the mediation of the people; yea, suppose (which is false) that it were given immediately of God, yet it is not a thing for which the king should raise war against his subjects; for God will ask no more of the king than he giveth to him. The Lord reapeth not where he soweth not. If the militia, and other things, be ordered hitherto for the holding off Irish and Spanish invasion by sea, and so for the good of the land, seeing the king in his own person cannot make use of the militia, he is to rejoice that his subjects are defended. The king cannot answer to God for the justice of war on his part. It is not a case of conscience that the king should shed blood for, to wit, because the under-officers are such men, and not others of his choosing, seeing the kingdom is defended sufficiently except where cavaliers destroy it. And to me this is an unanswerable argument, that the cavaliers destroy not the kingdoms for this prerogative royal, as the principal ground, but for a deeper design, even for that which was working by prelates and malignants before the late troubles in both kingdoms.

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4. The king is to intend the safety of his people, and the safety of the king as a governor; but not as this king, and this man Charles, that is a selfish end. A king David is not to look to that; for when the people was seeking his life and crown, he saith, Psal. iii. 8,) Thy blessing upon thy people." He may care for, and intend that the king and government be safe; for if the kingdom be destroyed, there cannot be a new kingdom and church on earth again to serve God in that generation, (Psal. lxxxix. 47,) but they may easily have a new king again; and so the safety of the one cannot in reason be intended as a collateral end with the safety of the other; for there is no imaginable comparison betwixt one man, with all his accidents of prerogative and absoluteness, and three national churches and kindgoms. Better the king weep for a childish trifle of a prerogative than that popery be erected, and three kingdoms be destroyed by cavaliers for their own ends.

5. The dictator's power is, 1. A fact, and proveth not a point of conscience. 2. His power was in an exigence of extreme danger of the commonwealth. The P. Prelate pleadeth for a constant absoluteness above laws to the king at all times, and that jure divino. 3. The dictator was the people's creature; therefore the creator,

the people, had that sovereignty over him. 4. The dictator was not above a king; but the Romans ejected kings. 5. The dictator's power was not to destroy a state he might be, and was resisted; he might be deposed.

P. Prelate (p. 177).-The safety of the people is pretended as a law, that the Jews must put Christ to death, and that Saul spared Agag.

Ans. 1.-No shadow for either in the word of God. Caiaphas prophecied, and knew not what he said; but that the Jews intended the salvation of the elect, in killing Christ, or that Saul intended a public good in sparing Agag, shall be the Prelate's divinity, not mine. 2. What, howbeit many should abuse this law of the people's safety, to wrong good kings, it ceaseth not therefore to be a law, and licenceth not ill kings to place a tyrannical prerogative above a just dictate of nature.

In the last chapter (c. 16) the Prelate hath no reasons, only he would have kings holy, and this he proveth from Apocrypha books, because he is ebb in Holy Scripture; but it is Romish holiness, as is clear,-1. He must preach something to himself, that the king adore a tree-altar. Thus kings must be most reverend in their gestures (p. 182). 2. The king must hazard his sacred life and three kingdoms, his crown, royal posterity, to preserve sacred things, that is, antichristian Romish idols, images, altars, ceremonies, idolatry, popery. 4. He must, upon the same pain, maintain sacred persons, that is, greasy apostate prelates. The rest, I am weary to trouble the reader withall, but know ex ungue leonem.

QUESTION XXVI.

WHETHER THE KING BE ABOVE THE LAW OR NO.

We may consider the question of the law's supremacy over the king, either in the supremacy of constitution of the king, or of direction, or of limitation, or of co-action and punishing. Those who maintain this, "The king is not subject to the law," if their meaning be, "The king as king is not subject to the law's direction," they say nothing; for the king, as the king, is a living law; then they say, they say, "The law is not subject to the

law's direction:" a very improper speech; or, the king, as king, is not subject to the coaction of the law: that is true; for he who is a living law, as such, cannot punish himself, as the law saith.

