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 if 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; that suffering as suffering according1 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. §.2
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 Royall power is above all Law-coaction, as because one & the same man cannot be both the punisher and the punished, and this is a Physicall incongruity rather then a Morall absurdity. So the Law of God layeth a duty on the inferiour Magistrate, to use the sword against the murtherer, and that by vertue of his Office, but I much doubt if for that, he is to use the sword against himselfe in the case of Murther, for this is a truth I purpose to make good; that suffering as suffering according1 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, lawfull even to the ill doer who hath deserved death by Gods Law, to fly from the sword of the lawfull Magistrate; only the manner of suffering with patience is commanded of God. I know the Law saith here, That the Magistrate is both Iudge, and the Executor of the sentence against himselfe, in his owne 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 himselfe, and that by vertue of his Office. In matters of goods the King may be both Iudge and punisher of himselfe, as our Law provideth that any subject may plead his owne heritage from the King before the inferiour Iudges, and if the King be a violent possessour, and in Mala fide for many yeares, 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 dammage to the just owner, and this the King is to doe against himselfe, ex officio. I grant here the King as King punisheth himselfe as an unjust man, but because bodily suffering is meere violence to nature, I doubt if the King ex officio, is to doe or inflict any bodily punishment on himselfe: Nemo potest a seipso cogi. l. ille a quo. 13. §.2
- 1Whether the King be punishable, or be to he punished. Two divers questions. Magistratus ipse est judex & executor contra scipsum, in propria causa, propter excellentiam sui officii, l. se pater familia•. & l. & boc Tiberius Caesar F. De Hered. hoc. just.
- 2The King above some Laws.The King above some Lawes.
