Ductor dubitantium, or, The rule of conscience in all her generall measures serving as a great instrument for the determination of cases of conscience : in four books / by Jeremy Taylor ...

RULE II. The Supreme power is superior to the Civil laws, but not wholly free from them.

THis Rule hath been thrust into great difficulty by the interests and mistakes of Princes and Subjects respectively.* 1.1 For it hath been disputed whether Princes be free or no from the laws of their kingdome; and things of this nature when they once are question'd, are held more pertinaciously, and desir'd more greedily, and possess'd suspiciously, and conducted with jealousy, and look'd upon with envy or indignation. For the Prince, if it be but disputable, will yet conclude for his own interest; and it is argument enough for him that it is so, because it is not certain that it is not so. And the subjects will upon the same account suppose the Prince bound to his laws, because they know nothing to the contrary; and therefore they presume for the authority of the laws, as the Prince does for the immunity of his person. But then because it is question'd, the Prince, lest he loose it quite, will hold the faster; and the people will snatch at it more impotently, lest they be slaves for ever. And therefore disputations in this case are not prudent or safe; but precepts, and sermons, and great examples, and the sayings of wise men, and positive affirmations in those particulars that be manifest.

Princeps legibus solutus est,* 1.2 said Justinian, The Prince is not tied to laws:* 1.3 for it seems impossible that he that hath power over the law, he that gave it being, and can give it a grave, should be less then that which hath no greatness but what it borrows from him. Indeed if the Prince had devested himself of his power when he made the law, he had been sub∣ject to it; but then he could have no power to abrogate it: which because it is inseparable from the legislative power, it follows that the life of the law is in continual dependance from, and therefore in minority and under him; and therefore the lawyers have a proverbial verse,

Non est Rex legi, sed lex obnoxia Regi.

For a law without a compulsory power is nothing but good counsel at the best; and the supreme power cannot be compell'd: for he will not compel himself, he cannot; he may be willing, but he can never force himself; and to the supreme no man is superior, and therefore none else can compel him: therefore the Divines use to say, and so doe the Lawyers too, that Kings are subject to the directive power of the laws. The distinction I acknowledge, but believe it here to be to no purpose: for laws have no such power, and a directive power is no power; for if it can onely direct, it is not a law, for a law obliges, and does not onely direct: and as for the meer matter of counsel, the Prince need not be at the charge of a law for that, his Counsellors, his Bishops, his Lawyers, his friends can doe that without a law. The same thing is usually said concerning just men. Justis lex non est posita, saith the Apostle, The law is not made for the righteous, but for the wicked: that is, the compulsory of laws is not at all designed for them that obey without compulsion. Not but that the just are under the power of laws, and the laws were made to command them the parti∣culars and the instances of obedience; and if they prevaricate, they shall

feel it. But they are so willing to obey, and so love government and the vertues commanded by the laws, that the laws are of no use to good and just men, but to direct them to what is requir'd of them; and so they are under that which is improperly call'd the Directive power of laws; but Princes are not so. The Supreme power may if he will obey; so may the just man: but this man must obey or he shall be punished, but not so the Prince. The laws of themselves may direct the Prince; but it is because he will have it so: but they direct the just, because they have authority to command, and to punish, onely that the just will not let it come so far. It is but a shadow of liberty to say I am not under the compulsion, but the di∣rection of laws: for such persons if they will not be directed shall be com∣pell'd, and it is better to be willing then unwilling; for call it what you will, you are commanded to doe it, and you must obey. Now this being the case of the just subject, and not the case of the Supreme power, whether just or unjust, it is clear that the Prince or supreme power is not subject to any power of the laws; the law is no Commandement to the Prince, and whatsoever is nothing but counsel, is no law.

And yet on the other side we find good Princes saying otherwise;* 1.4 and they who are apt enough to advance their own power, yet confessing their power to be less then the law, that is, that themselves are bound to keep it: so said the Emperour, C. de legib. & constit. l. 4. Digna vox est Majestatis regnantis, legibus alligatum se Principem profiteri, It is a voice worthy of the Majesty of a Prince, to profess himself tied to his laws. Patere legem quam tu ipse tuleris, said the wise man; Suffer the law which thou thy self hast made: the same with that of Pittacus,

Pareto legi quisquis legem sanxeris.

And the equity of this, besides that it is apparent, is also given in the law, l. 1. ff. de pactis. Nihil tam humanae fidei consentaneum est, quam ea quae pla∣cuerunt servari. If they have pleas'd the Prince in the sanction, let them also please him in the observation, for that's agreeable to the faith and in∣genuity of worthy persons.

