QUEST. XXII. Whether the power of the King as King be absolute, or dependent and limited by Gods first mould and paterne of a King? (3) to QUEST. XXIII. Whether the King hath any Royall prerogative, or a power to dispence with Lawes? And some other grounds against absolute Monarchie. (1)

QUEST. XXII. Whether the power of the King as King be absolute, or dependent and limited by Gods first mould and paterne of a King? (3)

3. God is the Author of Civill Lawes and Government, and his intention is therein the externall peace and quiet life, and godlinesse of his Church and people, and that all Iudges according to their places be Nurse-fathers to the Church, Esay 49.23. Now God must have appointed sufficient meanes for this end; but there is no sufficient meanes at all, but a meere Anarchy and confusion, if to one man an absolute and unlimited power be given of God, whereby at his pleasure he may obstruct the fountaines of Iustice, and command Lawyers and Lawes to speake not Gods mind, that is Iustice, righteousnesse, safety, true Religion, but the sole lust and pleasure of one man. And 2. this one having absolute and irresistible influence on all the inferiour Instruments of Iustice, may by this power turne all into Anarchy, and put the people in a worse condition, then if there were no Iudge at all in the Land. For that of Polititians, that Tyranny is better then Anarchy, is to be taken Cum grano salis; but I shall never beleeve, that absolute power of one man, which is actu primo. Tyranny is Gods 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 mortall men, and to be gods, gave them power to make Lawes written, not with Inke, but with blood: Shall other Kings have from God the like Tyrannicall and bloody power from that, to make bloody Lawes? Chytreus, Lib. 2. and Sleidan citeth it. l. 1. Sueton. Sub paena periurii non tenentur fidensevare regi degeneri.

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 sweare, or if they did beleeve certainly that he would breake his oath; he hath no illimited and absolute power from God or the People: for, faedus conditionatum, aut promissio conditionalis mutua, facit jus alteri in alterum: A mutuall conditionall 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 Crowne upon the tenor of a mutuall covenant, &c. for if he should, as King, sweare to be King, that is, one who hath absolute power above a Law; and also to be regulated by a Law: he should sweare things contradictorie, that is, that he should be their King, having absolute power over them, and according to that power to rule them: and he should sweare, not to be their King, and to rule them, not according to absolute power, but according to Law. If therefore this absolute power be essentiall to a King, as a King; no King can lawfully take the oath to governe according to Law: for then he should sweare not to reigne as King, and not be their King; For how could he be their King, wanting that which God hath made essentiall to a King, as a King?

QUEST. XXIII. Whether the King hath any Royall prerogative, or a power to dispence with Lawes? And some other grounds against absolute Monarchie. (1)

A Prerogative Royall, I take two wayes: 1. Either to be an act of meere will and pleasure, above, or beside Reason or Law: Or, an act of dispensation, beside, or against the letter of the Law.

Assert. 1. That which Royalists call the Prerogative Royall of Princes, is the salt of Absolute Power; and it is a supreme and highest power of a King, as a King, to doe above, without, or contrary to a Law, or Reason: which is unreasonable.

1. When Gods word speaketh of the power of Kings and Iudges, Deut. 17.15, 16, 17. Deut. 1.15, 16, 17. and elsewhere, there is not any footstep, or ground for such a power: and therefore (if

we speake according to conscience) there is no such thing in the world: And because Royalists cannot give us any warrant, it is to be rejected.

2. A Prerogative Royall must be a power of doing good to the people, and grounded upon some reason or law: but this is but a branch of an ordinarie limited power, and no prerogative above or beside law. Yea, any power not grounded on a reason different from meere will or absolute pleasure, is an irrationall and brutish power; and therefore it may well be jus personae, the power of the man who is King; it cannot be jus coronae, any power annexed to the Crown: for this holdeth true of all the actions of a King, as a King. Illud potest Rex, & illud tantum quod jur[gap] potest. The King, as King, can doe no more, then that which upon right and law he may doe.

