law of absolute Majesty c. It is said of Paracelsus that the diet he prescribed his patients was to eat what and how often they thought fitting themselves Royallists and Court-flatterers do allow such an absolute prerogative to Kings that if they would make use of their plenitude and unlimitted power there is no wickednesse but they may do viz. violently ravish matrons deflour virgins unnaturally abuse youth cut all their Subjects throats fire their houses sack their Cities subvert their Liberties and as Bellarmin puts the case of the Popes absolute irresistible authority send millions of souls to hel yet no man under pain of damnation may or ought demand of him Domine cur ita facis Sir what do you such a slavery those vermins have sought to bring all Subjects into But to answer 1. The scope and drift of the place is thus Samuel being displeased with the people because they would reject Gods government who was then their King having in his own hand the regal rights and did substitute under him Judges whom he extraordinarily called qualified and inspired them with his spirit shews them the manner of the King ver 9.11 not what they should be and ought to do in right but what they use to be and do in fact and how commonly they demean themselves in Government contrary to Gods Law Deut. 17.15 and the Lawes of the Kingdom and that he speaks not here of the Law or power of a lawfull King but of Saul's tyrannicall usurpation is evident thus 1. The Hebrew word is not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the which as our English rendreth is the manner and so the word usually signifies a 2 K ng 17.26 Gen. 40 13. Exod 21,19 1 Sam 27,11 a custome or manner and as a custom so a wicked b 1 Sam 2,13 1 Kings 18,28 custome Peter Martyr on the place saith He meaneth here of an usurped Law The custome and manner of doing say Junius and Tremellius Clemens Alexandrinus on the place saith non humanum pollicetur Dominum sed insolentem daturum minatur tyrannum he promiseth not a humane Prince but threatneth to give them an insolent tyrant So saith Beda Lyra expoundeth it Tyranny so Cajetanus And Serrarius he speaketh not here quid Reges jure possint sed quid audeant what they may do by right and Law but what they wil be bold to do and so speaketh Thomas Aquinas Osiander Pelican Borhaius Willet and our last large Annotations take it that Samuel setteth not down the office of a King and what he ought to be but what manner of Kings they should have such as would decline to tyranny be tyrants not Kings rule by will not by Law 2. He speaketh of such a power as is answerable to the acts here spoken of but the acts here spoken of are acts of meer tyranny As 1. to make slaves of their sons ver 11. was an act of Tyranny 2. To take their fields and vineyards and oliveyards from them ver 14. was no better then Ahabs cruelty towards Naboth 3. To put the people of God to bondage ver 15 16. was to deal with them as the Tyrant Pharaoh did 4. He speaketh of such a Law the execution whereof should make them cry out to the Lord because of their King ver 18. but the execution of the just Law of the King Deut. 17. is a blessing not a crosse or curse 3. It is clear that God by his Prophet disswades them from their purpose of seeking a King by fortelling the evil of punishment that they should suffer under a tyrant for 1. Samuel is to protest against their unlawfull course v. 9. 2. He is to lay before them the tyranny and oppression of their King which cruelty Saul exercised in his time as the history of his life sheweth But he speaketh not one word of these necessary and comfortable acts of favour that a just King by his good Government was to do for his people Deut. 17. 3. It is set down ver 19. how in effectual Samuels exhortation was now how could it be said they refused to hear the voyce of Samuel if he had not dehorted them from a King 2. Touching these words and ye shall cry out in that day because of your King 1. Here is not one word of any lawfull remedy for this is not alwayes understood of praying to God by reason of oppression as by many a Is 15.4 Ha. 2.11 Deut. 22.24 Scriptures doth appear 2. Though it were the Prophets meaning they cryed unto the Lord yet it is not the crying of a people truly humbled and in faith speaking to God in their b Zec. 7.12 Psal 18.41 troubles and therefore such prayer as God heareth not 3. It is a rule in Logick and Divinity Ex particulari non valet argumentum negative from one particular place a negative argument is not good To apprehend imprison and put a tyrant to death is not written in this particular place therefore it is not written at al in other places of Scripture But 4. The text sayes not They shall only cry out as if no other course were to be used against a tyrant but crying out which shews a meer fallacy and absurdity in what they speak Because a man must pray for Kings and Rulers Ergo there is no tribute or obedience due to them Again Men must pray for their daily bread and sick persons seek to God for health Ergo they must only pray and not labor for it they must take no phisick but only pray 3. If the Prophets words be rightly understood he is so far from affirming that the power of a King is absolute and uncontroulable as on the contrary he closely admonisheth the people that they should look to him as to restrain and bridle his licentious liberty and keep him within the due limits of law and reason and seeing he is apt to degenerate into a tyrant and cruelly to oppresse the subjects to be therefore prudent and carefull seasonably to prevent so great a mischief and danger Lastly In the whole description here of a tyrant there is not one word against our Conclusion For 1. The peoples power whose Representatives the Ordines Regni the States of the Kingdom are is above the King Polib his l. 6 Such were the Ephori amongst the Lacedemonians the Senate amongst the Romans The Forum Superbiense amongst the Arragonians The Electors of the Emperors the Parliaments in England Scotland France and Spain The Fathers of Families and Princes of Tribes amongst the Jews And for this Soveraign and Supream power of Estates as above Kings I appeal to Jurists and to approved Authors Argu. L. aliud 160. sect 1. de Jur. Reg. l. 22. Mortuo de fidei l. 11.14 ad Mum. l. 3.14 Cornelius Bertramo c. 12. Junius Brutus Vindic. cont Tyran sect 2. Sigonius de Rep. Judaeor l. 6. c. 7. Author Libelli de Jur. Magist in Subd q. 6.
