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Lex Rex by S. Rutherford Questions 11-20

Question XI.

Whether or no he be more principally a king who is a king by birth, or he who is a king by the free election and suffrages of the people.

Assert. 1. — Without detaining the reader, I desire liberty to assert that, where God establisheth a kingdom by birth, that government. hic et nunc, is best; and because God principally distributeth crowns, when God establisheth the royal line of David to reign, he is not principally a king who cometh nearest and most immediately to the fountain of royalty, which is God’s immediate will; but God established, hic et nunc, for typical reasons (with reverence of the learned) a king by birth.

Assert. 2. — But to speak of them, ex natur a rei, and according to the first mould and pattern of a king by law, a king by election is more principally king (magis univoce et per se) than an hereditary prince. (1.) Because in hereditary crowns, the first family being chosen by the free suffrages of the people, for that cause ultimate, the hereditary prince cometh to the throne, because his first rather, and in him the whole line of the family, was chosen to the crown, and propter quod unumquodque tale, id ipsum magis tale. (2.) The first king ordained by God’s positive law, must be the measure of all kings, and more principally the king than he who is such by derivation. But the first king is a king by election, not by birth, Deut. xvii. 15, Thou shalt in any wise set him king over thee, whom the Lord thy God shall choose; one from amongst thy brethren shalt thou set over thee. (3.) The law saith.Surrogatum fruitur privilegiis ejus, in cujus locum surrogatur, he who is substituted in the place of another, enjoyeth the privileges of him in whose place he succeedeth. But the hereditary king hath royal privileges from him who is chosen king.. Solomon hath the royal privileges of David his father, and is therefore king by birth, because his father David was king by election; and this I say, not because I think sole birth is a just title to the crown, but because it designeth him who indeed virtually was chosen, when the first king of the race was chosen. (4.) Because there is no dominion of either royalty, or any other way by nature, no more than an eagle is born king of eagles, a lion king of lions; neither is a man by nature born king of men; and, therefore, he who is made king by suffrages of the people, must be more principally king than he who hath no tide but the womb of his mother.

Dr Ferne is so far with us, to father royalty upon the people’s free election as on the formal cause, that he saith,[1] If to design the person and to procure limitation of the power, in the exercise of it, be to give the power, we grant the power is from the people; but (saith he) you will have the power originally from themselves, in another sense, for you say, they reserve power to depose and displace the magistrate; sometimes they make the monarchy supreme, and then they divest themselves of all power, and keep none to themselves; but, before established government, they have no politic power whereby they may lay a command on others, but only a natural power of private resistance, which, they cannot use against the magistrate.

Ans. — But to take off those by the way. 1. If the king may choose A. B. an ambassador, and limit him in his power, and say, Do this, and say this to the foreign state you go to, but no more, half a wit will say the ling createth the ambassador, and the ambassador’s power is originally from the king; and we prove the power of the lion is originally from God, and of the sea and the fire is originally from God, because God limiteth the lion in the exercises of its power, that it shall not devour Daniel, and limiteth the sea, as Jeremiah saith, when as he will have its proud waves to come thither and no farther, and will have the fire to burn those who threw the three children into the fiery furnace, and yet not to burn the three children; for this is as if Dr Ferne said, The power of the king of six degrees, rather than his power of five, is from the people, therefore the power of the king is not from the people; yea, the contrary is true. 2. That the people can make a king supreme, that is, absolute, and so resign nature’s birthright, that is, a power to defend themselves, is not lawful, for if the people have not absolute power to destroy themselves, they cannot resign such a power to their prince. 3. It is false that a community, before they be established with formal rulers, have no politic power; for consider them as men only, and not as associated, they have indeed no politic power: but before magistrates be established, they may convene and associate themselves in a body, and appoint magistrates; and this they cannot do if they had no politic power at all. 4. They have virtually a power to lay on commandments, in that they have power to appoint to themselves rulers, who may lay commandments on others. 5. A community hath not formally power to punish themselves, for to punish, is to inflict malum disconveniens natures, an evil contrary to nature; but, in appointing rulers and in agreeing to laws, they consent they shall be punished by another, upon supposition of transgression, as the child willingly going to school submitteth himself in that to school discipline, if he shall fail against any school law; and by all this it is clear, a king by election is principally a king. Barclay then faileth, who saith,[2] No man denieth but succession to a crown by birth is agreeable to nature. It is not against nature, but it is no more natural than for a lion to be born a king of lions.

Obj. — Most of the best divines approve an hereditary monarch, rather than a monarch by election.

Ans. — So do I in some cases. In respect of empire simply, it is not better; in respect of empire now, under man’s fall in sin, I grant it to be better in some respects. So Salust in Jugurth. Natura mortalium imperij avida. Tacitus, Hist. 2. Minore discrimine princeps sumitur, quam queritu, there is less danger to accept of a prince at hand, than to seek one afar off. In a kingdom to be constituted, election is better; in a constituted kingdom, birth seemeth less evil. In respect of liberty, election is more convenient; in respect of safety and peace, birth is safer and the nearest way to the well. See Bodin, de Rep. lib. 6, c. iv.; Thol. de Rep. lib. 7, c iv.

[1] Dr Ferne, part 3, sect. 3, p. 14.

[2] Barcla. cont. Monarchom.. c. 2, p. 56.

Question XII.

Whether or not a kingdom may lawfully be purchased by the sole title of conquest.

The Prelate averreth confidently (c. 17, p. 58) that a title to a kingdom by conquest, without the consent of a people, is so just and evident by Scripture, that it cannot be denied; but the man bringeth no Scripture to prove it. Mr Marshall saith, (Let. p. 7,) a conquered kingdom is but continuata injuria, a continued robbery. A right of conquest is twofold. 1. When there is no just cause. 2. When there is just reason and ground of the war. In this latter case, if a prince subdue a whole land which justly deserveth to die, yet, by his grace, who is so mild a conqueror, they may be all preserved alive; now, amongst those who have thus injured the conqueror, as they deserve death, we are to difference the persons offending, and the wives, children — especially those not born — and such as have not offended. The former sort may resign their personal liberty to the conqueror, that the sweet life may be saved. He cannot be their king properly; but I conceive that they are obliged to consent that he be their king, upon this condition, that the conqueror put not upon them violent and tyrannical conditions that are harder than death. Now, in reason, we cannot think that a tyrannous and unjust domineering can be God’s lawful mean of translating kingdoms; and, for the other part, the conqueror cannot domineer as king over the innocent, and especially the children not yet born.

Assert. 1. — A people may be, by God’s special commandment, subject to a conquering Nebuchadnezzar and a Cæsar, as to their king, as was Judah commanded by the prophet Jeremiah to submit unto the yoke of the king of Babylon, and to pray for him, and the people of the Jews were to give to Cæsar the things of Cæsar; and yet both those were unjust conquerors: for those tyrants had no command of God to oppress and reign over the Lord’s people, yet were they to obey those kings, so the passive subjection was just and commanded of God, and the active, unjust and tyrannous, and forbidden of God.

Assert. 2. — This title by conquest, through the people’s after consent, may be turned into a just title, as in the case of the Jews in Cæsar’s time, for which cause our Saviour commanded to obey Cæsar, and to pay tribute unto him, as Dr Ferne confesseth, (sec. vii. p. 30). But two things are to be condemned in the Doctor. 1. That God manifesteth his will to us in this work of providence, whereby he translateth kingdoms. 2. That this is an over-awed consent. Now to the former I reply, — 1. If the act of conquering be violent and unjust, it is no manifestation of God’s regulating and approving will, and can no more prove a just title to a crown, because it is an act of divine providence, than Pilate and Herod’s crucifying of the Lord of glory, which was an act of divine providence, flowing from the will and decree of divine providence, (Acts ii. 23; iv. 28,) is a manifestation that it was God’s approving will, that they should kill Jesus Christ. 2. Though the consent be some way over-awed, yet is it a sort of contract and covenant of loyal subjection made to the conqueror, and therefore sufficient to make the title just; otherwise, if the people never give their consent, the conqueror, domineering over them by violence, hath no just title to the crown.

Assert. 3. — Mere conquest by the sword, without the consent of the people, is no just tide to the crown.

Arg. 1. — Because the lawful title that God’s word holdeth forth to us, beside the Lord’s choosing and calling of a man to the crown, is the people’s election, Deut. xvii. 15, all that had any lawful calling to the crown in God’s word, as Saul, David, Solomon, &c., were called by the people; and the first lawful calling is to us a rule and pattern to all lawful callings.

Arg. 2. — A king, as a king, and by virtue of his royal office, is the father of the kingdom, a tutor, a defender, protector, a shield, a leader, a shepherd, a husband, a patron, a watchman, a keeper of the people over which he is king, and so the office essentially includeth acts of fatherly affection, care, love and kindness, to those over whom he is set, so as he who is clothed with all these relations of love to the people, cannot exercise those official acts on a people against their will, and by mere violence. Can he be a father, a guide and a patron to us against our will, and by the sole power of the bloody sword? A benefit conferred on any against their will is no benefit. Will he by the awesome dominion of the sword be our father, and we unwilling to be his sons — an head over such as will not be members? Will he guide me as a father, a husband, against my will? He cannot come by mere violence to be a patron, a shield, and a defender of me through violence.

Arg. 3. — It is not to be thought that that is God’s just title to a crown which hath nothing in it of the essence of a king, but a violent and bloody purchase, which is in its prevalency in an oppressing Nimrod, and the cruelest tyrant that is hath nothing essential to that which constituteth a king; for it hath nothing of heroic and royal wisdom and gifts to govern, and nothing of God’s approving and regulating will, which must be manifested to any who would be a king, but by the contrary, cruelty hath rather baseness and witless fury, and a plain reluctancy with God’s revealed will, which forbiddeth murder. God’s law should say, “Murder thou, and prosper and reign;” and by the act of violating the sixth commandment, God should declare his approving will, to wit, his lawful call to a throne.

Arg. 4. — There be none under a law of God who may resist a lawful call to a lawful office, but men may resist any impulsion of God stirring them up to murder the most numerous and strongest, and chief men of a kingdom, that they may reign over the fewest, the weakest, and the young, and lowest of the people, against their will; therefore this call by the sword is not lawful. If it be said that the divine impulsion, stirring up a man to make a bloody conquest, that the ire and just indignation of God in justice may be declared on a wicked nation, is an extraordinary impulsion of God, who is above a law, and therefore no man may resist it; then all bloody conquerors must have some extraordinary revelation from heaven to warrant their yielding of obedience to such an extraordinary impulsion. And if it be so, they must show a lawful and immediate extraordinary impulsion now, but, it is certain, the sins of the people conquered, and their most equal and just demerit before God, cannot be a just plea to legitimate the conquest; for though the people of God deserved devastation and captivity by the heathen, in regard of their sins, before the throne of divine justice, yet the heathen grievously sinned in conquering them, Zech. i. 15, “And I am very sore displeased with the heathen that are at ease; for I was but a little displeased, and they helped forward the affliction.” So though Judah deserved to be made captives, and a conquered people, because of their idolatry and other sins, as Jeremiah had prophecied, yet God was highly displeased at Babylon for their unjust and bloody conquest, Jer. 1. 17, 18, 33, 34; li. 35, “the violence done to me and to my flesh be upon Babylon, shall the inhabitants of Zion say; and my blood upon the inhabitants of Chaldea, shall Jerusalem say.” And chat any other extraordinary impulsion to be as lawful a call to the throne as the people’s free election, we know not from God’s word; and we have but the naked word of our adversaries, that William the Conqueror, without the people’s consent, made himself, by blood, the lawful king of England, and also of all their posterity; and that king Fergus conquered Scotland.

