Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether the King has Any Royal Prerogative, or a Power to Dispense with Laws; and Some Other Grounds Against Absolute Monarchy
A prerogative royal I take two ways: either to be an act of mere 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 royal of princes is the salt of absolute power; and it is a supreme and highest power of a king, as a king, to do above, without or contrary to a law or reason, which is unreasonable.
- 1st. When God’s word speaks of the power of kings and judges, Deut. 17:15-17; 1:15-17, and elsewhere there is not any footstep or any ground for such a power; and, therefore, (if we speak according to conscience,) there is no such thing in the world; and because royalists cannot give us any warrant, it is to be rejected.
- 2nd. A prerogative royal 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 ordinary limited power, and no prerogative above or beside law; yea, any power not grounded on a reason different from mere will or absolute pleasure is an irrational and brutish power; and, therefore, it may well be jus persona, the power of the man who is king; it cannot be jus coronae, any power annexed to the crown; for this holds true of all the actions of the king, as a king, illud potest rex, et illud tantum quod jure potest. The king, as king, can do no more than that which upon right and law he may do.
- 3rd. To dispute this question, whether such a prerogative agree to any king, as king, is to dispute whether God has made all under a monarch slaves by their own consent; which is a vain question. Those who hold such a prerogative, must say the king is so absolute and unlimited a god on earth, that either by law, or his sole pleasure beside law, he may regularly and rationally move all wheels in policy; and his uncontrolled will shall be the axletree on which all the wheels are turned.
- 4th. That which is the garland and proper flower of the King of kings, as he is absolute above his creatures, and not tied to any law, without himself, that regulates his will, that must be given to no mortal man or king, except we would communicate that which is God’s proper due to a sinful man, which must be idolatry. But to do royal acts out of an absolute power above law and reason, is such a power as agrees to God, as is evident in positive laws and in acts of God’s mere pleasure, where we see no reason without the Almighty for the one side rather than for the other, as God’s forbidding the eating of the tree of knowledge makes the eating sin and contrary to reason; but there is no reason in the object: for if God should command eating of that tree, not to eat should also be sin. So God’s 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 less a good and a wise act than the former. For when there is no law in the object but only God’s will, the act is good and wise, seeing infinite wisdom cannot be separated from the perfect will of God; but no act of a mortal king, having sole and only will, and neither law nor reason in it, can be a lawful, a wise, or a good act.
Assert. 2. — There is something which may be called a prerogative by way of dispensation. There is a threefold dispensation, — one of power, another of justice, and a third of grace.
- 1st. A dispensation of power is when the will of the law-giver makes that act to be no sin, which without that will would have been sin, — as if God’s commanding will had not intervened, the Israelites borrowing the ear-rings and jewels of the Egyptians, and not restoring them, had been a breach of the eighth commandment; and in this sense no king has a prerogative to dispense with a law.
- 2nd. 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 inferior judge, is not to take the life of a man whom the letter of the law would condemn, 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.
- 3rd. The third is not unlike unto the second, when the king expones the law by grace, and this is twofold:
- (1.) Either when he expones it of his wisdom and merciful 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 custom.1
(2.) The law says, in a doubtful case the prince may dispense, because it is presumed the law can have no sense against the principal sense and intent of the law.
But there is another dispensation that royalists do plead for, and that is, a power in the king, ex mera gratia absolutae potestatis regalis, out of mere grace of absolute royal power to pardon crimes which God’s law says should be punished by death. Now, this they call a power of grace; — but it is not a power of mere grace.
1. Though princes may do some things of grace, yet not of mere grace; because what kings do as kings, and by virtue of their royal office, that they do ex debito officii, by debt and right of their office; and that they cannot but do, it not being arbitrary to them to do the debtful acts of their office: but what they do of mere grace, that they do as good men, and not as kings, and that they may not do. As, for example, some kings, out of their pretended prerogative, have given tour pardons to one man for four murders. Now this the king might have left undone without sin, but of mere grace he pardoned the murderer who killed four men. But the truth is, the king killed the three last, because he has no power in point of conscience to dispense with blood, Num. 35:31; Gen. 9:6. These pardons are acts of mere grace to one man, but acts of blood to the community.
