QUEST. XXIV. What power hath the King in relation to the Law, and the people? And how a King and a Tyrant differ? (1) to QUEST. XXIV. What power hath the King in relation to the Law, and the people? And how a King and a Tyrant differ? (2)

QUEST. XXIV. What power hath the King in relation to the Law, and the people? And how a King and a Tyrant differ? (1)

Mr. Symmons saith, That Authoritie is rooted rather in the Prince,

then in the Law; for as the King giveth Being to the inferiour Iudge, so he doth to the Law it self, making it authorizable; for propter quod unum-quodque tale, id ipsum magis tale, and therefore the King is greater then the Law: others say, That the King is the Fountain of the Law, and the sole and onely Law-giver.

Assert. 1. The Law hath a twofold consideration, 1. Secundum esse paenale, in relation to the punishment to be inflicted by man. 2. Secundum esse legis, as it is a thing legally good in it self: In the former notion, it is this way true, Humane Laws take life and being, inway to be punished, or rewarded by men, from the will of Princes and Law-givers, and so Symmons saith true, Because men cannot punish or reward Laws, but where they are made; and the will of Rulers putteth a sort of stamp on a Law, that it bringeth the Common-wealth under guiltinesse, if they break this Law. But this maketh not the King greater then the Law; for therefore do Rulers put the stamp of relation to punishment on the Law, because there is intrinsecall worth in the Law, Prior to the Act of the will of Law-givers, for which it meriteth to be inacted; and therefore, because it is authorizable as good and just, the King puteth on it this stamp of a Politique Law. God formeth Being, and morall Aptitude to the end in all Laws, to wit, the safetie of the people; and the Kings will is neither the measure, nor the cause of the goodnesse of things.

2. If the King be he who maketh the Law good and just, because he is more such himself, then as the Law cannot crook, and erre, nor sin; neither can the King sin, nor break a Law. This is blasphemy, Every man is a lyer; a Law which deserveth the name of a Law, cannot lie.

3. His ground is, That there is such majesty in Kings,

that their will must be done either in us, or on us: A great untruth. Achabs will must neither be done of Elias, for he commandeth things unjust; nor yet on Elias, for Elias fled, and lawfully we may flie Tyrants: and so Achabs will in killing Elias was not done on him▪

Assert. 2. Nor can it be made good, that the King only hath power of making Lawes; because his power were then absolute, to inflict penalties on Subjects, without any consent of theirs; and that were a dominion of Masters, who command what they please, and under what paine they please. And the people consenting to be ruled by such a man, they tacitely consent to penaltie of laws, because naturall reason saith, An ill-doer should be punished. Florianus in l. inde. Vasquez, l. 2. c. 55. n. 3. Therefore they must have some power in making these lawes.

2. Jer. 26. It is cleare, The Princes judge with the people: A nomothetick power differeth gradually only from a judiciall power, both being collaterall meanes to the end of Government, the peoples safetie. But Parliaments judge, ergo, they have a nomothetick power with the King.

3. The Parliament giveth all supremacie to the King; ergo, to prevent Tyrannie, it must keep a coordinate power with the King, in the highest acts.

4. If the Kingly line be interrupted, if the King be a Childe, or a Captive, they make Lawes, who make Kings; Ergo, this nomothetick power recurreth into the States, as to the first subject.

Obj. The King is the fountaine of the law, and Subjects cannot make Lawes to themselves,

more then they can punish themselves. He is only the Supreme.

Answ. The People being the fountaine of the King, must rather be the fountaine of Lawes. 2. It is false, that no man maketh lawes to himselfe. Those who teach others, teach themselves also, 1 Tim. 2.12. 1 Cor. 14.34. though Teaching be an act of authoritie. But they agree to the penaltie of the Law secondarily only; and so doth the King, who, as a father, doth not will evill of punishment to his children, but by a consequent will. 3. The King is the only Supreme, in the power ministeriall of executing lawes: but this is a derived power, so as no one man is above him; but in the fountaine-power of Royaltie, the States are above him.

