Lex Rex, Question 23
QUEST. XXIII. Whether the King hath any Royall prerogative, or a power to dispence with Lawes? And some other grounds against absolute Monarchie.
Prerogative taken two wayes.A Prerogative Royall, I take two wayes: 1. Either to be an act of meere will and pleasure, above, or beside Reason or Law: Or, an act of dispensation, beside, or against the letter of the Law.
Assert. 1. That which Royalists call the Prerogative Royall of Princes, is the salt of Absolute Power; and it is a supreme and highest power of a King, as a King, to doe above, without, or contrary to a Law, or Reason: which is unreasonable.
1. When Gods word speaketh of the power of Kings and Iudges, Deut. 17.15, 16, 17. Deut. 1.15, 16, 17. and elsewhere, there is not any footstep, or ground for such a power: and therefore (if we speake according to conscience) there is no such thing in the world: And because Royalists cannot give us any warrant,No Prerogative Royall in the Scripture. it is to be rejected.
2. A Prerogative Royall must be a power of doing good to the people, and grounded upon some reason or law: but this is but a branch of an ordinarie limited power, and no prerogative above or beside law. Yea, any power not grounded on a reason different from meere will or absolute pleasure, is an irrationall and brutish power; and therefore it may well be jus personae, the power of the man who is King; it cannot be jus coronae, Jus personae, jus coronae.any power annexed to the Crown: for this holdeth true of all the actions of a King, as a King. Illud potest Rex, & illud tantum quod jur… potest. The King, as King, can doe no more, then that which upon right and law he may doe.
3. To dispute this question,The question touching Prerogative Royall, vaine. Whether such a Prerogative agree to any King, as King; is to dispute whether God hath made all under a Monarch, slaves, by their own consent: which is a vaine question. 2. Those who hold such a Prerogative, must say, the King is so absolute and illimited a God on earth, that either by law, or his sole pleasure beside law, he may regularly and rationally move all wheeles in Policie; and his uncontrolled will shall be the axeltree on which all the wheeles are turned.
4. That which is the garland and proper flower of the King of Kings, as he is absolute above his creatures, and not tyed to any law,Prerogative Royall of Royalists, Gods due. without himselfe, that regulateth his will; That must be given to no mortall man, or King, except we would communicate that which is Gods proper due, to a sinfull man; which must be idolatrie. But to doe Royall acts out of an absolute power above Law and Reason, is such a power as agreeth to God, as is evident in positive lawes, and in acts of Gods meere pleasure, where we see no reason without the Almightie, for the one side, rather than for the other; as Gods forbidding the eating of the tree of knowledge, maketh the eating, sinne, and contrary to reason;Acts founded upon the sole▪ pleasure of the Agent, proper to God. but there is no reason in the object: for if God should command eating of that tree, not to eat, should be also sinne. So Gods choosing Peter to glory, and his refusing Judas, is a good and a wise act, but not good or wise from the object of the act, but from the sole wise pleasure of God; because, if God had chosen Judas to glory, and rejected Peter, that act had been no lesse a good and a wise act, then the former. For when there is no law in the object, but only Gods will, the act i… good and wise, seeing infinite wisdome cannot be separated from the perfect will of God: but no act of a mortall King, having sole and only will, and neither law nor reason in it, can be a lawfull, a wise, or a good act.
Assert. 2. There is something which may be called a Prerogative by way of dispensation.A threefold dispensation. There is a threefold dispensation; one of power, another of justice, and a third of grace. A dispensation of power, is, when the will of the Law-giver maketh that act to be no sinne, which without that will would have been sinne: As if Gods commanding Will had not interveened, the Israelites borrowing the eare-rings and jewels of the Egyptians, and not restoring them, had been a breach of the 8 Commandement: and in this sense no King hath a Prerogative to dispence with a Law.
A dispensation, 1. of sole pleasure, 2. of …ustice, 3. of grace.2. There is a dispensation of law and justice, not flowing from any Prerogative, but from the true intent of the Law. And thus the King, yea the inferiour Judge, is not to take the life of a man, whom the letter of the Law would condemne; because the Justice of the Law, is the intent and life of the Law: and where nothing is done against the intent of the Law, there is no breach of any Law.
