Jeremy Taylor.

The whole works of the Right Rev. Jeremy Taylor (Volume 13) online

. (page 45 of 61)
Online LibraryJeremy TaylorThe whole works of the Right Rev. Jeremy Taylor (Volume 13) → online text (page 45 of 61)
Font size
QR-code for this ebook


futurum, quia in judicio suo non indiget 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 says it, because his word ought to be great and
venerable as his power and his majesty. And it was not
only in the matter of coercion, but of solemnities, true, which
Justinian d said; " Omnibus a nobis dictis imperatoris exci-
piatur fortuna, cui et ipsas Deus leges subjecit; The for-
tune of the emperor is to be excepted from the edge and from
the forms of laws, because God himself hath made the laws
subject to the emperor."

18. (3.) The king is therefore * solutus legibus,' or ' free
from laws,' because he can give pardon to a criminal con-
demned ; for the supreme power is not bound to his own
laws so but that upon just cause he can interpose between
the sentence and the execution. This the Stoics allowed not
to any wise man, as supposing it to be against justice ; and
to remit due punishment is to do what he ought not : for
what is due is just, and what is against 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 punished;
it is due, that is, they are obliged to suffer it ; " poena debita
ex parte reorum," it is their debt, not the king's ; they are
obliged, not he : and yet it is just in him to take it, that is,
he may : but he is not obliged in all dases to do it. And in
this also he is an imitator of the economy of God, who, ac-
cording to that of Lactantius, " legem cum poneret, non
utique sibi ademit omnem potestatem, 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

b Com. Pii. 2. lib. iii. c Lib. xx. de Civit Dei. c. 26. d Nov. 105.



AND THEIR LAWS IN SPECIAL. 449

authority that they can pardon offenders. Thus David par-
doned Shimei and Joab, and would fain have pardoned
Absalom, if the hand of Joab had not been too quick for him.
And this cannot be denied to the supreme power, because
the exercise of this is one of the greatest virtues of a prince :
which was well observed 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 parva aut
fortuita laudatis : at illud maximum omittitis, quod mea opera
nemo pullam vestem sumpserit." That he had no public
executions, that no man was put to wear blacks for his friend,
was a clemency greater than all the praises of eloquence, or
a prosperous fortune.

Quisquis est placide potens



Dominusque vitae servat innocuas manus,
Et incruentum mitis imperium regit,
Animreque parcit ; longa permensus diu
Felicis aeri spatia, vel coelum petit,.
Vel beta felix nemoris Elysii loca. 8

But all the world commends clemency, the gentle hand of a
prince, his unwillingness 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
prince's reign, as many funerals in a physician's practice :" f
and therefore Cassiodore g says that " a good and a gentle
prince will sometimes pass the limits of equity, that he may
serve the ends of clemency ;" " qnando sola est misericordia,
cui omnes virtutes cedere honorabiliter non recusant ; for
to mercy, all other virtues count it honour to give place."
And this Charles V. and Maximilian II. signified by their
device of an eagle perching upon a thunderbolt, with an
olive in her beak : and Nerva and Antoninus Pius impressed
upon their money a thunderbolt upon a pillow; to signify
that vindictive justice ought to sleep sometimes. Now cer-
tainly this being so great an excellence in a prince, is not
greater than his power. " Imperatori licet renovare senten-
tiam, et reuni mortis absolvere, et ipsi ignoscere; quia non
est subjectuslegibus, qui habet in potestate leges terrae," saith

Sen. Here. Fur. 740. Schroder, p. 56.

1 Sen. de Clement, i. c. 25, 1. Ruhkopf. vol. i. p. 473.

' Variar. 11.

VOL. XIII. G G



450 OF SUPREME CIVIL POWERS,

St. Austin : "The emperor, who can make laws, is not sub-
ject to laws, or so tied to them but that he may revoke his
sentence and pardon a criminal."

19. This, I say, is part of his royalty; but is only then
to be practised when it can consist with the ends of govern-
ment, that is, when the public interest can be preserved, and
the private injury, some other way, recompensed. These,
indeed, are the general measures, not of the prince's power,
but of his exercising this power justly.

20. (1.) When the criminal is a worthy person, and can
be beneficial to the republic. 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 saved his life by finding out a way exactly to counter-
feit old medals.

