QUEST. XXXIX. Whether or no any Prerogative at all above the law be due to the King? or if jura Majestatis be any such Prerogative Royall? (1) to QUEST. XXXIX. Whether or no any Prerogative at all above the law be due to the King? or if jura Majestatis be any such Prerogative Royall? (2)

QUEST. XXXIX. Whether or no any Prerogative at all above the law be due to the King? or if jura Majestatis be any such Prerogative Royall? (1)

I Conceive Kings are conceived to have a threefold supreme power. 1. Strictly absolute, to do what they please, their will being simply a law; this is Tyranicall, some Kings have it, de facto, ex consuetudine, but by a divine law none have it; I doubt if any have it by a human positive law, except the great Turk, and the King of Spaine over his conqu[gap]st without the borders of Europe, and some few other conquerours. There is another 2. power limited to Gods law, the due proper right of Kings, Deut. 17.18.19.20. There is 3. a potestas intermedia, a middle power, not so vast as that which is absolute and tyrannicall, which yet is some way humane: this I take Iurists call jus regium, lex regia, jura Regalia regis, Cicero jura Majestatis, Livius, jura imperii, and these Royall priviledges are such common and high dignities, as no one particular magistrate can have, seeing they are common to all the kingdom, as that Cesar only should coyne money in his own name. Hence the penny [gap]ven to Christ, because it had Cesars image and superscription. Mat[gap] ▪ 22.20, 21. Infer by way of argumentation, [gap] &c. give therefore tribute to Cesar, as his due, so the Magazine and Armory for the safety of the Kingdom is in the Kings hand, the King hath the like of

these priviledges, because he is the common▪ supreame, publick officer and Minister of God for the good of the whole Kingdom, and amongst these Royall priviledges, I reckon that power that is given to the King, when he is made King, to do many things without warrant of the letter of the law, without the expresse consent of his counsell, which he cannot alwayes carry about with him, as the law saith. The King shall not raise armes without consent of the Parliament, but if an army of Irish, or Danes, or Spanyards should suddenly land in Scotland, he hath power without a formally conveened Parliament, to command them all to rise in armes against these invade[gap]s, and defend themselves, this power to inferiour Magistrate hath as he is, but such a Magistrate. And in many such exigences, when the necessity of justice or grace requireth an extemporall exposition of Lawes, Pro re natâ, for present necessary execution, some say onely the Emperour, others all Kings have these priviledges. I am of the minde of Arnisaeus, that these priviledges are not rewards given to Princes for their great paines. For the King is not obliged to governe the Common-wealth, because he receiveth these Royall Priviledges as his reward, but because by office he is obliged to gov[gap]rne the common-wealth, therefore these priviledges are given to him, and without them he could not so easily governe. But I am utterly against Arnisaeus, who saith, these are not essentiall to a King, Because (saith he) he createth Marquesses, Dukes, &c. and Nobles, constituteth, Magistrates, not because of His Royall Dignity, but by reason of his absolute power, for many Princes have supreame power, and cannot make Nobles, and therefore to him they are jura majestatis, non [gap]ura potestatis. But 1. The King, suppose a limited King, may [gap]nd ought to make nobles, for he may conferre honours as a reward of vertue; none can say Pharoah by his absolute authority, and not as a King advanced Ioseph to be a noble Ruler, we cannot say that, for there was merit and worth in him deserving that honour, and Darius not by absolute authority, but on the ground of well-deserving (the rule by which Kings are obliged in justice to confer honours) promoted Daniel, to be the first president of all his kingdomes, because D[gap]n. 6.3. An excellent spirit was in him: and in Justice the King could nobilitate none, rather then Daniel, except he should fail against the rule of conferring honours. It is acknowledged by all, that honos est proemium virtutis, honour is founded upon vertue, and therefore Darius did not this out of his absolute Majesty, but as King.

2. All Kings as Kings, and by a Divine Law of God, and so by no absolutenesse of Majesty, are to make men of wisdome, fearing God, hating covetousnesse, Judges under them, Deut. 1.13. 2 Chro. 19.6, 7. Psal. 101.6, 7, 8.