The Third is not unlike unto the Second, when the King exponeth the Law by Grace:A twofold exponing of the Law by grace. and this is twofold; 1. Either when he exponeth it of his wisdome and mercifull nature, inclined to mercy and justice; yet according to the just intent, native sense and scope of the Law, considering the occasion, circumstances of the fact, and comparing both with the Law: and this dispensation of grace I grant to the King; As when the tribute is great, and the man poor, the King may dispense with the custome. In re dubia possunt dispensare Principes, quia nullus sensus presumitur, qui vincat principolem, l. …. Sect. initium ib.2. The Law saith, In a doubtfull case the Prince may dispense, because it is presumed, the Law can have no sense against the principall sense and intent of the Law.
But there is another dispensation that Royalists doe plead for, and that is, a power in the King, ex mera gratia absolutae potestatis regalis; Out of meere grace of absolute Royall power, to pardon crimes, which Gods law saith, should be punished by death. Now this they call a power of Grace; but it is not a power of meere Grace.
But, 1. Though Princes may doe some things of Grace, yet not of meere Grace: because, what Kings doe, as Kings, and by vertue of their Royall office, that they do ex debito officii, Kings, as Kings, cannot doe things of meere grace, because they must doe all ex debito officii, by necessitie of their office.by debt and right of their office; and that they cannot but do, it not being arbitrarie to them to doe the debtfull acts of their office: But what they doe of meere grace, that they doe as good men, and not as Kings: and that they may not doe. As for example: Some Kings, out of their pretended prerogative, have given foure pardons to one man, for foure murthers: Now this the King might have left undone without sinne; But of meere grace he pardoned the murtherer, who killed foure men. But the truth is, the King killed the three last; because he hath no power in point of Conscience, to dispute with blood, Num. 35.31. Gen. 9.6. These pardons are acts of meere grace to one man; but acts of blood to the Communitie.
2. Because the Prince is the Minister of God for the good of the subject; and therefore the Law saith, He cannot pardon, and free the guilty, of the punishment due to him. Contra l. quod favore, F. de leg. l. non ideo minus. F. de proc. l. legata inutiliter. F. de lega. 1. And the reason is cleare; He is but the minister of God, a revenger to execute wrath upon him that doth evill. And if the Judgement be the Lords, Rom. 13.4.not mans, not the Kings, as it is indeed, Deut. 1.17. 2 Chron. 19.6. he cannot draw the sword against the innocent, nor absolve the guiltie, Prov. 17.15.except he would take on himselfe to carve and dispose of that which is proper to his master. Now certaine it is, God only, univocally and essentially, as God, is the Judge, Ps. 75.7. and God only and essentially King, Ps. 97.1. Ps. 99.1. and all men in relation to him, are meere ministers, servants, legates, deputies: and in relation to him equivocally and improperly, Iudges or Kings, and meere created and breathing shadowes of the power of the King of Kings. Kings, equivocally Kings.And looke as the Scribe, following his own device, and writing what sentence he pleaseth, is not an officer of the Court in that point, nor the pen and servant of the Iudge: so are Kings, and all Iudges, but forged intruders, and bastard Kings and Iudges, in so far as they give out the sentences of men, and are not the very mouthes of the King of Kings, to pronounce such a sentence as the Almighty himselfe would doe, if he were sitting on the Throne or Bench.