us our sins as we forgive them that sin against us For there is no reason from the nature of sin and the nature of Gods Law why we can say more the subjects and sons sin against the King and Father then to say the Father and King sin against the sonnes and subjects 3. The King killing his Father Jesse should sin only against God but not break the fift commandment nor sin against his Father 2. As all Emperors Kings and Princes are subject to the Lawes of God of nature and Nations so are they bound in conscience to give satisfaction and recompence to their subjects against whom they sin in this nature and David himself determines so much in his own cause And Davids anger was greatly kindled against the man the man was himself 1 Sam. 12.7 thou art the man and he said to Nathan as the Lord liveth the man that hath don this shall surely die 3. For the reason of Davids speech in saying against thee thee only have I sinned Expositors are diversly minded some say he meaneth none durst judge or punish him but God onely Lorinus the Jesuit observeth eleven interpretations of Ancient writers all to this sence It is true Beda Euthymius Ambrose Chrysostome Basil Theodoret do acknowledge from the place de facto there was none above David to judge him so Augustine Basil Gregory Arnobius Dydimus Hieronim But the simple meaning is Against thee only 1. As my eye witnesse and immediate beholder for he conceal'd his sin from men but could not from God 2 Sam. 12.12 2. Because as the cause stood God only could remit the punishment of his sin 3. By only he means comparatively as if he should say principally and especially against thee Isa 43 5 Psal 41.3 and the word a 1 King 15.7 Josh 1.7.18 1 Sam. 18.17 only is often so taken 4. The Sanedrim did not punish David Ergo it was not lawful for them nor is it lawfull for a State to punish a King for any act of injustice is logick which we may resist 5. Had the adultery and murder been publickly known and complained of to the Great Councel of the Kingdom I do affirm and will stand to it that they might judicially have proceeded against him for it And because some wil be ready to brand this under the scornful terme of a new light or think I am singular herein I shall here set down the judgment of a judicious and learned professor of Divinity Mr. Sam. Rutherfurd a Scotchman Preem of Elect of King qu 26 p 241 The Prelate saith he draweth me to speak of the case of the Kings unjust murder confessed Psal 51. To which I answer He taketh it for confessed that it had been treason in the Sanedrin and States of Israel to have taken on them to judge and punish David for his adultery and murder but he giveth no reason for this nor any word of God and truly though I will not presume to go before others in this Gods law Gen. 9.6 compared with Numb 35.30,31 seemeth to say against them Nor can I think that Gods law Deut 1,17 2 Chr. 19 6,7 or his deputy the Judges are to accept the persons of the great because they are great and we say we cannot distinguish where the Law distinguisheth not The Lord speaks to under-under-Judges Levit. 19.15 Thou shalt not respect the person of the poor nor the honor of the person of the mighty or of the PRINCE for we know what these names 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 meaneth I grant it is not Gods meaning that the King should draw the sword against himself but yet it follows not that if we speak of the demerit of blood that the Law of God accepteth any Judge great or small and if the STATE BE ABOVE THE KING as I conceive they are though it be a humane politick constitution that the King is free from all coaction of law because it conduceth for the peace of the Common-wealth yet if we make a matter of conscience FOR MY PART I SEE NO EXCEPTION THAT GOD MAKES OF IT if men make I crave leave to say A facto ad jus non sequitur Thus that Reverend Author Lastly This sin against Vrijah was personal and a private injury into which David fell by occasion and out of humane frailty it was the first and only sin that he committed in this kind that ever we reade of he made no trade of it he repented for it and never relapsed after into it Whereas Charles Steuart in a hostile and publick way hath murdered many thousands of his best subjects by giving Warrants and Commissions under his own hand to Atheists and Papists personally appeared in many battles to destroy the people caused sundry villages towns and cities to be ruinated by fire plunder rapine authorised villanous Pirates of other nations not to mention his own Son nor Rupert that monster of mankind to rob and kill his own subjects at sea gave Ormond commission and the bloody Irish to kill and massacre not so few as two hundred thousand men women and children of the Protestant religion in Ireland not to speak of fifteen hundred widowes which he made in one morning as Mr. Henderson