Question XXXIX.

Whether or no any prerogative at all above the law be due to the king, or if "jura majestatis" be any such prerogative royal.

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 tyrannical. 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 Spain, over his conquest without the borders of Europe, and some few other conquerors. 2. There is another power limited to God's law, the due proper right of kings. (Deut. xvii. 18-20.) 3. There is, a potestas intermedia, a middle power, not so vast as that which is absolute and tyrannical, which yet is some way human. This I take what jurists call jus regium, lex regia, jura regalia regis; Cicero, jura majestatis; Livius, jura imperii, and these royal privileges are such common and high dignities as no one particular magistrate can have, seeing they are common to all the kingdom, as that Cæsar only should coin money in his own name. Hence the penny given to Christ, because it had Cæsar's image and superscription, (Matt. xxii. 20, 21,) infers by way of argumentation, a0po/dote ou}n, &c., give therefore tribute to Cæsar as his due; so the magazine and armoury for the safety of the kingdom is in the king's hand. The king hath the like of these privileges, because he is the common, supreme, public officer and minister of God for the good of all the kingdom; and, amongst these royal privileges, 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 express consent of his council, which he cannot always carry about with him, as the law saith. The king shall not raise armies without consent of the parliament; but if an army of Irish, or Danes, or Spaniards, should suddenly land in Scotland, he hath a power, without a formally-convened parliament, to command them all to rise in arms against these invaders and defend themselves, — this power no inferior magistrate hath as he is, but such a magistrate. And in many such exigencies, when the necessity of justice or grace requireth an extemporal exposition of laws, pro re nata, for present necessary execution, some say only the emperor, — others, all kings have these pleasures. I am of the mind of Arnisæus,[1] that these privileges are not rewards given to princes for their great pains; for the king is not obliged to govern the commonwealth because he receiveth these royal privileges as his reward, but because by office he is obliged to govern the commonwealth; therefore these privileges are given to him, and without them he could not so easily govern. But I am utterly against Arnisæus, who saith, "These are not essential to a king, because (saith he) he createth marquises, dukes, nobles, &c., and constituteth magistrates, not because of his royal dignity, but by reason of his absolute power; for many princes have supreme power and cannot make nobles, and therefore to him they are jura majestatis, non jura potestatis.

Ans. 1. — The king, suppose a limited king, may and ought to make nobles, for he may confer honours as a reward of virtue; none can say Pharaoh, by his absolute authority, and not as a king, advanced Joseph 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 kingdoms, because, (Dan. vi. 3,) "an excellent spirit was in him;" and in justice the king could ennoble none rather than Daniel, except he should fail against the rule of conferring honours. It is acknowledged by all, that honos est prœmium virtutis, honour is founded upon virtue; 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 absoluteness of majesty, are to make men of wisdom, fearing God, hating covetousness, judges under them, Deut. i. 13; 2 Chron. xix. 6, 7; Psal. ci. 6-8.

3. If we suppose a king to be limited, as God's king is, (Deut. xvii. 18-20,) yet is it his part to confer honours upon the worthiest. Now, if he have no absoluteness 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 or God's immediate creating of kings, without any intervening action of the people?

4. By this absoluteness of majesty, kings may play the tyrant, as Samuel (1 Sam. viii. 9-14) foretelleth Saul would do. But I cannot believe that kings have the same very official absolute power, from whence they do both acts of grace, goodness, 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 do acts of extreme tyranny: for out of the same fountain doth not proceed both sweet water and bitter. Then by this absoluteness kings cannot do acts of goodness, justice, and grace, and so they must do good as kings, and they must do acts of tyranny as men, not from absoluteness of majesty.

5. Inferior magistrates, in whom there is no absoluteness of majesty, according to royalists, may expound laws also extemporally, and do acts of justice, without formalities of civil or municipal 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 enemy, when the watchmen are sleeping, though the law be, that any ascending to the wall of the city shall die. Also, the inferior judge may make judges and deputies under himself.

6. This distinction is neither grounded upon reason or laws, 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 official power that a king hath, is a royal 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, Arnisæus allegeth, 1 Sam. viii. the manner or law of the king, ver. 9, 11, and he saith, It cannot be "the custom and manner of the king, but must be the law of absolute majesty, 1. Because it was the manner of inferior judges, as Tiberius said of his judges, to flay the people, when they were commanded to shear them only. 2. Samuel's sons, who wrested judgment and perverted the law, had this manner and custom to oppress the people, as did the sons of Eli; and, therefore, without reason it is called the law of kings, jus requm, if it was the law of the judges; for if all this law be tyrannical, 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 mean here a greater license than kings can challenge, if at any time they would make use of their plentitude 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 pernicious to the people, which Gregory calleth jus regium tyrannorum, the royal law of tyrants. — So Seneca, 1 de clem. c. 11, hoc interest inter regem et tyrannum, species ipsa fortunæ ac licentiæ par est, nisi quod tyranni ex voluntate sæviuntj reges non nisi ex causa et necessitate? quid ergo? non reges quoque occidere solent? sed quoties fieri publica utilitas persuadet, tyrannis sævitia cordi est. A tyrant in this differeth from a king, Qui ne ea quidem vult, quæ sibi licent, that a king will not do these things which are lawful; a tyrant doth quæ libet, what he pleaseth to do.