3. If we suppose a King to be limited as Gods King is Deut. 17.18, 19, 20. Yet is it his part to confer honours upon the worthiest. Now if he have no absolutenesse of Majesty, he cannot confer honours out of a principle that is none at all, unum quodque sicut est, ita operatur, and if the people confer honours, then must Royalists grant that there is an absolute Majesty in the people, why then may they not derive Majesty to a King? and why then do Royalists talk to us of Gods immediate creating of Kings, without any interveening action of the people?

4. By this absolutnesse of Majesty, Kings may play the Tyrant as Samuel 1 Sam. 8.9, 10, 11, 12, 13, 14. foretelleth Saul would do. But I cannot beleeve that Kngs have the same very officiall absolute power, from whence they do both acts of grace, goodnesse and justice, such as are to expone Laws extemporally in extraordinary cases, to confer honours upon good and excellent men of grace to pardon offenders upon good grounds, and also doe acts of extreme Tyrannie: For out of the same fountaine doth not proceed both sweet water and bitter. Then by this absolutenesse, Kings cannot doe acts of goodnesse, justice and grace, and so they must doe good as Kings, and they must doe acts of tyrannie, as men, not from absolutenesse of majesty.

5. Inferiour Magistrates, in whom there is no absolutenesse of Majesty, according to Royalists, way, may expound laws also extemporally, and doe acts of justice, without formalities of civill or municipall laws, so they keep the genuine intent of the Law, as they may pardon one that goeth up to the wall of a City, and discovereth the approach of the enemie, when the watchmen are sleeping, though the Law be, That any ascending to the wall of the Citie shall die. Also the inferiour Judge may make Judges and Deputies under himselfe.

6. This Distinction is neither grounded upon Reason or Lawes, nor on any Word of God. Not the former, as is proved before, for there is no absolute power in a King to do above, or against law; all the officiall power that a King hath, is a Royall power to do good▪ for the safety and good of his subjects, and that according to law and

reason, and there is no other power given to a King as a King, and for Scripture Arnisaeus, ibid. alledgeth 1 Sam. 8. The manner or law of the King. ver. 9.11. And he saith, it cannot be the custome and manner of the King, but must be the law of absolute Majesty. 1. Because it was the manner of inferiour judges, as Tyberius said of his judges, to flea the people, when they were commanded to shear them onely. 2. Samuels sons who wrested judgment and perverted the law, had this manner and custome to oppresse the people, as did the sons of Eli: and therefore without reason is it called the law of Kings, jus regum, if it was the law of the judges, for if all this law be Tyrannicall and but an abuse of Kingly power,

the same law may agree to all other Magistrates, who by the same unjust power may abuse their power, but Samuel (as Brentius observeth homi. 27. in 1 Sam. in princ.) doth meane here a greater license then Kings can challenge, if at any time they would make use of their plenitude of absolute power, and therefore, nomine juris, by the word [law] here he understandeth a power granted by law, jure, or right to the King, but pernitious to the people, which Gregory calleth jus regium Tyrannorum, the Royall law of Tyrants.—So Seneca 1 de clem. c. 11. hoc interest inter regem & Tyrannum, Species ipsa fortunae ac licentiae par est, nisi quod Tyranni ex volutate saeviunt, Reges non nisi ex causa & necessitate? quid ergo? non Reges quoque accidere solent? sed quoties fieri publica utilitas persuadet, Tirannis saevitia cordi est. A Tyran (saith Arnisaeus) in this differeth from a King, Qui ne ea quidem vult, quae sibi licent, that a King will not do these things which are lawfull; a Tyran doth quae libet, what he pleaseth to do.

Answ. Arnisaeus bewrayeth his ignorance in the Scriptures, for the word [gap] signifieth a custome, and a wicked custome, as by many Scriptures I have proved already, his reasons are poor. It is the manner of inferiour judges, as we see in the sons of Eli, and Samuel, to pervert judgment, as well as King Saul did, but the King may more oppresse, and his Tyranny hath more colour, and is more catholick then the oppression of inferiour judges, it is not Samuels purpose thus to distinguish the judges of Israel and the kings, in that the judges had no power granted them of God to oppresse, because the people might judge their judges and resist them, and there was power given of God to the king, so far to play the Tyrant, that no man could resist him, or say, what dost thou? the text will not beare any such difference, for it was as unlawfull to resist Moses, Ioshua,