5. The Civil law is cleare, that the laws of the Emperor have force only from this fountaine, because the People have transferred their power to the King. Lib. 1. digest. tit. 4. de constit. Princip. leg. 1. sic Vlpian. Quod Principi placuit, (loquitur de Principe formaliter, qua Princeps est, non qua est homo) legis habet vigorem, utpote cum lege

Regia, quae de imperio ejus lata est. populus ei, & in eum, omne suum imperium & potestatem conferat. Yea, the Emperour himselfe may be conveened before the Prince Elector. Aurea Bulla Carol. 4. Imper. c. 5. The King of France may be conveened before the Senate of Paris. The States may resist a Tyrant, as Bossius saith, de Principe, & privileg. jus, n. 55. Paris de puteo, iu tract. syno. tit. de excess. Reg. c. 3. Divines acknowledge that Elias rebuked the halting of Israel betwixt God and Baal, that their Princes permitted Baals Priests to converse with the King. And is not this the sinne of the Land, that they suffer their King to worship Idols? and therefore the Land is punished for the sinnes of Manasseh, as Knox observeth in his Dispute with Lethington, where he proveth that the States of Scotland should not permit the Queen of Scotland to have her abominable Masse: Hist. of Scotland, l. 4. p. 379. edit. an. 1644. Surely the power or Sea-Prerogative of a sleepie or mad Pilot to split the ship on a rock, as I conceive, is limited by the Passengers. Suppose a father, in a distemper, would set his own house on fire, and burne himselfe, and his ten sonnes; I conceive, his Fatherly prerogative, which neither God nor Nature gave, should not be looked to in this; but they may binde him. Yea, Althusius, polit. c. 39. n. 60. answering that, That in Democracie the people cannot both command and obey; saith, It is true, secundum ideus, ad idem, & eodem tempore: But the people may (saith he) choose Magistrates by succession. Yea, I say, 1. they may change Rulers yearely, to remove envie: A yearely King were more dangerous, the King being almost above envie; Men incline more to flatter then to envie Kings. 2. Aristotle saith, polit. l. 4. c. 4. l. 6. c. 2. The people may give their judgement of the wisest.

Obj. Williams B. of Ossorie, Vindic. Reg. [A Looking-glasse for Rebels] saith, p. 64. To say the King is better than any one, doth not prove him to be better then two: and if his supremacie be no more, then any other may challenge as much: for the Prince is singulis major: A Lord is above all Knights; a Knight above all Esquires: and so the People have placed a King under them, not above them.

Ans. The reason is not alike: for all the Knights united cannot make one Lord; and all the Esquires united, cannot make one Knight; but all the People united, made David King at Hebron. 2. The King is above the people, by eminencie of derived authoritie, as a Watchman; and in actuall supremacie; and he is inferior to

them in fountaine-power, as the effect to the cause.

Object. 2. The Parliament (saith Williams) may not command the King: Why then make they supplications to him, if their Vote be a Law?

Ans. They supplicate, ex decentia, of decencie and connveniencie for his place; as a Citie doth supplicate a Lord Major: but they supplicate not ex debito, of obligation, as beggars seeke almes: then should they be cyphers. 2. When a Subject oppressed, supplicateth his Soveraigne for justice; the King is obliged by office to give justice: And to heare the oppressed, is not an act of grace and mercie, as to give almes, though it should proceed from mercie in the Prince, Psal. 72.13. but an act of Royall debt.

3. The P. Prelate objecteth: The most you claime to Parliaments, is a coordinate power,

which in law and reason run in equall tearmes. In Law, par in parem non habet imperium; an equall cannot judge an equall, much lesse may an inferiour usurpeto judge a superiour. Our Lord knew, gratiâ visionis, the woman taken in adulterie, to be guilty; bat he would not s[gap]ntence her: to teach us, not improbably, not to be both Judge and Witnesse. The Parliament are Judges, accusers, and witnesses against the King in their owne cause, against the Imperiall lawes.

