges they interpret the law; and what judges can be made to do we know.

1. 9. what judges can be made to do we know.] Selden had good reason to know this. He was one of the members committed to prison after Charles' third Parliament, having been refused bail by the judges unless he would find sureties for his future good behaviour. This he and the others rightly and manfully refused to do, and were remanded to the Tower. Whitelock, Memorials, pp. 13, 14.

Again, in 1635 the King was advised by the Lord Chief Justice Finch and others to require the opinion of his judges (on ship-money), which he did, stating the case in a letter to them.

'After much solicitation by the Chief Justice Finch, promising preferment to some, and highly threatening others whom he found doubting (as themselves reported to me) he got from them in answer to the King's letter and case, their opinion . . . that when . . . the whole kingdom is in danger, your Majesty may by writ command all your subjects to furnish ships with men, victuals and ammunition, and may compel the doing thereof. And that in such case your Majesty is the sole judge both of the dangers and when and how the same is to be prevented and avoided. This opinion was signed by twelve judges.' Whitelock, Memorials, p. 25.

Clarendon remarks on this that 'The damage and mischief cannot be expressed that the Crown and State sustained by the deserved reproach and infamy that attended the judges, by being made use of in this and other like acts of power.' Men heard the payment of ship-money 'demanded in a court of law as a right, and found it, by sworn judges of the law, adjudged so upon such grounds and reasons as every stander-by was able to swear was not law.' He traces the disregard of law afterwards as due very largely 'to the irreverence and scorn the judges were justly in.' History, pp. 108, 109.

But the day of reckoning was at hand. In 1640, Judge Berkley, one of the twelve, was impeached by the Commons for his opinion

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