Treatise of Civil Policy, Treatise · Question 23
QUEST. XXIII. Whother the King hath any Royall prerogative, or a power to diſpence with Lawes? And ſome other-grounds againſt abſolute Monarchie.
A Prerogative Royall, I take two wayes: 1. Either to be an actPrerogative taken two wayes. 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 theNo Prerogative Royall in the Scripture. world: And becauſe Royaliſt… cannot give us any warrant, 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 theJus perſonae, jus corouae. man who is King; it cannot be 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 jure poteſt. The King, as King, can doe no more, then that which upon right and law he may doe.
3. To diſpute this queſtion, Whether ſuch a Prerogative agreeThe queſtion touching Prerogative Royall, vaine. 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 Prerogative Royall of Royaliſts, Gods due.Kings, as he is abſolute above his creatures, and not tyed to any law, 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; but there is no reaſon in the object:Acts founded upon the ſole… pleaſure of the Agent, proper to God. 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 is 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 PrerogativeA threefold diſpenſation. by way of 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.
2. There is a diſpenſation of law and juſtice, not flowing fromA diſpenſation, 1. of ſole pleaſure, 2. of juſtice, 3. of grace. 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 exponethA twofold exponing of the Law by grace. 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: aud this diſpenſation of grace I grant to the King; As when the tribute is great, and the man poor,In re dubia poſſunt diſpenſare Principes, quia nullus ſenſus preſumitur, qui vincat principalem, l. 1. Sect. initium ib. the King may diſpenſe with the cuſtome. 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, by debt and rightKings, as Kings, cannot doe things of meere grace, becauſe they muſt doe all ex debito officii, by neceſſitie of their office. 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 createdKings, equivocally Kings. and breathing ſhadowes of the power of the King of 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; For Gods word equally tyeth him to the place of aThe King may as well do acts of meer cruelty, from his ſuppoſed Prerogative, as acts of meer grace to one man, out of the ſame fountain. 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. And I deſire any man to ſatisfie me in this, If theIf Prerogative may over leap Law in one, why not in twenty▪ 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 … 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 No Tyrant can do any th… moſt cruell act, but under the notion of apprehended good.dictate, hic & nunc to be 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 TyrannyPretended Prerogative Royal of Royaliſts Tyranny Polanus in Daniel, c. 5. 19. Rollocus, com. 16. ib. in Nebuchadnezzar, that is no lawfull Prerogative Royall: 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 legitime 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 Pretogative out of Ʋlpians words, who ſaith, That is a Law which ſeemeth good to the Prince; but Ʋlpian 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.
5. It is conſiderable here, that Sanches defineth the abſoluteTh. Sanches de matr. tom. 1. l. 2. diſ. 15. n. 3. eſt arb…rii plenitudo, nulli neceſſitati ſubjecta, nulliuſ que publici juris regulis limita ta. Baldus, l. 2. n. 40. C. de ſervit. & aqua. Sue…oni. in Calign. cap. 29. memento tibi omnia, & in omnes licere. Coelius Rodigi, l. 8. Lect. Antiq. c. 1. 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, validly, 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 contradictethVaſquez, illuſt. queſt. l. 1. c. 26. n. 2. the rigid ſentence, 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. A contradiction in Ferne.9. pag. 58. 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)The King of Perſia not abſolute. but (I thinke not) would gladly have delivered Daniel from the power of a Law, and Dan. 6. 14. 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 Muſitians, 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,The Oath of Iudah to the King of Babylon tyed them notto renounce naturall ſelfe preſervation. ergo people may tye themſelves. It followeth not, except 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 teares, 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 fly, 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 fly 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 that 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. I… 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 peculiarServants are not by 1 Pet. 2. 18, 19. interdited of ſelfedefence. commandement to ſuffer.) But ſervants, 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. ButDeclar. at New Market, Mar. 9. 1641. further, the King of England ſaith in a Declaration. 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 Charca 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.How the King is Lord of the Parliament.
Obj. 4. The Parliament is the Court, in their Acts, they ſay, 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.
Obj. 5. In an abſolute Monarchy there is not a reſignation ofMonarch. Governa. part 2. c. 1. pag. 31. 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 Migiſtracy 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 Rèbells, 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,Sac. ſanc. Mai. c. 14. p. 144. Arniſaeus; (or its poſſible he be not ſo farre travelled) for Doct. Ferne hath the ſame. Soveraignty weakned in Ariſtocracy cannot do… 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. 3. A State muſt give a KingPrinces 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. 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 Ʋriah, 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 …th 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 Sae. Maj. pag. 145.King. 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. Prelate. The King hath his right from God, and cannot make itSacr. ſanc. Maj. c. 16. p. 170, 171. away to the people. Render to Caeſar, the things that are Caeſars. 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 caſe 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 thereforeA power to ſhed innocent blood, is no part of a true Prerogative. ſaith he, Render to him a 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, for he might give hisThe King becauſe of the publikeneſſe of his office inferiour to ſubjects and other Iudges, in many priviledges. 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 his 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.