21. (2.) If the person hath already deserved well of the
public. Thus Horatius Codes was spared, though he killed
his sister, because he got honour, and liberty, and safety, and
dominion to Rome by killing the three brothers, the Curiatii :
and Solomon h spared the life of Abiathar the high-priest,
because he bore the ark before David, and was afflicted in all
his troubles.

22. (3.) When the criminal can be amended, and the case
is hugely pitiable, and the fact not of greatest malignity.
Thus oftentimes we see young men pardoned, and the first
fault lightly punished ; and because young Caesar was in the
flower of his youth and a princely boy, Sylla was more easily
prevailed with for his pardon.

23. (4.) If the fault be private, and not brought to public
courts, it is easily pardoned, though delated by a private
information. " Conquiri ad judicium necesse non fuit :"
Some things when they are made public, cannot be dis-
missed, but are not to be inquired after. It was the advice
of Cicero to his brother Quintus, concerning a certain cri-
minal.

24. But all this is upon supposition, that the crime be
not of greatest mischief, or foulest scandal and reproach ;
for if it be, nothing can be taken in exchange for it ; a great
virtue cannot make compensation for a very great crime :
and this is particularly true of treason, of which those words

h 1 Kings, ii. 26.



AND THEIR LAWS IN SPECIAL. 451

of Bartolus are to be understood ; " De offensionibus erga
dominura non est compensatio ad servitia eidera impensa ;
The services done to a lord cannot make satisfaction for a
conspiracy against him." And therefore the Romans caused
Manlius Capitolinus to be thrown headlong from that rock
from whence he had thrown the Gauls when he saved the
city. He produced the spoils of thirty enemies, forty dona-
tives 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 irregularly ; "Clementiam liberum habere arbi-
trium," said Seneca ; " Clemency hath a great liberty, and
a free choice :" but they are obliged only to see that the
public be not prejudiced, and that every private interest be
secured by causing amends to be made to the injured person
where it can ; and then it is true of every supreme prince
which Seneca' advised Nero often to remember, " 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."

25. (4.) The supreme power is above the laws, because
he can dispense, he can interpret them, and he can abro-
gate them, he can in time of necessity 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 for-
bade that the corpse of a malefactor should hang after sunset
upon the accursed tree; but yet Maimonides says that the
king "suspendit et relinquit suspenses diebus niultis ; he
hangs them, and leaves them hanging for many days ;" 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 interpretation. For this was
not merely an effect of his power, but of his reason too. It
was a custom among the Jews to condemn but one person
in one day, unless they were in the same crime, as the adul-
terer and the adulteress ; but the king might condemn many
at once, when it was for the interest of justice and the repub-
lic. Thus their king could, by the prerogative of his majesty,

' Id. p. 44f.



OF SUPREME CIYIL POWERS,

proceed summarily, sit in judgment alone without assessors,
condemn upon the testimony of one, and by the confession
of the parry ; which the sanhedrim might not do, but were
tied to acquit him that confessed the fact. Add to these k
the supreme can in some cases be judge and witness ; that
is, can himself condemn a criminal for what himself only
saw him do. He can also be judge in his own case : as if
he be injured, railed upon, defrauded, or the like ; all which
are powers above the law, and were here to be named 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 jheir proper places. I end this whole inquiry
with that of Statins,*

^^ QuQ CBOB IHIIMJVB pQMXJttK

ParHWi sin* kej* *anet * vice cmetB regwBtv,

Tcna: praut fetix ragua diadcwte Ron :
Ha*ed*cibi faeunedtttu: BOX ccvscit in Ufa*

' 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 country's laws, and ties them
to do justice, and is pleased when they shew mercy. But
as they are to do justice by the sentence of the laws, so
they must not shew mercy against law : for even the pre-
rogative of kings is by law, and kings are so far above their
laws, as the laws themselves have given leave. For even
thep*tt cxgqjScMcf J diem, "the remission of the rigour of the
law," the very chaw-pry and ease of laws, is by law esta-
blished.



AND THEIR LAWS Df SPECIAL. 453



RULE III.

// is not lawful fur Smbjects to rebel, or to take *p Arms
against the supreme Power of the Nation^ mpon amy Pre-
tence whatsoever.

