of kings and yet all that power was but to do every thing which he should esteem to be useful to the public, and according 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 Romæ principes, etsi poterant videri revera domini, vítabant tamen valde domini nomen, veluti contumeliam ac maledictum: non vitaturi si esset nomen solius honoris, aut moderatæ potestatis," saith Suetonius; "The first princes of Rome esteemed 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. Tacitus, according to the popular humour of the Romans, supposed the power of a king to be too great a violation of liberty; but domination or lording it was intolerable. "Principatus et libertas res sunt dissociabiles; magis tamen sunt dissociabiles libertas et dominatio;" for to be the absolute lord cannot consist either with freedom or propriety and therefore Ovid prefers Augustus before Romulus in this very instance; for speaking to Romulus of 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 xaranugiúεv, a power not ministering to good, nor conducted by moderation. When the people must suffer the will of their imperious lord d Is the whole of the preceding quotation to be found in Suetonius?—He says of Augustus (cap. 53.) "domini appellationem, ut maledictum et opprobrium, semper exhorruit."-(J. R. P.) e Tacit. in Agric. c. 4. "Nerva res olim dissociabiles miscuit, principatum ac libertatem." f Fast. ii. 142. Gierig, pag. 68. Senec. Thyest. 205. Schroder. pag. 121. 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 greatest 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 lawh. 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, "quia dominium in solidum non possit esse duorum," saith Cujacius; "There cannot be two absolute lords of the same land;"-the right owner is the lord, not the right king. "Aliter reipublicæ sunt agri, aliter privatorum. Numquid dubium est, quin servus cum peculio domini sit? dat tamen domino suo munus. Non enim ideo nihil habet servus, quia nihil est habiturus, si dominus. illum 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, otherwise they are the prince's. "Jure civili omnia regis sunt," saith Seneca; "et tamen illa quorum ad regem pertinet universa 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 territory; and at the same time Polynæus and Thysias are at law. about dividing their shepherds' walks in the same place. "Sub optimo rege, omnia rex imperio possidet, singuli h L. 7. de Relig. 1. scd etsi, lege 25. sect. Consuluit. ff. de Hæred. Petit. dominio;" "The king governs all, but the subjects possess all their ownk:" 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." Cæsar omnia habet; fiscus ejus privata tantum, ac sua: et universa in imperio ejus sunt, in patrimonio propria!." 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 supreme 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 necessitatis patriæ conferre debeamus, tamen jure naturæ congruit ut communis salus, communis utilitas, commune periculum, non unius duntaxat aut alterius, sed communibus impensis, jacturis, periculisque comparetur," said Cicero m. 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 dispute, 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 jus regium,' 'the right of the king,' described by Samuel" to the people of 6 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 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 neighbournations had; right or wrong, they stood not upon that; and therefore Samuel described to them what that was which they • Deut. 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, ouder äтоπоV Elvαι TÜV πλησιοχώρων βασιλευομένων τὴν αὐτὴν ἔχειν αὐτοὺς 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 tyranically, and the people served the most slavishly, in the whole world: 66 b re "The Sabæans (says ClaudianP) were apt to serve :" " Dociles herilem ferre manum Syros et Parthos, et omnes qui aut ad orientem aut ad meridiem sunt barbaros," said Julian 9: "All the Syrians and Parthians, and all the nations of the east and south, were used to slavery;" contentos 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 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. 6 q Contr. Christian. |