These things are but seemingly oppos'd,* 1.5 for both parts are true, and are to be reconcil'd by the following measures.

1. The Supreme power is not under the fear of the laws,* 1.6 but is to love the vertue and order that is there commanded. For there is a neces∣sity introduc'd by publick honesty as well as by fear. And therefore the Greek Lawyers in their Commentaries upon that of the Institutions, that the Prince is free from laws, expound it to be meant of penal law; that is, they cannot be punish'd for prevaricating, or for not keeping them: and Decianus said the same thing, Non quia iniqua liceant, sed quod non timore poena, sed amore justitiae: It is no more lawful for Princes to doe un∣just things, then for their subjects; but they are invited to doe worthy things, not because they are to fear the punishment of laws, but because they must love justice; and there is that necessity for them to doe so, that there is of being great and honour'd. The laws of honesty, of fame and reputa∣tion, which amongst all good men are the guards of vertue, must endear it also to Kings: so Claudian to Theodosius,

Tu licet extremoslatè dominere per Indos, Te Medus, te mollis Arabs, te Ceres adorent;

Si metuis, si prava cupis, si duceris irâ, Servitii patiêre jugum, tolerabis iniquas Interius leges: tunc omnia jure tenebis Cum poteris Rex esse tui: proclivior usus In pejora datur, suadetque licentia luxum, Illecebrisque effraena favet: tunc vivere castè Asperius, cum prompta Venus; tunc durius irae Consulimus, cum poena patet: sed comprime mentem, Nec tibi quod liceat, sed quod fecisse decebit, Occurrat, mentemque domet respectus honesti.

A King is not to consider the greatness of his power, but of his duty; and not reckon upon his impunity, but his reputation* 1.7; and because he does not fear the publick rods and axes, let him respect publick honesty: so Ac∣cursius affirms, Principem, etsi legibus solutus sit, honestatis tamen necessitate omnino teneri oportere: and this is the sentence of Decius and most Law∣yers. But Honestas non videtur inferre necessitatem, say the Lawyers. This does not make it simply necessary; but it perswades vehemently, and upon Princes whose honour is both conscience and interest too, it differs but little from it. For it makes that they ought to doe what is fit. But in Kings it is true what Muscornus Cyprius saies,* 1.8 Verbum illud [debet] non coac∣tionem, sed rationalem quandam persuasionem denotare videtur. It is their duty, and they ought to doe it; and that signifies every thing but com∣pulsion. However a Prince is onely free from one compulsory which is upon his subjects: but is under many which touch not them. God en∣joyns him a greater duty,* 1.9 and exacts it with greater severity, and will punish their delinquencies more sharply: potentes potenter, saith the Wisdome of Solomon, mighty men shall be mightily tormented; and Tophet is prepared for the King. * Kings have a greater need in their affairs then the small fortunes of their subjects; and therefore have need of a greater piety to secure so great a providence. They have more to loose, and therefore need a bigger caution to secure it; they have more at stake to endear obedience: and since a King is but one person, and is strong onely by the obedience of his subjects, and that obedience is secur'd onely by love, and that love can no way be obtain••d but by beneficence and justice; if he breaks these secu∣rities, he may have cause to consider that of Tacitus, Princeps unus est civium & senatus consensui impar, that one man against a multitude is nothing; and that the Senate and the people are stronger, and need not fear him alone, but he alone may have cause to fear all them together* 1.10; and that the sins of a Prince are often punished by the sins of the people. He can consider that he is to govern a multitude whom nothing can unite but an Almighty power; that they are as contingent in their love and hatred, as chance it self; that no fortune in a King is moderate; that when it declines it oftentimes runs to extremity; that he seldome hears truth, never meets with a bold and a wise reprover; that he hath many flatterers, and but few friends; that he hath great powers of doing evil, and tempta∣tions and opportunities alwaies ready; that his very being superiour to laws leaves his Spirit infinitely unguarded and spoil'd of one of the greatest securities of vertue; that impunity is a state of danger; that when vertue is left onely under a Counsel and cold recommendation, and is not made necessary by laws, he had need have a great and a mighty vertue to make it necessary by love and choice; and that such perfect vertues are but rarely obtain'd, and after a long practice; that fear is the beginning of wisdome;

and therefore Princes are very much to seek in this particular, because they have nothing to begin with; and to chuse vertue for love is not usual with beginners, but is the consummation of the most perfect: so that we may well pray, God help poor Kings, who if they doe vertuously must needs be infinitely dear to God, because it is so extremely difficult to be so, and nothing can make them so but two conjugations of miracles; the excel∣lencies of the Spirit of God, and the Spirit of a King. So that it is no pri∣viledge to Kings that they are above the power of their laws; it is their objection, and the evil of their state. Only it is necessary to others that these should dwell in danger: and as for their obedience to laws, it is not bound upon them by the same cord that ties the Subject, but by ano∣ther; it is not necessary for the same reasons, but it is by a greater ne∣cessity.

