but not conjunctim as conveened in parliament Which cometh just to that which Aristotle saith alledging that the King hath power over all seorsim but not conjunctim Polit. 3. cap. 11. And he is said to have a full power not because his power is absolute and boundlesse Verily it must not be taken in a simple and absolute notion but in relative and comparative sense It doth not imply the exemption and immunity of the King from Civill and Politick subjection to Law But at the most it pleadeth for exemption to him from forraine power and subjection to forrain laws This is evident by comparing this sanction under Henry 7. with stat 18. Rich. 2. ch 5. Where it is declared that the Crown of England is free without subjection to any other Crown but is onely subject immediatly to GOD in every thing which relateth to the managing of it's Affairs The like is spoken Henry 8. Par. 24. So we find the like fulnesse of power pleaded-for to the King of Scotland ITEM It is thought expedient that since our Soveraign Lord hath full jurisdiction and free empire within his Realm that his Highnesse may make Notares and in time to-come that no Notare made nor to be made by the Emperour's authority have faith in Contracts Civill unlesse he be approved by the King's highnesse Jam. 3. parl ch 38. This exemption is pleaded for to the King of Scots from subjection to the Imperiall Lawes But who I pray you for this will conclude the King of Scots to be an absolute Prince having immunity and freedome from all Lawes whether muncipall and Country-Lawes or forensick and forrain And as for the third sanction the words whereof be these Omnem authoritatem spiritualem temporalem derivari a Rege you shall be pleased concerning it to observe this distinction There be two termes in the act it-self one concerning temporall and another concerning spirituall power We begin at temporall power The King may be called the originall of it two wayes 1. Formally i. e. as if all temporall power were therefore authoritative and juridicall because of the Kingly power it being only in it-self essentially authoritative and commanding This we deny to be the sense of the sanction in respect of temporall power It is not onely repugnant to Magnacharta the ancient Lawes of the Kingdom the nature of Parliaments appointed and ordained in Henry 1. his time to the oaths and promises of Rufus Henry 1. their successours to act and govern according to Law but also to the ordinary practices of the Estates who in maintenance of their Liberties and the ancient Laws of the Kingdom did rise in armes against their Kings and caused them nilled they willed they to subject their necks to the yokes of Law Amongst other of their practices this is very remarkable that albeit they had saluted Ludovick as their King and put him in the room of John yet notwithstanding in the end they declined him and in his stead crowned Henry 3. John's son This speaketh much of the States power above the King 2. Virtually It cannot be denied but in this notion all temporall power dependeth from the King And that two wayes effectively and vindicatively Effectively because the King of England had not onely power of conveening dissolving the Parliament of ordaining inferior Judicatories but also by him the Parliament of England was firstly instituted and ordained Vindicatively because it was his part to patronize and execute the acts of Parliament at least as the main and prime man of maintaining and defending them The like power the Kings of Scotland had also as is clear from their Acts of Parliament But as for the spirituall power of the King of England I stand not much to confesse that he had a formall and Ecclesiastick power in Church-matters and that what power the Church so called had was derived from him It cannot be denied but before the conquest there were Ecclesiasticall Laws made by many Kings of England as Inas Alfred Edward the elder Gythrum Ethelstane Edmund Edgar Aetheldred Canutus and others In the interim this Gentleman shall do well to observe that the King of England had not alwayes this power It cannot be denied but Lanfrancus Anselmus and Berket going to complain on their Kings and Governours firstly brought the Pope's judiciall authority from Rome into England both over King and people Which supremacy of the Pope over the Church of England untill in and about Henry 8. his dayes who did shake-off the Pope's yoke did continue And so Edward 6. succeeding to him to me it is more then probable that by the foresaid sanction made in his time the ancient power of the Kings of England in Church-matters was taken out of the Pope's hands and put upon the King And it cannot be denied but according to Edward the Confessour's Lawes the King of England had a primary formall and Ecclesiastick power in Church-matters I stand not to grant that But what though I should say that according to this statute made in Edward 6. his time the King of England had a primary and originall power and that formally both in respect of spirituall and temporall jurisdiction yet will it onely conclude an absolutenesse of the King according to Law but not against it It no wayes denudeth the people of a fountain power to defend themselves against the unjust decrees and actings of the King The Roman dictatour had an absolute power in judging and yet it was lawfull for the people to repeal his acts in their own just defence Many times have the People of England defended themselves from their King and stood by their own liberties notwithstanding the King 's acting against them What I pray you is it for me to say that the King of England by this act is called the originall both of spirituall and temporall power under a formall notion Is he not called also the King and Sovereign Lord of the Parliament Is not the Parliament called his Parliament Is not every thing ordinarily acted and emitted under his name Is it not ordinarily said It is ordained by the King with the consent or it the desire of the three Estates It is very seldome said It is ordained by the King and Parliament But I pray you what be these but Court-complements They are words and nothing but words Go confer them with the practice of the Parliament and you shall finde the one just contrary to the other No wonder forsooth because the King getteth more honour then he hath power Trie this and you will find it an ordinary practice Aye which is more cannot a corrupt Parliament through the defection of the times give the King more then what is due to him either by the Law of GOD or by the law of the Nation Know we not that Parl. 18. K. Jam. 6. through the backsliding of the times did advance him to greater priviledges then the King of Scotland by the Law of the