1. WKBK Nehemiah was deputed by Artaxerxes to be go-
rernor of Jadea, and had commission to rebuild Jerusalem
and the temple, the neighbour-kings that opposed him were
enemies to Artaxerxes, because >~ehemiah was lieutenant to
the king. " He that despL-eth me, desplseth him that sent
me," saith our blessed Saviour . " Senates faciem secum
attulerat, anctoritatem popnli Romani," said Cicero* of one
that was deputed and sent from the senate ; " He had the
gravity of the senate and the authority of the common-
wealth." Now this being true of the supreme power in
every government, that it is ' potestas Dei vicaria, it is the
minister of God,' appointed by him, set in his place, invested
with a ray of his majesty, intrusted with no power but his,
representing none but him, baring received the sword from
his band, the power of life and death from his warranty ; it
must needs follow, that he who lifts up his hand against that
supreme person or authority that God hath appointed over
him, is impious against God and fights against him. This
the apostle expressly affirms, and there need no more words
to prove the rule, " He that resists, resists the ordinance of
God ;" he does not say, ' He that does not obey, is disobe-
dient to God,' for that is not true. Sometimes it is neces-
sary not to obey, as it happened to the captive Jews under
Nebuchodonosor, and to the apostles under their princes;
they could not obey God and them too : and then the ease
of conscience was soon resolved. But they that could not
obey, could die ; they could go into the fire, softer seoorg-
ings and imprisonments, that was their o piym*, their great
sanctuary ; which, in behalf of the Christians, Gregory
anzen thus expresses it; *E e%* cjfc



" I hare but one remedy against all my evils, one way to
victory* thanks be to Christ, I can die for him :" that is
a/ jtq ArnraMi^Wu, to obey where they can,



454 OF SUPREME CIVIL POWERS,

and where they cannot, to be sure to lie down under the bur-
den which they cannot carry. For though in some cases it
is lawful not to obey, yet in all cases it is necessary not to
resist.

2. I do not know any proposition in the world clearer
and more certain in Christianity than this rule, and therefore
cannot recount any greater instance of human infirmity than
that some wise men should be abused into a contrary per-
suasion. But I see that interest and passion are always the
greatest arguments, where they are admitted. But I have
an ill task to write cases of conscience, if such things as
these shall be hard to be persuaded : for there are very few
things in which any man is to hope for half so much convic-
tion, as in this article lies before him in every topic; and if I
should determine no cases but upon such mighty terms as
can be afforded in this question, and are given, and yet we
prevail not, I must never hope to do any service to any
interest of wisdom or peace, of justice or religion. And
therefore I am clearly of opinion that no man, who can
think it lawful to fight against the supreme power of his
nation, can be fit to read cases of conscience ; for nothing
can ever satisfy him, whose conscience is armour of proof
against the plain and easy demonstrations of this question.
But this question is of the same nature as all clear and neces-
sary truths, never obscure, but when it is disputed ; certain
to all men and evident, if they will use their own eyes ; but
if they call for glasses of them that make a trade of it, it
may chance not to prove so. But I will speak of it with all
easiness and simplicity,.

3. The Scripture b is plain: " Curse not the king; no, not
in thy thought ;" and, " I counsel thee to keep the king's
commandment, and that in regard of the oath of God for
he doth whatsoever pleaseth him. Where the word of a king
is, there is power, and who may say unto him, What dost
thou ? against him there is no rising up." There are many
more excellent words in the Old Testament to this purpose ;
but nothing can be plainer than these, dogmatically to esta-
blish the doctrine of the rule. No man can question him; no
man may rise up against him; he hath power; he hath all
power; we are, by the law or the oath of God, bound to keep

b Eccl. x. 20; viii. 2, 3. Prov. xxx. 31.



