Treatise of Civil Policy, Treatise · Question 39
QUEST. XXXIX. Whether or no any Prerogative at all above the law be due to the King? or if jura Majeſtatis be any ſuch Prerogative Royall?
I Conceive Kings are conceived to have a threefold ſupreme power.A threefold ſupreame power. 1. Strictly abſolute, to do what they pleaſe, their will being ſimply a law; this is Tyranicall, ſome Kings have it, de facto, ex conſuetudine, but by a divine law none have it; I doubt if any have it by a human poſitive law, except the great Turk, and the King of Spaine over his conqueſt without the borders of Europe, and ſome few other conquerours. There is another 2. power limited to Gods law, the due proper right of Kings, Deut. 17. 18. 19. 20. There is 3. a poteſt as intermedia, a middle power, not ſo vaſt as that which is abſolute and tyrannicall, which yet is ſome way humane: this I take Iuriſts call jus regium, lex regia, jura Regalia regis, CiceroWhat be jura regalia or jura majeſtatis. jura Majeſtatis, Livius, jura imperii, and theſe Royall priviledges are ſuch common and high dignities, as no one particular magiſtrate can have, ſeeing they are common to all the kingdom, as that Ceſar only ſhould coyne money in his own name. Hence the penny given to Chriſt, becauſe it had Ceſars image and ſuperſcription. Math. 22. 20, 21. Infer by way of argumentation, foreign, &c. give therefore tribute to Ceſar, as his due, ſo the Magazine and Armory for the ſafety of the Kingdom is in the Kings hand, the King hath the like of theſe priviledges, becauſe he is the common, ſupreame, publick officer and Miniſter of God for the good of the whole Kingdom, and amongſt theſe Royall priviledges, I reckon that power that is given to the King, when he is made King, to do many things without warrant of the letter of the law, without the expreſſe conſent of his counſell, which he cannot alwayes carry about with him, as the law ſaith. The King ſhall not raiſe armes without conſent of the Parliament, but if an army of Iriſh, or Danes, or Spanyards ſhould ſuddenly land in Scotland, he hath power without a formally conveened Parliament, to command them all to riſe in armes againſt theſe invaders, and defend themſelves, this power no inferiour Magiſtrate hath as he is, but ſuch a Magiſtrate. And in many ſuch exigences, when the neceſſity of juſtice or grace requireth an extemporall expoſition of Lawes, Prorenat…, for preſent neceſſary execution, ſome ſay onelyonly the Emperour, others all Kings have theſe priviledges. I am of the minde of Arniſaeus, that theſe priviledges are not rewardsArniſaeus de … 6. ma…. …. 1. … 3. pag. 15…. 158. given to Princes for their great paines. For the King is not obliged to governe the Common-wealth, becauſe he receiveth theſe Royall Priviledges as his reward, but becauſe by office he is obliged to governe the common-wealth, therefore theſe priviledges are given to him, and without them he could not ſo eaſily governe. But I am utterly againſt Arniſaeus, who ſaith, theſe are not eſſentiall to a King, Becauſe (ſaith he) he createth Marqueſſes, Dukes, &c. and Nobles, conſtituteth Magiſtrates, not becauſe of His Royall Dignity, but by reaſon of his abſolute power, for many Princes have ſupreame power, and cannot make Nobles, and therefore to him they are jura majeſtatis, non jura poteſtatis. But 1. The King, ſuppoſe a limited King, may and ought to make nobles, for he may conferre honours as a reward ofKings con…r honours, as rewards of vertue as they puniſh ildoers, not becauſe they are abſolute, but according to law. vertue; none can ſay Pharoah by his abſolute authority, and not as a King advanced Ioſeph to be a noble Ruler, we cannot ſay that, for there was merit and worth in him deſerving that honour, and Darius not by abſolute authority, but on the ground of well-deſerving (the rule by which Kings are obliged in juſtice to confer honours) promoted Daniel, to be the firſt preſident of all his kingdomes, becauſe Dan. 6. 3. An excellent ſpirit was in him: and in Juſtice the King could nobilitate none, rather then Daniel, except he ſhould fail againſt the rule of conferring honours. It is acknowledged by all, that honos eſt proemium virtutis, honour is founded upon vertue, and therefore Darius did not this out of his abſolute Majeſty, but as King.