Kingdome had or can be warranted by the Law of GOD Indeed I will not say so of Henry 8. for it is known that in his young years he did put the managing of the Kingdom into the hands of the Princes as did others of his predecessors before him And as for Edward 6. I must needs say his times were better then any times of his predecessors But it appeareth to me that as both Henry and he have encroached very far upon the liberties of the Church so called so did they encroach too far upon the liberties of the State But leaving Henry of whose power I find not so much spoken as of Edward I must tell you one thing concerning Edward and it is this Those who write of him and namely Foxe do crie him up beyond all the Kings of England for piety wisdom and learning And Foxe runneth so far out in his commendation that he esteemeth him inferiour to no King though worthy to be preferred to many Whereupon he feareth not to match him with Josiah and put the qualifications of both in one ballance Which maketh me imagine that the foresaid act emitted in Parliament under Edward's reign did passe in his behalfe because of his personall endowments The like act upon that same ground though in respect of him it was meerly pretended without any reality in his person did passe Parl. 18. upon K. Iam. 6. Thus the case is extraordinary We denie not but because of personall endowments Kings may be and have been advanced to greatest power What will this conclude an ordinary president thereof and a standing law therefore No verily There is no consequence from extraordinaries to ordinaries The standing ancient lawes both of England and Scotland are against absolute Princes Of Scotland and of England we have spoken already at length Verily the example of Edward 1. though there were no more may serve to clear our purpose He to repair what was done amisse by his father Henry 3. who was at variance with the people touching the liberties of Magna charta and de foresta did much gratifie the people restoring them to great liberty and abrogating all lawes which did make for the bondage and slavery of the people Howsoever the matter be sive sic sive non these sanctions above-cited by Salmasius do conclude the Parliament to have power above the King The reason is because if we look precisely on these acts what power the King hath is from them They not onely declare but also they enact and ratifie his power to be such such And so the king's power is the creature of the Parliament depending from it as the effect from the cause But sure I am causa est nobilior suo effectu And consequently if the king hath an absolute power by vertue of the Parliament then must the Parliament's power be more absolute for propter quod unumquodque est tale illud ipsum est magis tale And nemo dat quod non habet Inst 7. Bractonus saith Salmasius doth averre that the King hath power over all that is in his kingdome And that those things which concern peace and power do only belong to the Royal dignity Every one saith he is under the King and he is inferiour to none but to GOD as reason requireth In power he ought to be above all his subjects for he ought to have none like him nor above him in the Kingdom De Angl. Monar lib 4. cap. 24. sect 1. lib. 1. cap. 8 sect 8. lib. 2. de Reg. In Rich. 2. stat 18. cap. 5. it is said Corona Angliae libera fuit omni tempore non habet terrenam subjectionem sed immediate subdita est DEO in omnibus rebus nulli alteri Act. 24 Parl. Henr. 8. Regnum Angliae est Imperium ita ab orbe fuit acceptum Act. Parl. 24 Hen. 8. Quod hoc tuae gratiae regnum nullum superiorem sub DEO sed solum tuam gratiam agnoscat Fuit est liberum a subjectione quarumcunque legum humanarum Cap. 9. Ans We stand not to glosse Bracton's words He lived in Henry 3. his dayes And finding the King and States at variance about superiority as a Court-parasit he wrote in behalf of the King as Royallists do now-a-dayes He did just so as they do now Bracton had that same occasion of writing in behalf of the King which Salmasius hath to-day As the late King was at variance with the people of England for claiming absolute power over them so the controversie stood just so in Bracton's time between Henry 3. and the people But I pray you was it not as free to Bracton to flatter Henry as for Salmasius to flatter Charles Leaving this man to himself I hasten to examine the strength of these Acts which Salmasius citeth And in a word they do not plead so much for the absolutenesse of the king as of the kingdom They do not speak de Rege Angliae of the king of England but de corona or Regno Angliae of the Crown or kingdom of England Howsoever none of them doth speak for immunity and exemption to the king of England from municipall but from forraign Laws And therefore they declare the Crown of England to be a free Crown and subject to no other Crown and the kingdom of England to be a free kingdom subject to the Laws of no other kingdom I confesse they declare the king to be above the kingdom and inferiour to none but to GOD. Which is true indeed taking the kingdom in esse divisivo but not in esse conjunctivo Indeed the King is above all in the kingdom sigillatim one by one And in this respect he is inferiour to none but to GOD though taking the kingdom in a collective body he be inferiour thereto Inst 8. In the first year of James his reign in England the Parliament acknowledgeth him to have an undoubted title to the Crown by blood-right And therefore they did swear alleageance both to him and his posterity Whereupon Camdenus saith that the King of England hath supreme power and meer empire De Brit. lib. And Edvardus Cokius saith That according to the ancient Laws of the Kingdom the Kingdom of England is an absolute Kingdom Wherein both the Clergy-men and Laicks are subjected immediatly under GOD to their own King and head Cap. 9. Ans As for that concerning James we make no reckoning of it He was declared the righteous and undoubted heir of the kingdom through the defection and back-sliding of the times What other Kings of England hinted at before that he did execute Because he became King of Great Britain and entered the kingdom of England upon blood-relation therefore flattering Malignant and Antichristian Counsellours did declare his title to the kingdom of England to be of undoubted hereditary right I pray you friend were there not Malignants then as well as now I may say there were moe then then now at least they had greater
to be attended with these qualifications 1 They are meerly heroick and ambitious So were the Giants before the Flood Gen. 6. Beros Antiq. l. 1. Nimrod after the Flood Gen. 10. Bern. Antiq. l. 4. and all the rest of the great Heroes Arist pol. 3. c. 10. 2 They are meerly tyrannous and cruel So we find that Pharaoh had an arbitrary power over the People of Israel Exod. 1 and 5. Nebuchad-nezzar had the like power over his Kingdoms Dan. 2. and 3. By vertue of Ahasuerus absolute power Haman was licenced to exercise tyranny on the People of the Jews Est 3. We might alledge many examples to this purpose But the point is most clear in it self for those who are of a tyrannous disposition can endure no Law but their will Otherwise they could never get their tyranny exercised 3 Those whom we find chief pleaders for absolute Monarchy are either concerned therein themselves as Alexander M. and M. Aurelius and such like or else Flatterers and Court-Parasites as Lyricus Rom. Virgil and such like And of this sort we find none more violent in this matter than Dr. Fern Hugo Grotius Arnisaeus Spalato c. whose foot-steps with his ful-speed Salmasius doth trace But although men by way of flattery and by-respect may act and plead for arbitrary Monarchy yet let me tell you I do not imagin but they may act and plead for it through simple error and delusion And so I conclude that Aristotle Xiphilin Salust and the foresaid Lawyers do much run this way though they be more moderate in the matter then the rest And as afterward is shewed we find the Talmudick and Rabbinick Writers this way somewhat inclining to the lawless and arbitrary power of absolute Monarchy Assert 2. The King hath not a power above Law and a Prerogative Royal to dispose upon things according to his pleasure whether with or against Law and Reason Firstly Such an arbitrary and vast power is repugnant to the first Institution and Scripture-mould of Kings According to the Holy Ghost's way of moulding the King he is thus qualified 1 He is an Elective King chosen by the People in subordination to God Thou shalt in any wayes set him King over thee whom the LORD thy God shall choose Deut. 17. 