Ans. 1. Arnisæus betrayeth his ignorance in the Scriptures, for the word +p%a#O;mi signifieth a custom, and a wicked custom, as by many Scriptures I have proved already: his reasons are poor. It is the manner of inferior 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 oppress, and his tyranny hath more colour, and is more catholic than the oppression of inferior judges. It is not Samuel's purpose thus to distinguish the judges of Israel and the kings, in that the judges had no power granted them of God to oppress, 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 bear any such difference; for it was as unlawful to resist Moses, Joshua, Samuel, (as royalists prove from the judgment of God that came upon Korah, Dathan, and Abiram,) as to resist king Saul and king David: royalists doubt not to make Moses a king. It was also no less sin to resist Samuel's sons, or to do violence to their persons, as judging for the Lord, and sent by the supreme judge, their father Samuel, than it was sin to resist many inferior judges that were lions and even wolves under the kings of Israel and Judah, 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 he pleased, and were believers, (Heb. xi. 32,) saved by faith, and so used not their power to oppress the people, though inferior judges, as the sons of Eli and Samuel, perverted judgment; and therefore in the time of the judges, God, who gave them saviours and judges, was their king; but kings were tyed to a certain tribe, especially the line of David, to the kingdom of Judah.

2. They were hereditary, but judges are not so.

3. They were made and chosen by the people, (Deut. xvii. 14, 15; 1 Sam. x, 17-20; 2 Sam. v. 1-3,) as were the kings of the nations; and the first king, (though a king be the lawful ordinance of God,) was sought from God in a sinful imitation of the nations, (1 Sam. viii. 19, 20,) and therefore were not of God's 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, +p%a#O;mi their manner and custom, was to oppress the people, and so were their inferior judges little tyrants, and lesser lions, leopards, evening wolves. (Ezek. xxii. 27; Mic. in. 1-3; Isa. iii. 14, 15.) And the kings and inferior judges are only distinguished, de facto, that the king was a more catholic oppressor, and the old lion, and so had more art and power to catch the prey than the inferior judges, who were but whelps, and had less 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 judges, because it had not been the practice, custom, and +p%a#O;mi of the believing judges, before Saul's reign, and while God was his people's king, (1 Sam. viii. 7,) to oppress. We grant that all other inferior judges, after the people cast off God's 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. How shall Arnisæus prove that this manner or +p%a#O;mi of the king was, potestas concessa, a power granted, I hope, granted of God, and not an abuse of kingly power; for then he and royalists must say, that all the acts of tyranny ascribed to king Saul, (1 Sam. viii. 11-14,) by reason of which they did cry out, and complain to God because of their oppression, was no abuse of power given to Saul; therefore it was an use, and a lawful use of power given of God to their king, for there is no medium betwixt a lawful power used in moral acts, and a lawful power abused; and, indeed, Arnisæus so distinguisheth a king and a tyrant, that he maketh them all one in nature and specie. He saith, a tyrant doth, quod licet, that which by law he may do, and a king doth not these things, quæ licent, which by law he may do; but, so to me it is clear, a tyrant, acting as a tyrant, most act according to this +p%a#O;mi law of the king, and that which is lawful, and a king, acting as a king, and not doing these things that are lawful, must sin against his office, and the power that God hath given to him, which were to commend and praise the tyrant, and to condemn and dispraise the king. If this law of the king be a permissive law of God, which the king may, out of his absoluteness, put in execution to oppress the people, such as a law of a bill of divorcement, as Arnisæus, Barclay, and other royalists say, then must God have given a law to every king to play the tyrant, because of the hardness of the king's heart; but we would gladly see some word of God for this. The law of a bill of divorcement is a mere 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 might have a seed, (the want whereof, because of the blessed Seed to be born 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 public benefit to the commonwealth of Israel, of which sort of laws 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 — though not toward their brethren. But that God should make a permissive law, that Jeroboam might press all Israel to sin 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 God's 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 lawful absolute lion, six kingdoms of nations that profess Christ and believe in his name. For if the king have a divine law to kill an innocent Jonathan, so as it be unlawful to resist him, he may, by that same law, turn bloodier than either Nero, Julian, or any that ever sucked the pape of a lioness, or of whom it may be said, Quæque dedit autrix 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 murdering the church of Christ, a law so contrary to the public good and intrinsical intention of a king, and to the immutable and eternal law of nature, that one man, because of his power, may, by God's permissive law, murder millions of innocents. Some may say, "It is against the duty of love, that by nature and God's law the husband owes to the wife, (Ephes. v. 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 murder, without all resistance."