Ans. 1. The Parliament is coordinate ordinarily with the King, in the power of making Lawes: but the coordination on the Kings part, is by derivation; on the Parliaments part, originaliter & fontaliter, as in the fountaine. 2. In ordinarie there is coordination: but if the King turne Tyrant, the Estates are to use their fountaine-power. And that of the Law, Par in parem, &c. is no better from his Pen, that stealeth all he hath, then from Barclaius, Grotius, Arnisaeus, Blackwood, &c. It is cold and sowre. We hold the Parliament that made the King at Hebron, to be above their own creature the King. Barclaius saith more acurately, l. 5, cont. Monarch. p. 129. It is absurd, that the People should both be subject to the King, and command the King also.

Ans. It is not absurd, that a Father naturall, as a private man, should be subject to his Sonne; even that Jesse, and his elder brother, the Lord of all the rest, be subject to David their King. Royalists say, Our late Queen, being supreme Magistrate, might by Law have put to death her own husband, for adulterie or murther.

2. The Parliament should not be both Accuser, Iudge, and Witnesse

in their own cause. 1. It is the Cause of Religion, of God, of Protestants, and of the whole people. 2. The oppressed accuse: there is no need of Witnesses in raising armes against the Subjects. 3. The P. Prelate could not object this, if against the Imperiall laws the King were both Partie and Iudge in his own cause, and in these acts of arbitrarie power, which he hath done, through bad counsell, in wronging Fundamentall lawes, raising armes against his subjects, bringing in forraigne enemies into both his Kingdomes, &c. Now this is properly the cause of the King, as he is a man; and his owne cause, not the cause of God, and by no Law of nature, reason, or Imperiall Statutes can he be both Iudge and party.

4. If the King be sole supreame Iudge without any fellow sharers in power, 1. He is not obliged by Law to follow Counsell, or hold Parliaments; for Counsell is not Command. 2. It is unpossible to limit him even in the exercises of his power, which yet Dr. Ferne saith cannot be said: for if any of his power be retrinched, God is robbed, saith Maxwell. 3. He may by Law play the Tyrant, gratis.

Ferne objecteth. §. 7. pag. 26. The King is a fundamentall with the Estates, now foundations are not to be stirred or removed.

Ans. The King as King inspired with Law is a fundamentall, and his power is not to be stirred, but as a man wasting his people, he is a destruction to the house, and community, and not a fundamentall in that notion.

Some object, The three Estates as men, and looking to their owne ends, not to Law, and the publick good, are not fundamentalls, and are to be judged by the King.

Ans. By the people, and the conscience of the people they are to be judged.

Obj. But the people also doe judge as corrupt men, and not as the people, and a Politique Body, providing for their owne safety.

Ans. I grant all, when God will bring a vengeance on Jerusalem, Prince and people both are hardened to their owne destruction. Now God hath made all the three, in every Government where there is Democracy, there is some chosen ones resembling an Aristocracy, and some one for order presiding in Democraticall courts, resembling a King. In Aristocracy as in Holland, there is somewhat of Democracy, the people have their Commissioners, and one Duke or Generall, as the Prince of Orange is some umbrage of

Royalty, and in Monarchy there are the three Estates of Parliament, and these containe the three Estates, and so somewhat of the three formes of Government, and there is no one Government just that hath not some of all three; powre and absolute Monarchy is Tyranny, unmixed Democracy, is confusion, untempered Aristocracy is factious Dominion, and a limited Monarchy hath from Democracy respect to publick good without confusion. From Aristocracy safety in multitude of Counsells without factious emulation, and so a barre laid on Tyranny, by the joynt powers of many; and from Soveraignty union of many children in one father: and all the three thus contempered have their owne sweet fruits through Gods blessing, and their owne diseases by accident, and through mens corruption; and neither reason nor Scripture shall warrant any one in its rigid purity without mixture: And God having chosen the best government to bring men fallen in sinne to happinesse, must warrant in any one a mixture of all three, as in mixt bodies the foure Elements are reduced to a fit temper resulting of all the foure, where the acrimony of all the foure first qualities is broken, and the good of all combined in one.