2 A Brother-King and not a stranger-King One from amongst thy Brethren shalt thou set King over thee thou mayest not set a stranger over thee who is not thy Brother Ibid. 3 He must not tyrannize over the People by Leavying Forces and by strength of hand drawing them into Egyptian slavery He shall not multiply horses to himself nor cause the People to return to Egypt to the end that he should multiply horses forasmuch as the LORD hath said unto you Ye shall henceforth return no more that way Ibid. These words properly and in their emphatick sense can import nothing else but a discharging of the King by Forces and Armies to tyrannize over his People that bringing them into bondage and upon their ruines he may not strengthen himself and multiply his Forces So the King of Egypt did with the People of Israel whileas they were in Egypt under his tyrannons yoke 4 Not a Leacherous King given to women for drawing him on into temptation Neither shall he multiply wives to himself that his heart turn not away Ibid. 5 Nor Covetous given to enrich himself and to build-up his own estate upon the ruins of his People Nether shall he greatly multiply to himself Silver and Gold Ibid. 6 But he must be a King acquiring the Scriptures of GOD meditating on them his whole life-time thereby learning to fear the LORD to observe his Commandments and to practise them that he may be humble and lowly not turning aside either to the right-hand or to the left And it shall be when he sitteth upon the Throne of his Kingdom that he shall write him a Copy of this Law in a Book out of that which is before the Priests the Levits And it shall be with him and he shall reade therein all the dayes of his life that he may learn to fear the LORD his God to keep all the words of this Law and these Statutes to do them That his heart be not lifted up above his Brethren and that he turn not aside from the Commandment to the right-hand or to the left Ibid. Here from we draw this Argument The power of him is not Arbitrary and beyond the bounds of Law whose power according to the Law and Word of GOD is Regulated and kept within the bounds of Law But the power of the King according to the Law and Word of God is Regulated and kept within the bounds of Law Ergo the Power of the King is not Arbitrary and beyond the bounds of Law The Major cannot be denyed unlesse men will be so bold as to deny a Regulating and squaring of their Acts and Institutions according to the Word and Law of God Sure I am none will deny it but such as will contradict Scripture it self and decline it as the rule and pattern of their Actions The Minor is manifest from the Text above Cited Barclay the Royallist distinguisheth between the Office and power of the King and so the man endeavoureth to elude our Argument thus The Office of the King quoth he is set down Deut. 17. and the King's power is spoken of 1 Sam. 8 where saith he an Arbitrary power is conferred upon the King and laid upon his shoulders But this distinction serveth not for his purpose For either the power of the King is according to the Word and Law of God or not If it be then as the Office of the King is regulated in like manner his power also is kept within the compasse of Law For his Office spoken of Deut. 17. admitteth bounds and is kept within marches That which is spoken concerning the King Deut. 17. in terminis doth subject the King to Law and taketh-away Arbitrarines in his Government So then that which is spoken of the King 1 Sam. 8. doth either contradict that which is spoken Deut. 17. or else it giveth him no power and liberty of governing above Law at random If it be not then it is not a Divine but a diabolick power Moreover what the King doth according to his power either he doth it by vertue of his Office or contrary to it If by vertue of his Office Ergo the Kingly power cannot be absolute unlesse his Office be also absolute for so the exercise of his power dependeth from his Office In such a case he can do nothing according to his power but what he hath Authority for from his Office But his Office Deut. 17 is not absolute but Regulated according to Law If contrary to it Ergo it is not the Kings Office to exercise an absolute power and consequently the Kings Authority is not absolute Furthermore either the King as King is absolute or not If he be absolute as King Ergo the Royall
this way to prove it Firstly The people of Israel saith he did seek a King to reign over them after the manner of the Nations But all the Kings of the Nations in these times were absolute and not subject to Law Ergo. The Proposition he proveth from 1. Sam. 8. The Assumption he taketh for granted saying that the Assyrians whose Monarchy was at that time when the Israelites sought a King to reign over them did not restrict their Kings within the bounds of Law Therefore Artabanus Persa much commendeth that Law whereby the Persians enacted that the King should be honoured as the image of GOD. Plut. in vit Themist And Claudianus saith that they gave alike obedience to cruell and tyrannous Kings Yea Otades calleth Monarchy that to which every thing is lawful unpunishably Herodot lib. 3. Then seing the Persians succeeded to the Medes and the Medes to the Assyrians who reigned at that time when the Israelites did seek a King to reign over them it appeareth that as the Persian Monarchy so likewise the Assyrian and Median Monarchies were of an absolute and arbitrary power And Homer who lived as some imagine about that time when the Israelites sought a King from Samuel to reign over them saith that Kings are from Jupiter and those do reign who get authority from the son of Saturn Whom he also calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 divine Kings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 trained up by Jupiter Therefore Kings in Homer's time were not subject to Law Defens Reg. cap. 2. and 5. Ans Both the Propositions of this Gentlemans Argument seem very strange to us As for the first Proposition we do not deny it for the people of Israel said to Samuel Now make us a King to judge us like all the Nations 1. Sam. 8. But it do h not follow Ergo make us an absolute King as the Nations about us have 1. Because Moses Deut. 17. by the Spirit of prophecie foretelleth their seeking of a King after the manner of the Nations But it is evident that Moses there doth onely prophesie of their seeking a King after the manner of the Nations i. e. that as the Nations about had Kings over them so they might have a King over them in like manner for both Deut. 17. and 1. Sam. 8. the words are general In neither of these it is said Make us an absolute king after the maner of the Nations The words admit a two-fold sense and so they may either signifie As other Nations have Kings so make us a King This sense we allow or as other Nations have absolute Kings so make us an absolute King This sense we deny And so this is a fallacy either ab Homonymia or à figura dictionis 2. We may as well conclude from these