told him nor the losse of Rochel in France by his lending ships to the French King and this was his trade and constant practice many yeers together and doubtlesse would have continued so to this day had not the Lord of Hosts by a powerfull hand using our Army as instrumental means supprest him and for all this his heart never smote him as it could be perceived but remain'd impenitent and incorrigeble in his sins 9. obiect It is likewise objected Jer. 29,7 That the children of Israel were commanded by God himself to pour out supplications prayers for the peace and prosperous estate of Nebuchadnezer a most cruel tyrant and that it was not lawfull for the Jewes to withdraw themselves from the subjection which they did owe unto his Empire Neither would the Lord authorize the people to deliver themselves from under Pharaoh but made Moses a Prince to bring them out of Egypt with a stretched out arm Nor did the Lord deliver his People by the wisdom of Moses or strength of the People or any act that way of theirs but by his own immediate hand and Power Hence conclude that subjects may not punish their Kings for any misdemeanour Answ 1. The Jews were not only subjects and of a private condition but likewise most of them servants and bond-men under the power and Empire of the Caldeans and therefore for private men to rise up against the Magistrates or to resist them with force of arms had been unlawfull 2. And let it be observed that the Jews came by the immediate appointment of the Lord under the power of the Caldeans of which thing they were often preadmonished and fore-told by the Prophets so that it was not only
King to accuse and punish him Groti de jure bell pac l. 1 cap. 4. The second is He may saith he be punished as a private man 4. Objec That place in Psal 105.14.15 is usually objected Touch not mine anointed This by Royallists is applied to Kings as a prohibition that no man touch them so as to hurt their Persons Answ 1. The words in the Prophet do not at all concern Kings but were spoken directly and immediatly of the Patriarks their wives families walking as strangers from Nation to Nation the which is evident by vers 6. by the whole serious of the Psalm which is historical some places of Genesis to which the words relate Gen. 12. 10. to 20. ch 20. 26. 1. to 29. and the general confession of all Expositors on the place The Cavalliers had in one of their Colours which was taken by the Scots at the battle of Marston July 2. Anno 1644. the Crown and the Prelates mitre painted with these words Nolite tangere Christos meos so that it seems the antichristian mitre claims here a share with the crown But 2. Admit this Scripture should be so meant which is not so yet nothing can be hence rightly gathered that Kings should be exempted from Arrests Imprisonments or Sentence of death it self For 1. If we take it spiritually for the internal oyl of the Spirit as this annointing is common to subjects as wel as Kings so it must follow necessarily that in their persons they are no more exempted from arraignment and capital censures than other men 2. Admit it be meant of an actual external Anointing yet that in it self affords Kings no greater priviledge than the inward unction of which it is a type neither can it priviledge them from the just corporal sentence of all kinds and this is manifest in Sihon Og Adonibezek Eglon Agag Joram Ahaziah Jehoaz and others who by Princes and subjects of another nation were apprehended and slain and justly as all grant without exception Besides Kings who are subordinate homagers and subjects to other Kings and Emperours though annointed may for treasons and rebellions against them be lawfully judged to death and executed as appears by sundry presidents in our own and forraign Histories Yea the Roman Greek and Germane Emperors have been Imprisoned Deposed and some of them judicially judged to death by their own Senates Parliaments and States for their oppression and tyranny So the ancient Kings of France Spain Arragon Brittain Hungarie Poland Denmark Bohemia India c. that justly notwithstanding any pretence of being anointed Soveraigns And it is by Grotius confessed Grot. de Jur. bel pac l. 1 cap. 4 That the People may punish the King to death for matters capital if so it be agreed on betwixt king and the people as in Lacedemonia 3. If the Scope and Sence of this Text be duly weighed it is so far from affording Kings any corporal immunities or exemption from punishment as it cleerly speaks the contrary For the words are not spoken of Kings but by God Himself spoken unto Kings that they should not touch his Spiritual anointed Saints men consecrated unto him by the oyl of the Spirit But you wil say What if they touch Gods anointed even spoil and murder them for his sake I answer The Law Gen. 9.6 excepteth none the dearest that nature knoweth are not excepted Who so sheddeth mans blood by man shall his blood be shed The Supream Court of Justice is here highly concerned Thus saith the Lord Because thou hast let go out of thy hand a man whom I appointed to utter destruction therefore thy life shall go for his life and thy people for his people 1 King 20.42 5. obiect Davids often sparing of Saul though in his hand is often object And Dr. Gauden in his late Letter to his Excellency saies You cannot be ignorant of Davids both consciencious and generous respect to Sauls safety and life whom he leaves to Gods justice by no usurpation of power successes or opportunities of revenge page 7. Ans 1. There is nothing from Davids carriage towards Saul in this particular but to bring it into a short account is thus Subjects ought not wilfully or