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his meat with a knife. Kara rd^tv nva /3a<r/X/a, ij 8s aogiffros
rigavwg, says Aristotle ; It is a kingdom when it is by rule
and measure, but if it be unlimited, it is a tyranny:" that is,
when affairs are capable of a law and order, the supreme
power must so conduct them ; he must go in that path
where they stand ; but if they grow wild and irregular, he
must go out of his way to fetch them in again.

5. But, then, it is also to be considered, that the absolute
power of the prince is but an absolute power of government,
not of possession ; it is a power of doing right, but not a power
of doing wrong : and, at the worst, is but a power of doing
private violences for the security of the public. This power
is excellently expressed in the tables of the royal law written
to Vespasian : " Uti quaecunque ex usu reipublicae et ex majes-
tate Divinarum, humanarum, publicarum, privatarumque re-
rum esse censebit, ei agere, facere, jus potestasque sit, uti Au-
gusto fuit." Augustus Caesar was the most absolute prince
that ever ruled the Roman people ; to him was granted, saith
Aliciat, j to be free from laws, and all the necessity of laws,
to be obnoxious to no law written, and to have all the power

1 Lucan. ii. 280. Oudendorp. p. 127. i De Magistral.



428 OF SUPREME CIVIL POWERS,

of kings : and yet all that power was but ' to do every thing
which he should esteem to be useful to the public, and ac-
cording to the majesty of religion, and all human rights
public and private.' And therefore he is ' princeps regni,' but
not ' dominus,' ' a prince,' not ' a lord ;' and the distinction
is very material. For to be * lord,' signifies more than the
supreme power of government. " Qui primi fuerunt Rotnae
principes, etsi poterant videri revera domini, vitabant tamen
valde domini nomen, veluti contumeliam ac maledictum : non
vitaturi si esset nomen solius honoris, aut moderatse potes-
tatis," saith Suetonius ; k ''The first princes of Rome es-
teemed it a disgrace to be called lords, because it was not a
name of mere honour, or of a moderate power; for if it had,
they would not have declined it :" but it means an absolute
power to dispose of all lives and all possessions ; which is
beyond the power of the king or prince. He that is a king,
rules over a free people, but a lord rules over slaves. Taci-
tus, 1 according to the popular humour of the Romans, sup-
posed the power of a king to be too great a violation of
liberty ; but domination or lording it was intolerable. " Prin-
cipatus et libertas res sunt dissociabiles ; magis tamen sunt
dissociabiles libertas et doniinatio ; " for to be the absolute
lord cannot consist either with freedom or propriety : and
therefore Ovid" 1 prefers Augustus before Romulus in this
very instance ; for speaking to Romolusof Augustus, he says,

Tu domini nomen, principis ille tenet.

' Augustus is a prince, a gentle governor ; Romulus was a
lord ; ' that is, something that no man loves, but every man
serves and fears. This power is well expressed by St. Peter's
word of xaraxuii/i>, a power not ministering to good, nor
conducted by moderation.

Maximum hoc reg&i bouum est,
Quod facta domini cogitur populus sui
Tarn ferre,quam laudare D

When the people must suffer the will of their imperious lord

k Is the whole of the preceding quotation to be found in Suetonius? He says
of Augustus (c. liii.), " domini appellationem, ut maledictum et opprobrium/sem-
per exhorruit." (J. R. P.)

1 Tacit, in Agric. c. ir. Nerva res olim dissociabiles miscuit, priucipatum
ac libertatem.

01 Fast. ii. 142. Gierig. p. 68.

Senec. Thjest. 205. Schroder, p. 191.