Ans. — 1. The question is not, if God may make permissive laws to oppress the innocent; I grant he may do it, as he may command Abraham to kill his son Isaac; and Abraham by law is obliged to kill him, except God retract his commandment, and whether God retract it or not, he may intend to kill his son, which is an act of love and obedience to God; but this were more than a permissive law. 2. We have a clear Scripture for a permissive law of divorce, and it was not a law tending to the universal destruction of a whole kingdom, or many kingdoms, but only to the grievance of some particular wives; but the law of divorce crave not power to all husbands to put away their wives, but only to the husband who could not command his affection to love his wife. But this law of the king is a catholic 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 perpetual permissive law continuing to the end of the world, there is no word of God. Nor can we think that the hardness of one prince's heart can be a ground for God to make a law, so destructive to his church and all mankind; 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. Arnisæus, (cap. 4. distru. Tyran. et princ. n. 16.) thinketh a tyrant, in exercito, becoming a notorious tyrant, when there is no other remedy, may be removed from government, sine magno scelere, without great sin. But, I ask, how men can annul any divine law of God, though but a permissive law. For if God's permissive law warrant a tyrant to kill two innocent men, it is tyranny more or less, and the law distinguisheth not. 3. This permissive law is expressly contrary to God's law, limiting all kings. (Deut. xvii. 16-18.) How then are we to believe that God would make an universal law contrary to the law that he established before Israel had a king? 4. What Brentius saith is much for us, for he calleth this +p%a#O;mi law a licence, and so to use it, must be licentiousness. 5. Arnisæus desireth that kings may use sparingly the plenitude of their power for public good; there must be, saith he, necessity to make it lawful to use the plenitude of their power justly; therefore Ahab sinned, in that he unjustly possessed Naboth's vineyard, though he sinned specially in this, that he came to the possession by murder, and it was peculiar to the Jews that they could not transfer their possessions from one tribe to another. But if it be so, then this power of absoluteness is not given by permissive law, by which God permitted putting away of wives, for the object of a permissive law is sin; but this plenitude of power may be justly put forth in act, saith Re, if the public good may be regarded. I would know what public good can legitimate tyranny and killing of the innocent, — the intentions of men can make nothing intrinsically evil to become good. 6. How can that be a permissive law of God, and not his approving law, by which kings create inferior judges? for this is done by God's approving will. 7. It is evident that Arnisæus' mind is, that kings may take their subjects' vineyards and their goods, so they err 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 public use for it, he might have taken Naboth's vineyard from him; but he specially sinned, saith he, in eo maxime culpatur, &c., that he took away the man's vineyard by murdering of him; therefore, saith Arnisæus, (c. 1. de potest. maj. in bona privato. 2,) that by the king's law, (1 Sam. viii.,) "There is given to the king, a dominion over the people's sons, daughters, fields, vineyards, olive-yards, servants, and flocks." So he citeth that, that Daniel putteth all places, the rocks of the mountains, the birds of the heaven, (Dan ii.,) under the king's power. So all is the king's in dominion, and the subjects in use only.

But 1. This law of the king, then, can be no ground for the king's absoluteness above law, and there can be no permissive law of God here; for that which asserteth the king's royal dominion over persons and things, that must be the law of God's approving, not his permitting evil; but this is such a law as Arnisæus saith.

2. The text speaketh of no law or lawful power, or of any absoluteness of king Saul, but of his wicked custom, 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 mere tyranny.

3. I have before cleared that the subjects have a propriety, and an use also, else how could we be obliged, by virtue of the fifth commandment, to pay tribute to the king, (Rom. xiii. 7,) for that which we pay was as much the king's before we paid as when we have paid it.

4. Arnisæus saith, all are the king's, in respect of the universal jurisdiction that the king hath in governing and ordering all to the universal end, the good of the commonwealth; for as universal nature careth for the conservation of the specie and kind, so doth particular nature care for the conservation of individuals, so do men care for their private goods, and the king is to refer every man's private goods to the good of the public. But the truth is, this taketh not away propriety of goods from private men, retaining only the use to private men, and giving the dominion to the king, because this power that the king hath of men's 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 monies of the private subject; but it is a power to regulate the goods for a public use, and supposeth the abuse of goods, when they are monopolised to and for private ends. 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 sometime myself, before I abused it, but it is a dominion improperly and abusively so called, and is a mere fiduciary and dispensatory power, because he is set over my bread not to eat it, nor over my houses to dwell in them, but only with a ministerial power, as a public though honourable servant and watchman, appointed by the community as a mean for an and, to regulate my bread, houses, monies and fields, for the good of the public. Dominion is defined "a faculty to use a thing as you please, except you be hindered by force or by law;" (Justin. tit. c. de legibus in l. digna vox, &c.;) so have I a dominion over my own garments, house, money, to use them for uses not forbidden by the law of God and man, but I may not lay my corn-field waste, that it shall neither bear grass nor corn, — the king may hinder that, because it is a hurt to the public; but the king, as lord and sovereign, hath no such dominion over Naboth's vineyard. How the king is lord of all goods, ratione jurisdictionis, et tuitionis se. Anton. de paudrill. in l.; Altius. n. 5, c. de servit; Hottom. illust. quest. q. 1, ad fin., conc. 2; Lod. Molin. de just. et jur. dis. 25; Soto. de justitia et jur. l. 4, q. 4, art. 1.

[1] Arnisæus de jure, 6 maj. c. 1, n. 3, p. 157, 158.

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