words after the manner of the Nations that the people of Israel did seek a non-absolute and regulated King for at that time there were Kings of the Nations who were regulated according to Law We read that Priamus was not only withstood by his own subjects who did steal Helena but also what he did in the matter of Helena's away-taking was according to the advice and counsell of Senators whom Paris with his Complices did over-awe Dict. Cret de bello Tro. lib. 1. And it is observable that Agamemnon and Palamedes though the Kings of Kings were subjected to Law So storie Dictys Cretensis Dares Phrygius Homer and Aristotle Which was at that time when the Jewes did seek a King to reign over them Yea then the Egyptian Kings were subjected to Law Diod. Sic. Rer. Ant. l. 2. c. 3. And it is also evident that at this time the Athenian Monarchy was not absolute So Heraclid de polit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diod. Sic. lib. 5. c. 5. Moreover we do not imagine but there were many other Monarchies at that time which were not arbitrary and of an illimited power We might prove this at length if it were not both tedious and needlesse But Salmasius himself acknowledgeth that then all the Kingdoms of the Orient were of a limited power regulated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And for proof of this he citeth Aristotle pol. lib. 3. c. 10. and 11. 3. The people of Israel did seek a King under very fair pretences They not only alleaged that Samuel was unfit because of his years to govern them according to Law and reason but also they pleaded for a King from the tyrannie of Samuel's sons and their non-governing according to justice and equity Then tell me would they ever have sought a King that he might govern them according to his pleasure whether to tyrannize over them or not Thus they should not onely have palpably contradicted themselves but also they should have cut off from themselves these pretences whereby they urged their purpose in seeking a King 4. To say that the people of Israel did seek an absolute King is to militat directly against these ends which they propounded to Samuel and set before their eyes in seeking a King The ends are three 1. To judge them 2. To conduct them 3. To fight for them and defend them from their enemies These three particular ends do abundantly evidence that they did not seek a King to govern them after the manner of the Nations whether according to Law or contrary to it but that they sought a King to govern them only according to Law and reason I am sure the second and third end imply no lesse And if you say that the first end may take along with it a judging whether according or contrary to Law we do easily obviat this difficultie 1. Because you shall not finde in Scripture where judging is taken for an act of injustice and tyrannie And the Holy Ghost in Scripture expoundeth judgment calling it justice 2. Sam. 8. 2. Had the people of Israel sought a King to judge them whether according to justice or injustice then their arguments whereby they enforced their purpose in seeking a King had been altogether uselesse Samuel haply might have said to them I see now ye do praevaricate in this matter your profession is altogether vain in declaring your selves sensible of my weaknesse and inability for judging you according to justice and equity and of the corruption and iniquitie of my sons in perverting righteous judgment Away might Samuel have said this is nothing but words Whereas ye seek a King to judge you whether according to Law or not ye contradict your own profession and give your selves the lie to your face Yea Salmasius himself doth acknowledge that they did not seek a King to tyrannize over them and to rule contrary to Law and reason Def. Reg. c. 2. But mark how the man straight-wayes giveth himself the lie For saith he they did not deprecat nor abominat an unjust King wicked violent ravenous and such-like as use to be among the Nations though most wicked Ibid. We demand at this Gentleman whether or not they did positively seek such
either by the command of the King or of the People it was holden null unlesse it had been ratified by the Parliament In it every one whether King or other Members thereof have alike and equal power of speaking And withall nothing spoken in it is of validity and force unlesse it be concluded on by the major part together with the approbation of the King Polyd. Ang. hist lib. 11. It is observable That by the authority of the Parliament it was ordained That Steven so long as he lived should remain King of England and that Henry 2. afterward should succeed him By whose mediation and authority the debate between Henry and Steven touching the Crown was decided And I pray you how could these things have been unlesse the Parliament had been above the King Inst 4. But saith Salmasius the power af convocating and dissolving the Parliament belongeth to the King of England The power of the Parliament is extraordinary and pro tunc But the power of the King is ordinary and perpetual And likewise the King of England in Parliament hath a negative voice And therefore in many Acts of Parliament he is called the King and Lord of the Parliament and what is ordained is enacted in his Name And so saith he though the King of England doth act according to the Laws of the Kingdom and concurrence of his Parliament yet notwithstanding he is an absolute King Otherwise the Kings of the Jews had not been absolute who had power to do nothing without the consent of the Sanhedrin And Artaxerxes had not been absolute who could not be reconciled to Vasthi because the Law discharged it Yea if Kings were not absolute because they act according to the Law and the advice of their Parliament then Cambyses had not been absolute who conveened a Councel whileas be intended to marry his german sister and demanded of them if there was any such law for allowing such a marriage Def. Reg. cap. 8. 9. Answ Salmasius shall do well to consider these few things 1. What the power of the English Parliament is Which is defined by Camdenus to be made-up of three Estates having the highest and most sovereign power in making Laws confirming Laws annulling Laws interpreting Laws and in doing every thing wherein the good of the Commonwealth is concerned Brit. chorog de Tribun Ang. This is far from Salmasius mind who Def. Reg. cap. 9. opinionateth that the Parliament hath not power over every thing in the Kingdom But Polydore summeth-up the power of the Parliament under these notions First Every thing wherein the good of the Commonwealth is interested is referred to it Secondly Whatsoever is done at the command whether of King or People is of none effect unless it be authorized by the Parliament Thirdly It establisheth and taketh away Laws as it judgeth fit Fourthly Every Member of it hath a-like power and freedom in voicing And what is decreed and enacted by Parliament he calleth it the proper and municipal Law of the Kingdom Seing then the Parliament is the most sovereign and supream power in the Kingdom of England according as it was in old how can it be said That the King of England hath power over it If it be so then you admit two Supream powers and a power above a Supream power which is contradicent The Lacedemonian Ephori were no otherwise above their Kings but because they were invested with the highest and supream power All things were referred to the Parliament even as the