3. To dispute this question, Whether such a Prerogative 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 vaine question. 2. Those who hold such a Prerogative, must say, the King is so absolute and illimited a God on earth, that either by law, or his sole pleasure beside law, he may regularly and rationally move all wheeles in Policie; and his uncontrolled will shall be the axeltree on which all the wheeles are turned.

4. That which is the garland and proper flower of the King of Kings, as he is absolute above his creatures, and not tyed to any law, without himselfe, that regulateth his will; That must be given to no mortall man, or King, except we would communicate that which is Gods proper due, to a sinfull man; which must be idolatrie. But to doe Royall acts out of an absolute power above Law and Reason, is such a power as agreeth to God, as is evident in positive lawes, and in acts of Gods meere pleasure, where we see no reason without the Almightie, for the one side, rather than for the other; as Gods forbidding the eating of the tree of knowledge, maketh the eating, sinne, and contrary to reason; but there is no reason in the object: for if God should command eating of that tree, not to eat, should be also sinne. So Gods choosing Peter to glory, and his refusing Judas, is a good and a wise act, but not good or wise from the object of the act, but from the sole wise pleasure of God; because, if God had chosen Judas to glory, and rejected Peter, that act had been no lesse a good and a wise act, then the former. For when there

is no law in the object, but only Gods will, the act i[gap] good and wise, seeing infinite wisdome cannot be separated from the perfect will of God: but no act of a mortall King, having sole and only will, and neither law nor reason in it, can be a lawfull, a wise, or a good act.

Assert. 2. There is something which may be called a Prerogative by way of dispensation. There is a threefold dispensation; one of power, another of justice, and a third of grace. A dispensation of power, is, when the will of the Law-giver maketh that act to be no sinne, which without that will would have been sinne: As if Gods commanding Will had not interveened, the Israelites borrowing the eare-rings and jewels of the Egyptians, and not restoring them, had been a breach of the 8 Commandement: and in this sense no King hath a Prerogative to dispence with a Law.

2. There is a dispensation of law and justice, not flowing from any Prerogative, but from the true intent of the Law. And thus the King, yea the inferiour Judge, is not to take the life of a man, whom the letter of the Law would condemne; because the Justice of the Law, is the intent and life of the Law: and where nothing is done against the intent of the Law, there is no breach of any Law.

The Third is not unlike unto the Second, when the King exponeth the Law by Grace: and this is twofold; 1. Either when he exponeth it of his wisdome and mercifull nature, inclined to mercy and justice; yet according to the just intent, native sense and scope of the Law, considering the occasion, circumstances of the fact, and comparing both with the Law: 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 custome. 2. The Law saith, In a doubtfull case the Prince may dispense, because it is presumed, the Law can have no sense against the principall sense and intent of the Law.

But there is another dispensation that Royalists doe plead for, and that is, a power in the King, ex mera gratia absolutae potestatis regalis; Out of meere grace of absolute Royall power, to pardon crimes, which Gods law saith, should be punished by death. Now this they call a power of Grace; but it is not a power of meere Grace.

But, 1. Though Princes may doe some things of Grace, yet not of meere Grace: because, what Kings doe, as Kings, and by vertue

of their Royall office, that they do ex debito officii, by debt and right of their office; and that they cannot but do, it not being arbitrarie to them to doe the debtfull acts of their office: But what they doe of meere grace, that they doe as good men, and not as Kings: and that they may not doe. As for example: Some Kings, out of their pretended prerogative, have given foure pardons to one man, for foure murthers: Now this the King might have left undone without sinne; But of meere grace he pardoned the murtherer, who killed foure men. But the truth is, the King killed the three last; because he hath no power in point of Conscience, to dispute with blood, Num. 35.31. Gen. 9.6. These pardons are acts of meere grace to one man; but acts of blood to the Communitie.