2. All Kings as Kings, and by a Divine Law of God, and ſo by no abſoluteneſſe of Majeſty, are to make men of wiſdome, fearing God, hating covetouſneſſe, Judges under them, Deut. 1. 13. 2 Chro. 19. 6, 7. Pſal. 101. 6, 7, 8.
3. If we ſuppoſe a King to be limited as Gods King is Deut. 17. 18, 19, 20. Yet is it his part to confer honours upon the worthieſt. Now if he have no abſoluteneſſe of Majeſty, he cannot confer honours out of a principle that is none at all, unum quodque ſicut eſt, ita operatur, and if the people confer honours, then muſt Royaliſts grant that there is an abſolute Majeſty in the people, why then may they not derive Majeſty to a King? and why then do Royaliſts talk to us of Gods immediate creating of Kings, without any interveening action of the people?
4. By this abſolutneſſe of Majeſty, Kings may play the Tyrant as Samuel 1 Sam. 8. 9, 10, 11, 12, 13, 14. foretelleth Saul would do. But I cannot beleeve that Kngs have the ſame very officiall abſolute power, from whence they do both acts of grace, goodneſſe and juſtice, ſuch as are to expone Laws extemporally in extraordinary caſes, to confer honours upon good and excellent men of grace to pardon offenders upon good grounds, and alſo-doe acts of extreme Tyrannie: For out of the ſame fountaine doth not proceed both ſweet water and bitter. Then by this abſoluteneſſe, Kings cannot doe acts of goodneſſe, juſtice and grace, and ſo they muſt doe good as Kings, and they muſt doe acts of tyrannie, as men, not from abſoluteneſſe of majeſty.
5. Inferiour Magiſtrates, in whom there is no abſoluteneſſe of Majeſty, according to Royaliſts, way, may expound laws alſo extemporally, and doe acts of juſtice, without formalities of civill or municipall laws, ſo they keep the genuine intent of the Law, as they may pardon one that goeth up to the wall of a City, and diſcovereth the approach of the enemie, when the watchmen are ſleeping, though the Law be, That any aſcending to the wall of the Citie ſhall die. Alſo the inferiour Judge may make Judges and Deputies under himſelfe.
6. This Diſtinction is neither grounded upon Reaſon or Lawes, nor on any Word of God. Not the former, as is proved before, for there is no abſolute power in a King to do above, or againſt law; all the officiall power that a King hath, is a Royall power to do good, for the ſafety and good of his ſubjects, and that according to law and reaſon, and there is no other power given to a King as a King, and for Scripture Arniſaeus, ibid. alledgeth 1 Sam. 8. The manner or law of the King. ver. 9. 11. And he ſaith, it cannot be the cuſtome and manner of the King, but muſt be the law of abſolute Majeſty. 1. Becauſe it was the manner of inferiour judges, as Tyberius ſaid of his judges, to flea the people, when they were commanded to ſhear them onelyonly. 2. Samuels ſons who wreſted judgment and perverted the law, had this manner and cuſtome to oppreſſe the people, as did the ſons of Eli: and therefore without reaſon is it called the law of Kings, jus regum, if it was the law of the judges, for if all this law be Tyrannicall and but an abuſe The law of the King 1 Sam 8. 9. 11.of Kingly power, the ſame law may agree to all other Magiſtrates, who by the ſame unjuſt power may abuſe their power, but Samuel (as Brentius obſerveth homi. 27. in 1 Sam. in princ.) doth meane here a greater licenſe then Kings can challenge, if at any time they would make uſe of their plenitude of abſolute power, and therefore, nomine juris, by the word [law] here he underſtandeth a power granted by law, jure, or right to the King, but pernitious to the people, which Gregory calleth jus regium Tyrannorum, the Royall law of Tyrants.—So Seneca 1 de clem. c. 11. hoc intereſt inter regem & Tyrannum, Species ipſa fortunae ac licentiae par eſt, niſi quod Tyranni ex volutate ſaeviunt, Reges non niſi ex cauſa & neceſſitate? quid ergo? non Reges quoque accidere ſolent? ſed quoties fieri publica utilitas perſuadet, Tirannis ſaevitia cordi eſt. A Tyran (ſaith Arniſaeus) in this differeth from a King, Qui ne ea quidem vult, quae ſibi licent, that a King will not do theſe things which are lawfull; a Tyran doth quae libet, what he pleaſeth to do.