2. But then these supreme Compulsories being wholly conducted by the hand and providence of God,* 1.11 doe plainly tell us that the supreme Power is obliged to all the laws of God, to the laws of Nature and Christianity. A King hath no power to govern but according to Gods laws. For if he does, though he have no Compulsorie below, yet above there are enough, and to Gods laws the greatest Power on Earth is intirely subordinate. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, The law is the supreme King of all, said Pindar. The same is also said by Chrysippus, by Aristotle,* 1.12 and divers others: and Plato affirms that destruction is immi∣nent upon that City where the Magistrate governs the law, and not the law the Magistrate: and again, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, The Prince that rules not by laws is nothing but a grievance to his Subjects. But that these great Persons mean the laws of God and Nature is explicitly plain in Plutarch,* 1.13 who having affirmed that the law must rule the Prince, adds by way of explanation, that it be that Jaw, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, not which is written in books or tables, but the law of reason that alwaies dwells within; that law that alwaies is his guard, and never suffers the soul to be without a guide, that is the law that is superior to Princes. Some little instances of particulars of this law were decreed by Servius Tullus King of the Romans; of which Tacitus saies, praecipuus Servius Tullus sanctor le∣gum suit, queis etiam Reges obtemperarent; he made laws of that Nature that even Kings themselves should obey them. For as

Regum timendorum in proprios greges,

So it is as true,

Reges in ipsos imperium est Jovis;

As the people are Subjects of the Prince, so is the Prince of God; they must obey their King, and their King must obey God: Concerning whose Law it was said to Domitian by Apollonius Tyanaeus,* 1.14 Haec mihi dicta sint de legibus, quas si tibi imperare non putaveris, ipse non imperabiis, If thou doest not think these laws ought to rule over thee, thou shalt not rule at all.

Upon this account a Prince may not command his Subjects to fight in an unjust cause,* 1.15 according to that saying of S. Hierom,* 1.16 Cum Dominus carnis à Domino Spiritús adversum imperat, non est obediendum; We must not obey the Rulers of this world, the Lords of our flesh, when they com∣mand any thing contrary to the laws of the God and Lord of all Spirits.

The commands of Princes must be, as Tertullian saies, intra limites discipli∣nae, within the bounds of our religion; and therefore the Athenians laugh'd at Stratocles for desiring them to make a law that whatsoever pleas'd King Demetrius should be the measure of piety to the Gods, and of justice a∣mongst Men. Gods law is the measure of the Princes power; not his will the measure of that: and therefore the Jews that were Souldiers under Alexander could by no tortures be compell'd to assist in the building of the temple of Belus in Babylon; and the Thebaean legion under Julian the A∣postate refused not to fight for their Prince against the Barbarians, and they refused not to die, but they refused to be executioners of the Martyrs that died in the cause of Christianity.

But this is to be practised that the Princes just laws be not neglected upon the arrest of every fancy or foolish opinion.* 1.17 If it be certain that it is against the law of God, then we are safe in our disobedience. Idcirco Romanas leges contemnimus,* 1.18 ut jussa Divina servemus, said Sylvanus the Martyr, Because we are sure these Roman laws are against the Comman∣dements of God, we easily despise them. But if we be not sure, but are in doubt whether the laws be just or no, we are to presume for the laws, and against our own fears. For nothing is at all of advantage due to the laws, if we preferre before them any opinion of our own which we confess uncer∣tain; and although we are not to doe any thing of which we doubt, yet in a doubt we are to obey laws, because there is a doubt on both sides: and as we fear the thing is unjust, so we have reason to fear the evil of disobedi∣ence, for we are sure that is evil; and therefore we are to change the specu∣lative doubt into an active judgment, and a practical resolution, and of two doubts take the surer part, and that is to obey; because in such cases the evil, if there be any, is to be imputed to him that commands, not to him that obeys, who is not the Judge of his Prince, but his Servant. Servus herilis imperii non Censor est, sed Minister, said Seneca. They that are un∣der authority are to obey, not to dispute. But of this I have given an ac∣count already in the first Book, Chap. 5. Rule 6.

