they are kings. This our king denieth, when he saith, (art. 13,)" There is power legally placed in the parliament more than sufficient to prevent and restrain the power of tyranny." But if they had not power to play the lions, it is not much that kings are musicians, hunters, &c.

Arg. 7.-God, in making a king to preserve his people, should give liberty without all politic restrain, for one man to destroy many, which is contrary to God's end in the fifth commandment, if one have absolute power to destroy souls and bodies of many thousands.

Arg. 8.-If the kings of Israel and Judah were under censures and rebukes of the prophets, and sinned against God and the people in rejecting these rebukes, and in persecuting the prophets, and were under this law not to take their neighbour's wife, or his vineyard from him against his will; and the inferior judges were to accept the persons of none in judgment, small or great; and if the king yet remain a brother, notwithstanding he be a king, then is his power not above any law, nor absolute. For what reason?-1. He should be under one law of God to be executed by men, and not under another law? Royalists are to show a differrence from God's word. 2. His neighbours, brother, or subjects, may by violence keep back their vineyards, and chastity from the king. Naboth may by force keep his own vineyard from Achab. By the laws of Scotland, if a subject obtain a decree of the king, of violent possession of the heritages of a subject, he hath by law power to cast out, force, apprehend, and deliver to prison those who are tenants, brooking these lands by the king's personal commandment. If a king should force a damsel, she may violently resist, and by violence, and bodily opposing of violence to violence, defend her own chastity. Now, that the prophets have rebuked kings is evident: Samuel rebuked Saul, Nathan David, Elias king Achab; Jeremiah is commanded to prophecy against the kings of Judah, (Jer. i. 18,) and the prophets practised it. (Jer. xix. 3; xxi. 2; xxii. 13—15; Hos. v. 1.) Kings are guilty before God because they submitted not their royal power and greatness to the rebukes of the prophets, but persecuted them.

Deut. xvii. 20, The king on the throne remaineth a brother; Psal. xxii. 22, and so the judges or three estates are not to accept of the person of the king for his great

ness in judgment; Deut. i. 16, 17, and the judge is to give out such a sentence in judgment as the Lord, with whom there is no iniquity, would give out if the Lord himself were sitting in judgment; because the judge is in the very stead of God, as his lieutenant; (2 Chron. xix. 6, 7; Psal. lxxxii. 1, 2; Deut. i. 17;) and with God there is no respect of persons. (2 Chron. xix. 7; 1 Pet. i. 17; Acts x. 34.) I do not intend that any inferior judge sent by the king is to judge the king; but those who gave him the throne, and made him king, are truly above him, and to judge him without respect of persons, as God himself would judge if he were sitting on the bench.

God is the author of civil laws and government, and his intention is therein the external peace, and quiet life, and godliness of his church and people, and that all judges, according to their places, be nurse-fathers to the church. (Isa. xlix. 23.) Now God must have appointed sufficient means for this end; but there is no sufficient means at all, but a mere anarchy and confusion, if to one man an absolute and unlimited power be given of God, whereby, at his pleasure, he may obstruct the fountains of justice, and command lawyers and laws to speak not God's mind, that is justice, righteousness, safety, true religion, but the sole lust and pleasure of one man. And this one having absolute and irresistible influence on all the inferior instruments of justice, may, by this power, turn all into anarchy, and put the people in a worse condition than if there were no judge at all in the land. For that of politicians, that tyranny is better than anarchy, is to be taken cum grano salis; but I shall never believe that absolute power of one man, which is actu primo tyranny, is God's sufficient way of peaceable government. Therefore, Barclaius saith nothing for the contrary, when he saith, "The Athenians made Draco and Solon absolute law-givers, for, a facto ad jus non valet consequentia." What if a roving people, trusting Draco and Solon to be kings above mortal men, and to be gods, gave them power to make laws, written not with ink, but with blood, shall other kings have from God the like tyrannical and bloody power from that to make bloody laws? Chytreus (lib. 2) and Sleidan citeth it, (1.

2 Barclaius contra Monarch. lib. 2, p. 76, 77. Q

1;) Sueron, Sub pœna periurii non tenentur fidem sevare regi degeneri.