purposely to murder or offer violence to the person of the King specially in their cold blood when he doth not actually assault them nor have a lawful power judiciously to proceed against him 2. But more particularly I answer The difference was but private and personal between Saul David David being Sauls private subject servant and son-in-law not publick between Saul and his Parliament or Kingdom Now many things are unlawful in private quarrels which are just and honourable in publick differences Saul intended no Arbitrary government nor to make Israel a conquered people nor yet to cut off all the godly under the pretence of hereticks and sectaries neither to destroy laws liberties and Parliaments nor came Saul against these Princes Elders and People who made him King only David's head would have made Saul lay down his arms 3. Howsoever some reasons may be given wherefore David spared Saul as 1. Being his father-in-father-in-law and lord too and so it would have been thought somewhat an unnaturall act in him and savoured too much of private revenge and ambition aspiring to the Crown before due time 2. By his lenity to convince Saul and reclaim him from his bloody pursuit and cleer his innocency to the world And lastly Manifest his dependance upon God and his special promise that he should enjoy the crown after Saul by divine appointment neverthelesse if these and other Scriptures be well perused Saul and David soldiers if not David himself conceived that David might with safe conscience have punished him as well as pittied him 1 Sam. 24.10.11 12.17.18 26.23.24 Expedient I confesse it was for the considerations mentioned to spare him but whether the thing in soro Dei and in it self altogether unlawful had he slain him specially after he had killed the Priests and destroyed both men and women children and sucklings in Nob 1 Sam. 22.18.19 I leave to the judicious Reader to think of 6. Objec That place 1 Sam 8.9 and ver 11. is much alleadged to prove both the absolute power of a King and the unlawfulnesse of resistance a Grot. de Jur. bel pac lib. 1. c. 4. n. 3. Hugo Grotius b Barcl cont mon l. 2. p. 64. Barclay c Arnis de fur 6. Mai. c. 1. n. 3. p. 157 158. Arnisaeus d Dr. Fern 3. p. Sect. 2. p. 10. Dr. Fern and others argue thus that by this place The People oppressed with the injuries of a tyrannous King have nothing left them but prayers and tears to God and will have us distinguish inter officium Regis potestatem between the Kings office and the Kings power and it cannot be ver 9.11 the custome and manner of the King but must be the
of God and men therefore not within the limits of this text and therefore to be resisted and the Person punishable 4. Howsoever the lawfull power of Princes be of God yet the tyranny it self and abuse of this power is of Satan and therefore though the power it self which is good and profitable be to be honored and continued yet the tyrant justly may be condemned to death as not within the compasse of this text 13. Obje And thus much for the first sort of Objections we come now to the rest Kings some say are in dignity and power above tho people their persons sacred not criminal or obnoxious to any tribunal but that of God King Theodor. in Cassidore speaking of himself Cassi var. l. 6 var. 4. hac sola ratione discreti quod alteri subdi non possimus qui Judices non habemus In this respect we are distinguished from others that we cannot be subject to another who have no Judges over us Impune quidvis facere id est Regem esse I have read in Plutarch that Alexander Magnus published he was the son of Jupiter Hammon yet when he saw the humor running down from his wounds was constrained to say this is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the blood of man not of God and smelling the stench of his own flesh asked his flatterers if the gods yeelded such a stench Princes specially of late have deem'd themselves to be None-such and altogether unlike other men but when they shall see themselves as prisoners stand at the bar and justice don upon them they will think otherwise of their condition I know what the common saying is Quidquid delirant Reges plectuntur Achivi What fault soever Kings commit The subject must be hang'd for it A practice against Scripture reason and conscience It is no Law grounded upon any divine principle That the King doth no wrong only his wicked Councellers and bad instruments must be punished but he not the Lord saith the soul that sinneth it shall dy and in all ages hath punished the author of sin and persons commanding such and such wickednesse more severely and extreamly then the agent who acted by the others warrant commission and authority We see dayly the mother punished for her whordom yet the bastard spared but that the bastard should suffer and the mother escape it is such a thing as I think was never heard of Now touching the objection I answer 1. Simply absolutely the people are above and more excellent then the King and the King in dignity inferior to the people and the whole Kingdom and this I prove 2 Sam. 19.9 Psa 78.70.71 1 Sa. 10,1 Ro. 13.4 1. Because he is the mean ordained for the people as for the end that he may save them a publick shepheard to feed them the captain and leader of the Lords inheritance to defend them the Minister of God for their good 2. The pilot is lesse then the whole passengers the General lesse then the whole Army the physitian lesse then all the living men whose health he careth for the Master or Teacher lesse then all the Schollers because the part is lesse then the whole The King is but a part or member of the Kingdom 3. Those who are given of God as gifts