3. If the King from any supposed prerogative Royall, may doe acts of meere grace, without any warrant of Law, because he is above Law, by office: then also may he doe acts of meere rigorous Iustice, and kill and destroy the innocent, out of the same supposed Prerogative;The King may …s well do acts of m…er cruelty, from his suppos…d Prerogative, as acts of meer grace to one man, out of the same fountain. For Gods word equally tyeth him to the place of a meere minister in doing good, as in executing wrath on evill doers, Rom. 13.3, 4. And reason would say, he must be as absolute in the one, as in the other, seeing God tieth him to the one, as to the other, by his office and place: yea by this, acts of Iustice to ill-doers, and acts of reward to well-doers, shall be arbitrary morally, and by vertue of office to the King, and the word Prerogative Royall saith this; for the word Prerogative is a supreme power absolute, that is loosed from all Law, and so from all reason of Law, and depending on the Kings meer and naked pleasure and will; and the word Royall or Kingly, is an Epithete of office, and of a Iudge, a created and limited Iudge, and so it must tye this supposed Prerogative to Law, Reason, and to that which is debitum legale officii, and a legall duty of an office; and by this our masters the Royalists make God to frame a rationall creature, which they call a King, to frame acts of Royalty, good and lawfull, upon his own meer pleasure, and the super-dominion of his will, above a Law and Reason. And from this it is that deluded Counsellours, made King James (a man not of shallow understanding) and King Charls, to give pardons to such bloody murtherers, as James a Grant, and to go so far on, by this supposed Prerogative Royall, that King Charls in Parliament at Edinburgh, 1633. did command an high point of Religion, That Ministers should use in officiating in Gods service, such Habits and Garments as he pleaseth; that is, all the Attire and Habits of the idolatrous Masse-Priests, that the Romish Priests of Baal useth in the oadest point of idolatry (the adoring of Bread) that the earth has; and by this Prerogative, the King commanded the Service Book in Scotland, An. 1637. without or above Law and Reason.If Prerogative may ov…r-leap Law in one, why not in twenty▪ And I desire any man to satisfie me in this, If the Kings Prerogative Royall, may over-leap Law and Reason in two degrees, and if he may as King, by a Prerogative Royall, command the body of Popery in a Popish Book; If he may not by the same reason, over-leap Law and Reason by the elevation of twenty degrees; And if you make the King a Iulian (God avert, and give the spirit of revelation to our King) may he not command all the Alcaron, and the Religion of the Heathen and Indians? Royalists say, The Prerogative of Royalty excludeth not reason, and maketh not the King to do as a brute beast without all reason; but it giveth a power to a King to do by his Royall pleasure, not fettered to the dictates of a Law; for in things which the King doth by his Prerogative Royall, he is to follow the advice and counsell of his wise counsell, though their counsell and advice doth not binde the Royall will of the King. I answer, it is to me, and I am sure to many Learneder, a great question; If the will of any reasonable creature, even of the damned angels, can will, or chose any thing which their reason corrupted, as it is, doth not dictate, hic & nunc to be good. No Tyrant c…n do any the most cruell act, but under the notion of apprehended good.For the object of the will of all men is good, either truely, or apparently good to the doer; for the devill could not suite in marriage souls, except he war in the cloths of an Angel of light; sin as sin cannot sell, or obtrude it self upon any, but under the notion of good. I think it seemeth good to the great Turk, to command innocent men, to cast themselves over a precipie two hundreth fadom high in the Sea, and drown themselves to pleasure him: So the Turks reason (for he is rationall, if he be a man) dictateth to his vast pleasure, that that is good which he commandeth.
2. Counsellours to the King, who will speak what will please the Queen, are but naked empty Titles, for they speak que placent, non que prosunt; what may please the King whom they make glad with their lies, not what law and reason dictateth.
3. Absolutenesse of an unreasonable Prerogative, doth not deny Counsell and Law also; for none more absolute, de facto, I cannot say de jure then the Kings of Babylon, and Persia: for Daniel saith of one of them, Dan. 5.19. Whom he would, he slew, and whom he would, he kept alive, and whom he would, he set up, and whom he would, he put down; and yet these same Kings did nothing, but by advice of their Princes and Counsellors, yea, so as they could not alter a decree and law, as is clear, Ester 1.14, 15, 16, 17, 21. Yea Darius de facto an absolute Prince, was not able to deliver Daniel, because the Law was passed, that he should be cast into the Lions den, Dan. 6.14, 15, 16.