The King as the King is an unerring and living Law, and by grant of Barclay, of old was one of excellent parts, and noble through vertue and goodnesse; and the goodnesse of a father as a father, of a tutor as a tutor, of a head as a head, of a husband as a husband doe agree to the King as the King, so as King he is the Law it selfe, commanding, governing, saving. 2. His Will as King, or his Royall Will is reason, conscience, Law. 3. This Will is politickly present (when his person is absent) in all Parliaments, Courts, and inferiour Iudicatures. 4. The King as King cannot doe wrong or violence to any. 5. Amongst the Romanes the name King and Tyrant were common to one thing. 1. Because de facto, some of their Kings were Tyrants, in respect of their Dominion, rather then Kings. 2. Because he who was a Tyrant De facto, should have been, and was a King too de jure. 6. It is not lawfull to either disobey or resist a King as a King, no more then it is lawfull to disobey a good Law. 7. What violence, what unjustice, and excesse of passion the King mixeth in, with his Acts of Government, are meerely accidentall to a King as King! for because men by their owne innate goodnesse will not, yea Morally cannot doe that which is lawfull, and just one to another, and doe naturally, since the fall of man,

violence one to another; therefore, if there had not been sin, there should not have been need of a King, more then there should have beene need of a Tutor to defend the child, whose father is not dead, or of a Physitian to cure sicknesse where there is health; for remove sinne, and there is neither death nor sicknesse, but because sinne is entered into the world, God devised, as a remedy of violence and unjustice, a living, rationall breathing Law called a King, a Iudge, a Father: now the aberrations, violence, and oppression of this thing which is the living, rationall, breathing Law is no Medium, no meane intended by God, and nature to remove violence. How shall violence remove violence? Therefore an unjust King, as unjust, is not that genuine ordinance of God, appointed to remove unjustice, but accidentall to a King. So we may resist the unjustice of the King, and not resist the King. 8, If then any cast off the nature of a King, and become habitually a Tyrant, in so farre he is not from God, nor any ordinance which God doth owne: If the Office of a Tyrant (to speake so) be contrary to a Kings Offices, it is not from God, and so neither is the power from God. 9. Yea Lawes (which are no lesse from God, then the Kings are) when they begin to be hurtfull, Cessant materialiter, they leave off to be Lawes; because they oblige Non secundum vim verborum, sed in vim sensus, not according to the force of words, but according to sense, l. Non figura literarum F. de actione & obligatione, l. ita stipulatus. But who (saith the Royalists) shall be judge betwixt the King and the people, when the people alledge that the King is a Tyrant.

QUEST. XXIV. What power hath the King in relation to the Law, and the people? And how a King and a Tyrant differ? (2)

Ans. There is a Court of necessity, no lesse then a Court of Justice; and 2. The fundamentall Lawes must then speake, and it is with the people in this extremity, as if they had no Ruler.

Obj. 1. But if the Law be doubtsome, as all humane, all Civill, all municipall Lawes may endure great dispute, the peremptory person exponing, the Law must be the supreame Iudge. This cannot be the people, ergo, it must be the King.

Ans. 1. As the Scriptures in all fundamentalls are cleare, and expone themselves, and Actu primo condemne Heresies, so all Lawes of men in their fundamentals, which are the Law of Nature, and of Nations are cleare. And 2. Tyranny is more visible and intelligible then Heresie, and its soone decerned. If a King bring in upon his native subjects twenty thousand Turks armed, and the King

lead them. It is evident, they come not to make a friendly visite to salute the Kingdom, and depart in peace: the people have a naturall throne of policie in their conscience to give warning, and materially sentence against the King, as a Tyrant, and so by nature are to defend themselves: Where Tyranny is more obscure, and the thred small, that it escape the eye of men, the King keepeth possession; but I deny that Tyranny can be obscure long.