for the preservation of the people to be nursing-Fathers to them those must be of lesse worth before God then those to whom they are given for the gift as a gift is lesse then the party on whom the gift is bestowed But the King is a gift for the good and welfare of the people as is manifest Esa 1.26 4. People though mortal in the individuals yet in the species cannot dye Ecc. 1.4 but the King as King may and doth die and therefore more excellent then that which is accidental temporary and mortal 5. The people are before the King and may be without the King and therefore must be of more worth then that which is posterior and cannot be a King without them 2. The people in power are superior to the King and that upon these reasons 1. Because every efficient and constituent cause is more excellent then the effect every mean is inferior in power to the end But the people are the efficient cause the King is the effect Isa 3.7 the people are the end both intended of God to save the people to be a healer and physitian to them 2. Common reason Law and experience manifests that the whole or greatest part in all politick or natural bodies is of greater power and jurisdiction then any one particular member Thus in all corporations the Court of Aldermen and Common-Councel is of greater power then the Major alone though the chief officer so the whole Bench then the Lord chief Justice and the whole Councel then the President And it is Aristotle's expresse determination Pol lib. 1 C. 2. l. 3. c. 8. Majorum rerum potest as jure populo tribuitur The King as we sayd just now is but a part or member though I grant a very noble and eminent member of the Common-wealth 3. The Soveraign Power to make Laws and so a power eminent in their states representative to govern themselves is in the people Ergo 4. Those who can limit power and bind royal power in elected Kings they in power are superior to Kings Peter speaking of Kings and their Supremacy cals them a creature or humane ordinance because it took its originall and rise from men and can be bound limitted or restrained as they see occasion 1 Pe 2.13 Coverrunias a great Lawyer saith Cover Tom. 2. pra quest c. 1. n. 2. 3. That all civil power is penes remp in the hands of the Common-wealth and it is a received principle That Soveraign Power eminently fontaliter originally and radically is in the people But it is objected The people have made over their right and whole power to the King all is freely given up into his hands and so may not retract or take back what they have once given Answ 1. It is a thing neither probable nor credible that any free people when they voluntarily incorporated themselves into Kingdoms and of their own accord set up an elective King over them that there was such a stupidity and madnesse in them as absolutely to make away their whole power to the King and his heirs for ever and to give him an entire full and incontroulable Supremacy over them and so to make the Creature superior to the Creator the derivative greater then the primative the servant more potent than themselves and so of free-men to make themselves slaves and for their more safety to be more enslav'd 2. People cannot by the Law of nature resign up their soveraign and popular power authority and right into the hand of a King for neither God nor natures Law hath given them any such power 3. He who constituteth himself a slave is supposed to
the Kings of England have not been absolute Monarchs but the Supreame Soveraignty resided in the people is a thing certainly known and so abundantly proved by other hands as there cannot be any shew of reason brought against it 3. Seeing the King is under law and the representative of the people above the King to proceed in iustice against him hence it will necessarily follow that the King by law may lawfully be put to death for the law saith the highest or supreamest Judge upon earth cannot pardon and free the guilty of the punishment due to him A. de le l. non ideo minns Rom. 3,4 Deu. 1.17 And the reason is he is but the minister of God a revenger to execute wrath upon him that doth evil And if the judgment be the Lords not mans not the Parliaments as indeed it is not he cannot then draw the sword against the innocent nor absolve the guilty except the would take upon him to be wiser then God respect persons in judgment and dispose of that which is proper to his master Now sure it is God only univocally and essentially as God is judge and God only and essentially and all men in relation to him are ministers legates deputies servants I say in relation to him equivocally and improperly Judges and meer created and breathing shadows of the power of the King of Kings And look as the Scribe following his own devise and writing what sentence he pleaseth is not an officer of the court in that point nor the pen and servant of the Judge so the Supream Councel of State and Representative of the Kingdom arraigning the King for murder Treason and other high misdemeanors would be but forged intruders and bastard Judges and go contrary to Law so far as they gieve not the very sentence of God and are not the very mouth of the Iudge of Heaven and Earth to pronounce such a sentence as the Almighty himself would do if he were sitting on the throne or bench 4. Howsoever there be some solemnities of the Law from which the King may be free which indeed are not Laws as Prickman proveth D. c. n. 78 but some circumstances belonging to the Laws Nevertheles if a king commit murder adultery theft and be a traitor a waster and destroyer of his people their goods lives Laws Liberties contrary to his oath and Coronation-Covenant in