Arg. 5. — A king is a special gift from God, given to feed and defend the people of God, that they may lead a godly and peaceable life under him, (Psal. lxxviii. 71, 72; 1 Tim. ii 2;) as it is a judgment of God that Israel is without a king many days, (Hos. iii. 4,) and that there is no judge, no king, to put evil-doers to shame. (Judg. xix.1.) But if a king be given of God as a king, by the acts of a bloody conquest, to be avenged on the sinful land over which he is made a king, he cannot be given, actu primo, as a special gift and blessing of God to feed, but to murder and to destroy; for the genuine end of a conqueror, as a conqueror, is not peace, but fire and sword. If God change his heart, to be of a bloody devastator, a father, prince, and feeder of the people, ex officio, now he is not a violent conqueror, and he came to that meekness by contraries, which is the proper work of the omnipotent God, and not proper to man, who, as he cannot work miracles, so neither can he lawfully work by contraries. And so if conquest be a lawful title to a crown, and as ordinary calling, as the opponents presume, every bloody conqueror must be changed into a loving father, prince and feeder; and if God call him, none should oppose him, but the whole land should dethrone their own native sovereign (whom they are obliged before the Lord to defend) and submit to the bloody invasion of a strange lord, presumed to be a just conqueror, as if he were lawfully called to the throne both by birth and the voices of the people. And truly they deserve no wages who thus defend the king’s prerogative royal; for if the sword be a lawful title to the crown, suppose the two generals of both kingdoms should conquer the most and the chiefest of the kingdom now, when they have so many forces in the field, by this wicked reason the one should have a lawful call of God to be king of England, and the other to be king of Scotland; which is absurd.

Arg. 6. — Either conquest, as conquest, is a just title to the crown, or as a just conquest. If as a conquest, then all conquests are just titles to a crown; then the Ammonites, Zidonians, Canaanites, Edomites, &c., subduing God’s people for a time, have just title to reign over them; and if Absalom had been stronger than David, he had then had the just title to be the Lord’s anointed and king of Israel, not David; and so strength actually prevailing should be God’s lawful call to a crown. But strength, as strength victorious, is not law nor reason: it were then reason that Herod behead John Baptist, and the Roman Emperors kill the witnesses of Christ Jesus. If conquest, as just, be the title and lawful claim before God’s court to a crown, then, certainly, a stronger .king, for pregnant national injuries, may lawfully subdue and reign over an innocent posterity not yet born. But what word of God can warrant a posterity not born, and so accessory to no offence against the conqueror, (but only sin original,) to be under a conqueror against their will, and who hath no right to reign over them but the bloody sword? For so conquest, as conquest, not as just, maketh him king over the posterity, If it be said, The fathers may engage the posterity by an oath to surrender themselves as loyal subjects to the man who justly and deservedly made the fathers vassals by the title of the sword of justice; I answer, The fathers may indeed dispose of the inheritance of their children, because that inheritance belongeth to the father as well at to the son; but because the liberty of the son being born with the son, (all men being born free from all civil subjection,) the father hath no more power to resign the liberty of his children than their lives; and the father, as a father, hath not power of the life of his child; as a magistrate he may have power, and, as something more than a father, he may have power of life and death. I hear not what Grotius saith,[1] “Those who are not born have no accidents, and so no rights, Non entia nulla sunt accidentia; then children not born have neither right nor liberty.” And so no injury (may some say) can be done to children not born, though the fathers should give away their liberty to the conquerors, — those who are not capable of law are not capable of injury contrary to law. — Ans. There is a virtual alienation of rights and lives of children not born unlawful, because the children are not born. To say that children not born are not capable of law and injuries virtual, which become real in time, might say, Adam did not any injury to his posterity by his first sin, which is contrary to God’s word: so those who vowed yearly to give seven innocent children to the Minotaur to be devoured, and to kill their children not born to bloody Molech, did no acts of bloody injury to their children; nor can any say, then, that fathers cannot tie themselves and their posterity to a king by succession. But I say, to be tyed to a lawful king is no making away of liberty, but a resigning of a power to be justly governed, protected and awed from active and passive violence.

Arg. 7. — So lawful king may be dethroned, nor lawful kingdom dissolved; but law and reason both saith. Quod ui partum est imperium, vi dissolvi potest. Every conquest made by violence may be dissolved by violence: Censetur enim ipsa natura jus dare ad id omne, sine quo obtineri non potest quod ipsa imperat.

Obj. — It is objected, that the people of God, by their sword, conquered seven nations of the Canaanites; David conquered the Ammonites for the disgrace done to his ambassadors; so God gave Egypt to Nebuchadnezzar for his hire in his service done against Judah. Had David no right over the Ammonites and Moabites but by expecting their consent? Ye will say, A right to their lands, goods and lives, but not to challenge their moral subjection. Well, we doubt not but such conquerors will challenge and obtain their moral consent. But if the people refuse their consent, is there no way, for providence giveth no right? So Dr Ferne,[2] so Arnisæus.[3]

Ans. — A facto ad jus non vales consequentia. God, to whom belongeth the world and the fulness thereof, disponed to Abraham and his seed the land of Canaan for their inheritance, and ordained that they should use their bow and their sword, for the actual possession thereof; and the like divine right had David to the Edomites and Ammonites, though the occasion of David’s taking possession of these kingdoms by his sword, did arise from particular and occasional exigencies and injuries; but it followeth in no sort that, therefore, kings now wanting any word of promise, and so of divine right to any lands, may ascend to the thrones of other kingdoms than their own, by no other title than the bloody sword. That God’s will was the chief patent here is clear, in that God forbade his people to conquer Edom, or Esau’s possession, when as he gave them command to conquer the Amorites. I doubt not to say, if Joshua and David had no better tide than their bloody sword, though provoked by injuries, they could have had no right to any kingly power over these kingdoms; and if only success by the sword be a right of providence, it is no right of precept. God’s providence, as providence without precept or promise, can conclude a thing is done, or may be done, but cannot conclude a thing is lawfully and warrantably done, else you might say the selling of Joseph, the crucifying of Christ, the spoiling of Job, were lawfully done. Though conquerors extort consent and oath of loyalty, yet that maketh not over a royal right to the conqueror to be king over their posterity without their consent. Though the children of Ammon did a high injury to David, yet no injury can be recompensed in justice with the pressure of the constrained subjection of loyalty to a violent lord. If David had not had an higher warrant from God than an injury done to his messengers, he could not have conquered them. But the Ammonites were the declared enemies of the church of God, and raised forces against David when they themselves were the injurers and offenders. And if David’s conquest will prove a lawful title by the sword to all conquerors, then may all conquerors lawfully do to the conquered people as David did; that is, they may “put them under saws, and under harrows of iron, and under axes of iron, and cause them pass through the brick-kilne.” But, I beseech you, will royalists say, that conquerors, who make themselves kings by their sword, and so make themselves fathers, heads, defenders, and feeders of the people, may use the most extreme tyranny in the world, such as David used against the children of Ammon, which he could not have done by the naked title of sword-conquest, if God had not laid a commandment of an higher nature on him to serve God’s enemies so? I shall then say, if a conquering king be a lawful king, because a conqueror, then hath God made such a lawful king both a father, because a king, and a tyrant, and cruel and lion-hearted oppressor of those whom he hath conquered; for God hath given him royal power by this example, (2 Sam. xii. 30, 31,) to put these, to whom he is a father and defender by office, to torment, and also to be a torturer of them by office, by bringing their backs under such instrument of cruelty as “saws, and harrows of iron, and axes of iron.”

[1] Hugo Grotius de jure belli et pacis, lib. 2, c. 4, n. 10.

[2] Dr Ferne part 3, sect. 3, p. 20.

[3] Arnisæus de authoritat princip. c. 1, n. 12.

Question XIII.

Whether or no royal dignity have its spring from nature, and how that is true, “Every man is born free,” and how servitude is contrary to nature.

I conceive it to be evident that royal dignity is not immediately, and without the intervention of the people’s consent, given by God to any one person, and that conquest and violence is no just title to a crown. Now the question is, If royalty flow from nature, if royalty be not a thing merely natural, neither can subjection to royal power be merely natural; but the former is rather civil than natural: and the question of the same nature is, Whether subjection or servitude be natural.

I conceive that there be divers subjections to these that are above us some way natural, and therefore I rank them in order, thus: — 1. There is a subjection in respect of natural being, as the effect to the cause; so, though Adam had never sinned, this morality of the fifth command should have stood in vigour, that the son by nature, without any positive law, should have been subject to the father, because from him he hath his being, as from a second cause. But I doubt if the relation of a father, as a father, doth necessarily infer a royal or kingly authority of the father over the son; or by nature’s law, that the father hath a power of life and death over, or above, his children, and the reasons I give are, (1.) Because power of life and death is by a positive law, presupposing sin and the fall of man; and if Adam, standing in innocency, could lawfully kill his son, though the son should be a malefactor, without any positive law of God, I much doubt. (2.) I judge that the power royal, and the fatherly power of a father over his children, shall be found to be different; and the one is founded on the law of nature, the other, to wit, royal power, on a mere positive law. 2. The degree or order of subjection natural is a subjection in respect of gifts or age. So Aristotle (1 polit. cap. 3) saith, “that some are by nature servants,” His meaning is good, — that some gifts of nature, as wisdom natural, or aptitude to govern, hath made some men of gold, fitter to command, and some of iron and clay, fitter to be servants and slaves. But I judge this title to make a king by birth, seeing Saul, whom God by supervenient gifts made a king, seemeth to owe small thanks to the womb, or nature, that he was a king, for his cruelty to the Lord’s priests speaketh nothing but natural baseness. It is possible Plato had a good meaning, (dialog. 3, de legib.) who made six orders here. “1. That fathers command their sons; 2. The noble the ignoble; 3. The elder the younger; 4. The masters the servants; 5. The stronger the weaker; 6. The wise the ignorant.”

Aquinas (22, q. 57, art. 3), Driedo (de libert. Christ. lib. 1, p. 8), following Aristotle, (polit. lib. 7, c. 14,) hold, though man had never sinned there should have been a sort of dominion of the more gifted and wiser above the less wise and weaker; not antecedent from nature properly, but consequent, for the utility and good of the weaker, in so far as it is good for the weaker to be guided by the stronger, which, cannot be denied to have some ground in nature. But there is no ground for kings by nature here.

1. Because even those who plead that the mother’s womb must be the best title for a crown, and make it equivalent to royal unction, are to be corrected in memory thus, — That it is merely accidental, and not natural, for such a son to be born a king, because the free consent of the people making choice of the first father of that line to be their king, and in him making choice of the firstborn of the family, is merely accidental to father and son, and so cannot be natural.

2. Because royal gifts to reign are not held by either us or our adversaries to be the specific essence of a king; for if the people crown a person their king, say we, — if the womb bring him forth to be a king, say the opponents, — he is essentially a king, and to be obeyed as the Lord’s anointed, though nature be very parce, sparing, and a niggard in bestowing royal gifts; yea, though he be an idiot, say some, if he be the first-born of a king, he is by just title a king, but must have curators and tutors to guide him in the exercise of that royal right that he hath from the womb. But Buchanan saith well,[1]“He who cannot govern himself shall never govern others.”

Assert. 1. — As a man cometh into the world a member of a politic society, he is, by consequence, born subject to the laws of that society; but this maketh him not, from the womb and by nature, subject to a king, as by nature he is subject to his father who begat him, no more than by nature a lion is born subject to another king-lion; for it is by accident that he is born of parents under subjection to a monarch, or to either democratical or aristocratical governors, for Cain and Abel were born under none of these forms of government properly; and if he had been born in a new planted colony in a wilderness, where no government were yet established, he should be under no such government.

Assert. 2. — Slavery of servants to lords or masters, such as were of old amongst the Jews, is not natural, but against nature. 1. Because slavery is malum naturæ, a penal evil and contrary to nature, and a punishment of sin. 2. Slavery should not have been in the world, if man had never sinned, no more than there could have been buying and selling of men, which is a miserable consequent of sin and a sort of death, when men are put to the toiling pains of the hireling, who longeth for the shadow, and under iron harrows and saws, and to hew wood, and draw water continually. 3. The original of servitude was, when men were taken in war, to eschew a greater evil, even death, the captives were willing to undergo a less evil, slavery, (S. Servitus, 1 de jure. Pers.) 4. A man being created according to God’s image, he is res sacra, a sacred thing, and can no more, by nature’s law, be sold and bought, than a religious and sacred thing dedicated to God. S. 1. Instit. de inutil. scrupl. l. inter Stipulantem. S. SacramF. de verber. Obligat. Assert. 3. — Every man by nature is a freeman born, that is, by nature no man cometh out of the womb under any civil subjection to king, prince, or judge, to master, captain, conqueror, teacher, &c.

Arg. 1. — Because freedom is natural to all, except freedom from subjection to parents; and subjection politic is merely accidental, coming from some positive laws of men, as they are in a politic society; whereas they might have been born with all concomitants of nature, though born in a single family, the only natural and first society in the world.