Samuel, as Royalists prove from the judgement of God that came upon Core, Dathan and Abiram, as to resist King Saul and King David, Royalists doubt not to make Moses a King. It was also no lesse sin to resist Samuels sons, or to do violence to their persons, as judging for the Lord, and sent by the supreme judge their father Samuel, then it was sin to resist many inferiour Judges that were Lyons, and even Wolves under the Kings of Israel and Iudah, so they judged for the Lord, and as sent by the Supreme Magistrate; But the difference was in this, that judges were extraordinarily raised up of God out of any tribe, as he pleased, and were beleevers, Heb. 11.32. Saved by faith, and so used not their power to oppresse the people, though inferiour judges, as the sons of Eli and of Samuel perverted judgment, and therefore in the time of the judges, God who gave them saviours and judges, was their King, but Kings were tied to a certaine tribe, especially the line of David to the Kingdom of Iudah.

2. They were hereditary, judges not so.

3. They were made and chosen by the people, Deut. 17.14.15. 1 Sam. 10.17, 18, 19, 20. 2 Sam. 5.1, 2, 3. as were the Kings of the nations, and the first King (though a King be the lawfull ordinance of God) was sought from God in a sinfull imitation of the nations, 1 Sam. 8.19, 20. and therefore were not of Gods peculiar election, as the judges, and so they were wicked men, and many of them, yea all for the most part, did evil in the sight of the Lord, and their law, [gap] their manner and custome was to oppresse the people, and so were their inferiour judges little Tyrants, and lesser Lyons, Leopards, evening Wolves. Ezech. 22.27. Mic. 3.1, 2, 3. Esa. 3.14, 15. And the Kings and inferiour judges are onely distinguished, de facto, that the King was a more Catholick oppressour, and the old Lyon, and so had more art and power to catch the prey then the inferiour judges who were but whelps, and had lesse power, but all were oppressors (some few excepted, and Samuel speaketh of that which Saul was to be, de facto, not de jure, and the most part of the Kings after him) and this Tyranny is well called jus regis, the manner of the King, and not the manner of the jugdes, because it had not been the practice, custome and [gap] of the beleeving judges, before Sauls Reigne, and while God was his peoples King, 1 Sam. 8.7. to oppresse. 3. We grant that all other inferiour judges after the people cast off Gods government, and in imitation of the nations, would have a King, were also lesser Tyrants, as the King was a greater

Tyrant, and that was a punishment of their rejecting God and Samuel to be their King and judge. 4. How shall Arnisaeus prove that this manner or [gap] of the King w[gap]s potestas concessa, a power granted, I hope, granted of God; and [gap] abuse of Kingly power, for then he and Royalists must say, that all the acts of Tyranny ascribed to King Saul, 1 Sam. 8.11, 12, 13, 14. by reason of which they did cry out, and complaine to God because of their oppression, was no abuse of power given to Saul. Ergo, it was an use and a lawfull use of power given of God to their King, for there is no medium or mids betwixt a lawfull power used in morall acts, and a lawfull power abused, and indeed Arnisaeus so distinguisheth a King and a Tyrant, that he maketh them all one in nature and spece. He saith, a Tyrant doth quod licet, that which by Law he may do, and a King doth not these things, quae licent, which by Law he may do, but so to me it is clear, a Tyrant acting as a Tyrant, must act according to this [gap] law of the King▪ and that which is lawfull, and a King acting as a King and not doing these things that are lawfull, must sin against his office, and the power that God hath given to him, which were to commend and praise the Tyrant, and to condemne and dispraise the King. 3. If this Law of the King be a permissive Law of God, which the king may out of his absolutenesse, put in execution to oppress[gap] the people, such as the law of a bill of divorcement, as Arnisaeus, Barcklay, and other Royalists say, then must God have given a Law to every King to play the Tyrant, because of the hardnesse of the Kings heart, but we would gladly see some word of God for this. The Law of a bill of Divorcement is a meere positive Law permitted in a particular exigent, when a husband out of levity of heart and affection cannot love his wife, therefore God by a Law permitted him out of indulgence to put her away, that both he might have a seed (the want whereof, because of the blessed seed, to be borne of woman, was a reproach in Israel) and though this was an affliction to some particular women, yet the intent of the Law, and the soul thereof was a publique benefit to the Common-wealth of Israel, of which sort of Lawes I judge the hard usage permitted by God to his people, in the Master toward the servant, and the people of God toward the stranger of whom they might exact usury, not toward their brethren to be; But that God should make a permissive Law that Ieroboam might presse all Israel to sinne and worship the Golden Calves, and that a King by Law may kill, as a