3. But then concerning the civil laws of his Country we are to distin∣guish;* 1.19 for some concern the People only, and some concern the Prince only, and some are common to both. Those that concern the People are such as require tribute, and labours, and manners of trade, their habits and dwelling. In these and all such the people are obliged and not the Prince: for the duties are either relative and concern their part only of the relation; or else by the nature of the things themselves doe point out their duty, & in these things there is no question. For not the King but the people are to pay tribute, & the Kings lands are free, if they be in his own possession.

4. But there are some laws which concern the Prince alone,* 1.20 as all acts of grace, and ease to the people; all that he hath been pleased to promise, the forms and laws of Government, and to whatsoever himself hath con∣sented, by all those laws he is bound; because in such cases as these it is true what Pliny said to Trajan in his Panegyric, In nostris, simili religione, ipse te legibus subjecisti, Caesar, quas nemo Principi scripsit; sed tu nihil amplius vis tibi licere quam nobis. The Prince had not a law imposed upon him, but he became a law unto himself; and when he hath bound himself there is the same necessity upon him as upon his Subjects.

5. Other laws yet doe concern both Prince and people;* 1.21 such as are all contracts and bargains. Licet serviant aedes meae, ei tamen cum quo agitur non serviunt, quantum enim ad eum pertinet, liberas aedes habeo. l. 4. S•• serv. vind. Although my house is bound to serve the publick necessity, yet in respect of him that contracts with me, my house is free. So also it is in the acquisition of new rights, the repetition of the old, and generally in all those things that are established by the law of Nature, or doe concern him personally, and not in the capacity of a King.* 1.22 Thus saith the law, In imperfecto testamento nec Imperatorem haereditatem vendicare posse saepe constitutum est, The Prince cannot be heir if the testament of the dead man be illegal. Sometimes and in some places, it may be, fewer witnesses will serve in the Princes case then in another mans, but then it is because fewer in his case are required by law; but still the law is his measure as well as of his Subjects.

6. The great laws of the Kingdome doe oblige all Princes,* 1.23 though they be supreme. Such were those which were called the laws of the Medes and Persians; whose Princes, although they were the most abso∣lute and supreme, yet they were inferiour to those laws, as appears in the Book of Daniel. These are by way of eminence call'd Leges Regni, the Kingdomes laws. Such are the Golden Bull of the Empire; the law Salic and the Pragmatical Sanction in France; the Magna Charta and the Peti∣tion of Right in England; and in other Countryes the like, as who please may particularly for Spain see in Mariana.* 1.24 This is confess'd by all, and it relies upon natural justice, the Prince having consented to it; it is either sponsio Principis, or conditio regnandi; he was admitted either upon that condition, or with it.

7. Whatsoever the Prince hath sworn to,* 1.25 to all that he is oblig'd not onely as a single Person, but as King: for though he be above the laws, yet he is not above himself, nor above his oath, because he is under God; and he cannot dispense with his oath or promise in those circumstances and cases in which he is bound. And therefore although the Prince is above the laws, that is, in cases extraordinary and priviledg'd cases, and the mat∣ter of penalties; yet he is so under all the laws of the Kingdome to which he hath sworn, that although he cannot be punish'd by them, yet he sins if he breaks them. Not that the law does binde him, for it cannot binde without a compulsory; and against him the law hath no such power: but yet he is bound to the law, though not by it; the obligation comes not from the law, but from other causes, from his promise, his oath, his con∣tract, his religion, his reputation, his fear, his hopes, his interest, and espe∣cially from God himself. For it is carefully to be observed in this parti∣cular, that though a promise gives a man right to the thing which is pro∣mised, it does not alwayes give him a right over the person. A King is like him that promises a thing under a curse; if he fails, the injur'd per∣son is not to curse him, or to inflict the curse upon him, but that is to be permitted to God alone. And therefore if a King swears to his People to make no law without their consent, he is bound to perform his word; but if he does not, God, and not they are to punish the perjury. The King's promise, or cession, or acts of grace doe never lessen or part his power, but they tie his person. An Act of Parliament in England, if it be made with a clause of perpetuity, that if an act should be made to rescind it it should be void, that first Act of it self is invalid. Clausulae deroganti si derogetur,

valet ut posterius testamentum, ita posterior constitutio, say the Lawyers, Concerning which Cicero hath written an excellent epistle to Atticus, lib. 3. epist. ad Attic. epist. 24. It is as if a man should make a Will to annull all future Wils of his own; it shews indeed that he had then a mind to have that to be his standing will: but how if his mind change? Constan∣tine made a law, that Widows and Orphans should not be cited to the Em∣perour's Court for judgement, or compelled to come, though he himself should command them: but yet if he did command them, that first rescript stood for nothing. Antiochus the third commanded the Magistrates not to obey him if he commanded any thing against the laws: but if he should command any such thing, it were not safe for them to urge himself against himself. The Roman Emperour bade his Officer use his Sword against him if he broke the laws: but this gave him no power over his Prince in case he had gone against the laws; it is nothing but a confident promise, and an obligation of his honour and his conscience, of which God alone is the Superiour and the Guardian.

