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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 doctors 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 o 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 something more than was good, it was certainly a peculiar of that people, who desired a king to rule over them as the neighbournations had; right or wrong, they stood not upon that; and therefore Samuel described to them what that was which they
o Deat. xvii.
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 desired a king : for God gave them three things in charge, say the rabbies, 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, ουδέν άτοπον είναι των πλησιoχώρων βασιλευομένων την αυτήν έχειν αυτους πολιτείαν, , “ that all would be well, if they had the same form of government as the nations had.” Now their neighbour-nations were governed the most tyrannically, and the people served the most slavishly, in the whole world:
dociles servire Sabæos.
“ The Sabæans (says Claudian P) were apt to serve:” “Dociles herilem ferre manum Syros et Parthos, et omnes qui aut ad orientem aut ad meridiem sunt barbaros,” said Juliana; “ All the Syrians and Parthians, and all the nations of the east and south, were used to slavery;" "contentos sub regibus 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 gentilium, qui sanciunt populis suis leges, quascunque animis 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
P viii. 306. Gesner, vol. 1. pag. 106.
a Contr. Christian.
such as I 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 bath 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 liberties 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 happen, 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 præsens 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 extra-regular means, is within the power of the supreme. But in all this whole
question, the saying of Baldus' 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 εν μέρει κτήσεως ιδίας, in their private possession, they may alien as any private person may his lands. Thus Solomon gave the ban twenty cities (which his father-in-law the King of Egypt had conquered and given him with his wife in dowry, and which himself had won) to Hiram. Alexander gave all his kingdoms to his princes that served him in his wars. Attalus 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 England 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 confirmed 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
i 1 Consil. 245.
it not ‘pleno jure,' by a fulness of dominion. It may be, as Aristotle calls it, παμβασιλεία, παντελής, αυτοκράτης, και å vureúduvos Baouleia, “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. Hottomans 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.
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 bath 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 person. 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 impotently, lest they be slaves for ever. And
• Illust. Quæst. 1.