Assert. 1.-The law hath a supremacy of constitution above the king :

1. Because the king by nature is not king, as is proved; therefore, he must be king by a politic constitution and law; and so the law, in that consideration, is above the king, because it is from a civil law that there is a king rather than any other kind of governor. 2. It is by law, that amongst many hundred men, this man is king, not that man; and because, by the which a thing is constituted, by the same thing it is, or may be dissolved; therefore, 3. As a community, finding such and such qualifications as the law requireth to be in a king, in this man, not in that man, therefore upon lawground they make him a king, and, upon law-grounds and just demerit, they may unmake him again; for what men voluntary do upon condition, the condition being removed, they may undo again.

Assert. 2.-It is denied by none but the king is under the directive power of the law, though many liberate the king from the coactive power of a civil law. But I see not what direction a civil law can give to the king if he be above all obedience, or disobedience, to a law, seeing all law-direction is in ordine ad obedientiam, in order to obey, except thus far, that the light that is in the civil law is a moral or natural guide to conduct a king in his walking; but this is the morality of the law which enlighteneth and informeth, not any obligation that aweth the king; and so the king is under God's and nature's law. This is nothing to the purpose.

Assert. 3.-The king is under the law, in regard of some coercive limitation; because, 1. There is no absolute power given to him to do what he listeth, as a man. And because, 2. God, in making Saul a king, doth not by any royal stamp give him a power to sin, or to play the tyrant; for which cause I expone these of the law, omnia sunt possibilia regi, imperator omnia potest. Baldus in sect. F. de no. for. fidel. in F. et in prima constitut. C. col. 2. Chassanæus in catalog. gloriæ mundi. par. 5. considerat. 24. et tanta est ejus celsitudo, ut non posset ei imponi lex in regno suo. Curt. in consol. 65. col. 6. ad. F. Petrus Rebuff. Notab. 3. repet. 1. unica. C. de sentent. quæ pro eo

quod n. 17, p. 363. All these go no otherwise but thus, The king can do all things which by a law he can do, and that holdeth him, id possumus quod jure possumus; and, therefore, the king cannot be above the covenant and law made betwixt him and his people at his coronation-oath; for then the covenant and oath should bind him only by a natural obligation, as he is a man, not by a civil or politic obligation, as he is a king. So then, 1. It were sufficient that the king should swear that oath in his cabinet-chamber, and it is but a mocking of an oath that he swear it to the people. 2. That oath given by the representative-kingdom should also oblige the subjects naturally, in foro Dei, not politically, in foro humano, upon the same reason. 3. He may be resisted as a man.

Assert. 4.-The fourth case is, if the king be under the obliging politic co-action of civil laws, for that he, in foro Dei, be under the morality of civil laws, so as he cannot contravene any law in that notion but he must sin against God, is granted on all hands. (Deut. xvii. 20; Josh. i. 8; 1 Sam. xii. 15.) That the king bind himself to the same law that he doth bind others, is decent, and obligeth the king as he is a man; because, 1. (Matt. vii. 12,) It is said to be the law and the prophets," All things whatsoever ye would men should do unto you, do ye even so to them." 2. It is the law, imperator l. 4. digna vox. C. de lege et tit. Quod quisque juris in alium statuit, eodem et ipse utatur. Julius Cæsar commanded the youth who had deflowered the emperor's daughter to be scourged above that which the law allowed. The youth said to the emperor, Dixisti legem Caesar," You appointed the law, Cæsar." The emperor was so offended with himself that he had failed against the law, that for the whole day he refused to taste meat.1

Assert. 5.-The king cannot but be subject to the co-active power of fundamental laws. Because, 1. This is a fundamental law that the free estates lay upon the king, that all the power that they give to the king, as king, is for the good and safety of the people; and so what he doth to the hurt of his subjects, he doth it not as king. 2. The law saith, Qui habet potestatem constituendi etiam et jus adimendi, l. nemo. 37. l. 21. de reg. jure. Those who have power to make have power to unmake kings. 3. Whatever the king doth as king, that he