The custome of supreme Princes swearing to govern by laws was very antient:* 1.26 we finde an example of it amongst the Gothish Kings in Cassio∣dore;* 1.27 amongst the late Greek Emperours in Zonaras and Cedrenus. Ana∣stasius the Emperour sware to observe the decrees of the Council of Chal∣cedon; Adrian the Emperour sware that he would never punish a Senator but by the sentence of the Senate; and Trajan having promised to rule with justice and clemency, consecrated his head and right hand to the anger of the Gods if he broke his word: and Plutarch tels, that the Kings of the Cossari sware to the Epirots, that they would govern according to the laws. And indeed abstracting from the oath and promise, Kings are bound by na∣tural justice and equity to doe so: for they are not Kings unless they go∣vern; and they cannot expect obedience, unless they tell the measures by which they will be obeyed; and these measures cannot be any thing but laws, which are at first the will of the Prince; and when they are publish'd to the People, then they are laws, but not till they be established by re∣wards and punishments, which are the portion of the People good and bad. Now this is the natural way of all good Government, there is no other; and to govern otherwise is as unnatural as to give Children meat at their ears, and hold looking-glasses at their elbows that they may see their face. If Kings be not bound to govern their People by their laws, why are they made? by what else can they be governed? by the will of the Prince? The laws are so; onely he hath declar'd his will, and made it certain and regular, and such as wise men can walk by, that the Prince may not govern as Fools govern, or as a Lion does, by chance, and violence, and unreasonable passions. Ea quae placuerunt, servanda, saith the law, l. 1. ff. de pactis. If this had not been the will of the Prince, it had been no law; but being his will, let it be stood to: when the reason alters, let his will doe so too, and the law be chang'd, that the measures of right and wrong, of obedience and disobedience may be known.

We have seen how Kings are bound;* 1.28 the next inquiry is, how they are freed, and how they are superiour to laws. Antonius Augustinus sayes, that by the Lex Regia, or the Jus Regium, Kings, that is, the Supreme power,* 1.29 are onely freed from some laws: and this he gathers from the words of the Royal law written to Vespasian, Uti quibus legibus ne Augu∣stus

teneretur, iis Vespasianus solutus esset: quaeque ex quaque lege Augustum facere oportuit, ea omnia Vespasiano facere liceat, Where Augustus Caesar was free, Vespasian should be free: but those things which Augustus ought to doe, all those Vespasian might. The word liceat in his case was modestly put in; not but that oportuit had been the better word to express his obli∣gation, as well as the duty of Augustus: but it was therefore chosen to re∣present that to be expected from him, but could not be exacted; it was his duty, but no compulsion lay near him: but certain it was, that the power of the People being devolv'd upon him (for it had been a popular Govern∣ment) as the People were bound to the laws which themselves have made, so was the Prince. The People were, for there was none else to keep them: but therefore so was the Prince, for he had but the same power which the People formerly had when they were Supreme. But then that they were tied but to some laws, and not to others, is very true: but so, that he was tied to all those laws which were intended to oblige him di∣rectly, and indirectly to all the rest, that is, to govern the People by their measures onely.

But now if we inquire from what laws they were freed,* 1.30 and what is the right of a King or the Supreme power more then of the People: I answer,

1. It consists in that which we in England call The King's Prerogative; in the Civil Law the Lex Regia, or Vespasian's Tables; by the Jews 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the statute or proper appointment of the King: the par∣ticulars of which are either described in the respective laws of every People, or are in their customes, or else is a power of doing every thing that he please that is not against the laws and customes of his People, without giving a reason. Cum lege antiquâ, quae Regia nuncupatur,* 1.31 omne jus omnísque potestas populi Romani in Imperatoriam translata sunt potestatem, saith the law. Amongst the Romans that was the Jus Regium, that the Prince could doe all that ever the People could: now what that was, we find in Dionysius, by the concession of Romulus, Populus Magistratus creanto, leges sciscunto, bella decernunto, The People might create Magistrates, make laws, and decree peace and war. That is the Right of Kings, or the Su∣preme power.* 1.32 Guntherus hath summ'd them up from the laws and cu∣stomes of the Empire, and some antient Italian Governments.

