A57975:715
Lex, Rex
Lex, rex The law and the prince : a dispute for the just prerogative of king and people : containing the reasons and causes of the most necessary defensive wars of the kingdom of Scotland and of their expedition for the aid and help of their dear brethren of England : in which their innocency is asserted and a full answer is given to a seditious pamphlet entitled Sacro-sancta regum majestas, or, The sacred and royal prerogative of Christian kings, under the name of J. A. but penned by Jo. Maxwell the excommunicate P. Prelate. : with a scriptural confutation of the ruinous grounds of W. Barclay, H. Grotius, H. Arnisœus, Ant. de Domi P. Bishop of Spalata, and of other late anti-magistratical royalists, as the author of Ossorianum, D. Fern, E. Symmons, the doctors of Aberdeen, &c. : in XLIV questions.Lex, rex The law and the prince : a dispute for the just prerogative of king and people : containing the reasons and causes of the most necessary defensive wars of the kingdom of Scotland and of their expedition for the ayd and help of their dear brethren of England : in which their innocency is asserted and a full answer is given to a seditious pamphlet intituled Sacro-sancta regum majestas, or, The sacred and royall prerogative of Christian kings, under the name of J. A. but penned by Jo. Maxwell the excommunicate P. Prelat. : with a scripturall confutation of the ruinous grounds of W. Barclay, H. Grotius, H. Arnisœus, Ant. de Domi P. Bishop of Spalata, and of other late anti-magistratical royalists, as the author of Ossorianum, D. Fern, E. Symmons, the doctors of Aberdeen, &c. : in XLIV questions.
London: printed for John Field, 1644London: printed for Iohn Field, 1644
Title page typeset from the transcription.
Lex, Rex. › Question 26: QUEST. XXVI. Whether the King be above the Law or no?
Modern spelling is a reading aid: the words are the author’s, only the spelling is modernized. Original shows the page as printed, with the transcription marks.
3. What ever the King doth as King, that he doth by a power ⟨p. 233⟩borrowed from, (or by a fiduciary power which is his by trust) the Estates, who made him King. He must then be nothing but an eminent servant of the State, in the punishing of others. If therefore he be unpunishable, it is not so much because his Royal power is above all Law-coaction, as because one & the same man cannot be both the punisher and the punished, and this is a Physical incongruity rather then a Moral absurdity. So the Law of God layeth a duty on the inferior Magistrate, to use the sword against the murderer, and that by virtue of his Office, but I much doubt it for that, he is to use the sword against himself in the case of Murder▪ for this is a truth I purpose to make good;1 that suffering as suffering according to the substance and essence of passion, is not commanded by any Law of God or nature to the sufferer, but only the manner of suffering: I doubt if it be not, by the Law of Nature, lawful even to the ill doer who hath deserved death by Gods Law, to fly from the sword of the lawful Magistrate; only the manner of suffering with patience is commanded of God. I know the Law saith here, That the Magistrate is both Judge, and the Executor of the sentence against himself, in his own cause, for the excellency of his Office. Therefore these are to be distinguished, whether the King Ratione demeriti & jure, by Law be punishable, or if the King can actually be punished corporally by a Law of man, he remaining King; and since he must be a punisher himself, and that by virtue of his Office. In matters of goods the King may be both Judge and punisher of himself, as our Law provideth that any subject may plead his own heritage from the King before the inferior Judges, and if the King be a violent possessor, and in Mala fide for many years, by Law he is obliged upon a Decree of the Lords, to execute the sentence against himselfe, Ex officio, and to restore the Lands, and repay the damage to the just owner, and this the King is to do against himselfe, ex officio. I grant here the King as King punisheth himself as an unjust man, but because bodily suffering is mere violence to nature, I doubt if the King ex officio, is to do or inflict any bodily punishment on himselfe: Nemo potest a seipso cogi. l. ille a quo. 13. §.