1 Plutarch in Apotheg. lib. 4.

doth by a power borrowed from (or by a fiduciary power which is his by trust) the estates, who made him king. He must then be nothing but an eminent servant of the state, in the punishing of others. If, therefore, he be unpunishable, it is not so much because his royal power is above all law co-action, as because one and the same man cannot be both the punisher and the punished; and this is a physical incongruity rather than a moral absurdity. So the law of God layeth a duty on the inferior magistrate to use the sword against the murderer, and that by virtue of his office; but I much doubt, if for that he is to use the sword against himself in the case of murder, for this is a truth I purpose to make good, That suffering, as suffering, according to the substance and essence of passion, is not commanded by any law of God or nature to the sufferer, but only the manner of suffering. I doubt if it be not, by the law of nature, lawful even to the ill-doer, who hath deserved death by God's law, to fly from the sword of the lawful magistrate; only the manner of suffering with patience is commanded of God. I know the law saith here, That the magistrate is both judge and the executor of the sentence against himself, in his own cause, for the excellency of his office.1 Therefore these are to be distinguished, whether the king, ratione demeriti et jure, by law be punishable, or if the king can actually be punished corporally by a law of man, he remaining king; and since he must be a punisher himself, and that by virtue of his office. In matters of goods, the king may be both judge and punisher of himself, as our law provideth that any subject may plead his own heritage from the king before the inferior judges, and if the king be a violent possessor, and in mala fide for many years, by law he is obliged, upon a decree of the lords, to execute the sentence against himself, ex officio, and to restore the lands, and repay the damage to the just owner; and this the king is to do against himself, ex officio. I grant here the king, as king, punisheth himself as an unjust man, but because bodily suffering is mere violence to nature, I doubt if the king, ex officio, is to do or inflict any bodily punishment on himself. Nemo potest a scipso cogi. l. ille a quo, sect. 13.

1 Magistratus ipse est judex et executor contra scipsum, in propria causa, propter excellentiam sui officii, 1. si pater familias, et 1. et hoc. Tiberius Cæsar, F. de Hered. hoc. just.

Assert. 6.-There be some laws made in favour of the king, as king, as to pay tribute. The king must be above this law as king. True, but if a nobleman of a great rent be elected king, I know not if he can be free from paying to himself, as king, tribute, seeing this is not allowed to the king by a divine law, (Rom. xiii. 6,) as a reward of his work; and Christ expressly maketh tribute a thing due to Cæsar as a king. (Matt. xxii. 21.) There be some solemnities of the law from which the king may be free; Prickman (D. c. 3, n. 78) relateth what they are; they are not laws, but some circumstances belonging to laws, and he answereth to many places alleged out of the lawyers, to prove the king to be above the law. Malderus (in 12. Art. 4, 5, 9, 96,) will have the prince under that law, which concerneth all the commonwealth equally in regard of the matter, and that by the law of nature; but he will not have him subject to these laws which concerneth the subjects as subjects, as to pay tribute. He citeth Francisc. a Vict. Covarruvias, and Turrecremata. He also will have the prince under positive laws, such as not to transport victuals; not because the law bindeth him as a law, but because the making of the law bindeth him, tanquam conditio sine qua non, even as he who teacheth another that he should not steal, he should not steal himself." (Rom. ii.) But the truth is, this is but a branch of the law of nature, that I should not commit adultery, and theft, and sacrilege, and such sins as nature condemneth, if I shall condemn them in others, and doth not prove that the king is under the co-active power of civil laws. Ulpianus (1. 31. F. de regibus) saith, "The prince is loosed from laws." Bodine (de Repub. 1. 7, c. 8).-" Nemo imperat sibi," no man commandeth himself. Tholosanus saith, (de Rep. 1. 7, c. 20,)" Ipsius est dare, non accipere leges," the prince giveth laws, but receiveth none. Donellus (Lib. 1, Comment. c. 17) distinguisheth betwixt a law and a royal law proper to the king. Trentlerus (vol. i. 79, 80) saith, "The prince is freed from laws;" and that he obeyeth laws, de honestate, non de necessitate, upon honesty, not of necessity. Thomas P. (1. q. 96, art. 6,) and with him Soto Gregorius de Valentia, and other schoolmen, subject the king to the directive power of the law, and liberate him of the co-active power of the law.