Roman Consuls as Festus out of Coelidus saith did refer every thing to the Senate Now because of this the Senate had the highest power and was above the Consuls Ergo seing all matters of the Commonwealth in old in the Kingdom of England were referred to the Parliament no question it had power above the King The Roman Senate is therefore said to have been of the supreamest power Fenest de Magistrat Rom. cap. 1. because neither Kings nor Consuls nor Dictators nor any other Magistrate could do any thing without their advice and counsel Ergo seing whatsoever the King of England or any other of that Kingdom did in old was to no purpose without the authority and approbation of Parliament without all controversie the King of England was subjected to the Parliament Salmasius concludeth the King to be above the Parliament because he alledgeth the Parliament can do nothing without the King Why may not I then conclude the Parliament to be above the King because re ipsa and according to the Law of the Kingdom the King can do nothing without the authority and consent of the Parliament Where then I pray you is the King 's negative voice There is not a Member in Parliament cui aequa loquendi potestas non competit So saith Polyd. Angl. hist lib. 11. What Do you imagine that ever the Parliament could by their authority have drawen-up the foresaid agreement between Steven and Henry 2. unlesse they had had power above the King What they did therein was a direct acting both over Steven their present King and Henry 2. their future King But will you tell me whileas the States of England did seek of K. John to be governed by the ancient Lawes made by Edward the Confessour whether or not were these Lawes Acts of meer pleasure giving the King a liberty to do as he would either to tyrannize over the people or not You can not hold the affirmative because what they demanded of the King was to be restored to liberty to be freed of tyranny Polyd. Vir. Angl. hist lib. 15. And if you hold the negative part then do the ancient Laws of England pull absolutenesse out of the king's hands and subject him to Law Magna charta saith The King can do nothing but by Lawes and no obedience is due to him but by Law And the States of England were so far from permitting John to rule at randome and not according to the ancient Lawes of the kingdom that contrarywise they combined against him entering in oath together to pursue him still on till he should govern according to Law and establish the ancient Lawes of the kingdom Yea albeit that Pope Innocent commanded them to lay-down arms and though upon their deniall thereof they were declared enemies by the Pope they notwithstanding followed on their purpose and cryed-out that they would be avenged by fire and sword on such a wicked tyrant who did so much slight the people Aye which is more they sent into France and from thence brought Ludovick the French king's son and created him king notwithstanding any thing either John or the Pope could do in the contrary Thus they never rested till in sorrow they brought John's head into the grave Where I pray you is the absolutenesse of the king of England whenas the States would not suffer him to govern but according to Law and in denying to do so pursued him in arms unkinging him enkinging another in his room
in Rufus Henry 1. Steven Henry 2. and Richard 1. did remain purum putum Monarchicum the power of even-down and unmixed Monarchy And though saith he in the reigne of King John that power was lessened yet was there nothing derogated from the King's supremacy and absolutenesse remaining unviolated untill the perjured English rebels at this day have altered and diminished the just greatnesse of the King of England Def. reg cap. 8. Ans I admire that this man knoweth nothing but to rail on them whom he knoweth not Well I cast him over into GOD'S hands and fall to examine what he alledgeth Sure I am notwithstanding all his railing it cannot abide the touch-stone It is known to be a manifest lie which he alledgeth concerning the immediat successours of the Conquerour It is reported in even-down terms that these kings of whom Salmasius expresly speaketh esteemed Norman Laws established by the Conquerour too rigorous and unjust And therefore before they got the Crown they promised to the people to abrogate them and in place of them to establish the Laws of the Confessour Yea every-one of them promised more then another and to keep themselves within the bounds of Law to the very heart's desire of the people This was not only promised by themselves but also by others in their name And unlesse they had so promised they could never have gotten the Crown They got it upon the expectation of the accomplishment of their promise as the English Histories do abundantly storie And it cannot be denied but Henry 1. did give the Englishes a free Parliament and made it the government of the kingdom So that he is called the first king in England in whose time the power of Parliament was established And as for John it is very well known that because he did not stand to his oath and promise at his Coronation for establishing the ancient Laws of the kingdom but endeavoured to governe after the manner of the Conquerour in an arbitrary and loose way therefore the people rose-up in arms against him and dethroning him did set-up another in his room And whereas this man saith that the ancient Lawes of the kingdom did not derogate from the supremacy and absolutenesse of the king the contrary of that is already proved It seemeth strange to me that he is not ashamed to affirm that what Laws were established by Edward the Confessour and granted by King John were preserved inviolable to this day derogating nothing from the absolutenesse of John's successours Who knoweth not that the liberties of Magna Charta and de Foresta subject the King to Law And because that Henry 3. did not stand to the maintenance thereof after he had given his Oath at a Parliament at Oxford to maintain them inviolable therefore the People took up Arms against him till after many debates between them they caused him often to promise that they should be inviolably observed as well by him as by all other Thus they tied not only him but also his heirs to govern according to the ancient Laws of the Kingdom And because Edward 2. did act against these Laws following the counsel of Peter Gaveston and the two Spensers therefore he was imprisoned and dethroned after several conflicts between him and the People 'T is remarkable that the People refused to crown him till firstly he did put P. Gaveston from him And likewise Edward 5. was deposed after he had reigned two moneths and eleven dayes and was obscurely buried in the Tower of London Where then I pray you is the absoluteness of the King of England Inst 6. Vnder Edward 4. saith Salmasius it was enacted That the King might erect a publick Judgmet-seat by his Letters patent in any part of the kingdom he would Vnder Henry 7. it was enacted and declared That the King had a full power in all Causes in administring Justice to every one In the first year of Edward 6. a Statute was made declaring all authority both Spiritual and Temporal to be derived from the King Def. Reg. cap. 9. Answ I must needs say This hath more colour of probation then any thing the man as yet hath objected But notwithstanding this he will do well to observe this distinction 1. What is given to the King by way of complement and Court-expression 2. What is giving to him in reality and by way of action The truth is in the first notion there is as much ascribed to the King of England as if he had been indeed an absolute Prince On him you have these Court-Epithets The King of the Parliament The sovereign Lord of the Parliament Yea and the Parliament is called The Parliament of the King He is called The Original both of Spirituall and Temporal power having full power over all causes and persons and to erect Judicatories in any part of the kingdom where he pleaseth This is spoken But what then Examine the matter aright and you will find it but spoken What cannot Court-Parasites and flattering Councellors passe a fair compellation upon their Prince 'T is the least thing they can do to bring themselves in credit with him Read the Parliamentary Acts of Scotland and you will find just as much spoken if not more of the King of Scotland In Parl. 18. Jam. 6. Act. 1. 