Arg. 2. — Man is born by nature free from all subjection, except of that which is most kindly and natural, and that is fatherly or filial subjection, or matrimonial subjection of the wife to the husband; and especially he is free of subjection to a prince by nature; because to be under jurisdiction to a judge or king, hath a sort of jurisdiction, (argument, L. Si quis sit fugitivus. F. de edil. edict. in S. penult. vel fin.) especially to be under penal laws now in the state of sin. The learned senator Ferdinandus Vasquez saith, (lib. 2. c. 82. n. 15,) Every subject is to lay down his life for the prince. Now no man is born under subjection to penal laws or dying for his prince.

Arg. 3. — Man by nature is born free, and as free as beasts; but by nature no beast, no lion is born king of lions; no horse, no bullock, no eagle, king of horses, bullocks, or eagles. Nor is there any subjection here, except that the young lion is subject to the old, every foal to its dam; and by that same law of nature, no man is born king of men, nor any man subject to man in a civil subjection by nature, (I speak not of natural subjection of children to parents,) and therefore Ferdi. Vasquez (illustr. quest. lib. 2, c. 82, n 6,) said, that kingdoms and empires were brought in, not by nature’s law, but by the law of nations. He expoundeth himself elsewhere to speak of the law of nature secondary, otherwise the primary law of nations is indeed the law of nature, as appropriated to man. If any reply. That the freedom natural of beasts and birds, who never sinned, cannot be one with the natural freedom of man who is now under sin. and so under bondage for sin, my answer is, That the subjection of the misery of man by nature, because of sin, is more than the subjection of beasts, comparing species and kinds of beasts and birds with mankind, but comparing individuals of the same kind amongst themselves; as lion with lion, eagle with eagle, and so man with man; in which respect, because he who is supposed to be the man born free from subjection politic, even the king born a king, is under the same state of sin. and so by reason of sin, of which he hath a share equally with all other men by nature, he must be, by nature, born under as great subjection penal for sin (except the king be born void of sin) as other men, therefore he is not born freer by nature than other men. except he come out of the womb with a king’s crown on his head.

Arg. 4. — To be a king is a free gift of God, which God bestoweth on some men above others, as is evident, (2 Sam. xii. 7, 8; Psal. lxxv. 6; Dan. iv. 32;) and therefore all must be born kings, it any one man be by nature a king born, and another a born subject. But if some be by God’s grace made kings above others, they are not so by nature; for things which agree to man by nature, agree to all men equally but all men equally are not born kings, as is evident: and all men are not equally born by nature under politic subjection to kings, as the adversaries grant, because those who are by nature kings, cannot be also by nature subjects.

Arg. 5. — If men be not by nature free from politic subjection, then must some, by the law of relation, by nature be kings. But none are by nature kings, because none have by nature these things which essentially constitute kings, for they have neither by nature the calling of God, nor gifts for the throne; nor the free election of the people, nor conquest; and if there be none a king by nature, there can be none a subject by nature. And the law saith, Omnes sumus natura liberi, nullius ditioni subjecti, lib. Manumiss. F. de just. et jur. S. jus antem gentium, Jus. de jur. nat. We are by nature free, and D. L. ex hoc jure cum simil.

Arg. 6. — Politicians agree to this as an undeniable truth, that as domestic society is natural, being grounded upon nature’s instinct, so politic society is voluntary, being grounded on the consent of men; and so politic society is natural, in radice, in the root, and voluntary and free, in modo, in the manner of their union; and the Scripture cleareth to us, that a king is made by the free consent of the people, (Deut xvii. 15,) and so not by nature.

Arg. 7. — What is from the womb, and so natural, is eternal, and agreeth to all societies of men; but a monarchy agreeth not to all societies of men; for many hundred years; de facto, there was not a king till Nimrod’s time, the world being governed by families, and till Moses’ time we find no institution for kings, (Gen. vii.) and the numerous multiplication of mankind did occasion monarchies, otherwise, fatherly government being the first and measure of the rest, must be the best; for it is better that my father govern me, than that a stranger govern me, and, therefore, the Lord forbade his people to set a stranger over themselves to be their king. The P. Prelate contendeth for the contrary, (c. 12, p. 125,) “Every man (saith he) is born subject to his father, of whom immediately he hath his existence in nature; and if his father be the subject of another, he is born the subject of his father’s superior.” —

Ans. But the consequence is weak. Every man is born under natural subjection to his father, therefore he is born naturally tinder civil subjection to his father’s superior or king, It followeth not. Yea, because his father was born only by nature subject to his own father, therefore he was subject to a prince or king only by accident, and by the free constitution of men, who freely choose politic government, whereas there is no government natural, but fatherly or marital, and therefore the contradictory consequence is true.

P. Prelate. — Every man by nature hath immunity and liberty from despotical and hierarchial empire, and so may dispose of his own at will, and cannot enslave himself without his own free will; but God hath laid a necessity: on all men to be under government, and nature also laid this necessity on him, therefore this sovereignty cannot protect us in righteousness and honesty, except it be entirely endowed with sovereign power to preserve itself, and protect us.

Ans. — 1. The Prelate here deserteth his own consequence, which is strong against himself, for if a man be naturally subject to his father’s superior, as he said before, why is not the son of a slave naturally subject to his father’s superior and master? 2. As a man may not make away his liberty without his own consent, so can he not, without his own consent, give his liberty to be subject to penal laws under a prince, without his own consent, either in his father’s or in the representative society in which he liveth. 3. God and nature hath laid a necessity on all men to be under government, a natural necessity from the womb to be under some government, to wit, a paternal government, that is true; but under this government politic, and namely under sovereignty, it is false; and that is but said: for why is he naturally under sovereignty rather than aristocracy? I believe any of the three forms are freely chosen by any society. 4. It is false that one cannot defend the people, except he have entire power, that is to say, he cannot do good except he have a vast power to do both good and ill.

P. Prelate. — It is accidental to any to render himself a slave, being occasioned by force or extreme indigence, but to submit to government congruous to the condition of man, and is necessary for his happy being, and natural, and necessary, by the inviolable ordinance of God and nature.

Ans. 1. — If the father be a slave, it is natural and not accidental, by the Prelate’s logic, to be a slave. 2. It is also accidental to be under sovereignty, and sure not natural; for then aristocracy and democracy must be unnatural, and so unlawful governments. 3. If to be congruous to the condition of man be all one with natural man, (which he must say if he speak sense) to believe in God, to be an excellent mathematician, to swim in deep waters, being congruous to the nature of man, must be natural. 4. Man by nature is under government paternal, not politic properly, but by the free consent of his will.

P. Prelate (p. 126). — Luke xi. 5 [2:51], Christ himself was u9potasso/menoj subject to his parents, (the word which is used, Rom. xiii.) therefore none are exempted from subjection to lawful government.

Ans. — We never said that any were exempted from lawful government. The Prelate and his fellow Jesuits teach that the clergy are exempted from the laws of the civil magistrate, not we, but because Christ was subject to his parents, and the same word is used, Luke xi., which is in Rom. xiii., it will not follow, therefore, men are by nature subject to kings, because they are by nature subject to parents.

P. Prelate. — The father had power over the children, by the law of God and nature, to redeem himself from debt, or any distressed condition, by enslaving his children begotten of his own body; if this power was not by the right of nature and by the warrant of God, I can see no other, for it could not be by mutual and voluntary contract of children and fathers.

Ans. — 1. Show a law of nature, that the father might enslave his children; by a divine positive law. presupposing sin, the father might do that, and yet I think that may be questioned, whether it was not a permission rather than a law, as was the bill of divorce, but a law of nature it was not. 2. The P. Prelate can see no law but the law of nature here; but it is because he is blind or will not see. His reason is, It was not by mutual and voluntary contract of children and fathers, therefore it was by the law of nature; so he that cursed his father was to die by God’s law. This law was not made by mutual consent betwixt the father and the son, therefore it was a law of nature: the Prelate will see no better. Nature will teach a man to enslave himself to redeem himself from death, but that it is a dictate of nature that a man should enslave his son, I conceive not. 3. What can this prove, but that it the son may, by the law of nature, be enslaved for the father, but that the son of a slave is by nature under subjection to slavery, and that by nature’s law, the contrary whereof he spake in the page preceding, and in this same page.

As for the argument of the Prelate to answer Suarez, who laboureth to prove monarchy not to be natural, but of free consent, because it is various in sundry nations, it is the Jesuits’ argument, not ours. I own it not. Let Jesuits plead for Jesuits.

[1] Buchan. de jure Regni apud Scotos.

Question XIV.

Whether or no the people make a person their king conditionally, or absolutely; and whether there be such a thing as a covenant tying the king no less than his subjects.

There is a covenant natural, and a covenant politic and civil. There is no politic or civil covenant betwixt the king and his subjects, because there be no such equality (say royalists) betwixt the king and his people, as that the king can be brought under any civil or legal obligation in man’s court, to either necessitate the king civilly to keep an oath to his people, or to tie him to any punishment, if he fail, yet (say they) he is under natural obligation in God’s court to keep his oath, but he is accountable only to God if he violate his oath.

Assert. 1 — There is an oath betwixt the king and his people, laying on, by reciprocation of bands, mutual civil obligation upon the king to the people, and the people to the king; 2 Sam. v. 3, “So all the elders of Israel came to the king to Hebron, and king David made a covenant with them in Hebron before the Lord, and they anointed David king over Israel.” 1 Chron. xi. 3, “And David made a covenant with them before the Lord, and they anointed David king over Israel, according to the word of the Lord by Samuel.” 2 Chron. xxiii. 2, 3, “And they went about in Judah, and gathered the Levites out of all the cities of Judah, and the chief of the fathers of Israel, and they came to Jerusalem. And all the congregation made a covenant with the king [Joash] in the house of God.” 2 Kings xi. 17, “Jehoiada made a covenant between the Lord and the king; and the people, that they should be the Lord’s people; between the king also and the people.” Eccl. viii. 2, “I counsel thee to keep the king’s commandment, and that in regard of the oath of God.” Then it is evident there was a covenant betwixt the king and the people. That was not a covenant that did tie the king; to God only, and not to the people, — 1. Because the covenant betwixt the king and the people is clearly differenced from the king’s covenant with the Lord, 2 Kings xi. 17. 2. There was no necessity that this covenant should be made publicly before the people, if the king did not in the covenant tie and oblige himself to the people; nor needed it be made solemnly before the Lord in the house of God. 3. It is expressly a covenant that was between Joash the king and his people; and David made a covenant at his coronation with the princes and elders of Israel, therefore the people gave the crown to David covenant-wise, and upon condition that he should perform such and such duties to them. And this is clear by all covenants in the word of God: even the covenant between God and man is in like manner mutual, — “I will be your God, and ye shall be my people.” The covenant is so mutual, that if the people break the covenant, God is loosed from his part of the covenant, Zech. xi. 10. The covenant giveth to the believer a sort of action of law, and jus quoddam, to plead with God in respect of his fidelity to stand to that covenant that bindeth him by reason of his fidelity Isa. xliii. 26; lxiii. 16; Dan. ix. 4, 5; and far more a covenant giveth ground of a civil action and claim to a people and the free estates against a king, seduced by wicked counsel to make war against the land, whereas he did swear by the most high God, that he should be a father and protector of the church of God.

Assert. 2. All covenants and contracts between man and man, yea, all solemn promises, bring the covenanters under a law and a claim before men, if the oath of God be broken, as the covenant betwixt Abraham and Abimelech, (Gen. xxi. 27,) Jonathan and David. (1 Sam. xviii. 3.) The spies profess to Rahab in the covenant that they made with her, (Josh. ii. 20,) “And if thou utter this our business, we will be quit of thine oath which thou hast made us to swear.” There be no mutual contract made upon certain conditions, but if the conditions be not fulfilled, the party injured is loosed from the contract. Barclay saith, “That this covenant obligeth the king to God, but not the king to the people.” — Ans. It is a vain thing to say that the people and the king make a covenant, and that David made a covenant with the elders and princes of Israel; for if he be obliged to God only, and not to the people, by a covenant made with the people, it is not made with the people at all, nay, it is no more made with the people of Israel than with the Chaldeans, for it bindeth David no more to Israel than to Chaldea, as a covenant made with men. Arnisæus saith,[1] “When two parties contract, if one perform the duty, the other is acquitted.” Sect. Oex hujus mod ubi vult just. de duob. reis, lib. 3. Dr Ferne saith, “Because every one of them are obliged fully (Sect. 1) Just. eod. to God, to whom tho oath is made (for that .is his meaning), and if either the people perform what is sworn to the Lord or the king, yet one of the parties remaineth still under obligation; and neither doth the people’s obedience exempt the king from punishment, if he fail, nor the king’s obedience exempt the people, if they fail, but every one beareth the punishment of his own sin; and there is no mutual power in the parties to compel one another to perform the promised duty, because that belongeth to the pretor or magistrate, before whom the contract is made. The king hath jurisdiction over the people, if they violate their oath; but the people hath no power over the prince; and the ground that Arnisæus layeth down is this, — 1. The king is not a party contracting with the people, as if there were mutual obligations betwixt the king and the people, and a mutual co-active power on either side. 2. That the care of religion belongeth not to the people, for that hath no warrant in the Word (saith he). 3. We read not that the people was to command and compel the priests and the king to reform religion and abolish idolatry, as it most follow, if the covenant be mutual.