AND THEIR LAWS IN SPECIAL. 429

and must commend it, that is, be a slave in their persons and
their labours, their possessions and their understandings : that
is more than a prince or a gentle lord will do ; for then the
word is good, when the man is gentle, and the power is
moderate. But that which I intend to say is this, that the
supreme power of government is at no hand a supreme power,
or an arbitrary disposer of life and fortunes; but according
to law, or according to extreme necessity which is the great-
est law of all. In the sense of honour and of moderate
power, the king is a lord, but not in this sense of law. " Qui
pleno jure dominus est, alienandi, dissipandi, disperdendi jus
habet," saith the law. By ' a lord' is meant he that hath
power to dispose of the goods of the vassals : and this a
king or a prince hath not. This is not the supreme power
of government. A king is not the lord of his kingdom, of
the territories of his subjects, " quiadominium in solidum non
possit esse duorum," saith Cujacius ; " There cannot be two
absolute lords of the same land ; " the right owner is the
lord, riot the right king. " Aliter reipublicae sunt agri, aliter
privatorum. Numquid dubium est, quin servus cum pecu-
lio dornini sit? dat tamen domino suo munus. Non enim
ideo nihil habet servus, quia nihil est habiturus, si dominus
ilium habere noluerit," said one ; " The servant is within his
lord's peculiar, but yet he can make a present to his lord.
If his lord please, the servant shall have nothing ; but yet
it follows not, that therefore he is possessed of nothing."
Now if this be true in slaves, much more, infinitely more, is
it in free subjects ; for otherwise are my lands my own, other-
wise they are the prince's. "Jure civili omnia regis sunt,"
saith Seneca ; p et tamen ilia quorum ad regem pertinet uni-
versa possessio, in singulos dominos descripta sunt ; By
the law, all things are the king's ; but even those things are
divided into peculiars, and have private lords." It is all the
prince's lands, and he receives the service and the duty of
them all ; but the lords receive the rents. The Athenians
and the Thebans fight concerning the bounds of their terri-
tory ; and at the same time Polysenus and Thysias are at law
about dividing their shepherds' walks in the same place.
" Sub optimo rege, omnia rex imperio possidei, singuli

Lib. vii. de Relig. 1. sed etsi, lege 25, sect. Consuluit. ff. de Haered. Petit
P De Benef. lib. vii. c. 4, j 2. Ruhkopf, vol. iv. p. 315.



430 OF SUPREME CIVIL POWERS,

dominio ; The king governs all, but the subjects possess all
their own :" q for so Livy might buy his own books of Dorus ;
they were Dorus's books, and Livy's too : and when a lord
receives his rent, the tenant may call the lands his own.
Some things are mine by possession, some by use ; some by
title, some by incumbency ; one is the author, and another
is the buyer ; one is the artificer, and another the merchant,
of the same thing ; and the king hath the power, but his
subjects have propriety. " Caesar omnia habet ; fiseus ejus
privata tanturn, ac sua ; et universa in imperio ejus sunt, in
patrimonio propria." r That is the sum of this inquiry. The
king hath all, and yet he hath something of his own in his
peculiar, and so have the subjects.

6. The effect of this consideration is this : that the su-
preme power must defend every man's right, but must usurp
no man's. He may use every man's peculiar for the public
necessity, and in just and necessary government, but no
otherwise ; and what is out of any peculiar expended for the
public defence, must out of the general right be repaid for
the private amends. "Verum etsi nostra tempore necessi-
tatis patrise conferre debeamus, tamen jure naturae congruit
ut com munis salus, communis utilitas, commune periculum,
non unius duntaxat aut alterius, sed communibus impensis,
jacturis, periculisque comparetur," said Cicero.* A king
is to govern all things ; but to possess nothing but what is
his own. Only concerning the necessity, if the question be,
* Who shall be judge;' it is certain that it ought to be so
notorious, that every man might judge ; but he who is to
provide against it, is certainly the only competent person,
and hath the authority. For he that is to stand against the
sudden need, ought to espy it. But if ever there be a dis-
pute, who shall judge of the necessity, it is certain the
necessity is not extreme ; and if it be not, yet it ought to be
provided against when it is intolerable. Ahab had no right
to take Naboth's vineyard ; but if the Syrian army had invaded
Israel, Ahab might have put garrison in it, or destroyed the
vines, to have saved or served his army.