Ac primum Ligures, super hoc à Rege rogati, Vectigal prorsus, cudendae jura monetae, Cumque molendinis telonia, flumina, pontes, Id quoque quod* 1.33 Fodrum vulgari nomine dicunt, Et capitolicium certo sub tempore censum: Haec Ligures sacro tribuerunt omnia fisco. Haec & siqua pari fuerunt obnoxia juri, Praelati, proceres, missísque potentibus urbes Libera Romano reliquerunt omnia regno.

But the Jus Regium, what it is in the consent of Nations, who please may see in Aristotle's Politicks lib. 3, & 4. in Polybius lib. 6. Herodotus in Eu∣terpe, in Halicarnassaus lib. 4, 5, 7. in Valerius Maximus l. 7. in Orat. quâ suadet concordiam patrum & plebis in fin. in Tacitus 4. Annal. in Suetonius in Tiberio c. 30. in Dion. lib. 53. and in the later Politicks, Fabius Al∣bergatus, Zimara, Bodinus, Aretinus, and generally in the Commentators upon Aristotle.

2.* 1.34 It consists in the King's immunity from obligation to some so∣lemnities of law to which his Subjects are oblig'd. Ratum esse actum, etiamsi actio non habeat plenam rectitudinem, dum jus non desit, say the Lawyers.* 1.35 Of which nature is that for which Aeneas Sylvius, afterwards Pope Pius the second, laugh'd at Henry the sixth of England, that his Publick Instruments had no Test but his own, and he wrote Teste meipso, Witness our self: in which the King doth imitate the King of Kings, of whom S. Austin sayes,* 1.36 Testem se dicit futurum, quia in judicio suo non indi∣get testibus. He swears by himself, because he hath none greater; and is his own witness, because he needs no other: and it is enough that a King sayes it, because his word ought to be great and venerable, as his Power and his Majestie. And it was not onely in the matter of coercion, but of solemnities,* 1.37 true which Justinian said, Omnibus à nobis dictis Imperatoris excipiatur fortuna, cui & ipsas Deus leges subjecit, The fortune of the Em∣perour is to be excepted from the edge and from the forms of laws, because God himself hath made the laws subject to the Emperour.

3. The King is therefore solutus legibus,* 1.38 or free from laws, because he can give pardon to a Criminal condemn'd: for the Supreme power is not bound to his own laws so, but that upon just cause he can interpose be∣tween the sentence and the execution. This the Stoicks allowed not to any wise man, as supposing it to be against justice; and to remit due punish∣ment, is to doe what he ought not: for what is due is just, and what is a∣gainst that is unjust. All which is very true, but nothing to the purpose. For it is true, that it is but just that Offenders should be punish'd; it is due, that is, they are oblig'd to suffer it; poena debita ex parte reorum, it is their debt, not the Kings; they are oblig'd, not he: and yet it is just in him to take it, that is, he may: but he is not oblig'd in all cases to doe it. And in this also he is an Imitator of the Oeconomy of God, who, according to that of Lactantius, legem cum poneret non utique sibi ademit omnem pote∣statem, sed habet ignoscendi licentiam, God and the Vicegerent of God when they make laws have not exauctorated themselves: but as that law is an efflux of their authority, so it still remains within the same authority that they can pardon Offenders. Thus David pardon'd Shimei and Joab, and would fain have pardon'd Absalom, if the hand of Joab had not been too quick for him. And this cannot be denied to the Supreme power, be∣cause the exercise of this is one of the greatest vertues of a Prince: which was well observ'd by Pericles on his death-bed, when his weeping Friends about him praised, some of them his Eloquence, some his Courage, some his Victories, lifting up his head a little, Et quid hoc est? (saith he) aut par∣va aut fortuita laudatis: at illud maximum omittitis, quod mea opera nemo pullam vestem sumperit. That he had no publick executions, that no man was put to wear Blacks for his Friends, was a clemency greater then all the praises of Eloquence, or a prosperous fortune.

—Quisquis est placidè potens Dominusque vitae,* 1.39 servat innocuas manus, Et incrucentum mitis Imperium regit, Animoque parcit, longa permensus diu Permensus aevi spatia, vel Coelum petit, Vel laeta felix nemoris Elysii loca.