2. James 6. is called Sovereign Monarch absolute Prince Judge and Governour over all Estates Persons and Causes And yet who dare say but the King of Scotland according to the Law of the kingdom is a regulated and non-absolute Prince But according to the second notion let us examine the strength of these Epithets And so in the first place we fall a-discussing particularly these three Sanctions of which Salmasius speaketh The first saith That the King by his Letters patent may erect Court-Judicatories in any part of the Kingdom where he pleaseth This will never conclude that the King of England hath an absolute power This Act only speaketh of his power of calling inferiour Judicatories What is that to the purpose The King of England had power to call and dissolve the Parliament the highest Judicatory of the Land Yea Henry 1. did ordain and constitute the Parliament Yet notwithstanding that as is shewed already the King of England cannot be called absolute The King of Scotland hath power of giving-out Letters of Caption Parl. Jam. 2. chap. 12. Courts of Regalities are justified by the King's Justice chap. 26. And the Parliament petitioned the King to cause execute the Act anent the Establishment of Sessions for executing Justice chap. 65. The power of the Colledge of Justice is ratified and approved by the King Jam. 5. Parl. Edinb Mar. 17. 1532. But who will therefore call the King of Scotland an absolute King The second Sanction giveth the King full power over all persons and all causes But I pray you doth this give the King power over the Parliament and Laws No verily It only giveth the King power over all persons and estates separatim
Impune quae libet facere id est Regem esse But Memmius thereby endeavoureth to disswade the Romans to keep themselves by all means possible from the yoke of King Jugurtha hereby insinuating the dangerousnesse and inconveniency of Monarchy just so as Oâ—tanes did to the Persians But neither of them did allow this but taxed it as an unjust and hurtful power in Kings I must needs say Salmasius quoteth Memmius and Ottanes their words as the Devil quoted in tempting Christ Matth. 4. David's words Psa 91. v. 11. That which directly made against the Devil's temptation he held-out and only expressed that which he thought made for his purpose So doth Salmasius straight-forth in quoting the words of Ottanes and Memmius The thing that maketh against him he suppresseth and that which in shew maketh for him he expresseth SUBSECT 2. The rest of the Arguments for enforcing the second Assertion propounded and followed-forth HAving at length discussed all that Salmasius doth or can reply against our second Argument we make ready now to propound the rest of our Arguments whereby the King 's arbitrary power is dismissed And what further may be objected against our second Argument as indeed Royallists do we shall take it off by the way in prosecuting the rest of our Arguments And so by the way we shall meet with these Royallists who with Salmasius do directly militar against our second Argument Now Thirdly we make good our purpose from the power that the Kings of Israel and Judah had And for clearing this you shall be pleased to take notice of these Conclusions Conclus 1. The wicked Kings of the Jews had an arbitrary power both over Religion and the People of GOD. For proof of this see 1 Sam. 13.14 15.22.23 c. 2 Sam. 21. 1 King 12.14.15.16.20.22 2 King 3.8.10.13.14.15.16.17.21.24 2 Chr. 10.11.12.18.21.22.24.25.26.27.28.33.36 Conclus 2. The tyrannous and usurping Kings of the Jews in all probability had an arbitrary power over the Republick There is reason for this for such did reign against Law And why did they not also rule against Law And what can tyrannous Kings do but reduce the people to slavery Now it is known that the Kings of Israel for the most part were of this temper Many of them were cruel tyrants and vile usurpers Therefore is it said Rex neque judicat neque judicatur non dicit testimonium nec in ipsum dicitur In cod Sanh 11. This Maimonides expoundeth concerning the kings of Israel in Gemar tract de synedr cap. 11. And this I take to be very true concerning the usurping and tyrannous kings of Israel They did not judge because tyrannous and usurping kings delight in cruelty They seek nothing but their own case and if they act any thing according to Law it is only for the fashion as the tyrant Cambyses did in seeking his german sister in marriage What Such hold will for Law They know nothing but Hoc volo sic jubeo sit pro ratione voluntas Juv. Satyr 6. Such Kings do not judge according to the Law of the Kingdom Neither is there power according to the Law of the Kindom laid upon such What they do is done by themselves unanswerable to any They act will-way and not Law-way They were not judged because they did take power to themselves above all Law It cannot be denied but Salmastus concludeth well from 1 Sam. 8. and 2 Sam. 8. that the King of Israel judged Def. Reg. cap. 2. But he will do well to advert that though this be true Rex judicat concerning the King of Israel according to God's institution the Law of the Nation and the practice of some of their Kings yet this is as true Rex non judicat concerning the ordinary practice of their Kings And it is very observable that Jannaeus whom they called Alexander all the while he did reign over the people of the Jews acted nothing according to Law but tyrannized over them Jos an t Jud. lib. 13. cap. 21.22 But in Gem. tract de Syned cap. 11. it is said that because of Jannaeus it was enacted that the king should neither judge nor be judged And if it be true that it was enacted then then do I not think that it was upon that fabalous ground which doth not so much as relish to Salmasius of which the Rabbinick writers speak but because of the tyranny and cruelty of the man who did not govern law-way but will-way And as Alexander so the tyrant Herod had an arbitrary power though we suppose it did depend much from the concession of Antonius Jos Ant. lib. 15. cap. 4. Conclus 3. The good Kings of the Jews because of personall endowments had exemption and immunity from Law This is manifest in the examples of David and Solomon There were two things chiefly in David which were against the Law 1. Multiplication of wives Whereof David had very many 1 Chr. 3. and 14.2 Murder upon the back of adultery 2 Sam. 11. And Solomon did many things contrary to the Law 1. He multiplied gold and silver 2. Horses and Charets 1 Kin. 10. 