7. And to this sense Lyra expounds the l jus regium,
the right of the king,' described by Samuel 1 to the people of

De Benef. lib. viii. c. 5. f Id. c. vi.
4. ad Herenuium. 1 Sam. viii.



AND THEIR LAWS IN SPECIAL. 431

Israel : " for (saith he) there is a double right ; the one in
the days of necessity, and then all things are in his power so
far as can truly serve that public necessity : but when that
necessity is over, that right is useless, and is intolerable."
And by this means the different opinions of the Jewish doc-
tors may be reconciled. Rabbi Jose says, that ' whatsoever is
here set down, it was lawful for the king to do/ Rabbi Juda
says, that * this description was only to affright the people
from persisting in their desire of a king.' Both might say
true : for that it was not lawful in ordinary government to
take the peculiar of the subject, appears clearly in the case of
Naboth. But that in extraordinary it is just, needs no other
argument but because it is necessary : and it appears also in
the case of David and Nabal, upon whom David would have
done violence, because he sent him not provisions for his
army out of his own peculiar. But it is considerable, that
this royal power described by Samuel is no more than what
is necessary to be habitually inherent in all supreme powers ;
this is ' potestas imperantis ; ' he may ' licite facere in tempore
necessitatis, legitime semper, in time of need he may use
it lawfully, but always legitimately,' that is, if he does, he
only abuses his power, but it is his own power which he
abuses : for when Moses" described the usage and manner
of a king, he did it by the measures of peace and piety, and
the laws of natural justice and equity, with the superfetation
of some positive constitutions, which God commanded for
that king, as part of the judicial law. But when Samuel
described the manner of their king, he described the whole
power in ordinary and extraordinary ; the power, I say, but
not the office : Moses described the office, but not the power.
8. I add to this another consideration ; that whether all
that the Hebrew king did or might do, was warranted by
God or no, it matters not to us. For if it be no more than
the necessary requisites of supreme power to be used in time
only of necessity, we need not fear that this precedent can
injure the rights of any people ; but if there were in it some-
thing more than was good, it was certainly a peculiar of that
people, who desired a king to rule over them as the neighbour-
nations had ; right or wrong, they stood not upon that ; and
therefore Samuel described to them what that was which they

Deut. xvii.



432 OF SUPREME CIVIL POWERS,

required. It was no warranty to the king to do so, but to the
people to suffer it : but if it was ill, it was their own desire ;
for so the neighbour-kings did govern, using too much of
their power, and too little of their duty and office. And
therefore God was angry with his people, not that they de-
sired a king : for God gave them three things in charge, say
the rabbis, which they should do when they came into the
land of promise, that they should blot out the name of
Amalek, that they should choose a king, that they should
build a temple. Therefore the choosing of a king was not it
that offended God, but that they should desire that a king
should reign over them in the manner as the Gentiles had :
for they thought, saith Josephus, oufev aVocrov sTvai ruv xXr t -
ffio^ueuv fiaffiXtvoftsvuv T%V avrqv s^tiv alroug croXm/av, " that
all would be well, if they had the same form of govern-
ment as the nations had." Now their neighbour-nations
were governed the most tyrannically, and the people served
the most slavishly, in the whole world :

_ _ deciles servire Sabseos.

" The Sabaeans (says Claudian) v were apt to serve :" "Dociles
herilem ferre manum Syros et Parthos, et omnes qui aut ad
orientem aut ad meridiem sunt barbaros," said Julian ; w
"All the Syrians and Parthians, and all the nations of the
east and south, were used to slavery;" " contentos sub re-
gibus vivere dominos imitantibus ;" their kings were absolute
lords of possessions, as well as of tribute and government ;
and the people were pleased to have it so : and the Israelites
would follow their example. " Ecce in hoc errarunt (says
a Jewish doctor), quod Israelitarum conditio non est, ut
judicet eos rex aliquis pro sua voluntate, ut imperatores gen-
tilium, qui sanciunt populis suis leges, quascunque auimis
concipiunt ; Their error was in desiring such a king as the
Gentiles had; for their condition would not suffer it that
their king should make laws according to his own will and
humour, as did their neighbour-kings, who were proud and
barbarous, and counted easiness of access a lessening of
majesty, and would be bound by no measures but their own
will : " and therefore said God to Samuel, " They have not
rejected thee, but me ; " that is, * They would have a king, not

* viii. 306. Gesner, vol. i. p. 106. w Contr. Christian.