Anſw. Arniſaeus bewrayeth his ignorance in the Scriptures, for the word foreign ſignifieth a cuſtome, and a wicked cuſtome, as byforeign A Farther conſideration of the place 1. Sam. 8. 9. 11. many Scriptures I have proved already, his reaſon are poor. It is the manner of inferiour judges, as we ſee in the ſons of Eli, and Samuel, to pervert judgment, as well as King Saul did, but the King may more oppreſſe, and his Tyranny hath more colour, and is more catholick then the oppreſſion of inferiour judges, it is not Samuels purpoſe thus to diſtinguiſh the judges of Iſrael and the kings, in that the judges had no power granted them of God to oppreſſe, becauſe the people might judge their judges and reſiſt them, and there was power given of God to the king, ſo far to play the Tyrant, that no man could reſiſt him, or ſay, what doſt thou? the text will not beare any ſuch difference, for it was as unlawfull to reſiſt Moſes, Ioſhua, Samuel, as Royaliſts prove from the judgement of God that came upon Core, Dathan and Abiram, as to reſiſt King Saul and King David, Royaliſts doubt not to make Moſes a King. It was alſo no leſſe ſin to reſiſt Samuels ſons, or to do violence to their perſons, as judging for the Lord, and ſent by the ſupreme judge their father Samuel, then it was ſin to reſiſt many inferiour Judges that were Lyons, and even Wolves under the Kings of Iſrael and Iudah, ſo they judged for the Lord, and as ſent by the Supreme Magiſtrate; But the difference was in this, that judges were extraordinarily raiſed up of God out of any tribe, as he pleaſed, and were beleevers, Heb. 11. 32. Saved by faith, and ſo uſed not their power to oppreſſe the people, though inferiour judges, as the ſons of Eli and of Samuel perverted judgment,Difference of Kings and Judges. and therefore in the time of the judges, God who gave them ſaviours and judges, was their King, but Kings were tied to a certaine tribe, eſpecially the line of David to the Kingdom of Iudah.
2. They were hereditary, judges not ſo.
3. They were made and choſen by the people, Deut. 17. 14. 15. 1 Sam. 10. 17, 18, 19, 20. 2 Sam. 5. 1, 2, 3. as were the Kings of the nations, and the firſt King (though a King be the lawfull ordinance of God) was ſought from God in a ſinfull imitation of the nations, 1 Sam. 8. 19, 20. and therefore were not of Gods peculiar election, as the judges, and ſo they were wicked men, and many of them, yea all for the moſt part, did evil in the ſight of the Lord, and their law, foreign their manner and cuſtome was to oppreſſe the people, and ſo were their inferiour judges little Tyrants, and leſſer Lyons, Leopards, evening Wolves. Ezech. 22. 27. Mic. 3. 1, 2, 3. Eſa. 3. 14, 15. And the Kings and inferiour judges are onelyonly diſtinguiſhed, de facto, that the King was a more Catholick oppreſſour, and the old Lyon, and ſo had more art and power to catch the prey then the inferiour judges who were but whelps, and had leſſe power, but all were oppreſſors (ſome few excepted, and Samuel ſpeaketh of that which Saul was to be, de facto, not de jure, and the moſt part of the Kings after him) and this Tyranny is well called jus regis, the manner of the King, and not the manner of the judges, becauſe it had not been the practice, cuſtome and foreign of the beleeving judges, before Sauls Reigne, and while God was his peoples King, 1 Sam. 8. 7. to oppreſſe. 3. We grant that all other inferiour judges after the people caſt off Gods government, and in imitation of the nations, would have a King, were alſo leſſer Tyrants, as the King was a greater Tyrant, and that was a puniſhment of their rejecting God and Samuel to be their King and judge. 4. How ſhall Arniſaeus prove that this manner or foreign of the King was poteſtas conceſſa, a power granted, I hope, granted of God; and not an abuſe of Kingly power, for then he and Royaliſts muſt ſay, that all the acts of Tyranny aſcribed to King Saul, 1 Sam. 8. 