2. Because the prince is the minister of God for the good of the subject; and therefore the law says, “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 clear: He is but the minister of God, a revenger to execute wrath upon him that does evil. And if the judgment be the Lord’s, not man’s, not the king’s, as it is indeed, (Deut. 1:17; 2 Chron. 19:6,) he cannot draw the sword against the innocent, nor absolve the guilty, except he would take on himself to carve and dispose of that which is proper to his master. Now certain it is, God only, univocally and essentially as God, is the judge, (Psal. 75:7,) and God only and essentially king, (Psal. 97:1; 99:1,) and all men in relation to him are mere ministers, servants, legates, deputies; and in relation to him, equivocally and improperly, judges or kings, and mere created and breathing shadows of the power of the King of kings. And look, as the scribe following his own device, and writing what sentence he pleases, is not an officer of the court in that point, nor the pen and servant of the judge, so are kings and all judges but forged intruders and bastard kings and judges, in so far as they give out the sentences of men, and are not the very mouths of the King of kings to pronounce such a sentence as the Almighty himself would do, if he were sitting on the throne or bench.
3. If the king, from any supposed prerogative royal, may do acts of mere grace without any warrant of law, because he is above law by office, then also may he do acts of mere rigorous justice, and kill and destroy the innocent, out of the same supposed prerogative; for God’s word equally ties him to the place of a mere minister in doing good, as in executing wrath on evil-doers, Rom. 13:3-4. And reason would say, he must be as absolute in the one as in the other, seeing God ties him to the one as to the other, by his office and place; yea, by this, acts of justice to ill-doers, and acts of reward to well-doers, shall be arbitrary morally, and by virtue of office to the king, and the word prerogative royal says 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 king’s mere and naked pleasure and will; and the word royal or kingly is an epithet of office and of a judge, — a created and limited judge, and so it must tie this supposed prerogative to law, reason, and to that which is debitum legale officii and a legal duty of an office; and by this our masters, the royalists, make God to frame a rational creature, which they call a king, to frame acts of royalty, good and lawful, upon his own mere pleasure and the super-dominion of his will above a law and reason. And from this it is that deluded counselors made king James (a man not of shallow understanding) and king Charles to give pardons to such bloody murderers as James a Grant; and to go so far on, by this supposed prerogative royal, that king Charles in parliament at Edinburgh, 1633, did command an high point of religion: — that ministers should use, in officiating in God’s service, such habits and garments as he pleases, that is, all the attire and habits of the idolatrous mass-priests that the Romish priests of Baal uses in the oddest point of idolatry (the adoring of bread) that the earth has; and by this prerogative the king commanded the Service Book in Scotland, anno 1637, without or above law and reason.
And I desire any man to satisfy me in this, if the king’s prerogative royal may overleap law and reason in two degrees, and if he may as king, by a prerogative royal, 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 Julian, (God avert, and give the spirit of revelation to our king,) may he not command all the Alkoran and the religion of the heathen and Indians? Royalists say the prerogative of royalty excludes not reason, and makes not the king to do as a brute beast, without all reason, but it gives a power to a king to do by his royal pleasure, not fettered to the dictates of a law; for in things which the king does by his prerogative royal he is to follow the advice and counsel of his wise council, though their counsel and advice does not bind the royal will of the king.
Ans. 1. — I answer, it is to me, and I am sure to many more learned, a great question, — if the will of any reasonable creature, even of the damned angels, can will or choose anything which their reason, corrupted as it is, does not dictate hic et nunc to be good? For the object of the will of all men is good, either truly, or apparently good to the doer; for the devil could not suit in marriage souls except he war in the clothes of an angel of light; sin, as sin, cannot sell, or obtrude itself upon any, but under the notion of good. I think it seems good to the great Turk to command innocent men to cast themselves over a precipice two hundred fathoms high into the sea, and drown themselves to pleasure him; so the Turk’s reason (for he is rational, if he be a man) dictates, to his vast pleasure, that that is good which he commands.
