The illustrious Hugo Grotius Of the law of warre and peace with annotations, III parts, and memorials of the author's life and death.

LIV. True examples of the supreme power divided.

MOre pertinent is that which Ari∣stotle hath written: Between 〈◊〉〈◊〉 full Kingdom * 1.1, and a Laconical † 1.2 which is a meer principality, some other species are interjected. An example hereof, as I suppose, may be found in the Hebrew Kings; for, of these, that they ruled, in most things, by the high∣est right, I think it is impiety to doubt; for the people desired such a King as their neighbours * 1.3 had: but the Nations of the East were subject to their Kings in the most humble way † 1.4. And above we have noted, that the whole Hebrew peo∣ple was under the King. And Samuel describing the right of Kings, sufficient∣ly shews that the people have no pow∣er left in themselves against the Kings injuries. Which the Fathers do rightly gather from that of the Psalm: Against thee only have I sinned. Upon which

place Hierom * 1.5: Because he was a King, and feared not another. And Ambrose: Being a King, he was in danger of no Laws, because Kings are free from such bonds; neither do any Laws bind them over to punishment, being secured by their Soveraign power † 1.6: against man there∣fore he sinned not, to whose restraint he was not obnoxious. I see there is consent among the Hebrews, that stripes were inflicted on the King offending against those written Laws exstant about the Kings office; but those stripes among them had no insamy, and they were of his own accord received by the King in token of repentance, and therefore he was not beaten by an Officer, but by one whom he was pleased to make choice of, and at his own pleasure he was eased. As to coactive punishments, the Kings were so free from them, that e∣ven the Law of excalceation, as having in it something ignominious, was not of force upon them. The Hebrew Barnach∣mon hath a sentence exstant amongst the sayings of the Rabbins, in the title of Judges: * 1.7 No creature judgeth the King, but the blessed God. These things being so, neverthelels I think some causes were exempted from the Kings judgement, and remained in the power of the Synedry of LXX. instituted by Moses at Gods command, and by perpetual succession continued to the times of Herod. There∣fore, both Moses and David call Judges

Gods, and judgements are called the judge∣ments of God, and Judges are said to judge not in the place of man but of God. 〈◊〉〈◊〉 the matters of God are plainly distin∣guisht from the matters of the King where, by the matters of God, the mos•…•… learned of the Hebrews bid us understand judgements to be exercised according 〈◊〉〈◊〉 Gods Law. The King of the Jews, 〈◊〉〈◊〉 deny not, exercised by himself certain capital judgements (in which particulae Matmonides prefers him before the King of Israel) which also is evinced by exam∣ples not a few, both in the sacred Scrip∣ture and in the writings of the Hebrews: Yet certain kinds of causes seem no•…•… permitted to the Kings cognizance, viz. of the Tribe, of the high Priest, of the * 1.8 Prophet. And hereof there is an argu∣ment in the history of the Prophet Jere∣my, whom when the Princes required unto death, the King answered: Behold, he is in your power, for the King can do nothing against you: to wit, in this kind of matters. Yea, and the person that for any other cause was impeached before the Synedry, could not by the King be exempted from their judgement. There∣fore * 1.9 Hircanus, when by power he could not hinder their judgement concerning Ho∣rod, eluded the same by Art. In Macedonia, they that descended from Calanus, as Ca∣listhones in Arrian saith, bare rule over that people not by force but by Law. The Macedonians, saith Curtius, are accustomed * 1.10

to the Regal government, yet are in a grea∣ter shadow of liberty than other nations: For even the judgment of life and death was not in the Kings hand. Of Capital matters, saith the same Curtius, by the * 1.11 old custome of the Macedonians, the Ar∣my did enquire, in time of Peace the Com∣mons; the power of the Kings prevailed no further than their authority could move. There is in another place of the same Au∣thor another token of this mixture: The Macedonians decreed according to the cu∣stome * 1.12 of their nation, that the King should not hunt on foot, without the attendance of his elect Princes or courtiers. Taci∣tus relates of the Gothones: They are now in greater vassalage under their Kings, than other Germans: nor are they yet depriv'd of all liberty. For he had afore describ'd the principality by the authori∣ty of perswading, not by the power of Commanding: and after he expresseth a full Royalty in these words: One com∣mandeth, without all exceptions, not by a precarious right of governing. Eustathius upon the sixt of the Odysses, where the Commonwealth of the Phaeaces is des∣cribed, saith it had a mixture of Power, of the King, and of the States † 1.13. Some∣thing like it I observe in the times of the

Roman Kings; for then all matters almost went through the Royal hand. Romulus reigned over us, as he pleased, saith Taci∣tus. It is manifest, at the beginning of the City Kings had all power, saith Pomponius: yet Halicarnassensis will have something excepted by the people even at that time. But if we give more credit to the Roman Authors, in some causes there lay an ap∣peal from the Kings to the people, as Se∣noc•…•… hath noted out of Cicero's books de * 1.14 Republica, out of the Pontifical books al∣so, and Fenestella; shortly after, Servius Tullus advanced to the Throne, not so much by right, as by the favourable breath of the people, yet more abated the regal power. For, as Tacitus speaketh, * 1.15 he establisht Laws, which even the Kings themselves were to obey. The less cause have we to wonder at that which Livy saith, The power of the first Consuls dif∣ferd from the regal in little more than that 'twas annual. Such a mixture also of a Democracy and Optimacy was at Rome in the time of the Interregnnm, and in the first times of the Consuls. For in

certain affairs, and those of the greatest moment, the will of the people was a law, if the Fathers would go before them with their authority * 1.16, and (as it were) pre∣pare the bill; which authority afterward, the peoples power encreased, was onely for a shew, when the Fathers, as Livy and Dionysius note, began with their voices, but the Assembly did what they pleased. For all this, in after times there remained somewhat of a mixture, whilst, as the same Livy speaketh, the Govern∣ment was in the hand if the Patricians, that is, of the Senate, but the Tribunes, that is, the Plebeians, had a share, to wit, a right of forbidding or interceding. And so Isocrates will have the Athenian Commonwealth, in Solon's time, to have been * 1.17 an Optimacy mixt with a Demo∣cracy.