11, 12, 13, 14. by reaſon of which they did cry out, and complaine to God becauſe of their oppreſſion, was no abuſe of power given to Saul. Ergo, it was an uſe and a lawfull uſe of power given of God to their King, for there is no medium or mids betwixt a lawfull power used in morall acts, and a lawfull power abuſed, and indeed Arniſaeus ſo diſtinguiſheth a King and a Tyrant, that he maketh them all one in nature and ſpece. He ſaith, a Tyrant doth quod licet, that which by Law he may do, and a King doth not theſe things, quae licent, which by Law he may do, but ſo to me it is clear, a Tyrant acting as a Tyrant, muſt act according to this foreign law of the King, and that which is lawfull, and a King acting as a King and not doing theſe things that are lawfull, muſt ſin againſt his office, and the power that God hath given to him, which were to commend and praiſe the Tyrant, and to condemne and diſpraiſe the King. 3. If this Law of the King be a permiſſive Law of God, which the king may out of his abſolute eneſſe, put inexecution to oppreſſ… the people, ſuch as the law of a bill of divorcement, as Arniſaeus, Barcklay, and other Royaliſts ſay, then muſt God have given a Law to every King to play the Tyrant, becauſe of the hardneſſe ofThe law or manner of the King 1 Sam. 8. 9. no permiſſive law of God as was the law of a bill of divorcement. the Kings heart, but we would gladly ſee ſome word of God for this. The Law of a bill of Divorcement is a meere poſitive Law permitted in a particular exigent, when a husband out of levity of heart and affection cannot love his wife, therefore God by a Law permitted him out of indulgence to put her away, that both he might have a ſeed (the want whereof, becauſe of the bleſſed ſeed, to be borne of woman, was a reproach in Iſrael) and though this was an affliction to ſome particular women, yet the intent of the Law, and the ſoul thereof was a publique benefit to the Common-wealth of Iſrael, of which ſort of Lawes I judge the hard uſage permitted by God to his people, in the Maſter toward the ſervant, and the people of God toward the ſtranger of whom they might ex…ct uſury, not toward their brethren to be; But that God ſhould make a permiſſive Law that Ieroboam might preſſe all Iſrael to …i…ne and worſhip the Golden Calves, and that a King by Law may kill, as a bloody Nero, all the people of God, by a Divine permiſſive Law, hath no warrant in Gods word: Judge reader, if Royaliſts make God to confer a benefit on a land, when he giveth them a King, if by a Law of God, ſuch as the Law for a bill of Divorcement, the King may kill and devour as a lawfull abſolute Lion, ſix kingdoms of nations that profeſſe Chriſt and beleeve in his name. For if the King have a divine law to kill an innocent Ionathan, ſo as it be unlawfull to reſiſt him, he may by that ſame law turne bloodier then either Nero, Iulian, or any that ever ſucked the paps of a Liones, or of any of whom it may be ſaid,
Quaeque dedit nutrix ubera, Tigris erat.
and he ſhall be given as a plague of God, ex conditione doni, to the people, and the people, inaſmuch as they are gifted of God with a King, to feed them in a peaceable and godly life, muſt be made ſlaves; now it wanteth reaſon that God will have a permiſſive Law of murthering the Church of Chriſt, a Law ſo contrary to the publique good and intrinſecall intention of a King, and to the immutable and eternall law of Nature, that one man becauſe of his power, may by Gods permiſſive Law murther millions of innocents: Some may ſay, It is againſt the duty of love, that by Nature and Gods Law the husband owes to the wife, Epheſ. 5. 25. that the husband ſhould put away his wife; for God hateth putting away, and yet God made a Law, that a husband might give his wife a bill of divorce, and ſo put her away; and by the ſame reaſon, God may make a Law, though againſt nature, that a King ſhould kill and murther, without all reſiſtance.