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Assert. 7.-If a king turn a parricide, a lion, and a waster and destroyer of the

people, as a man he is subject to the co-active power of the laws of the land. If any law should hinder that a tyrant should not be punished by law, it must be because he hath not a superior but God, for royalists build all upon this; but this ground is false:

Arg. 1.-Because the estates of the kingdom, who gave him the crown, are above him, and they may take away what they gave him; as the law of nature and God saith, If they had known he would turn tyrant, they would never have given him the sword; and so, how much ignorance is in the contract they made with the king, as little of will is in it; and so it is not every way willing, but, being conditional, is supposed to be against their will. They gave the power to him only for their good, and that they may make the king, is clear. (2 Chron. xxiii. 11; 1 Sam. x. 17, 24; Deut. xvii. 14-17; 2 Kings xi. 12; 1 Kings xvi. 21; 2 Kings x. 5; Judg. ix. 6.) Fourscore valiant men of the priests withstood Uzziah with corporal violence, and thrust him out, and cut him off from the house of the Lord. (2 Chron. xxvi. 18.)

Arg. 2.-If the prince's place do not put him above the laws of church discipline, (Matt. xviii., for Christ excepteth none, and how can men except?) and if the rod of Christ's" lips smite the earth, and slay the wicked," (Isa. xi. 4,) and the prophets Elias, Nathan, Jeremiah, Isaiah, &c., and John Baptist, Jesus Christ, and his Apostles, have used this rod of censure and rebuke, as servants under God, against kings, this is a sort of spiritual co-action of laws put in execution by men; and by due proportion corporal coaction being the same ordinance of God, though of another nature, must have the like power over all, whom the law of God hath not excepted; but God's law excepteth none at all.

Arg. 3.-It is presumed that God hath not provided better for the safety of the part than of the whole, especially when he maketh the part a mean for the safety of the whole. But if God have provided that the king, who is a part of the commonwealth, shall be free of all punishment, though he be a habitual destroyer of the whole kingdom, seeing God hath given him to be a father, tutor, saviour, defender thereof, and destined him as a mean for their safety, then must God have worse, not better, provided for the safety of the whole than of the part. The proposition is clear, in that God (Rom. xiii. 4; 1 Tim. ii.

2) hath ordained the ruler, and given to him the sword to defend the whole kingdom and city; but we read nowhere that the Lord hath given the sword to the whole kingdom, to defend one man, a king, though a ruler, going on in a tyrannical way of destroying all his subjects. The assumption is evident: for then the king, turning tyrant, might set an army of Turks, Jews, or cruel Papists to destroy the church of God, without all fear of law or punishment. Yea, this is contrary to the doctrine of royalists: for Winzetus (adversus Buchananum, p. 275) saith of Nero, that he, seeking to destroy the senate and people of Rome, and seeking to make new laws for himself, excidit jure regni, lost right to the kingdom. And Barclaius (Monarch. 1. 3, c. ult. p. 213,) saith, a tyrant, such as Caligula, spoliare se jure regni, spoileth himself of the right to the crown. And in that same place, regem, si regnum suum alienæ ditioni manciparit, regno cadere, if the king sell his kingdom, he loseth the title to the crown. Grotius, (de jure belli et pacis, l. i. c. 4, n. 7,) Si rex hostili animo in totius populi exitium feratur, amittit regnum, if he turn enemy to the kingdom, for their destruction, he loseth his kingdom, because (saith he) voluntas imperandi, et voluntas perdendi, simul consistere non possunt, a will or mind to govern and to destroy cannot consist together in one. Now, if this be true, that a king, turning tyrant, loseth title to the crown, this is either a falling from his royal title only in God's court, or it is a losing of it before men, and in the court of his subjects. If the former be said, 1. He is no king, having before God lost his royal title; and yet the people is to obey him as "the minister of God," and a power from God, when as he is no such thing. 2. In vain do these authors provide remedies to save the people from a tyrannous waster of the people, if they speak of a tyrant who is no king in God's court only, and yet remaineth a king to the people in regard of the law for the places speak of remedies that God hath vided against tyrants cum titulo, such as are lawful kings, but turn tyrants. Now by this they provide no remedy at all, if only in God's court, and not in man's court also, a tyrant lose his title. As for tyrants sine titulo, such as usurp the throne, and have no just claim to it, Barclaius (adver. Monarch, l. iv. c. 10. p. 268) saith," Any private man may kill him as a public enemy

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of the state:" but if he lose his title to the crown in the court of men, then is there a court on earth to judge the king, and so he is under the co-active power of a law;then a king may be resisted, and yet those who resist him do not incur damnation; the contrary whereof royalists endeavour to prove from Rom. xiii.;-then the people may unking one who was a king. But I would know who taketh that from him, whereby he is a king, that beam of divine majesty? Not the people; because royalists say, they neither can give nor take away royal dignity, and so they cannot unking him.