bloody Nero, all the people of God, by a Divine permissive Law, hath no warrant in Gods word: Judge reader, if Royalists make God to confer a benefit on a land, when he giveth them a King, if by a Law of God, such as the Law for a bill of Divorcement, the King may kill and devour as a lawfull absolute Lion, six kingdoms of nations that professe Christ and beleeve in his name. For if the King have a divine law to kill an innocent Ionathan, so as it be unlawfull to resist him, he may by that same law turne bloodier then either Nero, Iulian, or any that ever sucked the paps of a Liones, or of any of whom it may be said, Quaeque dedit nutrix ubera, Tigris erat. and he shall be given as a plague of God, ex conditione doni, to the people, and the people, inasmuch as they are gifted of God with a King, to feed them in a peaceable and godly life, must be made slaves; now it wanteth reason that God will have a permissive Law of murthering the Church of Christ, a Law so contrary to the publique good and intrinsecall intention of a King, and to the immuta[gap]le and eternall law of Nature, that one man because of his power, may by Gods permissive Law murther millions of innocents: Some may say, It is against the duty of love, that by Nature and Gods Law the husband owes to the wife, Ephes. 5.25. that the husband should put away his wife; for God hateth putting away, and yet God made a Law, that a husband might give his wife a bill of divorce, and so put her away; and by the same reason, God may make a Law, though against nature, that a King should kill and murther, without all resistance.

QUEST. XXXIX. Whether or no any Prerogative at all above the law be due to the King? or if jura Majestatis be any such Prerogative Royall? (2)

Answ. The question is not if God may make permissive Laws to oppresse the innocent; I grant he may doe it, as he may command Abraham to kill his son Isaac ▪ and Abraham by Law is obliged to kill him, except God retract his Commandement, and whether God retract it, or no, he may intend to kill his son, which is an act of love and obedience to God; but this were more then a permissive Law. 2. We have a cleere Scripture for a permissive Law of divorce, and it was not a Law tending to the universall destruction of a whole Kingdome, or many Kingdomes, but onely to the grievance of some particular wives: but the Law of divorce gave not power to all husbands to put away their wives, but onely to the husband, who could not command his affection to love his wife. But this law of the King, is a Catholique law to all Kings, (for

Royalists will have all Kings so absolute, as it is sin and disobedience to God to resist any) that all Kings have a divine law to kill all their subjects; surely, then it were better for the Church to want such nurse-fathers, as have absolute power to suck their blood: and for such a perpetuall permissive Law continuing to the end of the world, there is no word of God. Nor can we think that the hardnesse of one Princes heart, can be a ground for God to make a Law so destructive to his Church and all mankinde: such a permissive Law, being a positive Law of God, must have a word of Christ for it, else we are not to receive it. 2. Arnisaeus cap. 4. distru. Tyran. & princ. n. 16. thinketh a Tyrant, in excercito, becomming a notorious Tyrant, when there is no other remedy may be removed from government, sine magno scel[gap]re, without great sin. But I aske how men can annull any divine Law of God, though but a permissive Law. For if Gods permissive Law warrant a Tyrant to kill two innocent men, it is tyranny more or lesse, and the Law distinguisheth not. 3. This permissive Law is expressely contray to Gods Law, limiting all Kings Deut. 17.16, 17, 18. How then are we to beleeve, that God would make an universall Law contray to the Law that he established before Israel had a King? 4. What Brentius saith is much for us, for he calleth this [gap] Law a licence, and so to use it must be licentiousnesse. 5. Arnisaeus desireth that Kings may use sparingly the plenitude of their power, for publique good; there must be (saith he) necessity to make it lawfull to use the plenitude of this power justly; therefore Ahab sinned, in that he unjustly possessed Naboths vineyard, though he sinned specially in this, that he came to the possession by murther, and it was peculiar to the Iewes, that they could not transfer their possessions from one tribe to another. But if it be so, then this power of absolutenesse is not given, by permissive Law, by which God permitted putting away of wives, for the object of a permissive Law is sinne, but this plenitude of power may be justly put forth in act (saith he) if the publique good may be regarded: I would know what publique good can legittimate Tyranny and killing of the innocent, the intentions of men can make nothing intrinsecally evil to become good. And 6. How can that be a permissive Law of God, and not his approveing Law by which Kings create inferiour judges? for this is done by Gods approving will. 7. It is evident that Arnisaeus his minde is, that Kings may take their subjects vineyards, and their goods, so they erre not in the manner, and