Anſw. The queſtion is not if God may make permiſſive Laws to oppreſſe the innocent; I grant he may doe it, as he may command Abraham to kill his ſon Iſaac; and Abraham by Law is obliged to kill him, except God retract his Commandement, and whether God retract it, or no, he may intend to kill his ſon, which is an act of love and obedience to God; but this were more then a permiſſive Law. 2. We have a cleere Scripture for a permiſſive Law of divorce,God cannot make a permiſſive law tending to the deſtruction of a whole national Church and Kingdome▪ and it was not a Law tending to the univerſall deſtruction of a whole Kingdome, or many Kingdomes, but onelyonly to the grievance of ſome particular wives: but the Law of divorce gave not power to all husbands to put away their wives, but onelyonly to the husband, who could not command his affection to love his wife. But this law of the King, is a Catholique law to all Kings, (for Royaliſts will have all Kings ſo abſolute, as it is ſin and diſobedience to God to reſiſt any) that all Kings have a divine law to kill all their ſubjects; ſurely, then it were better for the Church to want ſuch nurſe-fathers, as have abſolute power to ſuck their blood: and for ſuch a perpetuall permiſſive Law continuing to the end of the world, there is no word of God. Nor can we think that the hardneſſe of one Princes heart, can be a ground for God to make a Law ſo deſtructive to his Church and all mankinde: ſuch a permiſſive Law, being a poſitive Law of God, muſt have a word of Chriſt for it, elſe we are not to receive it. 2. Arniſaeus cap. 4. diſtru. Tyran. & princ. n. 16. thinketh a Tyrant, in excercito, becomming a notorious Tyrant, when there is no other remedy may be removed from government, ſine magno ſcelere, without great ſin. But I aske how men can annull any divine Law of God, though but a permiſſive Law. For if Gods permiſſive Law warrant a Tyrant to kill two innocent men, it is tyranny more or leſſe, and the Law diſtinguiſheth not. 3. This permiſſive Law is expreſſely contrary to Gods Law, limiting all Kings Deut. 17. 16, 17, 18. How then are we to beleeve, that God would make an univerſall Law contray to the Law that he eſtabliſhed before Iſrael had a King? 4. What Brentius ſaith is much for us, for he calleth this foreign Law a licence, and ſo to uſe it muſt be licentiouſneſſe. 5. Arniſaeus deſireth that Kings may uſe ſparingly the plenitude of their power, for publique good; there muſt be (ſaith he) neceſſity to make it lawfull to uſe the plenitude of this power juſtly; therefore Ahab ſinned, in that he unjuſtly poſſeſſed Naboths vineyard, though he ſinned ſpecially in this, that he came to the poſſeſſion by murther, and it was peculiar to the Iewes, that they could not transfer their poſſeſſions from one tribe to another. But if it be ſo, then this power of abſoluteneſſe is not given, by permiſſive Law, by which God permitted putting away of wives, for the object of a permiſſive Law is ſinne, but this plenitude of power may be juſtly put forth in act (ſaith he) if the publique good may be regarded: I would know what publique good can legittimate Tyranny and killing of the innocent, the intentions of men can make nothing intrinſecally evil to become good. And 6. How can that be a permiſſive Law of God, and not his approveing Law by which Kings create inferiour judges? for this is done by Gods approving will. 7. It is evident that Arniſaeus his minde is, that Kings may take their ſubjects vineyards, and their goods, ſo they erre not in the manner, and way of the act, ſo be like, if there had not been a peculiar Law that Naboth ſhould not ſell his vineyard, and if the King had had any publique uſe for it, he might have taken Naboths vineyard from him, but he ſpecially ſinned (ſaith he) in eo maxime culpatur, &c. that he took away the mans vineyard by murthering of him, therefore ſaith Arniſaeus c. 1. de poteſt. maj. in bona privato. 2. that by the Kings Law 1 Sam. 8. There is given to the King, a dominion over the peoples ſons, daughters, fields, vineyards, olive-yards, ſervants and …lockes. So he citeth that that Daniel putteth all places, the Rocks of the Mountaines, the birds of the heaven Dan. 2. under the Kings power. So all is the Kings in dominion, and the ſubjects in uſe onelyonly.