2. counselors 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 dictates.
3. Absoluteness of an unreasonable prerogative does not deny counsel and law also, for none more absolute, de facto, I cannot say de jure, than the kings of Babylon and Persia; for Daniel says 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 counselors; yea, so as they could not alter a decree and law, as is clear; (Esth. 1:14-17, 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. 6:14-16.)
4. That which the Spirit of God condemns at a point of tyranny in Nebuchadnezzar, is no lawful prerogative royal; but the Spirit of God condemns 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 whom he would. This is too God-like. (Deut. 32:39.) So Polanus2 and Rollocus3 on the place say, he did these things, (ver 19,) Ex abusu legitimae potestatis; for Nebuchadnezzar’s 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 king’s prerogative out of Ulpian’s words, who says, “That is a law which seems good to the prince;” but Ulpian was far from making the prince’s will a rule of good and ill; for he says the contrary, “That the law rules the just prince.”
5. It is considerable here, that Sanches4 defines the absolute power of kings to be a plenitude and fulness of power, subject to no necessity, and bounded with rules of no public law; and so did Baldus5 before him. But all politicians condemn that of Caligula, (as Suetonius says,6) which he spake to Alexander the Great, “Remember that thou must do all things, and that thou hast a power to do to all men what thou pleasest.” And lawyers say, that this is tyranny. Chilon, one of the seven wise of Greece, (as Rodigi,7) says better, “Princes are like gods, because they only can do that which is just; and this power, being merely tyrannical, can be no ground of a royal prerogative. There is another power (says Sanches) absolute, by which a prince dispenses without a cause in a human law; and this power, says he, may be defended. But he says, what the king does by this absolute power he does it valide, validly, but not jure, by law; but by valid acts the Jesuit must mean royal acts. But no acts void of law and reason (say we) can be royal acts; for royal 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 dispense with the breach of a human law, as a human law, that is, if the law be death to any who goes upon the walls of the city, the king may pardon any, who, going up, discovers the enemies approach, and saves the city. But,
- 1st. The inferior judge according to the e9ptekeia that benign interpretation that the soul and intent of the law requires, may do this as well as the king.
- 2nd. All acts of independent prerogative are above a law, and acts of free will having no cause or ground in the law, otherwise 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 legal obligation, and so of the ordinary power of all judges; and if either king or judge kill a man for the violation of the letter of the law, when the intent of the law contradicts the rigid sentence, he is guilty of innocent blood. If that learned Ferdinandus Vasquez be consulted, he is against this distinction of a power ordinary and extraordinary in men;8 and certainly, if you give to a king a prerogative above a law, it is a power to do evil as well as good; but there is no lawful power to do evil; and Dr Ferne is plunged in a contradiction by this, for he says, (sect. 9, p. 58,) “I ask when these emperors took away lives and goods at pleasure? Was that power ordained by God? No; but an illegal will and tyranny; but (p. 61) the power, though abused to execute such a wicked commandment, is an ordinance of God.”
Obj. 1. — For the lawfulness of an absolute monarchy, — the Eastern, Persian, and Turkish monarchy makes absolute monarchy lawful, for it is an oath to a lawful obligatory thing; and judgment (Ezek. 17:16, 18) is denounced against Judah for breaking the oath of the king of Babylon, and it is called the oath of God, and doubtless was an oath of absolute subjection; and the power (Rom. 13) was absolute, and yet the apostle calls it an ordinance of God. The sovereignty of masters over servants was absolute, and the apostle exhorts not to renounce that title as too rigid, but exhorts to moderation in the use of it.
Ans. 1. — That the Persian monarchy was absolute is but a facto ad jus, and no rule of a lawful monarchy; but that it was absolute, I believe not. Darius, who was an absolute prince, as many think, but I think not, would gladly have delivered Daniel from the power of a law, (Dan. 6:14,) “And he set his heart on Daniel to deliver him, and he labored till the going down of the sun to deliver him,” and was so sorrowful that he could not break through a law, that he interdicted himself of all pleasures of musicians; and if ever he had used the absoluteness of a prerogative royal, I conceive he would have done it in this; yet he could not prevail. But in things not established by law I conceive Darius was absolute, as to me is clear, (Dan 6:24,) but absolute not by a divine law, but de facto, quod transierat in jus humanum, by fact, which was now become a law.