4. That which the spirit of God condemneth as a point of Tyranny in Nebuchadnezzar, that is no lawfull Prerogative Royall:Pretended Prerogative Royal of Royalists Tyranny Polanus in Daniel, c. 5.19. Rollocus, com. 16. ib. but the spirit of God condemneth this as Tyranny in Nebuchadnezzar, That he slew whom he would, he kept alive whom he would, he set up whom he would, he put down, this is too God-like, Deut. 32.39. So Polanus, Rollocus, on the place, say, he did these things, Vers. 19. Ex abusu legitimae potestatis; for Nebuchadnezzars will in matters of death and life, was his Law, and he did what pleased himself above all Law beside, and contrary to it: and our flatterers of Kings draw the Kings Prerogative out of Vlpians words, who saith, …hat is a Law which seemeth good to the Prince; but Vlpian was far from making the Princes will a rule of good and ill, for he saith the contrary, That the Law ruleth the just Prince.
The Sa…ches de matr. tom. 1. l. 2. dis. 15. n. 3. est arbitrii plenitudo, nulli ne…sitati subjecta, ruliius que public… juri… regalis limita …. Baldus, l. 2. n. 40. C. de servit. & aqua. Sueto…i. in Caligu. cap. 29. memento tibi omnia, & in omne… licere. Coelius Rodigi, l. 8. Lect. Antiq. c. 1.5. It is considerable here, that Sanches defineth the absolute power of Kings to be a plenitude and fulnesse of power, subject to no necessity, and bounded with rules of no publick Law, and so did Baldus before him: but all Politicians condemn that of Caligula (as Suetonius saith) which he spake to Alexander the Great, Remember that thou maist do all things, and that thou hast a power to do to al men, what thou pleasest: And Lawyers say, that this is Tyranny: Chilon one of the seven wise of Greece (as Rodigi) saith better, Princes are like gods, because they onelyonly can do that which is just. And this power being meerly Tyrannicall, can be no ground of a Royall Prerogative: There is another power (saith Sanches) absolute, by which a Prince dispenseth without a cause in a humane law; and this power, saith he, may be defended: but he saith, What the King doth by this absolute power, he doth it validè, but not jure by Law; but by valid acts the Iesuite must mean Royall Acts, but no acts void of Law and Reason (say we) can be Royall Acts; for Royall Acts are acts performed by a King, as a King, and by a Law, and so cannot be Acts above, or beside a Law. It is true, a King may dispence with the breach of an humane Law, as a humane Law, that is, If the Law be death to any, who goeth up on the Walls of the Citie, the King may pardon any, who going up, discovereth the enemies approach, and saveth the Citie. But, 1. The inferiour Iudge according to the foreign that benigne interpretation that the soul and intent of the Law requireth, may do this as well as the King. 2. All acts of independent Prerogative are above a Law, and acts of freewill having no cause or ground in the Law, otherwayes it is not founded upon absolute power, but on power ruled by Law and Reason: but to pardon a breach of the letter of the Law of man, by exponing it, according to the true intent of the Law and benignly, is an act of legall obligation, and so of the ordinary power of all Iudges; and if either King or Iudge kill a man for the violation of the Letter of the Law, when the intent of the Law contradicteth the rigid sentence,Vasquez, illust. quest. l. 1. c. 26. n. 2. he is guilty of innocent blood. If that learned Ferdin. Vasquez be consulted, he is against this distinction of a power ordinary and extraordinary in men; and certainly, if you give to a King a Prerogative above a Law, it is a power to do evill, as well as good; but there is no lawfull power to do evill, and Doct. Ferne is plunged in a contradiction by this, for he saith, Sect. 9. pag. 58.A contradiction in Ferne. I ask when these Emperours took away lives and goods at pleasure, Was that power ordained by God? No. But an illegall will and Tyranny: But, Pag. 61. The power though abused to execute such a (wicked) commandment, is an Ordinance of God.