this case I confidently affirm there is no law that hath reason equity or justice for its bottom and ground against the putting of such a King to death by the great Councel of State as we have formerly shewed above him And the reason is cleer for the people have no power to make a law that the King shall not dy by the hand of Justice what wickednesse soever he should commit 5. I would gladly be informed by any Iurist or Statist If a Tyrant without a title may be killed yea by a private man why a Tyrant that hath lost his right and title to the Crown by the highest Judicature in the Kingdom may not lawfully be put to death Ut L. vim F de Justit jure ubi plene per omnes For the first the law gives it and it is so generally held by Vasquez Barclay and others Vasq l. 1 c. 8. n. 33. Bar. cont Monar l. 4 cap. 10 pag. 286. And for the latter observe what Royalists themselues acknowledge Winzetus against Buchan saith of Nero Wintzet adv Buc. p. 275. that he seeking to destroy the Senate and People of Rome and seeking to make new lawes for himself excidit jure Regni lost all right to the kingdom And Barclay saith a Tyrant such as Caligula spoliare se jure Regni spoileth himself of the right to the Crown So Grotius Groti de jure bell pac l. 1 cap. 4. Si Rex hostili animo in totius populi exitium feratur emittit regnum If he turn enemy to the kingdom for their destruction he loseth his kingdom because saith he Voluntas imperandi voluntas perdendi simul consistere non possunt A wil or mind to govern and to destroy cannot consist together in one 6 The cutting off of a contagious member that by a Gangreen would corrupt the whole body is wel warranted by nature and reason for the safety of the whole is to be preferred before a part But here perhaps it will be objected cut off a mans head and the life of the body is taken away so the King being the head destroy him and the whole body of the Common-wealth is dissolved I answer God cutteth off the spirits of Tyrannous Kings and yet the Common-wealth is not dissolved For 1. This or that tyrannous King being a transient mortal thing cannot be referred to the immortal Common-wealth as it is adequate correlate 2. If all the Kings of the earth were removed yet the Common-wealth would not leave off to be a body it would be only a casting off of one form of Government for another the worser for the better but the natural body without the head cannot live Lastly Mr. Pryn citing some Law-Books where the King is said to be the only Supream Governor of this Realm hath no Peer in his Kingdom ought not to be under man Soveraign power of Parl l. 1. p 104 105. Thus answereth 1. That the meaning of al these books is the king is above every one of his Subjects particularly distributively as single men but if we take them collectively in Parliament as they are one body and represent the whole kingdom then they are above the King and may yea ought to restrain and question his actions his male-Administrations if there be just cause 2. Bracton explains himself how he is highest and without a Peer to wit in distributing justice that is he is the highest Iusticiar in the Kingdom but as the Law as any in receiving justice And for the Oath of Supremacy it relates to the Popes forraign Princes authority formerly usurped in this Realm and not at all to be referred to Parliaments or their jurisdiction power superiority preheminence or authority not so much as once thought of by the subscribers of this Oath which had its creation and authority from the Parliament 15. Obje Some say For people to adjudge their King to death is without example either in Scripture or humane history Answ 1. We argue this negatively this is neither commanded nor practised nor warranted by promise Ergo. It is not lawfull But this is not practised in Scripture Ergo. It is not lawfull It followeth not I read not in all the word of God of a man put to death for lying with a beast for witchcraft for tempting the people to go a whoring and serving a false God yet these things are written and are all divine precepts 2. Physitians say that that Physick which only stirs the humors and doth not carry them away leaves the body worse then it found it so
be compelled to that unnatural fact of alienation of that liberty which he received of God from the womb by violence constraint or extream necessity and so is inferiour to all free-men but the people do not make themselves slaves when they constitute a King over them 4. If the people give all power away 1. What power is then left them to make a new King when this man dies 2. If the King turn distracted or like Nebuchadnezer his reason be taken from him what then or if he turn Tyrant and destroy his subjects with the sword In a word If the King be absent and taken captive the people having given all their power away there can be nothing done in such and many the like cases for their own safety 5. He who sweareth to the people to be regulated by law and taketh the Crown Covenant-wise and so as the people would refuse to make him their King if either he should refuse to swear or if they knew certainly that he would break his oath he had never the whole power of the people resigned up unto him 6. Though the people should give away their power and swear though the King should kill them all they would not resist nor defend their own lives though he should commit the vilest wickednesse that was ever heard of yet they would not question him for it this should not obliege the conscience for it should be intrinsecally sinfull and an oath directly against the law of God 7. These are known rules in law nature and reason Nemo plus iurus ad alium