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A Hind Let Loose by Alexander Shields

A prerogative to dispense with laws

as king; and so if kings be

by action tyrants, then people are by action slaves; and so royal power cannot be a blessing to them; yea, a lawless breaker of all bonds, promises, and oaths, cannot be owned as lawful power; but absolute power is such: for, it cannot be limited by these obligations, at least people cannot have any security by them. 8. A lawless power is not to be owned; an absolute power is a lawless power: ergo, not to be owned. The major is plain. Cicero says, lib. 2. 'The reason of making laws was the same, as of the creation of kings.' And Buchanan, de Jure Regni, very excellently, when 'the lust of kings was instead of laws, and being vested with an infinite and immoderate power, they did not contain themselves within bounds.----The insolency of kings made laws to be desired; for this cause laws were made by the people, and kings constrained to make use, not of their licentious wills in judgment, but of that right and privilege which the people had conferred upon them, being taught by many experiences, that it was better that their liberty should be concredited to laws, than to kings; better to have the law, which is a dumb king, than a king, who is not a speaking law.' If then laws be necessary for the making of kings, and more necessary than kings, and the same cause requires both, then a king without laws is not to be owned. A king must be a speaking and living law, reducing the law to practice. So much then as a king hath of law, so much he hath of a king; and he who hath nothing of
the law, hath nothing of a king. Magna charta of England saith, 'The king can do nothing but by law, and no obedience is due to him but by law.' Buchanan rehearses the words of the most famous emperors, Theodosius and Valentinianus, to this effect, 'It is,' say they, 'a word worthy of the majesty of a king, to confess he is a tied prince to the laws; and indeed it is more to submit a principality to the laws, than to enjoy an empire.' But now that an absolute power must be a lawless power, is also evident; for that is a lawless power that makes all laws void, needless and useless; but such is absolute power: for it cannot be confined to the observance of laws. 9. That power which is destructive to the people's liberties cannot be owned; absolute power is such: for such a licentious freedom as is absolute cannot consist with the people's liberties; for these may infringe when he pleases. Now these, in their own nature, and in all respects, being preferable to the king's prerogative, and it being no prerogative which is not consistent with, yea in its own nature adapted to, the precious interests of religion and liberty: when the king's absolute authority is stated in contradictory terms to these, we cannot own that authority; for now he hath another authority than could be given him for the preservation of these interests; in the preservation whereof he can only have an authority to be owned, seeing he claims a power to destroy them, if he please. 10. If we should own absolute authority, then we should own a royal prerogative in the king to make and dispense with laws: now that cannot be owned; for, it would infer that the king had a masterly dominion over his subjects, to make laws, and inflict penalties without their consent.

And plain it is, they that make kings must have a co-ordinate power to make laws also; but the people, in their representatives, make kings, as is proven. Next, a prerogative to dispense with laws, except such laws as are in their own nature dispensable, without prejudice to any law of God or liberties of men, cannot be owned: for any power to dispense with reason and law, not grounded on any other reason but mere will and absolute pleasure, is a brutish power. It cannot be a right annexed to the crown, to do so; for a king, as a king, can do nothing but what he may do by law. Nay, this is not only a brutish power, but a blasphemous power, making him a kind of god on earth, illimited, that can do what he pleases: and to dispute it further, were to dispute whether God hath made all under him slaves by their own consent? or, whether he may encroach on the prerogative of God or not? By this prerogative, he arrogates a power to dispense with the laws of God also, in pardoning murderers, &c. which no man hath power to do; the law of God being so peremptorily indispensible. Gen. ix. 6. "Whoso sheddeth man's blood, by man shall his blood be shed." Numb. xxxv. 30, 31. "Whoso killeth any person, the murderer shall be put to death----Moreover, ye shall take no satisfaction for the life of a murderer, but he shall be surely put to death." These pardons are acts of blood to the community. If the judgment be God's, as it is, Deut. i. 17. and not for man, but for the Lord, 2 Chron. xix. 6. then no king can arrogate a power to dispense with it, no more than an inferior judge can dispense with the king's laws; for the king is but a minister, bearing the sword, not in vain, but as a revenger, to execute wrath upon them that do evil, Rom. xiii. 4. They are but bastard kings who give out sentences out of their own mouth, contrary to God's mind.

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