AND THEIR LAWS IN SPECIAL. 455

his commandment; and after all, we must not reproach him
in our secret thoughts. No man needs this last precept but
he that thinks the king is an evil man, or hath done wrong:
but suppose he have, or that he is supposed to have, yet
curse him not, ' Do not slight him,' so it is in the Hebrew:
' Regni ne detrahas,' so it is in the vulgar Latin, ' Disparage
not the king:' but the Chaldee paraphrase adds, " Even in
thy conscience, in the secrets of thy heart, speak not evil of
the king, and in the closets of the chambers of thy house
speak not evil of the wise man ; for the angel Raziel does
every day from heaven cry out upon the mount of Horeb, and
his voice passes into all the world: and Elihu, the great
priest, flies in the air of heaven like a winged eagle, and
tells the words which are spoken in corners by all the inha-
bitants of the earth." By the way I only observe this, that
we are forbidden to speak evil of the rich or the mighty man,
the wise man, so the Chaldee calls him, that is, the princely
men of the world, the magistrates and nobles, whom St. Peter
calls TO-JS ri'ytfjLovas 8ia [SuaiXtus KifAxo/jjevovs, "captains or rulers
sent by the king :" of these we must say no evil in our private
houses, lest a bird of the air, lest that which hath wings, that
is, lest the angel that attends us, orders it so as to pass into
publication : for the government of the other world reaches
strangely even to us, and we speak not a word in vain, but
by the Divine Providence it is disposed to purposes that we
understand not. But when he speaks of the king or the
supreme, whom St. Peter calls rbv umos^ovTo, then it is,
M^ xaragdaT) rbv (SaaiXea ev rfj gvviidqffH, /J.r)df ev xguwrw r%;
xugBiaf, " Call him not accursed in thy heart, not so much as
in thy thought;" which because it is only perceived by God,
who is the searcher of the heart, it shews plainly that as
angels take care of the rich and the wise, the mighty and
the nobles, so kings are the peculiar care of God, who is the
King of kings and the Lord of lords. But then (to leave all
curiosities) if we may not speak or think reproachfully of the
king, we may not do that which is more, and that which is
worse : and I think there needs no more to be said. But it
is as clear as the way.

4. In the New Testament, sufficient are the excellent
words of our blessed Saviour, M a.vri6rrtva.i rf ffovr,gf, " not



456 OF SUPREME CIVIL POWERS,

to resist evil," that is, not to stand against it, not to oppose
evil to evil ; which obliges all Christians, that, at least with-
out the magistrate, they cause no return of evil to the offend-
ing person ; that no man he his own avenger, for vengeance
belongs to God, and he hath delegated that to none but to
the supreme magistrate, who is Qsov didxovoc sxtS/xo? slg ogyriv,
" God's minister to be a revenger of wrath under him."
Now if no man must pay evil to his brother, that hath injured
him, but by the hand of the supreme power, how can it be
possible that it can be lawful to render evil for evil to the
supreme power itself? by whose hands shall that be done ?
by none but by his superior, who is God alone, who will
take care to punish evil kings sufficiently : only we must
not do it ; we must not pray him to do it ; for that is ex-
pressly against the words of Solomon, that is, '' cursing
the king in our thought," and not at all to be done. But
besides this, there are many more things spoken by our
blessed Lord to determine us in this affair. " Render to
Caesar the things that are Caesar's ;" and to Pilate, Christ
said, " Thou shouldest have no power over me, unless it were
given thee from above; "meaning that Caesar's power, whose
deputy Pilate was, was derived from God, and consequently
that, except God, none is greater upon earth than Caesar.
And again : " If my kingdom were of this world, my ser-
vants would fight for me;" which plainly enough confirms
the power of the militia in the supreme magistrate, Christ
leaving it where he found it.

5. But that there may be no dispute concerning these
things, the apostles, who are expounders of the words of
Christ, and the meaning of his Spirit, tell us plainly, ^
avriraffffts^ai, " to be Subject," tfyuffiaig uwzgfxovffais, " to SU-
prenie powers ;" the same with St. Peter's, /Sacr/Xs?" u$ vwig's-
Xovn, " to the king as to the supreme;" that is, to the king,
if he be a king indeed, if he be the supreme ; to be the sub-
ject to these powers, and not to resist, for these reasons ;
1 . Because this supreme power is ordained of God : 2. Be-
cause he that resists, resists God, whose minister the prince
is : 3. Because God hath armed the powers, which he or-
dained, with a sword of power and revenge : 4. Because it is
for our good, that we submit to him ; for he is God's minis-
ter for good, that is, for the public good, under which thine