transferre potest quam ipse haberet No man can give to another of right more than that which he hath Again Non debet actori licere quod reo non permittitur so Alterius circumventio alii non praebet actionem So likewise Non debet alteri per alterum iniqua conditio inferri If the father have resigned his whole right of liberty in the hand of the King yet could he not take in his posterity with him neither obliege them in point of equity and conscience to confirm and observe what against the law of nature he had done but his children afterwards might lawfully yea and ought to stand fast in the liberty which the law of God nature and nations had made them free and not be entangled in the slavish yoke and bondage of their father Nullus videtur dolo facere qui suo jure utitur I shall here conclude this point with a few observations 1. Seeing the servant is no better than his Lord Kings may as lawfully be punished for their crimes as other men because in dignity and power they are inferior to the people they are the Ministers and Servants of the Common-wealth not Masters of the State which title good Kings did never scorn nay evil Princes have affected that name and for some ages none of the Roman Emperours unless those who were most manifest wicked and notorious professed tyrants as Caligula Nero Domitian would be called Lords 2. If the King as King be the peoples Creature they his Creator then by the same power they may un-king him For eodem modo quid constituitur dissolvitur in what manner a thing is constituted it may be dissolved Again Omnia quae jure contrahuntur contrario jure pereunt 3. Whosoever grants that the King in power is inferior to the people he must necessarily grant that by this power duly and rightly administred a King for treason and murder may lawfully be put to death for it is absurd and irrational to say there may be a power and the due executing of it unlawful 4. If our forefathers in times past have given away all their power and right to Kings and have sworn not to punish them for tyranny and misgovernment it concerns us not neither are we tied to such engagements oaths promises which they have made but in point of conscience law and reason are free to use our own due power as occasion shall be offered 13 obiect As the King is above the people in dignity and power so say Royallists he is absolute and hath a prerogative above all law Such a plenitude and fulnesse of power saith Sanches Th. San. Ma. Tom 1. l. 2. dis 15. n. 3. as subject to no necessity Nulliusq publici juris regulis limitatus and bounded with rules of no publick law And so Baldus before him Bald. l 2. n 40. c. de s aqua Vlpian saith Vlpian l. de regib The Prince is loosed from laws Bodin Bodin de Rep. l. 7. cap. 20. Nemo imperat sibi no man commandeth himself Tholosanus saith Ipsius dare non accepere the Prince giveth lawes but receiveth none Donellus distinguisheth betwixt a law and a Royal law proper to the King Don. l. 1. com c. 17 Trentlerus saith Tren vol 1. â—…9 8. The Prince is freed from laws and that he obeyeth laws de honestate non de necessitate upon honestie not of necessity And with him Soto Gregorius de valentia and other School-men subject the king to the directive power of the law and liberate him of the coactive power of the law It is reported of one Licas and Thrasilius being cured by Physitians of the Phrensie and phantastical conceits grew afterwards very angry with their friends because they left them not alone in their former foolish condition I know there is little thanks to be expected from the Kings of the earth by seeking to remove that State destroying principle which their Court-flatterers have put into them as Absoluteness a prerogative above law not under power of any jurisdiction c. neverthelesse the work being useful and necessary for the publick good it is fit it should be taken in hand That God hath given no absolute and unlimitted power to a King above law is cleerly proved thus 1. He is appointed of God even when he sitteth on the throne to take heed to read on a written copy of Gods Law that he may learn to fear the Lord his God and keep all the words of this Law Deut. 17,18,19 Notwithstanding the greatnesse of the affairs of his Kingly office he must read the Law the more carefully to observe and obey it in every particular for the ordering of his own life and for the government of the people 2. Whatsoever power a King hath he hath it from the people and all the power they gave him is a legal and lawful power to guide themselves in peace and godlinesse and save themselves from uniust violence by the benefit of Rulers and therefore to claim a power above Law or to use a tyrannical power against the people for their hurt and destruction or to be exempted from punishment is not only against the peoples intention in their election but such a power as they never gave him never had never could give for they cannot give what they never had and power to destroy themselves they never had nor