4. Jehoiada (2 Kings xi.) obligeth himself, and the king, and the people, by a like law, to serve God; and here be not two parties but three — the high priest, the king, and the people, if this example prove any thing.

5. Both king and people shall find the revenging hand of God against them, if they fail in the breach of their oath; every one, king and people, by the oath stand obliged to God, the king for himself, and the people for themselves, but with this difference, the king oweth to God proper and due obedience as any of the subjects, and also to govern the people according to God’s true religion, (Deut. xvii.; 2 Chron. xxix.;) and in this the king’s obligation differeth from the people’s obligation; the people, as they would be saved, must serve God and the king, for the same cause. (1 Sam. xii.) But, besides this, the king is obliged to rule and govern the people, and keep them in obedience to God; but the people is not obliged to govern the king, and keep him in obedience to God, for then the people should have as great power and jurisdiction over the king, as the king hath over the people, which is against the word of God, and the examples of the kings of Judah; but this cometh not from any promise or covenant that the king hath made with the people, but from a peculiar obligation whereby he is obliged to God as a man, not as a king: —

Arg. 1. — This is the mystery of the business which I oppose in these assertions.

Assert. 1. — As the king is obliged to God for the maintenance of true religion, so are the people and princes no less in their place obliged to maintain true religion; for the people are rebuked, because they burn incense in all high places, 2 Kings xvii. 11; 2 Chron. xxxiii. 17; Hos. iv. 13. And the reason why the high places are not taken away, is given in 2 Chron. xx. 33, for as yet the people “had not prepared their heart unto the God of their fathers;” but you will reply, elicit acts of maintenance of true religion are commanded to the people, and that the places prove; but the question is de actibus imperatis, of commanded acts of religion, sure none but the magistrate is to command others to worship God according to his word. I answer, in ordinary only, magistrates (not the king only but all the princes of the land) and judges are to maintain religion by their commandments, (Deut. i. 16; 2 Chron. i. 2; Deut. xvi. 19; Eccles. v. 8; Hab. i. 4; Mic. iii. 9; Zech. vii. 9; Hos. v. 10, 11,) and to take care of religion; but when the judges decline from God’s way and corrupt the law, we find the people punished and rebuked for it: Jer. xv. 4, “And I will cause them to be removed to all kingdoms of the earth, because of Manasseh, the son of Hezekiah king of Judah, for that which he did in Jerusalem;” 1 Sam. xii. 24, 25, “Only fear the Lord; but if ye shall still do wickedly, ye shall be consumed, both ye and your king.” And this case, I rant, is extraordinary; yet so, as Junius Brutus proveth well and strongly, that religion is not given only to the king, that he only should keep it, but to all the inferior judges and people also in their kind; but because the estates never gave the king power to corrupt religion, and press a false and idolatrous worship upon them, therefore when the king defendeth not true religion, but presseth upon the people a false and idolatrous religion, in that they are not under the king, but are presumed to have no king, eatenus, so far, and are presumed to have the power in themselves, as if they had not appointed any king at all; as if we presume the body had given to the right hand a power to ward off strokes and to defend the body; if the right hand should by a palsy, or some other disease, become impotent, and be withered up, when ill is coming on the body, it is presumed that the power of defence is recurred to the left hand, and to the rest of the body to defend itself in this case as if the body had no right hand, and had never communicated any power to the right hand. So if an incorporation accused or treason, and in danger of the sentence, of death, shall appoint a lawyer to advocate their cause, and to give in their just defences to the judge, if their advocate be stricken with dumbness, because they have lost their legal and representative tongue, none can say that this incorporation hath lost the tongues that nature hath given them, so as by nature’s law they may not plead in their own just and lawful defence, as if they had never appointed the foresaid lawyer to plead for them. The king, as a man, is not more obliged to the public and regal defence of the true religion than any other man of the land; but he is made by God and the people king, for the church and people of God’s sake, that he may defend true religion for the behalf and salvation of all. If therefore he defend not religion for the salvation of the souls of all in his public and royal way, it is presumed as undeniable that the people of God, who by the law of nature are to care for their own souls, are to defend in their way true religion, which so nearly concerneth them and their eternal happiness.

Assert. 2. — When the covenant is betwixt God, on the one part, and the king, priests and people, on the other; it is true, if the one perform for his part to God the whole duty, the other is acquitted: as if two men be indebted to one man ten thousand pounds, if the one pay the whole sum the other is acquitted. But the king and people are not so contracting parties in covenant with God as that they are both indebted to God for one and the same sum of complete obedience, so as if the king pay the whole sum of obedience to God, the people are acquitted; and if the people pay the whole sum, the king is acquitted: for every one standeth obliged to God for himself; for the people must do all that is their part in acquitting the king from his royal duty, that they may free him and themselves both from punishment, if he disobey the King of kings; nor doth the king’s obedience acquit the people from their duty. Arnisæus dreamed if he believed that we make king and people this way party-contractors in covenant with God. Nor can two copartners in covenant with God so mutually compel one another to do their duty; for we hold that the covenant is made betwixt the king and the people, betwixt mortal men; but they both bind themselves before God to each other. But saith Arnisæus, “It belongeth to a pretor or ruler, who is above both king and people, to compel each of them, — the king to perform his part of the covenant to the people, and the people to perform their part of the covenant to the king. Now there is no ruler but God, above both king and people.” But let me answer. The consequence is not needful, no more than when the king of Judah and the king of Israel make a covenant to perform mutual duties one to another, — no more than it is necessary that there should be a king and superior ruler above the king of Israel and the king of Judah, who should compel each one to do a duty to his fellow-king; for the king and people are each of them above and below others in divers respects: the people, because they create the man king, they are so above the king, and have a virtual power to compel him to do his duty; and the king, as king, hath an authoritative power above the people, because royalty is formally in him, and originally and virtually only in the people, therefore may he compel them to their duty, as we shall hear anon; and therefore there is no need of an earthly ruler higher than both, to compel both.

Assert. 3. — We shall hereafter prove the power of the people above the king, God willing; and so it is false that there is not mutual coactive power on each side.

Assert. 4. — The obligation of the king in this covenant floweth from the peculiar national obligation betwixt the king and the estates, and it bindeth, the king as king, and not simply as he is a man. 1. Because it is a covenant betwixt the people and David, not as he is the son of Jesse, for then it should oblige Eliab, or any other of David’s brethren; yea, it should oblige any man if it oblige David as a man; but it obligeth David as a king, or as he is to be their king, because it is the specific act of a king that he is obliged onto, to wit, to govern the people in righteousness and religion with his royal power. And so it is false that Arnisæus saith, that “the king, as a man, is obliged to God by this covenant, not as a king.” 2. He saith, by covenant the king is bound to God as a man, not as a king. But so the man will have the king, as king, under no law of God; and so he must either be above God, as king, or co-equal with God; which are manifest blasphemies. For I thought ever the royalists had not denied that the king, as king, had been obliged to keep his oath to his subjects, in relation to God, and in regard of natural obligation, — so as, he sinneth before God if he break his covenant with his people, — though they deny that he is obliged to keep his covenant in relation to his subjects, and in regard of politic or civil obligation to men. Sure I am this the royalists constantly teach. 3. He would have this covenant so made with men as it obligeth not the king to men, but to God. But the contrary is true. Besides the king and the people’s covenant with the Lord, king Joash made another covenant with the people, and Jehoiada the priest was only a witness, or one who, in God’s name, performed the rite of anointing; otherwise he was a subject on the people’s side, obliged to keep allegiance to Joash, as to his sovereign and master. But, certainly, whoever maketh a covenant with the people, promising to govern them according to God’s word, and upon that condition and these terms receiveth a throne and crown from the people, he is obliged to what he promiseth to the people,Omnis promittens, facit alteri, cui promissio facta est, jus in promittentem. Whoever maketh a promise to another, giveth to that other a sort of right or jurisdiction to challenge the promise. The covenant betwixt David and Israel were a shadow, if it tie the people to allegiance to David as their king, and if it tie not David as king to govern them in righteousness; but leave David loose to the people, and only tie him to God, then it is a covenant betwixt David and God only: but the text saith, it is a covenant betwixt the king and the people, 2 Kings xi. 17; 2 Sam. v. 3.

Arg. 2. — Hence our second argument. He who is made a minister of God, not simply, but for the good of the subject, and so he take heed to God’s law as a king, and govern according to God’s will, he is in so far only made king by God as he fulfilleth the condition; and in so far as he is a minister for evil to the subject, and ruleth not according to that which the book of the law commandeth him as king, in so far he is not by God appointed king and ruler, and so must be made a king by God conditionally: but so hath God made kings and rulers, Rom. xiii. 4; 2 Chron. vi. 16; Psal. lxxxix. 30, 31; 2 Sam. vii. 12; 1 Chron. xxviii. 7 9. This argument is not brought to prove that Jeroboam or Saul leave off to be kings when they fail in some part of the condition; or as if they were not God’s vicegerents, to be obeyed in things lawful, after they have gone on in wicked courses; for the people consenting to make Saul king, they give him the crown, pro hac vice, at his entry absolutely. There is no condition required in him before they make him king, but only that he covenant with them to rule according to God’s law. The conditions to be performed are consequent, and posterior to his actual coronation and his sitting on the throne. But the argument presupposeth that which the Lord’s word teacheth, to wit, that the Lord and the people giveth a crown by one and the same action; for God formally maketh David a king by the princes and elders of Israel choosing of him to be their king at Hebron; and, therefore, seeing the people maketh him a king covenantwise and conditionally, so he rule according to God’s law, and the people resigning their power to him for their safety, and for a peaceable and godly life under him, and not to destroy them, and tyrannise over them. It. is certain God giveth a king that same way by that very same act of the people; and if the king tyrannise, I cannot say it is beside the intention of God making a king, nor yet beside his intention as a just punisher of their transgressions; for to me, as I conceive, nothing either good or evil falleth out beside the intention of Him who “doerh all things according to the pleasure of his will.” If, then, the people make a king, as a king, conditionally, for their safety, and not for their destruction, (for as a king he saveth, as a man he destroyeth, aad not as a king and father,) and if God, by the people’s free election, make a king. God maketh him a king conditionally, and so by covenant; and, therefore, when God promiseth (2 Sam. vii. 12; 1 Chron. xxviii. 7-9) to David’s seed, and to Solomon, a throne, he promiseth not a throne to them immediately, as he raised up prophets and apostles without any mediate action and consent of the people, but he promiseth a throne to them by the mediate consent, election, and covenant of the people; which condition and covenant he expresseth in the very words of the people’s covenant with the king; “So they walk as kings in the law of the Lord, and take heed to God’s commandment and statutes to do them.”

Obj. 1. — But then Solomon, falling in love with many outlandish women, and so not walking according to God’s law, loseth all royal dignity and kingly power, and the people is not to acknowledge him as king, since the kingly power was conferred upon him rather than Adonijah, upon such a condition, which condition not being performed by him, it is presumed that neither God, nor the people under God, as God’s instruments in making king, conferred any royal power on him.

Ans. — It doth not follow that Solomon, falling in love with strange women, doth lose royal dignity, either in the court of heaven or before men; because the conditions of the covenant upon which God, by the people, made him king must be exponed by the law, Deut. xvii. Now that cannot bear that any one act, contrary to the royal office; yea, that any one or two acts of tyranny doth denude a man of the royal dignity that God and the people gave him; for so David, committing two acts of tyranny: one of taking his own faithful subject’s wife from, and another in killing himself, should denude himself of all the kingly power that he had; and that, therefore, the people, after his adultery and murder, were not to acknowledge David as their king, — which is most absurd; for as one single act of unchastity is indeed against the matrimonial covenant, and yet doth not make the woman no wife at all, so it must be such a breach of the royal covenant as maketh the king no king, that annulleth the royal covenant, and denudeth the prince of his royal authority and power, that must be interpreted a breach of the oath of God, because it must be such a breach upon supposition whereof the people would not have given the crown, but upon supposition of his destructiveness to the commonwealth, they would never have given to him the crown.