2. It was God’s oath, and God tied Judah to absolute subjection, therefore, people may tie themselves. It follows not, except you could make good this inference:
- 1st. God is absolute, therefore the king of Babylon may lawfully be absolute. This is a blasphemous consequence.
- 2nd. That Judah was to swear the oath of absolute subjection in the latitude of the absoluteness of the kings of Chaldea, I would see proved. Their absoluteness by the Chaldean laws was to command murder, idolatry, (Dan. 3:4-5,) and to make wicked laws. (Dan. 6:7-8.) I believe Jeremiah commanded not absolute subjection in this sense, but the contrary. (Jer. 10:11.) They were to swear 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 royal power, to give their necks all in one day to his sword, were they obliged by this oath to prayers and tears, and only to suffer? and was it against the oath of God to defend themselves by arms? I believe the oath did not oblige to such absolute subjection, and though they had taken arms in their own lawful defense, according to the law of nature, they had not broken the oath of God. The oath was not a tie to an absolute subjection of all and.every one, either to worship idols, or then to fly or suffer death.
Now, the Service Book commanded, in the king’s absolute authority, all Scotland to commit grosser idolatry, in the intention of the work, if not in the intention of the commander, than was in Babylon. We read not that the king of Babylon pressed the consciences of God’s people to idolatry, or that all should either fly the kingdom, 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 God’s commandment makes subjection lawful, so as men may not now, being under that law of God, defend themselves. What then? Therefore we owe subjection to absolute princes, and their power must be a lawful power, it nowise is consequent. God’s commandment by Jeremiah made the subjection of Judah lawful, and without that commandment they might have taken arms against the king of Babylon, as they did against the Philistines; and God’s commandment makes the oath lawful. As suppose Ireland would all rise in arms, and come and destroy Scotland, the king of Spain leading, then we were by this argument not to resist.
4. It is denied, that the power, (Rom. 13) as absolute, is God’s ordinance. And I deny utterly that Christ and his apostles did swear non-resistance absolute to the Roman emperor.
Obj. 2. — It seems, (1 Pet. 2:18, 19,) if well-doing be mistaken by the reason and judgment of an absolute monarch for ill-doing, and we punished, yet the magistrate’s will is the command of a reasonable will, and so to be submitted unto; because such a one suffers by law, where the monarch’s will is a law, and in this case some power must judge. Now in an absolute monarchy all judgment resolves in the will of the monarch, as the supreme law; and if ancestors have submitted themselves by oath, there is no repeal or redressment.
Ans. — Whoever was the author of this treatise he is a bad defender of the defensive wars in England, for all the lawfulness of wars 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 less than in suffering ill.
3. Absolute will in absolute monarchies is no judge de jure, but an unlawful and a usurping judge. (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 commandment to suffer.) But servants, upon supposition that they are servants, and buffeted unjustly by their masters, are, by the apostle Peter, commanded (ver. 20) to suffer patiently. But it does not bind up a servant’s hand to defend his own 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 threatening.
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 lawful king. Yet do I not mean that any that is a king, and usurps absoluteness, leaves off to be a king; but in so far as he is absolute he is no more a king than in so far as he is a tyrant. But further, the king of England says in a declaration,
- (1.) The law is the measure of the king’s power.
(2.) Parliaments are essentially lord-judges, to make laws essentially, as the king is, therefore, the king is not above the law.
(3.) Magna Charta, says the king, can do nothing but by laws, and no obedience is due to him but by law.
(4.) Prescriptions takes away the title of conquests:
Obj. 3. — The king, not the parliament, is the anointed of God.
Ans. — The parliament is as good, even a congregation of gods. (Ps. 82:6.)
Obj. 4. — The parliament in the court, in their acts, they say, with consent of our sovereign lord.