It is objected 1. For the lawfulnesse of an absolute Monarchy. Treaties of Monarchicall Government. c. 2. pag. 6, 7.The Easterne, Persian, and Turkes Monarchy, maketh absolute Monarchy lawfull, for it is an Oath to a lawfull obligatory thing, and judgment, Ezech. 17.16, 18. is denounced against Iudah, for breaking the Oath of the King of Babylon, and it is called the Oath of God, and doubtlesse was an Oath of absolute subjection, and the power, Rom. 13. was absolute, and yet the Apostle calleth it an Ordinance of God. The soveraignty of Masters over servanes was absolute, and the Apostle exhorteth not to renounce that title as to ridged, but exhorteth to moderation in the use of it,
Ans. That the Persian Monarchy was absolute, is but a facto ad jus, and no rule of a lawfull Monarchy, but that it was absolute, I beleeve not. Darius who was an absolute Prince (as many think) but (I thinke not) would gladly have delivered Daniel from the power of a Law, and Dan. 6.14.The King of Persia not absolute. And he set his heart on Daniel to deliver him, and he laboured till the going downe of the Sun to deliver him, and was so sorrowfull, that he could not breake through a Law, that he interdicted himselfe of all pleasures of Musi…ians, and if ever he had used the absolutenesse of a Prerogative Royall, I conceive he would have done it in this, yet he could not prevaile: But in things not established by Law, I conceive Darius was absolute, as to me is cleare, Daniel 6. v. 24. but absolute not by a Divine Law, but, De facto, quod transierat in jus humanum, by fact, which was now become a lrw.
2. It was Gods Oath, and God tyed Iudah to absolute subjection, ergo people may tye themselves. It followeth not,The O…th of Iudah to the King of Babylon tyed them not to renounce naturall selfe preservation. exeept you could make good this inference, God is absolute, ergo the King of Babylon may lawfully be absolute; this is a blasphemous consequence. 2. That Iudah was to sweare the Oath of absolute subjection in the latitude of the absolutenesse of the Kings of Chaldea, I would see proved; their absolutenesse by the Chaldean Lawes was to command murther, Idolatry, Daniel 3.4, 5. and to make wicked Lawes, Dan. 6. v. 7, 8. I beleeve Ieremiah commanded not absolute subjection in this sence. But the contrary, Ier. 10. v. 11. They were to sweare the Oath in the point of suffering; but what if the King of Chaldea had commanded them all, the whole holy Seed, men, women and children▪ out of his Royall power, to give their neckes all in one day to his sword, were they obliged by this Oath to prayers and …eares, and only to suffer? and was it against the Oath of God to defend themselves by Armes? I beleeve the Oath did not oblige to such absolute subjection, and though they had taken Armes in their owne lawfull defence, according to the Law of Nature, they had not broken the Oath of God. The Oath was not a tye to an absolute subjection of all and every one, either to worship Idols, or then to sly, or suffer death. Now the Service-booke commanded in the Kings absolute authority all Scotland to commit grosser Idolatry, in the intention of the work, if not in the intention of the Commander, then was in Babylon. (We read not that the King of Babylon pressed the consciences of Gods people to Idolatry) or that all should either sly the Kingdome, and leave their inheritances to Papists and Prelates, or then come under the mercy of the sword of Papists and Atheists by sea or land. 3. God may command against the Law of Nature; and Gods Commandement maketh subjection lawfull; so as men may not now, being under the Law of God, defend themselves. What then? Ergo we owe subjection to absolute Princes, and their power must be a lawfull power, it no waies is consequent. Gods Commandement by Ieremiah made the subjection of Iudah lawfull, and without that Commandement they might have taken Armes against the King of Babylon, as they did against the Philistines, and Gods Commandement maketh the Oath lawfull. As suppone Ireland would all rise in Armes, and come and destroy Scotland, the King of Spain leading, then we were by this Argument not to resist. 4. It is denyed, that the power, Rom. 13. as absolute, is Gods ordinance. And I deny utterly that Christ and his Apostles did sweare non-resistence absolute to the Roman Emperour.
Obj. 2. It sesmeth, 1 Pet. 2.18, 19. if well doing be mistaken by the reason and judgement of an absolute Monarch for ill doing, and we punished, yet the Magistrates will is the command of a reasonable will, and so to be submitted unto, because such a one suffereth by Law, where the Monarches Will is a Law, and in this case some power must judge. Now in an absolute Monarchy all judgement resolveth in the Will of the Monarch, as the supreame Law: and if Ancestors have submitted themselves by Oath, there is no repeale, or redresment.