Obj. 2. — Yet at least it will follow that Saul, after he is rejected of God for disobedience in not destroying the Amalekites, as Samuel speaketh to him, (1 Sam. xv.) is no longer to be acknowledged king by the people, at least after he committeth such acts of tyranny, as are 1 Sam. xviii. 12-15, &c.; and after he had killed the priests of the Lord and persecuted innocent David, without cause, he was no longer, either in the court of heaven or the court of men, to be acknowledged as king, seeing he had manifestly violated the royal covenant made with the people; (1 Sam. xi. 14, 15,) and yet, after those breaches, David acknowledgeth him to be his prince and the Lord’s anointed.

Ans. 1. — The prophet Samuel’s threatening, (1 Sam. xvii.) is not exponed of actual unkinging and rejecting of Saul at the present; for after that, Samuel both honoured him as king before the people and prayed for him, and mourned to God on his behalf as king, (1 Sam. xvi. 1, 2,) but the threatening was to have effect in God’s time, when he should bring David to the throne, as was prophesied, upon occasion of less sin, even his sacrificing and not waiting the tune appointed, as God had commanded, 1 Sam. xiii. 13, 14. 2. The people and David’s acknowledgment of Saul to be the Lord’s anointed and a king, after he had committed such acts of tyranny as seem destructive of the royal covenant, and inconsistent therewith, cannot prove that Saul was not made king by the Lord and the people conditionally, and that for the people’s good and safety, and not for their destruction; and it doth well prove, — (1.) That those acts of blood and tyranny committed by Saul, were not done by him as king, or from the principle of royal power given to him by God and the people. (2.) That in these acts they were not to acknowledge him as king. (3.) That these acts of blood were contrary to the covenant that Saul did swear at his inaugeration, and contrary to the conditions that Saul, in the covenant, took on him to perform at the making, of the royal covenant. (4.) They prove not but the states who made Saul king might lawfully dethrone him, and anoint David their king. But David had reason to hold him for his prince and the Lord’s anointed, so long as the people recalled not their grant of royal dignity, as David, or any man, is obliged to honour him as king whom the people maketh king, though he were a bloodier and more tyrannous man than Saul. Any tyrant standeth in titulo, so long as the people and estates who made him king have not recalled their grant; so as neither David, nor any single man, though six hundred with him, may unking him or detract obedience from him as king; so many acts of disloyalty and breaches of laws in the subjects, though they be contrary to this covenant that the states make with their prince, doth not make them to be no subjects — and the covenant mutual standeth thus.

Arg. 3. — 1. If the people, as God’s instruments, bestow the benefit of a crown on their king, upon condition that he will rule them according to God’s word, then is the king made king by the people conditionally; but the former is true, therefore so is the latter. The assumption is proved thus: — Because to be a king, is to be an adopted father, tutor, a politic servant and royal watchman of the state; and the royal honour and royal maintenance given to him, is a reward of his labours and a kingly hire. And this is the apostle’s argument, Rom. xiii. 6, “For this cause pay you tribute also, [there is the wages] for they are God’s ministers, attending continually upon this very thing.” There is the work. Qui non implet conditionem a se promissam, cadit beneficio. It is confirmed thus: — The people either maketh the man their prince conditionally; — (1.) that he rule according to law or absolutely; — (2.) so that he rule according to will or lust; — or, (3.) without any vocal transactions at all, but only brevi manu, say, “Reign thou over us, and, God save the king; and so there be no conditions spoken on either side; — or, (4.) the king is obliged to God for the condition which he promiseth by oath to perform toward the people; but he is to make no reckoning to the people, whether he perform his promise or no; for the people being inferior to him, and he, solo Deo minor, only next and immediate to God, the people can have no jus, no law over him by virtue of any covenant. But the first standing, we have what we seek; the second is contrary to Scripture. He is not (Deut. xvii. 15, 16) made absolutely a a king to rule according to his will and lust; for “reign thou over us,” should have this meaning — “Come thou and play the tyrant over us, and let thy lust and will be a law to us,” — which is against natural sense; nor can the sense and meaning be according to the third, That the people, without any express, vocal, and positive covenant, give a throne to their king to rule as he pleaseth; because it is a vain thing for the Prelate and other Mancipia Aulæ, court-bellies, to say Scotland and England must produce a written authentic covenant betwixt the first king and their people, because, say they, it is the law’s word, Do non apparentibus et non existentibus eadem lex, that covenant which appeareth not, it is not; for in positive covenants that is true, and in such contracts as are made according to the civil or municipal laws, or the secondary law of nature. But the general covenant of nature is presupposed in making a king, where there is no vocal or written covenant. If there be no conditions betwixt a Christian king and his people, then those things which are just and right according to the law of God, and the rule of God in moulding the first king, are understood to rule both king and people, as if they had been written; and here we produce our written covenant, Deut. xvii. 15; Josh. i. 8, 9; 2 Chron. xxxi. 32. Because this is as much against the king as the people, and more; for if the first king cannot bring forth his written and authentic tables to prove that the crown was given to him and his heirs, and his successors, absolutely and without any conditions, so as his will shall be a law, cadit causa, he loseth his cause (say they). The king is in possession of the royal power absolutely, without any condition, and you must put him from his possession by a law. I answer, This is most false. (1.) Though he were in mala fide, and in unjust possession, the law of nature will warrant the people to repeal their right and plead for it, in a matter which concerneth their heads, Eves, and souls. (2.) The parliaments of both kingdoms standing in possession of a nomothetic power to make Laws, proveth clearly that the king; is in no possession of any royal dignity conferred absolutely, and without any condition, upon him; and, therefore, it is the king’s part by law to put the estates out of possession; and though there were no written covenant, the standing law and practice of many hundred acts of parliament, is equivalent to a written covenant.

2. When the people appointed any to be their king, the voice of nature exponeth their deed, though there be no vocal or written covenant; for that fact — of making a king — is a moral lawful act warranted by the word of God (Deut. xvii. 15, 16; Rom. xiii. 1, 2) and the law of nature; and, therefore, they having made such a man their king, they have given him power to be their father, feeder, healer, and protector; and so must only have made him king conditionally, so he be a father, a feeder, and tutor. Now, if this deed of making a king must be exponed to be an investing with an absolute, and not a conditional power, this fact shall be contrary to Scripture and to the law of nature; for if they have given him royal power absolutely, and without any condition, they must have given to him power to be a father, protector, tutor, and to be a tyrant, a murderer, a bloody lion, to waste and destroy the people of God.

3. The law permitteth the bestower of a benefit to interpret his own mind in the bestowing of a benefit, even as a king and state must expone their own commission given to their ambassador, so must the estates expone whether they bestowed the crown upon the first king conditionally or absolutely.

4. If it stand, then must the people give to their first elected king a power to waste and destroy themselves, so as they may never control it, but only leave it to God and the king to reckon together, but so the condition is a chimera. “We give you a throne, upon condition you swear by Him who made heaven and earth, that you will govern us according to God’s law; and you shall be answerable to God only, not to us, whether you keep the covenant you make with us, or violate it.” But how a covenant can be made with the people, and the king obliged to God, not to the people, I conceive not. This presupposeth that the king, as king, cannot do any sin, or commit any act of tyranny against the people, but against God only; because if he be obliged to God only as a king, by virtue of his covenant, how can he fail against an obligation where there is no obligation? But, as a king, he oweth no obligation of duty to the people: and indeed so do our good men expound Psal. li., “Against thee, thee only have I sinned,” not against Uriah; for if he sinned not as king against Uriah, whose life he was obliged to preserve as a king, he was not obliged as a king by any royal duty to preserve his life. Where there is no sin, there is no obligation not to sin; and where there is no obligation not to sin, there is no sin. By this the king, as king, is loosed from all duties of the second table, being once made a king, he is above all obligation to love his neighbour as himself; for he is above all his neighbours, and above all mankind, and only less than God.

Arg. 4. — If the people be so given to the king, that they are committed to him as a pledge, oppignerated in his hand as a pupil to a tutor, as a distressed man to a patron, as a flock to a shepherd; and so they remain the Lord’s church, his people, his flock, his portion, his inheritance, his vineyard, his redeemed ones, then they cannot be given to the king as oxen and sheep, that are freely gifted to a man; or as a gift or sum of gold or silver that the man to whom they are given may use, so that he cannot commit a fault against the oxen, sheep, gold, or money that is given to him, however he shall dispose of them. But the people are given to the king to be tutored and protected of him, so as they remain the people of God, and in covenant with him; and if the people were the goods of fortune (as heathens say), he could no more sin against the people than a man can sin against his gold; now, though a man by adoring gold, or by lavish profusion and wasting of gold, may sin against God, yet not against gold; nor can he be in any covenant with gold, or under any obligation of either duty or sin to gold, or to lifeless and reasonless creatures properly, therefore he may sin in the use of them, and yet not sin against them, but against God. Hence, of necessity, the king must be under obligation to the Lord’s people in another manner than that he should only answer to God for the loss of men, as if men were worldly goods under his hand, and as if being a king he were now by this royal authority privileged from the best half of the law of nature, to wit, from acts of merry and truth, and covenant-keeping with his brethren.

Arg. 5. — If a king, because a king, were privileged from all covenant obligation to his subjects, then could no law of men lawfully reach him for any contract violated by him; then he could not be a debtor to his subjects if he borrowed money from them; and it were utterly unlawful either to crave him money, or to sue him at law for debts; yet our civil laws of Scotland tyeth the king to pay his debts, as any other man: yea, and king Solomon trafficing, and buying, and selling betwixt him and his own subjects, would seem unlawful; for how can a king buy and sell with his subjects, if he be under no covenant obligation to men, but to God only. Yes, then, a king could not marry a wife, for he could not come under a covenant to keep his body to her only, nor if he committed adultery, could he sin against his wife, because being immediate onto God, and above all obligation to men, he could sin against no covenant made with men, but only against God.

Arg. 6. — If that was a lawful covenant made by Asa, and the states of Judah, 2 Chron. 15, 13, “That whosoever would not seek the Lord God of their fathers, should be put to death, whether small or great, whether man or woman,” this obligeth the king, for ought I see, and the princes, and the people, but it was a lawful covenant; therefore the king is under a covenant to the princes and judges, as they are to him; it is replied by Barclaius: “If a master of a school should make a law, Whosoever shall go out at the school doors without liberty obtained of the master, shall be whipped, it will not oblige the schoolmaster that he shall be whipped if he go cut at the school doors without liberty; so neither doth this law oblige the king, the supreme lawgiver.”

Ans. 1. — Suppose that the scholars have no less hand and authority magisterial in making the law than the schoolmaster, as the princes of Judah had a collateral power with king Asa about that law, it would follow, that the schoolmaster is under the same law. 2. Suppose going out at school doors, were that way a moral neglect of studying in the master, as it is in the scholars, as the not seeking of God is as heinous a sin in king Asa, and no less deserving death, than it is in the people, then should the law oblige schoolmaster and scholar both without exception. 3. The schoolmaster is clearly above all laws of discipline which he imposeth on his scholars; but none can say that king Asa was clearly above that law of seeking of the Lord God of his fathers. Diodorus Siculus (l. 17), saith, the kings of Persia were under an oath, and that they might not change the laws; and so were the kings of Egypt and Ethiopia. The kings of Sparta, which Aristotle calleth just kings, renew their oath every month. Romulus so covenanted with the senate and people. Carolus V. Austriacus sweareth he shall not change the laws without the consent of the electors, nor make new laws, nor dispose or pledge any thing that belongeth to the empire. So read we Spec. Saxon, lib. 3, act. 54, and Xenophon (Cyroped. lib. 3,) saith there was a covenant between Cyrus and the Persians. The nobles are crowned when they crown their king, and exact a special oath of the king. So doth England, Poland, Spain, Arragonia, &c. Alber. Gentilis,[2] and Grotius,[3] prove that kings are really bound to perform oaths and contracts to their people; but “notwithstanding there be such a covenant, it followeth not from this, (saith Arnisæns)[4] that if the prince break his covenant and rule tyrannically, the people shall be free, and the contract or covenant nothing.” — Ans. The covenant may be materially broken, while the king remaineth king, and the subjects remain subjects; but when it is both materially and formally declared by the states to be broken, the people must be free from their allegiance; but of this more hereafter.