to save any man who should commit such crimes as by the Law of God and nature deserveth death I say such a power the people never had never gave him and so consequently a King hath it not 3. The Law saith Illud possimus quod jure poscimus Again it is no power which is not a lawfull power and therefore if a King murder the innocent and do acts of sinfull iniustice this tyrannicall power is not from God otherwise then by way of permission as a power to sin in devils and men is and therefore such a power is restrainable and punishable by the subiect as being a power I say not from God at all 4. Note the conditions tacite or expresse upon which the Prince receiveth the crown For soedus conditionatum aut promissio conditionalis mutua facit vis alteri in alterum a mutual conditional covenant giveth Law and power over one to another I ask then why a subject breaking his covenant with the King by treason or rebellions should be punished for it justly and the King breaking his covenant and oath with the people in degenerating into a tyrant and murdering the innocent should not be punished likewise Specially seeing it is acknowledged That the States of the Kingdom who gave him the crown are above him and they may take away what they gave him as the Law of Nature and God saith Qui habet potestatem constituendi etiam jus adimendi Rutl plea for the people quest 26. pag. 234. l. nemo 37. l. 21. de reg jur l. ille a quo 13. S. 5. If the King turn a paricide a lyon a waster and a destroyer of the People as a man he is Subject to the coactive Laws of the land if any thing should hinder that a Tyrant should not be punished by law it must be either because he hath not a superior but God or nemo potest a se ipso cogi but this ground is false and absurd for a politick society as by natures instinct they may appoint a head or heads to themselves so also if their head or heads become ravenous wolves the God of nature hath not left a perfect society and free people remedilesse but they may arraign and punish the head or heads to whom they gave all the power that they have for their good not for their destruction 6. Where ever there is a covenant and oath betwixt two equals yea or superiors and inferiors the one hath some coactive power over the other If the father give his bond to pay the son a thousand pounds as his patrimony though before this ingagement the father was not oblieged but only by the law of nature to give a patrimony to his son yet now by a politique obligation of promise covenant and writ he is so oblieged to his son to pay a thousand pound that by the Law of Nations and the civil law the sonne hath now a coactive power by law to compel his father though his superior to pay him so much of his patrimony Even so though it should be granted which I shall never grant that the King stands superior to his Kingdom and States yet if the King come under covenant with his Kingdom as ours have don he must by that come under some coactive power to fulfill his covenant for omne promissum saith the Law cadit in debitum what any man doth promise falleth under debt If the Covenant be politique and civil then the King must come under a civil obligation to perform the covenant and though there be none on earth superior to King and people to compel them both to perform what they have promised yet de jure by the law of nations each may compel the other to mutual performance And this is cleer 1. By the law of Nations if one nation break covenant with another though both be Independant yet hath the wronged Nation power de jure to presse performance and to force the other to keep covenant or punish them for violation 2. This is proved from the nature of a promise or covenant described by Solomon Pro. 6.1,3 My son if thou be surety for thy friend if thou hast stricken thy hand with a stranger Thou art snared with the words of thy mouth and art taken with the words of thy mouth The meaning is by a word of promise and covenant the creditor hath coactive power though he be an equal or an inferior to the man who is surety even by law to force him to pay and the Judge is obliged to give his coactive power to the debtor that he may force the creditor to pay If then the King giving not granting he were superior to his whole Kingdom come under a covenant to them to preserve their rights lives liberties but contrarywise destroys their persons goods cities by sword plunder and fire by his commissions granted to inhumane malignants and bloody Irish they have power to compel him to give satisfaction 3. The law shall warrant to loose the vassal from his lord when his lord hath broken his covenant Hippolitus in L. Si quis viduam col 5. dixit de quoest l. Si quis major 41. 161. Boltol n. 41. The Magdeburgens in libel de Offic. Magist Imperatores Reges esse Primarios vassallos imperii Regni proinde fi feloniam contra Imperium aut Regnum committant feudo privari proinde ut alias vasallos 14 obie I find this to be a main objection That there is no law for subjects to put their Kings to death for any crime It is saith Bodin a great difference to say that a King may be lawfully slain by a strange Prince or by his Subjects It is no commendation or grace given to the law that it should be like the spiders web that catcheth the little flies and lets the greater escape But to answer 1. It is an error and a great mistake to say that the Commons in the house of Parliament or the representative Kingdom are subjects to the King This I utterly deny to wit as they are Judges there to be subjects to the King neither doe they Judicially convent his Person before them censure and iudge him to death quatenus as subiects but thus He being a minister a steward or servant of the people and they representing the whole body of the people doe call him to an account not as Subiects to him but indeed as his lord and master and so have a Soveraign power to iudge him to death if his crimes deserve the same 2 In point of law Bodin gives us the whole cause Ibid. for he confesseth Where the Prince that bears rule is not an absolute Soveraign but the Soveraignty is either in the people or Nobility in such a case saith he there is no doubt but it is lawfull to proceed against a Tyrant in way of justice and to put him to death and gives for it the example of Nero and Maximinius That