2 Chron. 9. 3. Wives And 4 he fell into adultery 1. Kin. 11. And yet we read not that either David or Solomon were judged therefore by the Sanhedrin And what I pray you could be the reason of this Not because the king de jure hath immunity from Law Nor because they over-awed the Sanhedrin by force of armes We read nothing of that And you shall not make me believe that the Sanhedrin durst not attempt the executing of justice upon them 1. You thereby put a great note of reproach upon David and Solomon You do no lesse then insinuate a disposition in them for rebellion if you alleadge that the Sanhedrin which de jure as both already and afterward doth appear had power over them durst not for fear of their resistance execute judgment on them That had been a disposition to resist the higer powers which the Holy Ghost condemneth Rom. 13. And I will not think that such men had the Spirit of rebellion to repine against the execution of justice 2. We find that the Sanhedrin did execute justice on Amaziah And the people did so against Athaliah 2 Kin. 11.2 Chr. 23. Which maketh me think that it was not for want of power that David and Solomon were spared Other Kings of Judah were punished for their faults The Sanhedrin and people had power to execute justice on them And why not also on David and Solomon They were all Kings alike And it is very remarkable that after Solomon's death ten tribes declined the house of David because of Solomon's heavy exactions and tributes he laid upon the people 1 Kin. 12. 2 Chr. 10. I believe they were as powerfull to revolt from Solomon as from Rehoboam And seing the people took so heavily with Solomon's yoke that therefore they did revolt from his son it maketh me think that the Sanhedrin did not spare him for fear
cod San. cap. 11. he saith That it is true in respect of the Kings of Israel but not in respect of the Kings of Judah And in what sense it is true concerning the Kings of Israel is already explicated by us The Gemarick Writers from these words Oh house of David execute judgment in the morning and deliver him that is spoiled out of the hand of the oppressour Jerem. 21. move this Question Nisi in jus vocari possent quomodo judicarent i. e. How could the house of David judge unlesse they were judged This they prove because in Scripture we are commanded to search and try our wayes i. e. as they say Corrige te ipsum deinde alios corrige Salmasius rageth at this and he denieth what they infer I shall not take it upon me to make good their consequences Let Salmasius impugn them as much as he will My purpose is only to shew That they are not of his opinion They are contented not only to say That the king of the Jews at-least of Judah as Salmasius himself out of Sichardus R. Lakises hath was subjected to Law but also they dispute for that and endeavour to enforce it by Arguments Secondly from their acting with the concurrence of their Princes And David consulted with the Captains of thousands and hundreds and with every leader And David said unto all the Congregation of Israel If it seem good unto you let us send abroad unto our brethren that they may gather themselves unto us 1 Chron. 13. There is much in this If it seem good unto you This insinuateth that as David would not act without the advice and counsel of his people so his acting depended from their determination For the King had taken counsel and his Priests and all the Congregation in Jerusalem to keep the Pass-over in the second moneth He doth it not of his own head without advice And the thing pleased the King and all the Congregation It is a thing done by common consent So they established a decree Mark it is not said So the King established a decree But the Authority both of King and Princes is interposed The decree floweth from the joynt-authority of both Therefore it is added So the posts went with Letters from the King and the Princes 2 Chron. 30. They go not forth as commissioned only from the King but also from the Princes And it is most remarkable that which Zedekiah said unto the Princes The King is not he that can do any thing against you Jerem. 38. Ergo if the King could do nothing against the will of the Princes he had not an arbitrary power to dispose upon matters as he pleased Inst The King delivered Jeremiah into the hands of the Princes saith Salmasius not because he was inferiour to them but by way of courtesie and gratification and perhaps for fear of sedition Def. reg cap. 4. Ans I confesse Josephus ant lib. 10. cap. 10. doth insinuate as much But by your leave I must needs say that Zedekiah might have delivered Jeremiah into the hands of the Princes whether through gratification or through jealousie and yet he needed not to say that he could do nothing against them And sure I am if he had had an arbitrary power over them he would never have said so 1. Because it had been a known and manifest lie Which he would have been ashamed to have spoken in the presence of the Princes 2. He should have done altogether against gallantry and wisdom Against gallantry because if he should have denied his power by way of gratification then should he have been simple And if through jealousie then he had been base and cowardly Against wisedome because the high way of fomenting sedition is to dash upon suspition thereof The seditious party is encouraged upon the fainting and relenting of the other Well I do not dispute upon what grounds Zedekiah delivered Jeremiah into the hands of the Princes Whether it be the one way or the other it is not materiall Yet you must give me leave to add that you can assign no reason whether from gratification or from jealousie why he should have said that he could do nothing against the will of the Princes if he had had an arbitrary and boundlesse power Nay but the words are so clear that they need no commentary Thirdly from the councell of the old men given to Rehoboam who said to him If thou wilt be a servant unto this people this day and wilt serve them and speak good words to them then they will be thy servants for ever 1 Kin. 12. 2 Chr. 10. They perswade the king to keep himself within bounds and not to rule at randome They would have the King to carry himself as a servant toward the people This is far from an arbitrary and lording power It came to this that either Rehoboam behoved to govern according to Law and dimit of the power which his father had although it was not boundlesse and arbitrary in the full vastnesse of arbitrary power or else the people would leave him and revolt from him Thus it was not in Rehoboam's option to lessen or not to lessen the yoke of his father which he held upon the peoples neck No verily Neither did the old men counsell him to dimit any thing of his father's power as meerly depending from his own arbitriment but in relation to the people's desire And that not onely because of necessity but also because of conveniency Verily the old men had been far in the wrong to Rehoboam to have counselled him to dimit any thing of his power if he might have retained it justly No necessity lawfully could have moved the old men to perswade Rehoboam to dimit his power if he had had such a power of GOD and if the desire of the people had been unhonest and unjust No evill should be done that good may come of it Rom. 3. Verily the young mens counsell had been more just and reasonable then the counsell of the old men if Rehoboam lawfully might have kept the people under his fathers yoke and if the peoples desire had been unlawfull But it is known as Salmasius himself confesseth that Solomon unjustly keeped the people under heavy pressures 1 Kin. 11. and the counsell of the old men was just and reasonable yea and the desire of the people was honest and equitable 1 Kin. 12. 2 Chr. 10. Ios an t Jud. lib 8. cap. 3. Now tell me whether or not the Kings of the Jewes de jure had an arbitrary and lording power over the people If they had such a power de jure then did the people contra jus in desiring Rehoboam to dimit his father's power which of the most can be called nothing but absolute and uncircumscribed and the old men did also contra jus in desiring Rehoboam to satisfie the people's desire Salmasius himself will not say so But he acknowledgeth that the peopl's desire was just and the old mens counsell