Arg. 7. — If a master bind himself by an oath to his servant, he shall not receive such a benefit of such a point of service; if he violate the oath, his oath must give his servant law and right both to challenge his master, and to be free from that point of service; an army appointeth such a one their leader and captain, but they refuse to do it except he swear he shall not betray them to the enemy. If he doth betray them, then must the soldiers be loosed from that contract. If one be appointed pilate of a ship, and not but by an oath, if he sell the passengers to the Turks, they may challenge the pilate of his oath; and it is clear that (1.) the estates should refuse the crown to him who would refuse to govern them according to God’s law, but should profess that he would make his own will a law, therefore the intention of the oath is clearly conditional. (2.) When the king sweareth the oath, he is but king in fieri, and so not as king above the states of kingdoms. Now his being king doth not put him in a case above all civil obligation of a king to his subjects, because the matter of the oath is, that he shall be under them so far in regard of the oath of God.

Arg. 8. — If the oath of God made to the people do not bind him to the people to govern according to law, and not according to his will and lust, it should be unlawful for any to swear such an oath, for if a power above law agree essentially to a king as a king, as royalists hold, he who swearetn such an oath should both swear to be a king to such a people, and should swear to be no king, in repect by his oath, he should renounce that which is essential to a king.

Arnisæus objecteth: Ex particularibus non potest colligi conclusio universalis, some few of the kings, as David and Joash, made a covenant with the people; it followeth not that this was an universal law. — Ans. Yea, the covenant is (Deut. 17.) and most be a rule to all; if so just a man as David was limited by a covenant, then all the rest also.

[1] Arnis. de authorit. prin. c. l. n. 6, 7.

[2] Alber. Gentilis in disput. Regal. lib. 2, c. 12, lib. 3, c. 14-16.

[3] Hugo Grotius de jure belli et pac. lib. 2.

[4] Arnisæus de authoritate princip. c. 1, n. 7, 8, 10.

Question XV

Whether or no the king be univocally, or only analogically, and by proportion, a father.

It is true Aristotle (Polit. l. 3, c. 11) saith, that the kingly power is a fatherly power; and Justin, (Novell 12, c. 2,) Paterquamvis legum contemptor, quamvis impius sit, tamen pater est. But I do not believe that, as royalists say, the kingly power is essentially and univocally that same with a paternal or fatherly power; or that adam, as a father, was as a father and king; and that suppose Adam should live in Noah’s days, that by divine institution and without consent of the kingdoms and communities on earth, Adam hoc ipso, and for no other reason but because he was a father, should also be the universal kingm, and monarch of the whole world; or suppose Adam was living to this day, that all kings that hath been since, and now are, held their crowns of him, and had no more kingly power than inferior judges in Scotland have, under our sovereign king Charles, for so all that hath been, and now are, lawful kings, should be unjust usurpers; for if fatherly power be the first and native power of commanding, it is against nature that a monarch who is not my father by generation, should take that power from me, and be a king over me and my children.

1. But I assert, first, that though the Word warrant us to esteem kings fathers, Isa. xlix. 23; Jud. v. 7; Gen. xx. 2, yet are not they essentially and formally fathers by generation; Num. xi. 12, “Have I conceived all this people? have I begotten them?” and yet are they but fathers metaphorically — by office, because they should care for them as fathers do for children, and so come under the name of fathers in the fifth commandment, and therefore rigorous and cruel rulers are leopards, and lions, and wolves, Ezek. xx. 27; Zeph. iii.3. If, then, tyrannous judges be not essentially and formally leopards and lions, but only metaphorically, neither can kings be formally fathers. 2. Not only kings but all judges are fathers, in defending their subjects from violence and the sword, and fighting the Lord’s battles for them, and counselling them. If, therefore, royalists argue rightly, a king is essentially a father, and fatherly power and royal power are of the same essence and nature. As, therefore, he who is once a father is ever a father, and his children cannot take up arms against him to resist him, for that is unnatural and repugnant to the fifth commandment; so he who is once a king is evermore a king, and it is repugnant to the fifth commandment to resist him with arms. It is answered, — that the argument presupposeth that royal power and fatherly power is one and the same in nature, whereas they differ in nature, and are only one by analogy and proportion; for so pastors of the Word are called fathers, 1 Cor. iv. 15, it will not follow, that once a pastor, evermore a pastor; and that if therefore pastors turn wolves, and by heretical doctrine corrupt the flock, they cannot be cast out of the church. 3. A father, as a father, hath not power of life and death over his sons, because, Rom. xiii., by divine institution the sword is given by God to kings and judges; and if Adam had had any such power to kill his son Cain for the killing of his brother Abel, it had been given to him by God as a power politic, different from a fatherly power; for a fatherly power is such as formally to preserve the life of the children, and not to take away the life; yea, and Adam, though he had never sinned, nor any of his posterity, Adam should have been a perfect father, as he is now indued with all fatherly power that any father now hath; yea God should not have given the sword or power of punishing ill-doers, since that power should have been in vain, if there had been no violence, nor bloodshed, or sin on the earth; for the power of the sword and of lawful war, is given to men now in the state of sin. 4. Fatherly government and power is from the bosom and marrow of that fountain law of nature; but royal power is not from the law of nature, more than is aristocratical or democratical power. Dr. Fern saith, (part 1, sec. 3, p. 8,) Monarchy is not jure divino, (I am not of his mind,) nor yet from the law of nature, but ductu natura, by the guidance of nature. Sure it is from a supervenient commandment of God, added to the first law of nature, establishing fatherly power. 5. Children having their life and first breathings of nature from their parents, must be in a more entire relation from their father than from their prince. Subjects have not their being natural, but their civil, politic and peaceable well-being from their prince. 6. A father is a father by generation, and giving the being of nature to children, and is a natural head and root, without the free consent and suffrages of his children, and is essentially a father to one child, as Adam was to one Cain; but a prince is a prince by the free suffrages of a community, and cannot be a king to one only, and he is the politic head of a civil corporation. 7. A father, so long as his children liveth, can never leave off to be a father, though he were mad and furious — though he be the most wicked man on earth. Qui genuit filium non potest non genuisse filium, what is once past cannot, by any power, be not past; a father is a father for ever. But by confession of royalists, as Barclaius, Hugo Grotius, and Arnisæus, and others, grant, If a king sell his subjects by sea or land to other nations, — if he turn a furious Nero, he may be dethroned; and the power that created the king under such express conditions, as if the king violate them by his own consent he shall be put from the throne–may cease to hold him king; and if a stronger king conquer a king and his subjects, royalists say the conqueror is a lawful king; and so the conquered king must also lawfully come down from his throne, and turn a lawful captive sitting in the dust. 8. Learned politicians, as Bartholomeus Romulus, (Defens. part 1, n. 153,) and Joannes de Anania (in c. fin. de his qui fil. occid.) teach that the father is not obliged to reveal the conspiracy of his son against his prince; nor is he more to accuse his son, than to accuse himself, because the father loveth the son better than himself. (D. Listi quidem. Sect. Fin. quod. met. caus. et D. L. fin. c. de cura furiosi,) and certainly a father had rather die in his own peson, as choose to die in his son’s, in whom he affecteth a sort of immortality, in specie, quando non potest in individuo; but a king doth not love his subjects with a natural or fatherly love thus; and if the affections differ, the power which secondeth the affection, for the conservation either of being, or well-being, must also differ proportionally.

The P. Prelate (c. 7, p. 87,) objecteth against us thus, stealing word by word from Arnisæus.[1] 1. When a king is elected sovereign to a multitude, he is surrogated in the place of a common father, Exod. xx. 12, “Honour thy father.” Then, as a natural father receiveth not paternal right, power, or authority, from his sons, but hath this from God and the ordinance of nature, nor can the king have his right from the community. 2. The maxim of the law is, Surrogatus gaudet privilegus ejus cui surrogatur, et qui succedit in locum, succedit in jus. The person surrogated hath all the privileges that he hath in whose place he succeedeth; he who succeedeth to the place succeedeth to the rights; the adopted son, or the bastard who is legitimated and cometh in the place of the lawful born son, cometh also in the privileges of the lawful born son. A prince elected cometh to the full possession of the majesty of a natural prince and father, for Modus acquirendi non tollit naturale jus possidendi (saith Arnisæus, more fully than the poor Plagiarius), the manner of acquiring any thing, taketh not away the natural possession, for however things be acquired, if the title be just, possession is the law of nations. Then when the king is chosen in place of the father, as the father hath a divine right by nature, (so must the king have that same;) and seeing the right proprietor (saith the pamphleting Prelate) had his right by God, by nature, how can it be but howsoever the designation of the person is from the disordered community, yet the collation of the power is from God immediately, and from his sacred and inviolable ordinance? And what can be said against the way by which any one elected obtained his right, for seeing God doth not now send Samuels or Elishas to anoint or declare kings, we are, in his ordinary providence, to conceive the designation of the person is the manifestation of God’s will, called voluntas signi, as the schools speak, just so as when the church designeth one to sacred orders.

Ans. 1. — He that is surrogated in the place of another, due to him by a positive law of man, he hath law to all the privileges that he hath in whose place he is surrogated, that is true. He who is made assignee to an obligation for a sum of money, hath all the rights that the principal party to whom the bond or obligation was made. He who cometh in the place of a mayor of a city, of a captain in an army, of a pilot in a ship, or of a pope, hath all the privileges and rights that his predecessors had by law. Jus succedit juri, persona jure predita personæ jure preditæ. So the law, so far as my reading can reach, — who profess myself a divine; — but that he who succeedeth to the place of a father by nature, should enjoy all the natural rights and privileges of the person to whom he succeedeth, I believe the law never dreamed it; for then the adopted son, coming in place of the natural son, hath right to the natural affection of the father. If any should adopt Maxwell the prelate, should he love him as the persuivant of Crail (Maxwell’s father) loved him, I conceive not. Hath the adopted son his life, his being, the figure bodily, the manners of the son in whose place he is adopted; or doth he naturally resemble the father as the natural son doth? The Prelate did not read this law in any approved jurist, though he did steal the argument from Arnisæus, and stole the citations of Homer and Aristotle out of him, with a little metathesis. A natural son is not made a son by the consent of parents, but he is a son by generation: so must the adopted son be adopted without the free consent and grace of the father adopting: so here the king cometh in the place of a natural father. But I conceive the law saith not that the elected king is a king without consent of the subjects, as a natural father is a father without the consent of his sons. Nor is it a law true, as “once a father always a father,” so once an elected king always a king, though he sell his subjects, being induced thereunto by wicked counsellors. If the king have no privileges but what the natural father hath, in whose place he cometh, then, as the natural father, in a free kingdom, hath not power of life and death over his sons, neither hath the king power of life and death over his subjects. This is no law. this maxim should prove good if the king were essentially a father by generation and natural propagation; but he is only a father metaphorically, and by a borrowed speech. A father non generando, sed politice alendo, tuendo, regendo, therefore an elected prince cometh not in the full possession of all the natural power and rights of a natural father. 2. The P. Prelate speaketh disgracefully of the church of God, calling it a disorderly community, as if he himself were born of kings, whereas God calleth the king their shepherd, and the people, “God’s flock, inheritance and people;” and they are not a disorderly body by nature, but by sin; in which sense the Prelate may call king, priest and people, a company of heirs of God’s wrath, except he be an Arminian still, as once he was. If we are in ordinary providence now, because we have not Samuels and prophets to anoint kings, to hold the designation of a person to be king to be the manifestation of God’s will, called voluntas signi, is treason, for if Scotland and England should design Maxwell in the place of king Charles our native sovereign, (an odious comparison,) Maxwell should be lawful king; for what is done by God’s will, called by our divines (they have it not from schoolmen, as the Prelate ignorantly saith) his signified will, which is our rule, is done lawfully. There can be no greater treason put in print than this.

[1]. Arnisæus de potest princip. c. 3, n. 1, 2.

Question XVI

Whether or no a despotical and masterly dominion of men and things agree to the king because he is king.

I may here dispute whether the king be lord, having a masterly dominion both over men and things. But I first discuss shortly his dominion over his subjects.

It is agreed on by divines that servitude is a penal fruit of sin, and against nature. Institutt. de jure personarum, Sect. 1, and F. de statu hominum. l. libertas; because all men are born by nature of equal condition.