AND THEIR LAWS IN SPECIAL. 433

such as T have commanded in my law, but such as they see
among their neighbours, who make laws themselves without
me.' And therefore, although God commanded Samuel to
hearken to them, and make them a king, yet, by terrors like
those of Mount Sinai, he first made them confess their fault,
and therefore to submit to a king of God's choosing, who
should reign by God's law.

9. So that it is to no purpose that this place hath been so
tortured by interpreters, and pulled in pieces by disputation ;
while they contend on one side that this was a description of
the king's power, on the other, that it was a prediction of
matter of fact : for it was neither one nor the other alone,
but a description of the manner of the heathen kings; and a'
representment of what it was which they asked, and what was
like to be the effect of that power which they desired God
would set over them : but the question of the extent and liber-
ties of the supreme power is no way concerned in it. For it
matters not what the eastern and southern kings did ; for
they did that in ordinary, which is not to be done but in
cases extraordinary ; they did that for pleasure, which was
not to be done but for necessity. But as to the thing itself,
nothing can be more certain but that, 1. In all republics,
somewhere or other, there is a supreme power. 2. That this
power can do all things of government ; so that nothing is so
great, but if it be necessary, it is just and can be done : for
if there were any time, and any case, in which evil may hap-
pen, and no provisions may be made for it, in that case, and
at that time, it is an anarchy, there is no government at all.
3. That this supreme power, being a power of government,
must also be a conservator and great minister of justice ;
and therefore must suppose every man's right to be distinct,
and separate, and firm : and by consequence, that he hath
nothing to do with men's proprieties but to defend them in
peace, and use them in war so as is necessary, that is, so as
is unavoidable, according to that saying of Maimonides ;
" Potestatem habet rex ordinandi mundum juxta id quod
praesens hora postulat." There are some sudden accidents,
against which there are no regular provisions in laws ; but to
provide for them at the instant by extraregular means, is
within the power of the supreme. But in all this whole

VOL. XIII. F F



434 OF SUPREME CIVIL POWERS,

question, the saying- of Baldus r is the best measure of the
consciences of princes: " Clausula de plenitudine potestatis
semper intelligitur de potestate bona et laudabili." The
plenitude of power, of all things in the world, ought the
least to be feared, because it never is to be used but for the
greatest good.

Upon the occasion of this discourse the lawyers sometimes
dispute,

10. Whether it be lawful, and in the power of the
supreme prince or magistrate, to alien or lessen his princely
rights, or to give away any part of his kingdom.

11. But to this the answer is easy. For, (1.) Whatsoever
is their right by just conquest, or is h psgei KT^SUS idiag, ' in
their private possession,' they may alien as any private per-
son may his lands. Thus Solomon gave the bin twenty
cities (which his father-in-law, the king of Egypt, had con-
quered, and given him with his wife in dowry, and which
himself had won) to Hiram. Alexander gave all his king-
doms to his princes that served him in his wars. Attains
gave Asia to the people of Rome ; Nicomedes gave Bithynia ;
the father of Mithridates had Paphlagonia by gift ; and in
England it was said, that Edward the Confessor gave Eng-
land by will to the bastard of Normandy : and divers of our
kings did in their wills at least recommend a successor :
Edward VI. did,, but it came to nothing. But when the donor
or donee respectively can make it good, then it holds in law,
and not otherwise ; for questions of this nature used to be
determined by the sword, and not by discourses.