Ans. — They say not at the commandment and absolute pleasure of our sovereign lord. 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 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 has laid no other restraint upon some lawful king, then is magistracy a lame, a needless ordinance of God; for all mankind has reason to keep themselves from injuries, and so there is no need of judges 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 lion king of all beasts, the lion remaining a devouring beast, and should ordain by nature all the sheep and lambs to come and submit their bodies to him, by instinct of nature, and to be eaten at his will, and then say, the nature of a beast in a lion is a sufficient restraint to keep the lion from devouring lambs. Certainly, a king being a sinful man, and having no restraint on his power but reason, he may think it reason to allow rebels to kill, drown, hang, torture to death, an hundred thousand protestants, men, women, infants in the womb, and sucking babes, as is clear in Pharaoh, Manaseh, and other princes.
Obj. 6. — There is no court or judge above the king, therefore he is absolutely supreme.
Ans. — The antecedent is false. (1.) The court that made the king of a private man 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 convene in parliament, if he bring on his people an host of Spaniards or foreign rebels, his own conscience is above him, and the conscience of the people far more, called conscientia terra, may judge him in so far as they may rise up and defend themselves.
Obj. 7. — Here the Prelate, (c. 14, p. 144,) borrowing from Grotius, Barclay, Arnisaeus, (or it is possible he be not so far traveled, for Dr. Ferne has the same,) “Sovereignty weakened in aristocracy cannot do its work, and is in the next place to anarchy and confusion. When Zedekiah was overlorded by his nobles, he could neither save himself nor the people, nor the prophet, the servant of God, Jeremiah; nor could David punish Joab when he was overawed by that power he himself had put in his head. To weaken the hand is to distemper the whole body; if any good prince, or his royal ancestors, be cheated of their sacred right by fraud or force, he may, at his fittest opportunity, resume it. What a sin it is to rob God or the king of their due!”
Ans. — Aristocracy is no less an ordinance of God than royalty, for (Rom. 13:1, and 1 Tim. 2) —
1. All in authority are to be acknowledged as God’s vice-regents, the senate, the consuls, as well as the emperor; and so one ordinance of God cannot weaken another, nor can any but a lawless animal say, aristocracy borders with confusion; but he must say, order and light are sister-germans to confusion and darkness.
2. Though Zedekiah, a man void of God, was over-awed by his nobles, and so could not help Jeremiah, it follows not that because kings may not do this and this good, therefore they are to be invested with power to do all ill: if they do all the good that they have power to do, they will find way to help the oppressed Jeremiahs, And, because power to do both good and evil is given by the devil to our Scottish witches, it is a poor consequent that the states should give to the king power absolute to be a tyrant.
3. A state must give a king more power than ordinary, especially to execute laws, which requires singular wisdom, when a prince cannot always have his great council about with him to advise him.
- 1st. That is power borrowed, and by loan, and not properly his own; and therefore it is no sacrilege in the states to resume what the king has by a fiduciary title, and borrowed from them.
- 2nd. This power was given to do good, not evil. David had power over Joab to punish him for his murder, but he executed it not upon carnal fears, and abused his power to kill innocent Uriah, which power neither God nor the states gave him. But how proves ho the states took power from David, or that Joab took power from David to put to death a murderer? That I see not.
- 3rd. If princes’ power to do good be taken from them, they may resume it when God gives 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 abuses it to tyranny. But it is no perjury in the king to resume a taken-away power, which, if it be his own, is yet lis sub judice, a great controversy, Quod in Cajo licet, in Nevio non licet. So he teaches the king that perjury and sacrilege is lawful 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 this power was never theirs, and never the people’s; and you cannot take the prince’s power from him which was never his power. 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 royal prerogative than the municipal law has determined, as some smatterers in the law say. They cannot distinguish between a statute declarative and a statute constitutive; but the statutes of a kingdom do declare only what is the prerogative royal, but do not constitute or make it. God Almighty has by himself constituted it. It is laughter to say the decalogue was not a law till God wrote it.