But 1. This law of the King then can be no ground for the Kings abſoluteneſſe above Law, and there can be no permiſſive Law of God here, for that which aſſerteth the Kings Royall Dominion over perſons and things, that muſt be the Law of Gods approving, not his permiting evil, but this is ſuch a Law as Arniſaeus ſaith.
2. The text ſpeaketh of no Law or lawful power, or of any abſoluteneſſe of King Saul; but of his wicked cuſtome, and his rapine and Tyranny, He will take your ſons, your daughters, your fields, and your vineyards from you. Saul took not theſe through any power of dominion by Law, but by meere Tyranny.
3. I have before cleared that the ſubjects have a propriety, and an uſe alſo, elſe how could we be obliged by vertue of the fift commandement to pay tribute to the King, Rom. 13. 7. for that which we pay, was as much the Kings before we payed, as when we have paied it.
4. Arniſaeus ſaith all are the Kings in reſpect of the univerſall juriſdiction, that the King hath in governing and ordering all to the univerſall end, the good of the Common-wealth, for as univerſall nature careth for the conſervation of the ſpece and kind, ſo doth particular nature care for the conſervation of individuals, ſo do men care for their private good, and the King is to refer every mans private goods, to the good of the publick, but the truth is, this taketh not away propriety of goods from private men, retaining onelyonly the uſe to private men, and giving the dominion to the King, becauſe this power that the King bath of mens goods, is not power of dominion, that the King hath over the goods of men, as if the King were Dominus, Lord and owner of the fields and monyes of the private ſubject, but it is a power to regulate the goods for a publique uſe, and ſuppoſeth the abuſe of goods, when they are Monopolized to, and for private ends. 2. The power that the King hath over my bread isWhat dominion the King hath over the goods of the ſubject. not a power of dominion, ſo as he may eat my bread, as if it were his own bread, and he be Lord of my bread as I was ſometimes my ſelf, before I abuſed it, but it is a dominion unproperly, and abuſively ſo called, and is a meere fiduciary, and diſpenſatory power, becauſe he is ſet over my bread not to eat it, nor over my houſes to dwel in them, but onelyonly with a miniſteriall power as a publique, though a honourable ſervant and watchman appointed by the community, as a mean for an end to regulate my bread, houſes, moneys, fields for the good of the publique. Dominion is defined a faculty to uſe a thing as you pleaſe, except you be hindered by force, or by Law. Iuſtin. tit. c. de legibus in l. digna vox. &c. So have I a dominion over my own garments, houſe, money, to uſe them for uſes not forbidden by the Law of God, and man, but I may not lay my corne field waſt that it ſhall neither bear graſſ… nor corne, the King may hinder that, becauſe it is a hurt to the publique: but the King as Lord and Soveraigne hath no ſuch dominion over Naboths vi…eyard. How the King is lord of all goods, ratione juriſdictionis, & tuitionis ſe. Anton. de paudrill. in l. Altius. n. 5. c. de ſervit. Hottom. illuſt. queſt. q. 1. ad fin. Conc. 2. Lod. Molin. de juſt. & jur. diſ. 25. Soto. de juſtitia & jur. l. 4. q. 4. art. 1.