But all the World commends Clemency, the gentle hand of a Prince,* 1.40 his un∣willingness to kill, his readiness to save: for, Principi non minus turpia multa

supplicia, quam Medico funera, Many executions are as great a dishonour in a Princes reign, as many funerals in a Physitians practice: and therefore Cassiodore saies that a good and a gentle Prince will sometimes pass the limits of equity that he may serve the ends of clemency;* 1.41 quando sola est misericordia cui omnes virtutes cedere honorabiliter non recusant, for to mercy all other vertues count it honour to give place. And this Charls the 5^th and Maximi∣lian the second signified by their devise of an Eagle pearching upon a thun∣derbolt, with an Olive in her beak: and Nerva and Antoninus Pius im∣press'd upon their money a thunderbolt upon a pillow; to signify that vindicative justice ought to sleep sometimes. * Now certainly this being so great an excellency in a Prince, is not greater then his power. Imperatori licet revocare sententiam, & reum mortis absolvere, & ipsi ignoscere; quia non est subjectus legibus qui habet in potestate leges terrae, saith S. Austin. The Emperor, who can make laws, is not subject to laws, or so tied to them but that he may revoke his sentence and pardon a Criminal.

This I say is part of his Royalty;* 1.42 but is onely then to be practis'd when it can consist with the ends of government, that is, when the pub∣lick interest can be preserv'd, and the private injury some other way re∣compenc'd. These indeed are the general measures not of the Princes power, but of his exercising this power justly.

1. When the Criminal is a worthy person and can be beneficial to the Republick.* 1.43 Thus in the Low Countries a pardon in ordinary cases of felony is granted of course to him that can prove he hath invented some new art: and one lately sav'd his life by finding out a way exactly to coun∣terfeit old medals.

2. If the person hath already deserv'd well of the publick.* 1.44 Thus Horatius Cocles was spar'd though he kill'd his sister, because he got honour and liberty and safety and dominion to Rome by killing the three brothers, the Curatii: and Solomon spar'd the life of Abiathar the High Priest, be∣cause he bore the Ark before David,* 1.45 and was afflicted in all his troubles. *

3. When the Criminal can be amended,* 1.46 & the case is hugely pitiable, and the fact not of greatest malignity. Thus oftentimes we see young men pardon'd, and the first fault lightly punish'd; and because young Caesar was in the flower of his youth and a Princely boy, Sylla was more easily prevail'd with for his pardon.

4. If the fault be private,* 1.47 and not brought to publick courts, it is easily pardon'd, though delated by a private information, Conquiri ad ju∣dicium necesse non fuit: some things when they are made publick cannot be dismiss'd, but are not to be inquir'd after. It was the advice of Cicero to his Brother Quintus concerning a certain Criminal.

But all this is upon supposition that the crime be not of greatest mis∣chief,* 1.48 or foulest scandal and reproach; for if it be, nothing can be taken in exchange for it; a great vertue cannot make compensation for a very great crime: and this is particularly true of Treason, of which those words of Bartolus are to be understood, De offensionibus erga dominum non est com∣pensatio ad servitia eidem impensa, The services done to a Lord cannot make

satisfaction for a conspiracy against him. And therefore the Romans caus'd Manlius Capitolinus to be thrown headlong from that rock from whence he had thrown the Gauls when he sav'd the city. He produc'd the spoils of thirty enemies, forty donatives from Generals, two civic crowns, eight murals; yet all would not save his life and get his pardon. But yet in these things the supreme power is so free from laws that it does these things irre∣gularly; Clementiam liberum habere arbitrium, said Seneca, Clemency hath a great liberty, and a free choice: but they are oblig'd onely to see that the publick be not prejudic'd, and that every private interest be secur'd by causing amends to be made to the injur'd person where it can; and then it is true of every supreme Prince which Seneca advis'd Nero often to remem∣ber, Occidere contra legem nemo potest; servare nemo praeter me, No man at all can put a man to death against the law; and none can save except the Prince.