Ans. — Here a profound lawyer calls all smatterers in the law, who cannot say that non ens, a prerogative royal, that is, a power contrary to God and man’s law to kill and destroy the innocent, came not immediately down from heaven. But I profess myself no lawyer; but do maintain against the Prelate that no municipal law can constitute a power to do ill, nor can any law either justly constitute or declare such a fancy as a prerogative royal. 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-hunters have written for it; for it must be eternal as the decalogue if it have any blood from so noble a house. In what scripture has God Almighty spoken of a fancied prerogative royal?
P. Prelate (p. 145). — Prerogative rests not in its natural seat, but in the king. God says, Reddite, not Date, render to kings that which is kings, not give to kings; it shall never be well with us if his anointed and his church be wronged.
Ans. — The Prelate may remember a country proverb: he and his prelates (called the church, — the scum of men, not the church,) are like the tinker’s dogs, — they like good company — they must be ranked with the king. And hear a false prophet: It shall never be well with the land while arbitrary power and popery be erected, says he, in good sense.
P. Prelate (c. 16, p. 170, 171). — The king has his right from God, and cannot make it away to the people. Render to Caesar the things that are Caesar’s. Kings’ persons, their charge, their right, their authority, their prerogative, are by Scriptures, fathers, jurists, sacred, inseparable ordinances inherent in their crowns, — they cannot be made away: and when they are given to inferior judges, it is not ad minuendam majestatem, sed solicitudinem, to lessen sovereign majesty, but to ease them.
Ans. — The king has 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. All these are inseparably in the crown, but he steals in prerogative royal, in the clause which is now in question, “Render to Caesar all Caesar’s;” and therefore, says 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 the king’s, or inherent inseparably in his crown? Alas! I fear prelates have made blood an inseparable accident of his throne. When kings, by that public power given to them at their coronation, makes inferior judges, 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 inferior judge’s conscience hangs not at the king’s girdle. He has no less power to judge in his sphere than the king has in his sphere, though the orb and circle of motion be larger in compass in the one than in the other; and if the king cannot give himself royal power, but God and the people must do it, how can he communicate any. part of that power to inferior judges except by trust? Yea, he has not that power that other men have in many respects:
- — 1. He may not marry whom he pleases; for he might give his body to a leper woman, and so hurt the kingdom.
— 2. He may not do as Solomon and Ahab, 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. He may not expose his person to hazard of wars.
— 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 counselors have been discharged his company by laws.
— 6. He may not eat what meats he pleases.
— 7. He may not make wasters his treasurers.
— 8. Nor dilapidate the rents of the crown.
— 9. He may not disinherit 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 mass.
— 11. If a priest say mass 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 Jesuits.
— 14. He may not take physic for his health but from physicians, sworn to be true to him.
— 15. He may not educate his heir as he pleases.
— 16. He has not power of his children, nor has he that power that I other fathers have, to marry his eldest son as he pleases.
— 17. He may not befriend a traitor.
— 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 council.
— 20. He may not dwell constantly where he pleases.
— 21. Nor may he go to the country to hunt, far less to kill his subjects and desert the parliament.
— 22. He may not confer honors and high places without his council.
— 23. He may not deprive judges at his will.
— 24. Nor is it in his power to be buried where he pleases, but amongst the kings.
Now, in most of these twenty-four points, private persons have their own liberty far less restricted than the king.
1. In re dubia possunt dispensare principes, quia nullus sensus presumitur, qui vincat principatem, lib. l., sect. initium ib.
2. Polanus in Daniel, e. 5, 19.
3. Rollocus, com. 16, ib.
4. Th. Sanches de matr. tom. 1, lib. 2, dis. 15, n. 3, est arbitrii plenitudo, nulli necessitati subjecta, nulliusq.; publici juris regulis limitata.
5. Baldus, lib. 2, n. 40, C. de servit. et aqua.
6. Suetoni. in Caligu. cap. 29, memento ubi omnia, et in omnes licere.
7. Caelina Rodigi, lib. 8, Lect. Antiq. c. l.
8. Vasqez, illust. quest. lib. 1, c. 26, n. 2.