AND THEIR LAWS IN SPECIAL. 457

is comprehended : 5. Because it is necessary : the necessity
being apparent in the nature of the thing, and in the com-
mandment of God : 6. Because God hath bound our con-
science to it : 7. He hath tied this band upon us with fear
also : and, 8. lastly, because whoever does not obey, where
he may lawfully, and whosoever does in any case resist,
shall receive damnation to himself, both here and hereafter ;
here, upon the stock of fear, hereafter upon the account of
conscience ; for both for fear and for conscience we must
obey in good things and lawful, and we must not resist in
any. For indefinitely we are commanded not to resist, M*ith-
out any distinction or reservation of case : and " Ubi lex non
distinguit, nemo distinguere debet." He that will go about
to be wiser than the law, in equity, will not be better than a
fool. This, therefore, is the sum of St. Paul's discourse/

6. St. Paul was the doctor of the Gentiles : St. Peter of
the Jews : and therefore this doctrine is sufficiently con-
signed to all the world: for St. Peter' hath preached this
as largely as St. Paul ; "Submit yourselves to every ordi-
nance of man, for the Lord," that is, for his sake, upon his
commandment, for his honour ; these ordinances being God's
ordinances, I/TO QtoZ rtra"/(j.'smi, "they are ordained by God,"
all of them, the king principally, his captains and officers,
which he hath sent, in the next place. But him and his mi-
nisters we must receive, and honour, and obey, and submit to
them ; for it is God's cause and his ministers' ; God and his
ministers and lieutenants, the king and his. He that despises
him whom the king sends, despises the king: and he that
despiseth him whom God sends or makes his deputy, de-
spises God. Submit, therefore, for it is the will of God ;
submit, for this is ' well-doing ;' submit, for so ' we shall put
to silence the ignorance of foolish men ;' meaning, that since
the enemies of Christ are apt to speak evil things of you, glad
would they be if they had cause to accuse you for not being
obedient to government ; and some are ignorant, and fool-
ishly pretend the liberty and privileges of saints against the
interests of obedience ; the mouths of these men must be
stopped, and you must submit to kings, that you may please
God and confute the adversaries. Now the specification of
this great duty, and the particular case of conscience, follow :

d Rom. xiii. per totum. 1 Pet. ii. 13-17.



458 OF SUPREME CIVIL POWERS,

" Fear God, honour the king :" " Servants, be obedient to
your masters ; not only to the good and gentle, but also to the
froward." ToDro ya% %'> " for this is thankworthy :" and this
is full to the question in hand. For the general precept which
St. Peter gave is, 'fvoTdyqn nciey avSguxlvy x.Tiffti, " Submit
to every ordinance," to the king, to his magistrates or depu-
ties, and captains ; and lastly, submit to the lowest of all do-
minions, even servants to their masters ; not only to the
good and gentle, but to the morose and harsh. Now if so to
inferior masters, whose dominion is no greater than their in-
terest, and their interest is no greater than their price, and
is still under the power of kings ; much more to kings or to
the supreme power. And indeed even subjection to kings is
the gentlest and most eligible kind of service. " Then would
my servants fight," said Christ, meaning it of the subjects of
his kingdom : and Livy calls " populum Romanum servien-
tem regibus," they did * serve' their kings. And indeed as the
governments of the world then were, kings were most abso-
lute, and the people entirely subject, and far from liberty :
and therefore this of servants might very well be a specifica-
tion and a particular of their duty to kings and captains ;
and whether it were or no, it is for the former argument,
' from the less to the greater affirmatively,' infinitely certain,
that the same duty is due to kings, though harsh and cruel :
for indeed there were then none else ; Nero was the supreme,
and he was none of the best that ever wore purple.

7. It were very easy to draw forth more arguments from
Scripture to this purpose ; but I forbear to name more than
this abundance, which is contained in these now cited: but
I shall not omit to observe, that the apostles did make use of
that argument which I urged out of Solomon, that " we are
not to speak evil of the king ;" from whence the unlawfulness
of resisting is unanswerably concluded : for St. Jude, f giving
the character of the worst of men, and the basest of heretics,
reckons up in the bill of their particulars, that " they despise
dominion, and speak evil of dignities ;" which as it is an in-
fallible mark of an evil person, so it is a using of a prince
worse than St. Michael the archangel durst use the devil ;
against whom, because he was a spirit of a higher order,



Online LibraryJeremy TaylorThe whole works of the Right Rev. Jeremy Taylor (Volume 13) → online text (page 45 of 61)