Arg. 4.-The more will be in the consent, (saith Ferd. Vasquez, 1. i. c. 41,) the obligation is the stricter. So doubled words (saith the law, 1. 1, sect. 13, n. 13) oblige more strictly. And all laws of kings, who are rational fathers, and so lead us by laws, as by rational means to peace and external happiness, are contracts of king and people. Omnis lex sponsio et contractus Reip. sect. 1, Inst. de ver. relig. Now the king, at his coronation-covenant with the people, giveth a most intense consent, an oath, to be a keeper and preserver of all good laws: and so hardly he can be freed from the strictest obligation that law can impose. And if he keep laws by office, he is a mean to preserve laws; and no mean can be superior and above the end, but inferior thereunto.

Arg. 5.-Bodine proveth, (de Rep. 1. 2, c. 5, p. 221,) that emperors at first were but princes of the commonwealth, and that Sovereignty remained still in the senate and people. Marius Salomonius, a learned Roman civilian, wrote six books de principatu, to refute the supremacy of emperors above the state. Ferd. Vasq. (illust. quest. part. 1. l. 1, n. 21) proveth, that the prince, by royal dignity, leaveth not off to be a citizen, a member of the politic body, and not a king, but a keeper of laws.

Arg. 6.-Hence, the prince remaineth, even being a prince, a social creature, a man as well as a king; one who must buy, sell, promise, contract, dispose: therefore, he is not regula regulans, but under rule of law; for it is impossible, if the king can, in a political way, live as a member of a society, and do and perform acts of policy, and so perform them, as he may, by his office, buy and not pay; promise, and vow, and swear to men, and not perform, nor be obliged to men to render a reckoning of his oath, and kill and destroy, and yet in curia politicæ

societatis, in the court of human policy, be free: and that he may give inheritances, as just rewards of virtue and well-doing, and take them away again. Yea, seeing these sins that are not punishable before men, are not sins before men, if all the sins and oppressions of a prince be so above the punishment that men can inflict, they are not sins before men; by which means the king is loosed from all guiltiness of the sins against the second table: for the ratio formalis, the formal reason, why the judge, by warrant from God, condemneth, in the court of men, the guilty man, is, that he hath sinned against human society through the scandal of blasphemy, or that through some other heinous sin he hath defiled the land. Now this is incident to the king as well as to some other sinful man.

To these, and the like, hear what the excommunicated Prelate hath to say, (c. 15, p. 146, 147,) "They say (he meaneth the Jesuits) every society of men is a perfect republic, and so must have within itself a power to preserve itself from ruin, and by that to punish a tyrant." He answereth, "A society without a head, is a disorderly rout, not a politic body; and so cannot have this power.

Ans. 1.-The Pope giveth to every society politic power to make away a tyrant, or heretical king, and to unking him, by his brethren, the Jesuits', way. And observe how papists (of which number I could easily prove the P. Prelate to be, by the popish doctrine that he delivered, while the iniquity of time, and dominion of prelates in Scotland, advanced him, against all worth of true learning and holiness, to be a preacher in Edinburgh) and Jesuits agree, as the builders of Babylon. It is the purpose of God to destroy Babylon.

2. This answer shall infer, that the aristocratical governors of any free state, and that the Duke of Venice, and the senate there, is above all law, and cannot be resisted, because without their heads they are a disorderly rout.

3. A political society, as by nature's instinct they may appoint a head, or heads, to themselves, so also if their head, or heads, become ravenous wolves, the God of nature hath not left a perfect society remediless; but they may both resist, and punish the head, or heads, to whom they gave all the power that they have, for their good, not for their destruction.

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