2. Because the Prince is the Minister of God for the good of the subject; and therefore the Law saith, He cannot pardon, and free the guilty, of the punishment due to him. Contra l. quod favore, F. de leg. l. non ideo minus. F. de proc. l. legata inutiliter. F. de lega. 1. And the reason is cleare; He is but the minister of God, a revenger to execute wrath upon him that doth evill. And if the Judgement be the Lords,

not mans, not the Kings, as it is indeed, Deut. 1.17. 2 Chron. 19.6. he cannot draw the sword against the innocent, nor absolve the guiltie, except he would take on himselfe to carve and dispose of that which is proper to his master. Now certaine it is, God only, univocally and essentially, as God, is the Judge, Ps. 75.7. and God only and essentially King, Ps. 97.1. Ps. 99.1. and all men in relation to him, are meere ministers, servants, legates, deputies: and in relation to him equivocally and improperly, Iudges or Kings, and meere created and breathing shadowes of the power of the King of Kings. And looke as the Scribe, following his own device, and writing what sentence he pleaseth, is not an officer of the Court in that point, nor the pen and servant of the Iudge: so are Kings, and all Iudges, but forged intruders, and bastard Kings and Iudges, in so far as they give out the sentences of men, and are not the very mouthes of the King of Kings, to pronounce such a sentence as the Almighty himselfe would doe, if he were sitting on the Throne or Bench.

3. If the King from any supposed prerogative Royall, may doe acts of meere grace, without any warrant of Law, because he is above Law, by office: then also may he doe acts of meere rigorous Iustice, and kill and destroy the innocent, out of the same supposed

Prerogative; For Gods word equally tyeth him to the place of a meere minister in doing good, as in executing wrath on evill doers, Rom. 13.3, 4. And reason would say, he must be as absolute in the one, as in the other, seeing God tieth him to the one, as to the other, by his office and place: yea by this, acts of Iustice to ill-doers, and acts of reward to well-doers, shall be arbitrary morally, and by vertue of office to the King, and the word Prerogative Royall saith this; for the word Prerogative is a supreme power absolute, that is loosed from all Law, and so from all reason of Law, and depending on the Kings meer and naked pleasure and will; and the word Royall or Kingly, is an Epithete of office, and of a Iudge, a created and limited Iudge, and so it must tye this supposed Prerogative to Law, Reason, and to that which is debitum legale officii, and a legall duty of an office; and by this our masters the Royalists make God to frame a rationall creature, which they call a King, to frame acts of Royalty, good and lawfull, upon his own meer pleasure, and the super-dominion of his will, above a Law and Reason. And from this it is that deluded Counsellours, made King James (a man not of shallow understanding) and King Charls, to give pardons to such bloody murtherers, as James a Grant, and to go so far on, by this supposed Prerogative Royall, that King Charls in Parliament at Edinburgh, 1633. did command an high point of Religion, That Ministers should use in officiating in Gods service, such Habits and Garments as he pleaseth; that is, all the Attire and Habits of the idolatrous Masse-Priests, that the Romish Priests of Baal useth in the oadest point of idolatry (the adoring of Bread) that the earth has; and by this Prerogative, the King commanded the Service Book in Scotland, An. 1637. without or above Law and Reason. And I desire any man to satisfie me in this, If the Kings Prerogative Royall, may over-leap Law and Reason in two degrees, and if he may as King, by a Prerogative Royall, command the body of Popery in a Popish Book; If he may not by the same reason, over-leap Law and Reason by the elevation of twenty degrees; And if you make the King a Iulian (God avert, and give the spirit of revelation to our King) may he not command all the Alcaron, and the Religion of the Heathen and Indians? Royalists say, The Prerogative of Royalty excludeth not reason, and maketh not the King to do as a brute beast without all reason; but it giveth a power to a King to do by his Royall pleasure, not fettered to the dictates of a

Law; for in things which the King doth by his Prerogative Royall, he is to follow the advice and counsell of his wise counsell, though their counsell and advice doth not binde the Royall will of the King. I answer, it is to me, and I am sure to many Learneder, a great question; If the will of any reasonable creature, even of the damned angels, can will, or chose any thing which their reason corrupted, as it is, doth not dictate, hic & nunc to be good. For the object of the will of all men is good, either truely, or apparently good to the doer; for the devill could not suite in marriage souls, except he war in the cloths of an Angel of light; sin as sin cannot sell, or obtrude it self upon any, but under the notion of good. I think it seemeth good to the great Turk, to command innocent men, to cast themselves over a precipie two hundreth fadom high in the Sea, and drown themselves to pleasure him: So the Turks reason (for he is rationall, if he be a man) dictateth to his vast pleasure, that that is good which he commandeth.