Object. 2. Doct. Ferne. A King may not, or cannot easily alter the frame of fundamentall Laws, he may make some actuall invasion, in some transient, and not fixed acts; and it is safer to bear these, then to raise a civill Warre of the Body, against the Head.

Answ. 1. If the King as King, may alter any one wholesome Law, by that same reason he may alter all. 2. You give short wings to an Arbitrary Prince, if he cannot over flie all Laws to the subversion of the Fundamentalls of a State, if you make him as you do. 1. One who hath the sole Legislative power, who allanerly by himself, maketh Laws, and his Parliament and Councell are onely to give him advice, which by Law he may as easily reject, as they can speak words to him. He may in one transient act (and it is but one) cancell all Laws made against idlolatry and Popery, and command, through bad Counsell, in all his Dominions; the Pope to be acknowledged as Christs Vicar, and all his doctrine to be established as the Catholike true Religion. It is but one transient act to seal a pardon to the shedding of the blood of two hundred thousand, killed by Papists. 2. You make him a King, who may not be resisted in any case; and though he subvert all Fundamentall Laws, he is countable to God onely, his people have no remedy, but prayers, or flight.

Object. 3. Ferne. Limitations and mixtures in Monarchies do not imply a forceable restraining power in subjects,

for the preventing of the dissolution of the State, but onely a legall restraining power; and if such a restraining power be in the subjects, by reservation, then it must be expressed in the constitution of the Government, and in the Covenant betwixt the Monarch and his people: but such a condition is unlawfull, which will not have the Soveraign power secured, is unprofitable for King, and people; a seminary for seditions and jealousies.

Answ. I understand not a difference betwixt forceable restraining and legall restraining: For he must mean by (legall) mans Law,

because he saith, It is a Law in the Covenant betwixt the Monarch, and his people. Now if this be not forceable, and physicall, it is onely Morall in the conscience of the King, and a Cypher, and a meer vanitie, for God, not the people putteth a restraint of conscience on the King, that he may not oppresse his poor subjects; but he shall sin against God, that is a poor restraint: the goodnesse of the King a sinfull man inclined from the womb to all sin, and so to Tyranny, is no restraint. 2. There's no necessitie, that the reserve be expressed in the Covenant between King, and people, more then in contract of marriage between a husband and a wife, beside her joynter; you should set down this clause in the contract, that if the husband attempt to kill the wife, or the wife the husband, in that case it shall be lawfull to either of them to part companies: For Doct. Ferne saith, That personall defence is lawfull in the people, if the Kings assault be 1. Suddain. 2. Without colour of Law. 3. Inevitable: Yet the reserve of this power of defence, is not necessarily to be expressed in the contract, betwixt King and people. Exigences of the Law of nature cannot be set down in positive Covenants, they are presupposed. 3. He saith, A reservation of power, whereby soveraigntie is not secured, is unlawfull. Lend me this Argument: The giving away of a power of defence, and a making the King absolute, is unlawfull, because by it the people is not secured; but one man hath thereby the sword of God put in his hand, whereby ex officio, he may as King cut the throats of thousands, and be countable to none therefore, but to God onely: now if the non-securing of the King, make a condition unlawfull, the non-securing of a Kingdom and Church, yea, of the true religion (which are infinitely in worth above one single man) may far more make the condition unlawfull. 4. A legall restraint on a King, is no more unprofitable, and a seminary of jealousies between King and people, then a legall restraint upon people; for the King out of a non-restraint, as out of seed, may more easily educe tyranny, and subversion of religion: If outlandish women tempt even a Solomon to idolatry, as people may educe sedition out of a legall restraint laid upon a King, to say nothing, that Tyranny is a more dangerous sin, then sedition; by how much more the lives of many, and true religion, are to be preferred to the safetie of one, and a false peace.