Notes

• * 1.1

  Quod 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vocat; eadem est 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Soph•…•… Anti∣gene, Plutarcho 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, S•…•…abo∣ni 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• † 1.2

  Dionysius Halicarnassen∣sis de Laconi∣cis regibus: Neque enim La∣cedaemonii pleno jure Reges erant.
• * 1.3

  Putabat popu∣lu•…•… nihil esse ab∣surdi si cum vi∣ciniregnareatur, ipsi eandem im pe•…•…ii so•…•…mam ac∣ciperent. Jose∣phus.
• † 1.4

  Aeschylus Persis de Rege Persa•…•…um sic loquentem fa∣cit Atossam:—〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. No'um illud Maronis:—Re∣gem non sic Aegyptus, & ingens Lydia, nec po•…•…uli Parthorum aut Me∣dus Hydaspes Observant.—Apud Livum: Syri & Asiatici 〈◊〉〈◊〉 hominum servituti nata; à quo non discrepat illud Apollonii apud Philostratum: Assyri & Medi dominationem etiam adorant. Arist. 3. Polit. 14. Aesia•…•…ci dominatum aequo a•…•…imo serunt. Cicero de p•…•…or consularib. 〈◊〉〈◊〉 & Syris nationibus natis servituti. Sallust. de gentibus o•…•…lentis: Adeo illis •…•…genita est sanctitas Regii nomi•…•…. Apud Tacitum Civilis Batavis ad Gallos: Hist. 4. Servirent Sy∣ria Asiaque & suet•…•… Oriens. Nam & in Germania & in C•…•…llia tum Reges erant, sed ut idem Tacitus notat, precari•…•… 〈◊〉〈◊〉 regnandi, & autoritate suadendi, non jubendi potestate.
• * 1.5

  Idem Hiero∣nymus Epist. ad Rust. de paenitent•…•…a: Rex enim crat: alium non time∣bat, alium non habebat super se.
• † 1.6

  Paria habet ad •…•…dem Psalm•…•…m Ar∣nobius minor Vit'ges apud Cassiodorum: Causa Regiae po∣testatis supernis est applicanda judiciis, quan∣doquidem i'la à Coelo telita est, ita seli Coelo de∣bet innocentiam. Idem legere est apud Isidorum Pelusiot. Epist. postre•…•… edita∣•…•…um. 383.
• * 1.7

  Nulla crea∣tura judicat Re∣gem, sed Deus benedictus. Ex. 32. 8. Deut. 1. 17. Psal. 72. 1. 2 Chron. 19. 6. 8. 1 Chron. 26. 32. 2 Chron. 19. 11.
• * 1.8

  Non capit Propbetam pe∣rire extra Je∣rusalem. Luke 13. 33. Jer. 38. 5.
• * 1.9

  Joseph. An∣tiqu. 14. 17.
• * 1.10

  Lib. 14.
• * 1.11

  Lib. 6.
• * 1.12

  Lib. 8.
• † 1.13

  Laonicus Cha•…•…∣cocondylas taliae ait esse regna Pannonum & Anglorum, l. 2. Arragonum, l. 5. & Navarrae eo∣dem libro, ubi ait, nec magistra∣tus à Rege crea∣tos, nec praesidia imposita nisi vo∣lentibus, nec quicquam popu∣lo imperatum contra mores. Reges alios esse pleno cum jure, alios sub legibus, etiam Judaeus Levi Gersonides notavit ad 1 Sam. 8. 4. Mira quae de Taprobane scribit Plinius lib. 6. c. 22. Eligi regem à populo senecta clementia{que} liberos non habentem, & si postea gignat, abdicari, ne fiat haereditarium regnum. Rectores ei à po∣pulo xxx, dari, nec nisi plurium sententia quenquam capite damnari. Sic quo{que} appellationem esse ad populum, lxx. judice dari. Si liberent ii reum, non amplius xxx. (ita enim legi locus hic debet) iis nullam esse dignitatem, gravissimo probro. Regi cul∣tum liberi patris, caeteris Arabum. Regem si quid delinquat m•…•…rte mulctari, nullo interimente, sed aversantibus cunctis & commercia etiam sermonis negantibus. Servius ad illud 4. Aen. populum{que} patresque. Quidam hoc loco volunt tres partes politiae comprehenlas, populi, optimatum, regiae potestatis. Cato enim ait detribus istis partibus ordinatam fuisse Carthaginem.
• * 1.14

  Epist. 100.
• * 1.15

  3. Annal.
• * 1.16

  Plutarchus Coriolano: Populus jus non habebat aut le∣gem condendi aut aliud quid jubendi nisi Se∣natus praecessis∣set auctoritas. Similem mix∣turam in Ge∣nuatium rep. suis tempori∣bus observat Chalcocondy∣las l. 5. Liv. lib. 6.
• * 1.17

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