4. The supreme power is above the laws,* 1.49 * because he can dispense, * he can interpret them, * and he can abrogate them, * he can in time of ne∣cessity govern by the laws of reason without any written law, * and he is the Judge of the necessity. Thus the Kings of Israel had power over the judicial laws, though of the Divine sanction. For God forbad that the corps of a Malefactor should hang after sun-set upon the accursed tree; but yet Maimonides saies that the King suspendit & relinquit suspensos diebus multis, he hangs them and leaves them hanging for many daies; when it is necessary by such terror to affright the growing impiety of wicked men; that is, when the case was such that the laws were capable of equity or in∣terpretation. For this was not meerly an effect of his power, but of his reason too. It was a custome among the Jews to condemn but one person in one day, unless they were in the same crime, as the adulterer and the adul∣teress; but the King might condemn many at once when it was for the interest of justice and the republick. Thus their King could by the pre∣rogative of his Majesty proceed summarily, sit in judgment alone without assessors, condemn upon the testimony of one, and by the confession of the party; which the Sanhedrim might not doe, but were tied to acquit him that confess'd the fact. Add to these,* 1.50 the Supreme can in some cases be Judge and witness; that is, can himself condemn a criminal for what him∣self onely saw him doe. He can also be Judge in his own case; as if he be injur'd, rail'd upon, defrauded, or the like: all which are powers above the law, and here were to be nam'd for the understanding of the present Rule; but how they are to be conducted is of distinct and special consideration, and to be reserved to their proper places. I end this whole inquiry with that of Statius,

—quid enim terrisque poloque Parendi sine lege manet? vice cuncta geruntur. Alternisque premunt propriis sub Regibus omnis Terra: premit felix Regum diademata Roma: Hanc ducibus fraenare datum, mox crescit in illos Imperium Superis—

There is nothing in the earth but is under a law and tied to obedience: all the earth are under Kings, and the Kings are under the Romans, and the Romans under their Princes, and their Princes under God; who rules them by his own laws, and binds them to rule by their Countries laws, and ties them to doe justice, and is pleased when they shew mercy. But as they are

to doe justice by the sentence of the laws, so they must not shew mercy against law; for even the prerogative of Kings is by law, and Kings are so far above their laws, as the laws themselves have given leave. For even the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the remission of the rigor of the law, the very Chancery and ease of laws is by law established.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  Instit. d. tit. 2.
• * 1.4

  3.
• * 1.5

  4.
• * 1.6

  5.
• * 1.7

  Vestri consilii, vestrae pruden∣tiae est spectare quid deceat vos, non quantum liceat. Cic. pro Rabitio.
• * 1.8

  Hieron. Mus∣cornus tract. de Jurisdict. & Imp.
• * 1.9

  Principes qui Superiorem non habent, plus puniuntur à Deo, & itaque caveant sibi, ne peccent. Castr. 11. C. de jud.
• * 1.10

  Vindicta certè maxima in no∣bis siua est. Co∣gunt timere? odisse rursum possumus: jus••a odia superant omne vindictae genus. Meursi.
• * 1.11

  6.
• * 1.12

  〈◊〉〈◊〉. 4. 〈◊〉〈◊〉.
• * 1.13

  Lib. de regno
• * 1.14

  Apud 〈◊〉〈◊〉.
• * 1.15

  7.
• * 1.16

  In Eph••••. 6.
• * 1.17

  8.
• * 1.18

  In Martyrol. Rom.
• * 1.19

  9.
• * 1.20

  10.
• * 1.21

  11.
• * 1.22

  L. 3. C. de r••∣sta. L. 6. C. qui test. ••••c. po.
• * 1.23

  12.
• * 1.24

  Lib. 20.
• * 1.25

  13.
• * 1.26

  14.
• * 1.27

  Cassiod. var. l. 10. 16, 17.
• * 1.28

  15.
• * 1.29

  Authen: si q••is de eden.
• * 1.30

  16.
• * 1.31

  L. 1. ff. de con∣stitut. Princip. & § sed & quod Principi. instit. de Jure Natur. & praef. pandect. l. 1. ff. de offic. praef. praet. & Cod. de vet. Jur. enucleand. l. 1. § sed & hoc.
• * 1.32

  Lib. 8.
• * 1.33

  Fodder.
• * 1.34

  17.
• * 1.35

  Comm. Pii 2. lib. 3.
• * 1.36

  Lib. 20. de Ci∣vit. Dei, c. 26.
• * 1.37

  Nov. 105.
• * 1.38

  18.
• * 1.39

  Sen. Herc. Fur.
• * 1.40

  Senec. De cle∣ment.
• * 1.41

  Variat. 11.
• * 1.42

  19.
• * 1.43

  20.
• * 1.44

  21.
• * 1.45

  1 Kings 2. 26.
• * 1.46

  22.
• * 1.47

  23.
• * 1.48

  24.
• * 1.49

  25.
• * 1.50

  Vani capitis est existimare superiorem non posse evocare sine causae cog∣nitione. Innoc. in c. ad aures de Temp. Ord.