Ans. Who ever was the Author of this Treatise, he is a bad defender of the defensive warres in England, for all the lawfulnesse of warres then must depend on this. 1. Whether England be a conquered Nation at the beginning? 2. If the Law-will of an absolute Monarch, or a Nero be a reasonable Will, to which we must submit in suffering ill, I see not but we must submit to a reasonable will; if it be reasonable will in doing ill, no lesse then in suffering ill. 3. Absolute Will in absolute Monarches is no Iudge De jure, but an unlawfull and a usurping Iudge. 4. 1 Pet. 2.18, 19. Servants are not commanded simply to suffer (I can prove suffering formally not to fall under any Law of God, but only patient suffering. I except Christ, who was under a peculiar commandement to suffer.) But servants,Servants are not by 1 Pet. 2.18, 19. interdited of selfe-defence. upon supposition that they are servants, and buffeted unjustly by their Masters, are by the Apostle Peter commanded, v. 20. to suffer patiently. But it doth not bind up a servants hand, to defend his owne life with weapons, if his Master invade him, without cause to kill him: otherwise if God call him to suffer, he is to suffer in the manner and way as Christ did, not reviling, not threatning. 4. To be a King and an absolute Master, to me are contradictory; a King essentially is a living Law. An absolute man is a creature, that they call a Tyrant, and no lawfull King; yet doe I not meane, that any that is a King, and usurpeth absolutenesse, leaveth off to be a King: but in so far as he is absolute, he is no more a King, then in so far as he is a Tyrant. But further, the King of England saith in a Declaration.Declar. at New Market, Mar. 9. 1641. 1. The Law is the measure of the Kings Power. 2. Parliaments are essentially Lord Iudges to make Lawes essentially, as the King is, ergo the King is not above the Law. 3. Magna Charta saith the King, can doe nothing, Magna Charc… against an absolute Prince.but by Lawes, and no obedience is due to him, but by Law. 4. Prescription taketh away the title of conquests.
Obj 3. The King, not the Parliament is the Anoynted of God, Ans. The Parliament is as good, even a Congregation of Gods. Psalme 82.1.
Obj. 4. The Parliament is the Court, in their Acts, they say, How the King is Lord of the Parliamen….with consent of our Soveraigne Lord.
Ans. They say not, at the Commandement, and absolute pleasure of our Soveraigne Lord. 2. He is their Lord materially, not as they are formally a Parliament, for the King made them not a Parliament, but sure I am, the Parliament had power before he was King, and made him King, 1 Sam. 10.17, 18.
Monarch. Governa. part 2. c. 1. pag. 31.Obj. 5. In an absolute Monarchy there is not a resignation of men to any will as will, but to the reasonable will of the Monarch, which having the law of reason to direct it, is kept from injurious acts.
Ans. If reason be a sufficient restraint, and if God hath laid no other restraint upon some lawfull King, yee reason, Then is Magistracy a lame, a needlesse ordinance of God, for all Mankind hath reason to keepe themselves from injuries, and so there is no need of Iudges or Kings to defend them from either doing or suffering injuries. But certainly this must be admirable. If God as Author of nature should make the Lyon King of all beasts, the Lyon remaining a devouring beast, and should ordaine by nature all the sheepe and Lambs to come and submit their corps to him, by instinct of nature, and to be eaten at his will, and then say, The nature of a beast in a Lyon is a sufficient restraint to keepe the Lyon from devouring Lambs. Certainly a King being a sinfull man, and having no restraint on his power, but reason, he may thinke it reason to allow rebells to kill, drowne, hang, torture to death an hundred thousand Protestants, men, women, infants in the wombe, and sucking babes, as is clere in Pharaoh, Manasseh and other Princes.
Obj. 6. There is no Court or Iudge above the King, ergo he is absolutely supreame.
Ans. The Antecedent is false. The Court that made the King of a private man, a King, is above him; and here are limitations laid on him at his Coronation. 2. The States of Parliament are above him, to censure him. 3. In case of open Tyranny, though the States had not time to conveen in Parliament, if he bring on his people an hoast of Spaniards or forraine Rebells, his owne conscience is above him, and the conscience of the people farre more, called conscientia terrae, may judge him in so farre, as they may rise up and defend themselves.