way of the act, so be like, if there had not been a peculiar Law that Naboth should not sell his vineyard, and if the King had had any publique use for it, he might have taken Naboths vineyard from him, but he specially sinned (saith he) in eo maxime culpatur, &c. that he took away the mans vineyard by murthering of him, therefore saith Arnisaeus c. 1. de potest. maj. in bona privato. 2. that by the Kings Law 1 Sam. 8. There is given to the King, a dominion over the peoples sons, daughters, fields, vineyards, olive-yards, servants and flockes. So he citeth that that Daniel putteth all places, the Rocks of the Mountaines, the birds of the heaven Dan. 2. under the Kings power. So all is the Kings in dominion, and the subjects in use onely.

But 1. This law of the King then can be no ground for the Kings absolutenesse above Law, and there can be no permissive Law of God here, for that which assert[gap]th the Kings Royall Dominion over persons and things, that must be the Law of Gods approving, not his permiting evil, but this is such a Law as Arnisaeus saith.

2. The text speaketh of no Law or lawful power, or of any absolutenesse of King Saul; but of his wicked custome, and his rapine and Tyranny, He will take your sons, your daughters, your fields, and your vineyards from you. Saul took not these through any power of dominion by Law, but by meere Tyranny.

3. I have before cleared that the subjects have a propriety, and an use also, else how could we be obliged by vertue of the fift commandement to pay tribute to the King, Rom. 13.7. for that which we pay, was as much the Kings before we payed, as when we have paied it.

4. Arnisaeus sai[gap]h all are the Kings in respect of the universall jurisdiction, that the King hath in governing and ordering all to the universall end, the good of the Common-wealth, for as universall nature careth for the conservation of the spece and kind, so doth particular nature care for the conservation of individuals, so do men care for their private good, and the King is to refer every mans private goods, to the good of the publick, but the truth is, this taketh not away propriety of goods from private men, retaining onely the use to private men, and giving the dominion to the King, because this power that the King [gap]ath of mens goods, is not power of dominion, that the King hath over the goods of men, as if the King were Dominus, Lord and owner of the fields and monyes of the private subject, but it is a power to regulate the goods for a publique use, and

supposeth the abuse of goods, when they are Monopolized to, and for private ends. 2. The power that the King hath over my bread is not a power of dominion, so as he may eat my bread, as if it were his own bread, and he be Lord of my bread as I was sometimes my self, before I abused it, but it is a dominion unproperly, and abusively so called, and is a meere fiduciary, and dispensatory power, because he is set over my bread not to eat it, nor over my houses to dwel in them, but onely with a ministeriall power as a publique, though a honourable servant and w[gap]tchman app[gap]inted by the community, as a mean for an end to regulate my bread, houses, moneys, fields for the good of the publique. Dominion is defined a faculty to use a thing as you please, except you be hindered by force, or by Law. [gap]ustin. tit. c. de legibus in l. digna vox. &c. So have I a dominion over my own garments, house, money, to use them for us[gap]s not forbidden by the Law of God, and man, but I may not lay my corne field wast that it shall neither bear grass[gap] nor corne, the King may hinder that, because it is a hurt to the publique: but the King as Lord and Soveraigne hath no such dominion over Naboths vi[gap]eyard. H[gap]w the King is lord of all goods, ratione jurisdictionis, & tuitionis s[gap]. Anton. de paudrill. in l. Altius. n. 5. c. de servit. Hottom. illust. quest. q. 1. ad fin. Conc. 2. Lod. Molin. de just. & jur. dis. 25. Soto. de justiti[gap] & jur. l. 4. q. 4. art. 1.