12. (2.) But yet this is certain, that where the princes
are trustees of the people, and elective, or where the right
of succession is in a family by law or immemorial time, no
prince can prejudice his heir, or the people that trusted him.
Nothing is here to be done without consent, not only because
the alienation cannot be verified against consent [in which
case Charles VI. of France desired his will might be con-
firmed by the nobles ; and the king of Macedonia went up
and down to all the cities to recommend to them Antigonus,
whom he desired to make a king], but because in these
cases, though kings have the supreme power, yet they have

r 1 Consil. 2-45.



AND THEIR LAWS IN SPECIAL. 435

it not ' pleno jure,' by a fulness of dominion. It may be,
as Aristotle Calls it, Ta^/SacvXs/a, cramX^?, auroxgarj, xal
avvwsvQwog fiaetXtia, "a full, supreme, absolute, and entire
principality ; " yet by not being in full and entire private
possession, it is by all rights to be administered, but without
wrong cannot be aliened. Hottoman 3 will by no means
admit, that in any case a kingdom can be aliened ; because it
is the case of persons as well as of things ; and they cannot be
disposed of like slaves or beasts. But he considers not, that
subjection to princes can best stand with personal liberty;
and this cannot well be secured without that: for where
there is no civil government, every man that is stronger can
make me a slave : but by the power of a prince I am defended
in my liberty : and Hottoman's objection must needs be
invalid, unless there be no liberty but where there is no
government.



RULE II.

The supreme Power is superior to the Civil Laws, but not
wholly free from them.

1. THIS rule hath been thrust into great difficulty by the
interests and mistakes of princes and subjects respectively.
For it hath been disputed, whether princes be free or no
from the laws of their kingdom ; and things of this nature,
when they once are questioned, are held more pertinaciously,
and desired more greedily, and possessed suspiciously, and
conducted with jealousy, and looked 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 per-
son. But then, because it is questioned, the prince, lest he
lose it quite, will hold it faster ; and the people will snatch
at it more impoteutly, lest they be slaves for ever. And

Illust. Quapst. 1.



436 OF SUPREME CIVIL POWERS,

therefore disputations in this case are not prudent or safe ;
but precepts, and sermons, and great examples, and the say-
ings of wise men, and positive affirmations in those particu-
lars that be manifest.

2. " Princeps legibus solutus est," said Justinian ; a " The
prince is not tied to laws : " 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 than that which hath no great-
ness but what it borrows from him. Indeed, if the prince had
divested himself of his power when he made the law, he had
been subject to it ; but then he could have no power to
abrogate it ; which, because it is inseparable from the legis-
lative power, it follows that the life of the law is in continual
dependence 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
compelled; 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 : and therefore the divines use to say, and so
do 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 only
direct, it is not a law, for a law obliges, and does not only
direct ; and as for the mere 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 do 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 particulars 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 virtues commanded

4 Instit. d. tit. 2.



AND THEIR LAWS IN SPECIAL. 437

by the laws, that the laws are of no use to good and just
men, but to direct them to what is required of them ; and so
they are under that which is improperly called 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, only 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 direc-
tion of laws : for such persons, if they will not be directed,
shall be compelled, and it is better to be willing than unwill-
ing ; for call it what you will, you are commanded to do 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 command-
ment to the prince, and whatsoever is nothing but counsel, is
no law.

3. And yet, on the other side, we find good princes say-
ing otherwise ; and they who are apt enough to advance
their own power, yet confessing their power to be less than
the law, that is, that themselves are bound to keep it: so
said the emperor ; b " Digna vox est majestatis regnantis,
legibus alligatum se principem profiteri ; It is a voice wor-
thy the majesty of a prince, to profess himself tied to his
laws." " Patere lege'm, quam tu ipse tuleris," said the wise
man ; " Suffer the law which thou thyself 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 ; c " Nihil tarn humanse fidei consentaneum
est, quam ea quse placuerunt servari." If they have pleased
the prince in the sanction, let them also please him in the
observation, for that is agreeable to the faith and ingenuity
of worthy persons.

4. These things are but seemingly opposed, for both parts
are true, and are to be reconciled by the following measures.



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