Object. 4. An absolute Monarch is free from all forceable restraint,

and so far, as he is absolute from all legall restraint of positive Laws: now in a limited Monarch there is onely sought a legall restraint, and limitation cannot infer a forceable restraint, for an absolute Monarch is limited also, not by civill compact, but by the Law of nature and nations, which he cannot justly transgresse; if therefore an absolute Monarch being exorbitant, may not be resisted, because he transgresseth the Law of nature; how shall we think a limited Monarch may be resisted, for transgressing the bounds set by civill agreement.

Answ. A legall restraint on the people, is a forceable restraint: For if Law be not backed with force, it is onely a Law of rewarding weldoing, which is no restraint, but an incouragement to do evil. If then there be a legall restraint upon the King, without any force, it is no restraint, but onely such a request as this, Be a just Prince, and we will give your Majestie two Subsidies in one yeer. 2. I utterly deny, that God ever ordained such an irrationall creature, as an absolute Monarch. If a people unjustly, and against natures dictates make away, irrevocably, their own libertie, and the libertie of their posteritie, which is not their's to dispose off, and set over themselves, as base slaves, a sinning creature with absolute power, he is their King, but not as he is absolute, and that he may not be forceably resisted; notwithstanding, the subjects did swear to his absolute power (which oath in the point of absolutenesse, is unlawfull, and so not obligatory) I utterly deny. 3. An absolute Monarch (saith he) is limited, but by Law of nature: That is, Master Doctor, he is not limited as a Monarch, not as an absolute Monarch, but as a son of Adam, he is under the limites of the Law of nature, which he should have been under, though he had never been a King, all his dayes, but a slave. But what then? Therefore he cannot be resisted. Yes, Doctor, by your own grant he can be resisted: If he invade an innocent subject (say you) 1. Suddenly. 2. Without colour of Law. 3. Inevitably: And that because he transgresseth the Law of nature. 4. You say, a limited Monarch can lesse be resisted for transgressing the bounds set by civill agreement. But, 1. What if the thus limited Monarch transgresse the Law of nature, and subvert Fundamentall Lawes, he is then, you seem to say, to be resisted; it is not for simple transgression of a civill agreement, that he is to be resisted. 2. The limited Monarch is as essentially the Lords anointed, and the power ordained of God, as the absolute Monarch. Now resistance by all your grounds, is unlawfull, because

of Gods power and place conferred upon him, not because of mens positive covenant made with him.

To finde out the essentiall difference betwixt a King and a Tyrant: We are to observe, that it is one thing to sin against a man, another thing against a Stat[gap]. David killing Vriah, committed an act of murther: But on this supposition, that David is not punished for that murther, he did not so sin against the State, and Catholike good of the State, that he turneth Tyrant, and ceaseth to be a lawfull King. A Tyrant is he who habitually sinneth against the Catholike good of the Subjects and State, and subverteth Law. Such a one should not be, as Jason, of whom it is said by Aeneas Silvius, Graviter ferebat, si non regnaret, quasi nesciret esse privatus. When such as are monstrous Tyrants, are not taken away by the Estates, God pursueth them in wrath. Domitian was killed by his own Family, his wife knowing of it. Aurelianus was killed with a thunder-bolt. Darius was drowned in a River. Dioclesian fearing death, poysoned himself. Salerius died eaten with Worms: The end of Herod, and Antiochus. Maxentius was swallowed up in a standing River. Iulian died, being stricken through with a Dart thrown at him by a man, or an Angel, it is not known. Valens the Arian was burnt with fire in a little Village by the Gothes. Anastasius the Eutychian Emperour, was stricken by God with thunder. Gundericus Vandalus, when he rose against the Church of God, being apprehended by the Divell, died. Some time the State have taken order with Tyrants. The Empire was taken from Vitellius, Heliogabalus, Maximinus, Didius, Iulianus: So was the two Childerici of France served: So were also Sigebertus, Dagabertus, and Lodowick the 11. of France. Christiernus of Denmark, Mary of Scotland, who killed her husband, and raised Forces against the Kingdom: So was Henricus Valesius of Pol, for fleeing the Kingdom. Sigismundus of Pol, for violating his faith to the States.