Assert. 1. — The king hath no proper, masterly, or lordly dominion over his subjects; his dominion is rather fiduciary and ministerial, than masterly.

1. Because royal empire is essentially to feed, rule, defend, and to govern in peace and godliness, (1 Tim. 2:2,) as the father doth his children; Psal. 78:71, “He brought him to feed Jacob his people, and Israel his inheritance;” Isa. 55:4, “I gave him for a leader and commander to the people;” 2 Sam. 5:2, “Thou shalt feed my people Israel;” 2 Sam. 5:2; 1 Chron. 11:2; 1 Chron 17:6.) And so it is for the good of the people, and to bring those over whom he is a feeder and ruler, to such a happy end; and, as saith Althusius, (polit. c. 1, n. 13,) and Marius Salomonius, (de princ. c. 2,) it is to take care of the good of those over whom the ruler is set, and, conservare est, rem illæsam servare, to keep a thing safe. But to be a master, and to have a masterly and lordly power over slaves and servants, is to make use of servants for the owner’s benefit, not for the good of the slave, (l, w, de leg, l, Servus de servit. expert. Danoelig; polit. l. 1, Tolossan. de Rep. l. 1, c. 1, n. 15, 16,) therefore are servants bought and sold as goods, (jure belli. F. de statu hominum l. et servorum.)

2. Not to be under governors and magistrates is a judgment of God, (Isa. 3:6, 7; 3:1; Hos. 3:4; Judg. 19:1, 2,) but not to be under a master as slaves are, is a blessing, seeing freedom is a blessing of God, (John 8:33; Exod. 21:2, 26, 27; Deut. 15:12;) so he that killeth Goliath, (1 Sam. 17:25,) his father’s house shall be free in Israel. (Jer. 34:9; Acts 22:28; 1 Cor. 9:19; Gal. r:26, 31.) Therefore the power of a king cannot be a lordly and masterly power; for then to be under a kingly power should both be a blessing and a curse, and just punishment of sin.

3. Subjects are called the servants of the king, (1 Sam. 15:2; 2 Chron. 13:7; 1 Kings 12:7; Exod. 10:1, 2; Exod. 9:20,) but they are not slaves, because (Deut. 17:20) they are his brethren: “That the king’s heart be not lifted up against his brethren;” and his sons; (Isa. 49:23;) and the Lord gave his people a king as a blessing, (1 Kings 10:9; Hos. 1:11; Isa. 1:26; Jer. 17:25,) and “brought them out of the house of bondage,” (Exod. 20:2,) as out of a place of misery. And therefore to be the king’s servants in the place cited, is some other thing than to be the king’s slaves.

4. The master might in some cases sell the servant for money, yea for his own gain he might do it, (Nehem. 5:8; Eccles. 2:7; 1 Kings 2:32; Gen. 9:25; Gen. 26:14; 2 Kings 4:1; Gen. 20:14, and might give away his servants; and the servants were the proper goods and riches of the master; (Eccles. 2:7; Gen. 30:43; Gen. 20:14; Job 1:3, 15); but the king may not sell his kingdom or subjects, or give them away for money, or any other way; for royalists grant that king to be a tyrant, and worthy to be dethroned, who shall sell his people; for the king may not dilapidate the rents of the crown and give them away to the hurt and prejudice of his successors, (l. ult. Sect. sed nostr. c. Comment. de lege, l. peto, 69, Sect. fratrem de lege, 2, l. 32, ultimo, D. T.) and far less can he lawfully sell men, and give away a whole kingdom to the hurt of his successors, for that were to make merchandise of the living temples of the Holy Ghost; and Arnisæus, (de authorit. princip. c. 3, n. 7,) saith, servitude is præter naturam, beside nature; he might have said, contrary to nature (l. 5, de stat. homin. Sect. 2, Inst. de jur. perso. c. 3, et Novel. 89); but the subjection of subjects is so consonant to nature, that it is seen in bees and cranes. Therefore a dominion is defined, a faculty of using of things to what uses you will. Now a man hath not this way an absolute dominion over his beasts, to dispose of them at his will; for a good man hath mercy on the life of his beast, (Prov. 12:10,) nor hath he dominion over his goods to use them as he will, because he may not use them to the dishonour of God; and so God and the magistrate hath laid some bound on his dominion. And because the king being made a king leaveth not off to be a reasonable creature, he must be under a law, and so his will and lust cannot be the rule of his power and dominion, but law and reason must regulate him. Now if God had given to the king a dominion over men as reasonable creatures, his power and dominion which by royalists is conceived to be above law, should be a rule to man as reasonable men, which would make men under kings no better than brute beasts, for then should subjects exercise acts of reason, not because good and honest, but because their prince commandeth them so to do; and if this cannot be said, none can be at the disposing of kings in politic acts liable to royal government, that way that the slave is in his actions under the dominion of his master.

Obj. 1. — The Prelate objecteth out of Salato, Arnisæus, and Hugo Grotius, (for in his book there is not one line which is his own, except his railings;) All government and superiority in rulers is not primely and only for the subjects’ good; for some are by God and nature appointed for the mutual and inseparable good of the superior and inferior, as in the government of husband and wife, or father and son; and in herili dominio, in the government of a lord and his servant,the good and benefit of the servant is but secondary and consecutively intended, it is not the principal end, but the external and adventitious, as the gain that cometh to a physician is not the proper and internal end of his art, but followeth only from his practice of medicine.

Ans. — 1. The Prelate’s logic tendeth to this; some government tendeth to the mutual good of the superior and inferior, but royal government is some government, therefore, nothing followeth from a major proposition, Ex particulari affirmante, in prima figura; or of two particular propositions. 2. If it be thus formed, every marital government, and every government of the lord and servant is for the mutual good of the superior and inferior; but royal government is such, therefore the assumption is false, and cannot be proved, as I shall anon clear.

Obj. 2. — Solomon disposed of Cabul and gave it to Hiram, therefore a conquered kingdom is for the good of the conqueror especially.

Ans.— Solomon’s special giving away some titles to the king of Tyre, being a special act of a prophet as well as a king, cannot warrant the king of England to sell England to a foreign prince, because William made England his own by conquest, which also is a most false supposition; and this he stole from Hugo Grotius, who condemneth selling of kingdoms.

Obj. 3. — A man may render himself totally under the power of a master without any conditions; and why may not the body of a people do the like? even to have peace and safety, surrender themselves fully to the power of a king? A lord of great manors may admit no man to live in his lands but upon a condition of a full surrender of him and his posterity to that lord. Tacitus sheweth us it was so anciently amongst the Germans: those engaged in the campaigns surrendered themselves fully to the Romans.

Ans.— What compelled people may do to redeem their lives, with loss of liberty, is nothing to the point; such a violent conqueror who will be a father and a husband to a people, against their will, is not their lawful king; and that they may sell the liberty of their posterity, not yet born, is utterly denied as unlawful; yea, a volentated father to me is a father, and not a father, and the posterity may vindicate their own liberty given away unjustly, before they were born, Qua omne regnum vi partum potest vi dissolvi.

Obj. 4. — But (saith Dr Ferne) these which are ours, and given away to another, in which there redoundeth to God by donation a special interest, as in things devoted to holy uses, though after they be abused, yet we cannot recal them; therefore, if the people be once forced to give away their liberty, they cannot recal it, far less if they willingly resign it to their prince.

Ans.— 1. This is not true, when the power is given for the conservation of the kingdom, and is abused for the destruction thereof; for a power to destruction was never given, nor can it, by rational nature, be given. Mortifications given to religious uses by a positive law, may be recalled by a more divine and stronger law of nature, such as this, — “I will have mercy and not sacrifice.” Suppose David, of his own proper heritage, had given the shew-bread to the priests; yet, when David and his men are famishing, he may take it back from them against their will. Suppose Christ had bought the ears of corn, and dedicated them to the altar, yet might he and his disciples eat them in their hunger. The vessels of silver, dedicated to the church, may be taken and bestowed on wounded soldiers. 2. A people free may not, and ought not, totally surrender their liberty to a prince, confiding on his goodness. (1.) Because libety is a condition of nature that all men are born with, and they are not to give it away — no, not to a king, except in part and for the better, that they may have peace and justice for it, which is better for them, hic et nunc. (2.) If a people, trusting in the goodness of their prince, enslave themselves to him, and he shall after turn tyrant, a rash and temerarious surrender obligeth not, Et ignorantia facit factum quasi involuntarium. Ignorance maketh the fact some way involuntary; for if the people had believed that a meek king would have turned a roaring lion, they should not have resigned their liberty into his hand; and, therefore, the surrender was tacitly conditional to the king as meek, or whom they believed to be meek, and not to a tyrannous lord; and, therefore, when the contract is made for the utility of the one party, the law saith, their place is for after wits, that men may change their mind and resume their liberty, though, if they had given away their liberty for money, they cannot recal it; and if violence made the surrender of liberty, here is slavery; and slaves taken in war, so soon as they can escape and return to their own, they are free. (D. Sect. item. ea justit. de rerum divin. l. nihil. F. de capt. l. 3.) So the learned Ferdin. Vasquez (illust. l. 2, c. 82, n. 15.) saith, “The bird that was taken, and hath escaped is free.” Nature in a forced people, so soon as they can escape from a violent conqueror, maketh them a free people; and si solo tempore(saith Ferd. Vasquez, l. 2, c. 82, n. 6,) justificatur subjectio, solo tempore facilius justificabitur liberatio.

Assert. 2. — All the goods of the subjects belongeth not to the king. I presuppose that the division of goods doth not necessarily flow from the law of nature, for God made man, beore the fall, lord of the creatures indefinitely; but what goods be Peter’s, and not Paul’s, we know not. But supposing man’s sin, thought the light of the sun and air be common to all, and religious places be proper to none, yet it is morally impossible that there should not be a distinction of meum et tuum, mine and thine; and the decalogue forbidding theft, and coveting the wife of another man, (yet is she the wife of Peter, not of Thomas, by free election, not by an act of nature’s law,) doth evidence to us, that the division of things is so far forth (men now being in the state of sin) of the law of nature, that it hath evident ground in the law of nations; and thus far natural, that the heat that I have from my own coat and cloak, and the nourishment from my own meat, are physically incommunicable to any.[1] But I hasten to prove the proposition: — If, 1. I have leave to permit that, in time of necessity, all things are common by God’s law— a man travelling might eat grapes in his neighbour’s vineyard, though he was not licensed to carry any way. I doubt if David, wanting money, was necessitated to pay money for the shew-bread, or for Goliath’s sword, supposing these to be the very goods of private men, and ordinarily to be bought and sold. Nature’s law in extremity, for self-preservation, hath rather a prerogative royal above all laws of nations and all civil laws, than any mortal king; and, therefore, by the civil law, all are the king’s, in case of extreme necessity. In this meaning, any one man is obliged to give all he hath for the good of the commonwealth, and so far the good of the king, in as far as he is head and father of the commonwealth.[2] 2. All things are the king’s in regard of his public power to defend all men and their goods from unjust violence. 3. All are the king’s, in regard of his act of conservation of goods, for the use of the just owner. 4. All are the king’s in regard of a legal limitation, in case of a damage offered to the commonwealth. Justice requireth confiscation of goods for a fault; but confiscated goods are to help the interested commonwealth, and the king, not as a man (to bestow them on his children) but as a king. To this we may refer these called bona caduca et inventa, things lost by shipwreck or any other providence, Ulpian, tit. 19, t. c. de bonis vacantibus. C. de Thesauro.

Arg. 1. — And the reasons why private men are just lotds and proprietors of their own goods, are, — 1. Because, by order of nature, division of goods cometh nearer to nature’s law and necessity than any king or magistrate in the world; and because it is agreeable to nature that every man be warmed by his own fleece— nourished by his own meat, therefore, to conserve every man’s goods to the just owner, and to preserve a community from the violence of rapine and theft, a magistrate and king was devised. So it is clear, men are just owners of their own goods, by all good order, both of nature and time, before there be any such thing as a king or magistrate. Now, if it be good that every man enjoy his own goods, as just proprietor thereof, for his own use, before there be a king, who can be proprietor of his goods? And a king being given of God for a blessing, not for any man’s hurt and loww, the king cometh in to preserve a man’s goods, but not to be lord and owner thereof himself, nor to take from any man God’s right to his own goods.