Obj. 7. Here the Prelate borrowing from Grotius, Barclay, Arnisaus;Sac. sanc. Mai. c. 14. p. 144. (or its possible he be not so farre travelled) for Doct. Ferne hath the same. Soveraignty weakned in Aristocracy cannot doe its worke, and is in the next place to Anarchy and confusion. When Zedekiah was over Lorded by his Nobles, he could neither save himselfe, nor the people, nor the Prophet the servant of God Ieremiah; nor could David punish Ioab, when he was over-awed by that power he himselfe had put in his hand. To weaken the head, is to distemper the whole body, if any good Prince or his Royall Antecessors be cheated of their sacred right by fraud or force, he may at his fittest opportunity, resume it. What a sinne is it to rob God, or the King of their due?
Ans. Aristocracy is no lesse an ordinance of God, then Royalty, for Rom. 13.1. and 1 Tim. 2.1. All in Authority are to be acknowledged as Gods Vice-gerents, the Senate, the Consuls as well as the Emperour: And so one ordinance of God cannot weaken another, nor can any but by a lawlesse Animall say, Aristocracy bordereth with confusion; but he must say, Order and Light are sister Germanes to confusion and darknesse. 2, Though Zedekiah, a man voyd of God, were over-awed with his Nobles, and so could not help Ieremiah; it followeth not, that because Kings may not do this and this good, therefore they are to be invested with power to doe all ill: if they doe all the good that they have power to doe, they'l finde way to helpe the oppressed Jeremiahes: and because power to doe both good and evill is given by the Divell to our Scottish Witches, its a poore consequent, that the States should give to the King power absolute to be a Tyrant.Princes are not to be invested with power to all Tyranny, upon this pretence, that they cannot do good, except they have also absolute power to do evil. 3. A State must give a King more power then ordinary, especially to execute Laws, which requireth singular wisdom, when a Prince cannot alwayes have his great Councell about with him to advise him. But, 1. That is power borrowed, and by loan, and not properly his own; and therefore, it is no sacriledge in the States, to resume what the King hath by a fiduciary Title, and borrowed from them. 2. This power was given to do good, not evill. David had power over Joab, to punish him for his murther, but he executed it not upon carnall fears, and abused his power to kill innocent Vriah, which power neither God nor the States gave him. But how proveth he the States took power from David, or that Ioab took power from David, to put to death a murtherer, that I see not. 3. If Princes power to do good, be taken from them, they may resume it, when God giveth opportunity; But this is to the Prelate Perjury, that the people by Oath give away their power to their King, and resume it when he abuseth it to Tyranny: But it is no perjurie in the King to resume a taken away power, which if it be his own, is yet lis sub judice, a great controversie, Quod in Cajo licet, in Nevio non licet. So he teacheth the King, That Perjurie and Sacriledge is lawfull to him. If Princes power to do ill, and cut the whole Land off, as one neck (which was the wicked desire of Caligula) be taken from them by the States. I am sure, 1. This power was never theirs, and never the peoples, and you cannot take the Princes power from him, which was never his power. 2. I am also sure, the Prince should never resume an unjust power, though he were cheated of it.
P. Prelate. It is a poor shift to acknowledge no more for the Royall Prerogative, then the Municipall Law hath determined, as some smatterers in the Law say. They cannot distinguish betwixt a Statute Declarative, and a Statute Constitutive: but the Statutes of a Kingdom do declare onelyonly, what is the Prerogative Royall, but do not constitute or make it, God Almightie hath by himself constituted it: It is laughter to say, the Decalogue was not a Law, till God wrote it.
Answ. Here a profound Lawyer calleth all smatters in the Law, who cannot say, that non ens, a Prerogative Royall, that is, a power contrary to God and mans Law, to kill and destroy the innocent, came not immediately down from Heaven: but I professe my self no Lawyer, but do maintain against the Prelate, that no Municipall Law can constitute a power to do ill; nor can any Law, either justly constitute, or declare such a fancie as a Prerogative Royall; so far is it from being like the Decalogue, that is, a Law before it be written, that this Prerogative is neither Law, before it be written, nor after Court Placebo's have written for it: for it must be eternall as the Decalogue, if it have any blood from so noble a house. 2. In what Scripture hath God Almightie spoken of a fancied Prerogative Royall?