and the well-fare of his people This Gentle-man needeth not boast that Moses Deut. 17. foretold the up-setting of kingly government amongst the Jews This he did not because he allowed it and preferred it to the government which he firstly instituted amongst them The LORD commanded Samuel to hearken to the peoples voice and condescend to their desire Yet it doth not follow that God allowed it He commanded Samuel positively to protest against it and disswade them therefrom by displaying the evils thereof So Moses through the Spirit of prediction infallibly forseeing the Jews in their stiff-neckednes and pride of heart would undoubtedly seek-after and set-up kingly government amongst them thereupon taketh occasion to prescribe a true plat-form of constituting and moulding kings And to this day it serveth as a morall rule according to which the structure of kingly government should be squared Thus the Holy Ghost bringeth forth a most good effect from the fore-sight of their evil and sinister purpose We can stay no longer here but only put the Reader in mind of this that it is not for nought God denied his applause and consent in setting-up Kings amongst the Jews That is a strange word They have set-up Kings but not by me they have made Princes and I knew it not Hos 8. I confesse this mainly relateth to the Kings of the ten Tribes Yet you must give me leave to say That it is spoken also in order to all the Kings of the Jews Would the authour of the exercitation conc usurp pow ch 1. compare this place with 1 Sam. 8. he would find that God as much disowned the one King as the other I suppose this is not a word of applause but dis-assent in making Saul King I gave thee a King in mine anger and took him away in my wrath Hos 13. Sure I am this is spoken against the King both of Israel and Judah It cannot be denied but the direct and main strain of this Prophet is against the ten Tribes and the Kings thereof Yet he hinteth both at Judah and Israel and their Kings as occasion serveth In things common to both he speaketh of both So he doth in the text immediatly fore-going Sure I am both Israel and Judah had hand in seeking Saul to reign over them Not only Israel but Judah said Give me a King and Princes And why shall we not think that the former text speaketh likewise of the Kings of Judah and those who did reign over both The Lord's dislike and dis-owning of Kings is as much in the one text as in the other And sure I am Jereboam was as notably called both by God and the ten Tribes to reign over them 1 Kin. 11. 12. 2 Chron. 10. as Saul was to reign over Judah and Israel Howsoever I deny not Kingly Government to be from God I confesse God effectively called Saul to reign over the Jews So did he David Solomon and others whom he called to reign in a most special way Yea he gave an hereditary assignation to David's posterity to the Crown upon conditions But what then This only saith that Kingly Government is good and in some cases much approved of God Yet it never concludeth that it is the best of Governments most approved of God and that the people of the Jews did not sin in setting-up it and shaking-off another It is laid before your eyes that of all Governments it is the most dangerous And seing the Lord did extreamly decline the setting-up of Kingly Government amongst the Jews how much more to day amongst us Beside all moral reasons there was a special typical reason for Monarchy amongst the Jews Under the Law not only Christ's Prophetical and Priestly Office Acts 3. Heb. 8.9 10. but also his Kingly-hood behoved to be typified both in substance and circumstance Gen. 49. 2 Sam. 7. 1 Kin. 8. 2 Chr. 6. Psa 2. Luke 1. Acts 2. Heb. 1. But I hope none under the Gospel can shew me such pressing grounds why Kingly Government to day should be erected None verily Well let them therefore advert That people under the Gospel have more then reason for them to shake-off and decline Monarchy They have not so much reason for it as the Jews had And yet the Lord much disowned it amongst them and much dis-assented from them in setting it up What I pray you is the language of this but that of all Governments it is most dangerous And that it is so is more then manifest from Samuel's way of charactering it Very reason it self teacheth the point Firstly because the bad consequence of Monarchy is tyranny 1 Sam. 8. I deny not but it may and doth flow also from other Governments yet not ordinarily and properly Properly and ordinarily such have for their bad consequences division and confusion But it must needs be granted that tyranny in it-self is worse then either of these And that both formally and virtually Formally because tyranny as tyranny is positive and even-down oppression But division as division and confusion as confusion cannot be so called Otherwise the division and confusion of integral parts should formally be tyranny and oppression Virtually because tyranny in its proper and rigorous acceptation presupposeth a meer and absolute passivenesse in the parts oppressed and enthralled But the case is far otherwise in respect of division and confusion As they only beget oppression and thraldom per accidens so they presuppose mutual resistance on both sides They do not imply an absolute and simple passivenesse on either of the sides Both parties fall at variance and both stand to their own defence the one against the other And so the one acting against the other neither of them doth simply suffer But absolute thraldom is worse then that which is non-absolute For acts of tyranny read Exod. 1. 5. Judg. 1. 9. 2 Sam. 21. 1 King 13.18.19 c. 2 King 21. Esth 3. Jer. 38. 39. Dan. 2. 3. Mat. 2.14 27. Mark 6. Luke 23. Acts 12. Apochryphal books Tob. 1. Jud. 2. 3. 1 Macc. 1.5.6.10 13. 2 Macc. 4.6.7 14. To this day there be many notable expressions and narrations which point-out to us that tyranny is of all evils the most dangerous and violent Herod lib. 3. Thucyd. lib. 2. Polyb. lib. 2. Tac. in vit Agric. Porn de lib. Get. lib. Antisthenes being asked why he preferred hangmen to tyrants he answered By the hangman the unjust and by the tyrant the just are cut-off Stob. serm 47. It was demanded at Diogenes after what manner the tyrant Dionysius did use his friends he answered He killeth the rich and neglecteth the poor Diog. La. lib. 6. And Bias being posed What amongst living creatures was most pernicious he answered A Tyrant Plut. We cannot passe-by a most excellent story of the tyrant Dionysius All the Syracusians excepting the old woman Himera did pray for his death Which being imparted to the tyrant he asked her why she prayed