2. Counsellours to the King, who will speak what will please the Queen, are but naked empty Titles, for they speak que placent, non que prosunt; what may please the King whom they make glad with their lies, not what law and reason dictateth.

3. Absolutenesse of an unreasonable Prerogative, doth not deny Counsell and Law also; for none more absolute, de facto, I cannot say de jure then the Kings of Babylon, and Persia: for Daniel saith of one of them, Dan. 5.19. Whom he would, he slew, and whom he would, he kept alive, and whom he would, he set up, and whom he would, he put down; and yet these same Kings did nothing, but by advice of their Princes and Counsellors, yea, so as they could not alter a decree and law, as is clear, Ester 1.14, 15, 16, 17, 21. Yea Darius de facto an absolute Prince, was not able to deliver Daniel, because the Law was passed, that he should be cast into the Lions den, Dan. 6.14, 15, 16.

4. That which the spirit of God condemneth as a point of Tyranny in Nebuchadnezzar, that is no lawfull Prerogative Royall: but the spirit of God condemneth this as Tyranny in Nebuchadnezzar, That he slew whom he would, he kept alive whom he would, he set up whom he would, he put down, this is too God-like, Deut. 32.39. So Polanus, Rollocus, on the place, say, he did these things, Vers. 19. Ex abusu legitimae potestatis; for Nebuchadnezzars will in matters of death and life, was his Law, and he did what pleased

himself above all Law beside, and contrary to it: and our flatterers of Kings draw the Kings Prerogative out of Vlpians words, who saith, [gap]hat is a Law which seemeth good to the Prince; but Vlpian was far from making the Princes will a rule of good and ill, for he saith the contrary, That the Law ruleth the just Prince.

5. It is considerable here, that Sanches defineth the absolute power of Kings to be a plenitude and fulnesse of power, subject to no necessity, and bounded with rules of no publick Law, and so did Baldus before him: but all Politicians condemn that of Caligula (as Suetonius saith) which he spake to Alexander the Great, Remember that thou maist do all things, and that thou hast a power to do to al men, what thou pleasest: And Lawyers say, that this is Tyranny: Chilon one of the seven wise of Greece (as Rodigi) saith better, Princes are like gods, because they onely can do that which is just. And this power being meerly Tyrannicall, can be no ground of a Royall Prerogative: There is another power (saith Sanches) absolute, by which a Prince dispenseth without a cause in a humane law; and this power, saith he, may be defended: but he saith, What the King doth by this absolute power, he doth it validè, but not jure by Law; but by valid acts the Iesuite must mean Royall Acts, but no acts void of Law and Reason (say we) can be Royall Acts; for Royall Acts are acts performed by a King, as a King, and by a Law, and so cannot be Acts above, or beside a Law. It is true, a King may dispence with the breach of an humane Law, as a humane Law, that is, If the Law be death to any, who goeth up on the Walls of the Citie, the King may pardon any, who going up, discovereth the enemies approach, and saveth the Citie. But, 1. The inferiour Iudge according to the [gap] that benigne interpretation that the soul and intent of the Law requireth, may do this as well as the King. 2. All acts of independent Prerogative are above a Law, and acts of freewill having no cause or ground in the Law, otherwayes it is not founded upon absolute power, but on power ruled by Law and Reason: but to pardon a breach of the letter of the Law of man, by exponing it, according to the true intent of the Law and benignly, is an act of legall obligation, and so of the ordinary power of all Iudges; and if either King or Iudge kill a man for the violation of the Letter of the Law, when the intent of the Law contradicteth the rigid sentence, he is guilty of innocent blood. If that learned Ferdin. Vasquez be consulted, he is against this distinction of a