P. Prelate. Prerogative resteth not in its naturall seat, but in the King. Sac. Maj. pag. 145.God saith, Reddite, not, Date, render to Kings that which is Kings, not give to Kings; it shall never be well with us, if his annointed, and his Church be wronged.
Answ. The Prelate may remember a Countrey Proverb. He and his Prelates, called the Church, (the scum of men, not the Church) are like the Tinkers dogs, they like good company, they must be ranked with the King. And 2. Here a false Prophet, It shall never be well with the Land, while Arbitrary power, and Popery be erected, saith he, in good sense.
P. …elate. The King hath his right from God, and cannot make it away to the people. Render to Caesar, the things that are Caesars.Sacr. sanc. Maj. c. 16. p. 170, 171. Kings persons, their Charge, their Right, their Authority, their Prerogative are by Scriptures, Fathers, Iurists, Sacred, inseparable Ordinances inherent in their Crowns, they cannot be made away; and when they are given to inferiour Judges, it is not ad minuendam majestatem, sed solicitudinem, to lessen Soveraign Majesty, but to ease them.
Answ. The King hath his right from God: What then, not from the people? I read in Scripture, The people made the King; Never: That the King made the people. 2. All these are inseparably in the Crown, but he stealeth in Prerogative Royall in the clause which is now in question? Render to Caesar all Caesars: And therefore saith he, Render to him a Prerogative,A power to shed innocent blood, is no part of a true Prerogative. that is an absolute power to pardon and sell the blood of thousands. Is power of blood, either the Kings; or inherent inseparably in his Crown? Alas, I fear Prelates have made blood an inseparable accident of his Throne. 3. When Kings by that publike power given to them, at their Coronation, maketh inferiour Iudges, they give them power to judge for the Lord, not for men, Deut. 1.17. 2 Chron. 19.6. Now they cannot both make away a power, and keep it also; for the inferiour Iudges conscience hangeth not at the Kings girdle, he hath no lesse power to judge in his sphere, then the King hath in his sphere, though the Orb and circle of Motion be larger in compasse in the one, then in the other; and if the King cannot give himself Royall Power, but God and the people must do it, how can he communicate any part of that power to inferiour Judges, except by trust? Yea, he hath not that power that other men have in many respects.
1. He may not marry whom he pleaseth,The King because of the publikenesse of his office inferiour to subjects and other Iudges, in many priviledges. for he might give his body to a Leper woman, and so hurt the Kingdom.
2. He may not do, as Solomon and Achab, marry the daughter of a strange god, to make her the mother of the heir of the Crown. He must in this follow his great Senate. 2. He may not expose his person to hazard of Warres.
3. He may not go over Sea, and leave his Watch-Tower, without consent.
4. Many Acts of Parliament of both Kingdoms, discharge Papists to come within ten miles of the King.
5. Some pernicious Counsellours have been discharged … company, by Laws.
6. He may not eat what Meats he pleaseth.
7. He may not make Wasters his Treasurers.
8. Nor Delapidate the Rents of the Crown.
9. He may not dis-inherit his eldest son of the Crown, at his own pleasure.
10. He is sworn to follow no false gods, and false religions, nor is it in his power to go to Masse.
11. If a Priest say Masse to the King, by the Law, he is hanged drawn and quartered.
12. He may not write Letters to the Pope, by Law.
13. He may not by Law pardon seducing Priests and Iesuites.
14. He may not take Physick for his health, but from Physitians sworn to be true to him.
15. He may not educate his heir, as he pleaseth.
16. He hath not power of his children, nor hath he that power that other fathers have, to marry his eldest son, as he pleaseth.
17. He may not befriend a Traytor.
18. It is high Treason for any woman to give her body to the King, except she be his married wife.
19. He ought not to build sumptuous Houses, without advice of his Councell.
20. He may not dwell constantly where he pleaseth.
21. Nor may he go to the Countrey to Hunt; farlesse, to kill his subjects, and desert the Parliament.
22. He may not confer honours and high places without his Councell.
23. He may not deprive Iudges at his will.
24. Nor is it in his power to be buried where he pleaseth, but amongst the Kings.
Now in most of these twenty four points, private persons have their own liberty, far lesse restricted then the King.