Arg. 9. He who is regulated by law, and sweareth to the three estates to be regulated by law, and accepteth the crown covenant-wise, and so as the estates would refuse to make him their king, if either he should refuse to swear, or if they did believe certainly that he would break his oath, hath no unlimited and absolute power from God or the people; for, fœdus conditionatum, aut promissio conditionalis mutua, facit jus alteri in alterum, a mutual conditional covenant giveth law and power over one to another. But, from that which hath been said, the king sweareth to the three estates to be regulated by law-he accepteth the crown upon the tenor of a mutual covenant, &c.; for if he should, as king, swear to be king, that is, one who hath absolute power above a law, and also to be regulated by a law, he should swear things contradictory, that is, that he should be their king, having absolute power over them, and according to that power to rule them; and he should swear not to be their king, and to rule them, not according to absolute power, but according to law. If, therefore, this absolute power be essential to a king, as a king, no king can lawfully take the oath to govern according to law, for then he should swear not to reign as king, and not be their king; for how could he be their king, wanting that which God hath made essential to a king as a king?

QUESTION XXIII.

WHETHER THE KING HATH ANY ROYAL PRERO GATIVE, 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 rea

son, which is unreasonable. 1. When God's word speaketh of the power of kings and judges, Deut. xvii. 15–17; i. 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. 2. 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 coronce, any power annexed to the crown; for this holdeth 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. 3. To dispute this question, whether such a prerogative agree to any king, as king, is to dispute whether God hath made all under a monarch slaves by their own consent; which is a 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 I will shall be the axletree on which all the wheels are turned. 4. That which is the garland and proper flower of the King of kings, as he is absolute above his creatures, and not tied to any law, without himself, that regulateth 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 idolatory. But to do royal acts out of an absolute power above law and reason, is such a power as agreeth 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 maketh the eating sin and contrary to reason; 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

but

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. 1. A dispensation of power is when the will of the law-giver maketh 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 hath a prerogative to dispense with a law, 2. There is a dispensation of law and justice not flowing from any prerogative, but from the true intent of the law; and thus the king, yea, the 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. 3. The third is not unlike unto the second, when the king exponeth the law by grace, and this is twofold: (1.) Either when he exponeth 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 saith, 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

1 In re dubia possunt dispensare principes, quia nullus sensus presumitur, qui vincat principalem, lib. 1, sect. initium ib.

in the king, ex mera gratia absolutœ potestatis regalis, out of mere grace of absolute royal power to pardon crimes which God's law saith 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 four 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 hath no power in point of conscience to dispense with blood, Num. xxxv, 31; Gen. ix. 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 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 clear: He is but the minister of God, a revenger to execute wrath upon him that doth evil. And if the judgment be the Lord's, not man's, not the king's, as it is indeed, (Deut. i. 17; 2 Chron. xix. 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. lxxv. 7,) and God only and essentially king, (Psal, xcvii. 1; xcix. 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 pleaseth, 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 tyeth him to the place of a mere minister in doing good, as in executing wrath on evil-doers, Rom. xiii. 3, 4. And reason would say, he

must be as absolute in the one as in the other, seeing God tyeth 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 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 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 counsellors 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 pleaseth, that is, all the attire and habits of the idolatrous mass-priests that the Romish priests of Baal useth 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 excludeth not reason, and maketh not the king to do as a brute beast, without all reason, but it giveth a power to a king to do by his royal pleasure, not fettered to the dictates of a law; for in things which the king doth by his prerogative royal he is to follow the advice and counsel of his wise council, though their counsel and advice doth 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, doth 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 seemeth 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) dictateth, to his vast pleasure, that that is good which he commandeth.

2. Counsellors 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. Absoluteness of an unreasonable prerogative doth 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 saith of one of them, (Dan. v. 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; (Esth. i. 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. vi. 14-16.)

4. That which the Spirit of God condemneth as a point of tyranny in Nebuchadnezzar, is no lawful prerogative royal; 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 whom he would. This is too God-like. (Deut. xxxii. 39.) So Polanus1 and Rollocus on the place say, he did these things, (ver 19,) Ex abusu legitimæ 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 saith, "That is a law which seemeth good to the prince" but Ulpian was far from making the prince's 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 Sanches3 defineth 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 Baldus before him. But all politicians condemn that of Caligula, (as Suetonius saith,5) 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,6) saith 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 (saith Sanches) absolute, by which a prince dispenseth without a cause in a human law; and this power, saith he, may be defended. But he saith, what the king doth by this absolute power he doth 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 goeth upon the walls of the city, the king may pardon any, who, going up, discovereth the enemies approach, and saveth the city. But, 1. The inferior judge according to the run that benign 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 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 contradicteth 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; 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 saith, (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 maketh absolute monarchy lawful, for it is an oath to a lawful obligatory thing; and judgment (Ezek. xvii. 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. xiii.) was absolute, and yet the apostle calleth it an ordinance of God. The so

1 Vasquez, illust. quest. lib. 1, c. 26, n. 2.