Arg. 2. — When God created man at the beginning, he made all the creatures for man, and made them by the law of nature the proper possession of man, but then there was not any king formally as king’ for certainly Adam was a father before he was a king, and no man being either born or created a king over another man, no more than the first lion and the first eagle that God created, were by the birthright and first start of creation, by nature the king of all lions and all eagles to be after created, — no man can, by nature’s law, be the owner of all goods of particular men. And because the law of nations, founded upon the law of nature hath brought in meum et tuum, mine and thine, as proper to every particular man, and the introduction of kings cannot overturn nature’s foundation; neither civility nor grace destroyeth but perfecteth nature; and if a man be not born a king, because he is a man, he cannot be born the possessor of my goods.

Arg. 3. — What is a character and note of a tyrant, and an oppressing king as a tyrant, is not the just due of a king as a king; but to take the proper goods of subjects, and use them as his own, is a proper character and note of a tyrant and oppressor; therefore the proposition is evident: A king and a tyrant are, by way of contradiction, contrary one to another. The assumption is proved thus:— Ezek. 45:9, 10, “Thus saith the Lord, Let it suffice you, O princes of Israel: remove violence and spoil, and execute judgment and justice; take away your exactions from my people, saith the Lord. Ye shall have just balances, and a just ephah, and a just bath.” If all be the king’s, he is not capable of extortion and rapine. God complaineth of the violence of kings, Micah 3:1, 3, “Is it not for you to know judgment? who also eat the flesh of my people, and flay their skins from off them; and they break their bones and chop them in pieces, as for the pot, and as flesh within the chaldron.” (Isa 3:14; Zeph. 3:3.) Was it a just fault that Hybreas objected to Antonius, exacting two tributes in one year, that he said, “If thou must have two tributes in one year, then make for us two summers and two harvests in one year?” This cannot be just. If all be the king’s, the king taketh but his own.

Arg. 4. — Subjects under a monarch could not give alms, nor exercise works of charity;[3] for charity must be my own, Isa. 58:7, “Is it not to deal thy bread to the hungry,” &c.; Eccles. 11:1, “Cast thy bread upon the waters;” and the law saith, “It is theft to give of another man’s to the poor;” yea the distinction of poor and rich should have no place under a monarchy, he only should be rich.

Arg. 5. — When Paul commandeth us to pay tribute to princes (Rom. 13:6) because they are the ministers of God, he layeth this ground, that the king hath not all, but that the subjects are to give to him of their goods.

Arg. 6. — It is the king’s place, by justice, to preserve every man in his own right and under his own fig-tree; therefore, it is not the king’s house.

Arg. 7. — Even Pharaoh could not make all the victual of the land his own, while he had bought it with money; and every thing is presumed to be free (allodialis, free land,) except the king prove that it is bought or purchased. L. actius, C. de servit, et aqua. et Joan. And. m. C. F. de ind. et hosti. in C. minus de jur.

Arg. 8. — If the subjects had no propriety in their own goods, but all were the prince’s due, then the subject should not be able to make any contract of buying and selling without the king, and every subject were in the case of a slave. Now the law saith, (L. 2. F. de Noxali. act. l. 2. F. ad legem aquil.) When he maketh any covenant, he is not obliged civilly to keep it, because the condition of a servant, he not being sui juris, is compared to the state of a beast, though he be obliged by a natural obligation, being a rational creature, in regard of the law of nature, L. naturaliter, L. si id quod, L. interdum, F. de cond. indebit. cum aliis. The subject could not, by Solomon, be forbidden to be surety for his friend, as king Solomon doth counsel, (Prov. 6:1-3;) he could not be condemned to bring on himself poverty by sluggishness, (as Prov. 6:6-10;) nor were he to honour the Lord with his riches, (as Prov. 3:9;) nor to keep his covenant, though to his loss, (Psal. 15:14;) nor could he be merciful and lend, (Psal. 37:26;) nor had he power to borrow; nor could he be guilty in not paying all again. (Psal. 37:21.) For subjects, under a monarchy, can neither perform a duty, nor fail in a duty, in the matter of goods. If all be the kings, what power or dominion hath the subject in disposing of his prince’s goods? See more in Petr. Rebuffus, tract. congruæ portionis, n. 225, p. 109, 110. Sed quoad dominium rerum, &c.

[1]Quod jure gentium dicitur. F. de justitia et jure, l. ex hoc. — Quod partim jure civili. Justi. de rerum divisio. sect. singulorum.

[2]L. item si verberatum. F. de rei vindicat. Jas. plene. m. lib. Barbarius. F. de offici. prætor.

[3]Species enim furti est de alieno largiri, et beneficii debitorein sibi acquirere, L. si pignore, sect. de furt.

Question XVII

Whether or not the prince have properly a fiduciary and ministerial power of a tutor, husband, patron, minister, head, father of a family, not of a lord or dominator.

That the power of the king is fiduciary, that is, given to him immediately by God in trust, royalists deny not; but we hold that the trust is put upon the king by the people. We deny that the people give themselves to the king as a gift, for what is freely given cannot be taken again; but they gave themselves to the king as a pawn, and if the pawn be abused, or not used in that manner as it was conditioned to be used, the party in whose hand the pawn is intrusted, faileth in his trust.

Assert. 1. — The king is more properly a tutor than a father. 1. Indigency is the original of tutors — the parents die; what then shall become of the orphan and his inheritance? He cannot guide it himself, therefore nature devised a tutor to supply the place of a father, and to govern the tutor; but, with this consideration, the father is lord of the inheritance, and if he be distressed, may sell it, that it shall never come to the son, and the father, for the bad deserving of his son, may disinherit him; but the tutor, being but a borrowed father, cannot sell the inheritance of the pupil, nor can he, for the pupil’s bad deserving, by any dominion of justice over the pupil, take away the inheritance from him, and give it to his own son. So a community of itself, because of sin, is a naked society that can but destroy itself, and every one eat the flesh of his brother; therefore God hath appointed a king or governor, who shall take care of that community, rule them in peace, and save all from reciprocation of mutual acts of violence, yet so as, because a trust is put on the ruler of a community which is not his heritage, he cannot dispose of it as he pleaseth, because he is not the proper owner of the inheritance. 2. The pupil, when he cometh to age, may call his tutor to an account for his administration. I do not acknowledge that as a truth, which Arnisæus saith, (de authoritate prin. c. 3, n. 5,) “The commonwealth is always minor and under tutory, because it alway hath need of a curator and governor, and can never put away its governor; but the pupil may grow to age and wisdom, so as he may be without all tutors and can guide himself, and so may call in question on his tutor; and the pupil cannot be his judge, but must stand to the sentence of a superior judge, and so the people cannot judge or punish their prince — God must be judge betwixt them both.”

But this is begging the question; every comparison halteth. There is no community but is major in this, that it can appoint its own tutors; and though it cannot be without all rulers, yet it may well be without this or that prince and ruler, and, therefore, may resume its power, which it gave conditionally to the ruler for its own safety and good; and in so far as this condition is violated, and power turned to the destruction of the commonwealth, it is to be esteemed as not given; and though the people be not a politic judge in their own cause, yet in case of manifest oppression, nature can teach them to oppose defensive violence against offensive. A community in its politic body is also above any ruler, and may judge what is manifestly destructive to itself.

Obj. — The pupil hath not power to appoint his own tutor, nor doth he give power to him; so neither doth the people give it to the king.

Ans. — The pupil hath not indeed a formal power to make a tutor, but he hath virtually a legal power in his father, who appointeth a tutor for his son; and the people hath virtually all royal power in them, as in a sort of immortal and eternal fountain, and may create to themselves many kings.

Assert. 2. — The king’s power is not properly and univocally a marital and husbandly power, but only analogically. 1. The wife by nature is the weaker vessel, and inferior to the man, but the kingdom, as shall be demonstrated, is superior to the king. 2. The wife is given as an help to the man, but by the contrary, the father here is given as an help and father to the commonwealth, which is presumed to be the wife. 3. Marital and husbandly power is natural, though it be not natural but from free election that Peter is Ana’s husband, and should have been, though man had never sinned; but royal power is a politic constitution, and the world might have subsisted though aristocracy or democracy had been the only and perpetual governments. So let the Prelate glory in his borrowed logic; he had it from Barclay. “It is not in the power of the wife to repudiate her husband, though never so wicked. She is tyed to him for ever, and may not give to him a bill of divorcement, as by law the husband might give to her. If therefore the people swear loyalty to him, they keep it, though to their hurt.” Psal. 15. — Ans. There is nothing here said, except Barclay and the Plagiary prove that the king’s power is properly a husband’s power, which they cannot prove but from a simile that crooketh. But a king, elected upon conditions, that if he sell his people he shall lose his crown, is as essentially a king as Adam was Eve’s husband, and yet, by grant of parties, the people may never divorce from such a king, and dethrone him, if he sell his people; but a wife may divorce from her husband, as the argument saith. And this poor argument the Prelate stole from Dr Ferne (part2, sect. 3, p. 10, 11). The keeping of covenant, though to our hurt, is a penal hurt, and loss of goods, not a moral hurt, and loss of religion.

Assert. 3. — The king is more properly a sort of patron, to defend the people, (and therefore hath no power given either by God or man to hurt the people,) and a minister, or public and honourable servant, (Rom. 13:4.) for he is the minister of God to thee for good. 1. He is the commonwealth’s servant objectively, because all the king’s service, as he is king, is for the good, safety, peace and salvation of the people, and in this he is a servant. 2. He is the servant of the people representatively, in that the people hath impawned in his hand all their power to do royal service.

Obj. 1. — He is the servant of God, therefore he is not the people’s servant, but their sovereign lord.

Ans. — It followeth not; because all the services the king, as king, performeth to God, are acts of royalty, and acts of royal service, as terminated on the people, or acts of their sovereign lord; and this proveth, that to be their sovereign is to be their servant and watchman.

Obj. 2. — God maketh a king only, and the kingly power is in him only, not in the people.

Ans. — 1. The royal power is only from God immediately, — immediatione simplicis constitutionis, et solum a Deo solitudine primæ causæ, — by the immediation of simple constitution, none but God appointed there should be kings. But, 2. Royal power is not in God, nor only from God,immediatione applicationis regiæ dignitatis ad personam, nec a Deo solum, solitudine causæ applicantis dignitatem, huic, non illi, in respect of the applying of royal dignity to this person, not to that.

Obj. 3. — Though royal power were given to the people, it is not given to the people as if it were the royal power of the people and not the royal power of God, neither is it any otherwise bestowed on the people but as on a beam, a channel, an instrument by which it is derived to others, and so the king is not the minister of servant of the people.

Ans. — It is not in the people as in the principal cause; sure all royal power that way is only in god; but it is in the people as in the instrument, and when the people maketh David their king at Hebron, in that same very act, God, by the people using their free suffrages and consent, maketh David king at Hebron; so God only giveth rain, and none of the vanities and supposed gods of the Gentiles can give rain, (Jer. 14:22,) and yet the clouds also give rain, as nature, as an organ and vessel out of which God poureth down rain upon the dry earth; (Amos 9:6;) and every instrument under God that is properly an instrument, is a sort of vicarious cause in God’s room, and so the people as in God’s room applieth royal power to David, not to any of Saul’s sons, and appointeth David to be their royal servant to govern, and in that to serve God, and to do that which a community now in the state of sin cannot formally do themselves; and so I see not how it is a service to the people, not only objectively, because the king’s royal service tendeth to the good, and peace, and safety of the people, but also subjectively, in regard he hath his power and royal authority which he exerciseth as king from the people under God, as God’s instruments; and, therefore, the king and parliament give out laws and statutes in the name of the whole people of the land; and they are but flatterers, and belie the Holy Ghost, who teach that the people do not make the king; for Israel made Saul king at Mizpeh, and Israel made David king at Hebron.

Obj. 4. — Israel made David king, that is, Israel designed David’s person to be king, and Isreal consented to God’s act of making David king, but they did not make David king.

Ans. — I say not that Israel made the royal dignity of kings: God (Deut. 17.) instituted that himself; but the royalist must give us an act of God going before an act of the people’s making David or no king is made formally a king; and then another act of the people, approving only and consenting to that act of God, whereby David is made formally of no king to be a king. This royalists shall never instruct, for there be only two acts of God here; 1. God’s act of anointing David by the hand of Samuel; and 2. God’s act of making David king at Hebron; and a third they shall never give. But the former is not that by which David was essentially and formally changed from the state of a private subject and no king, into the state of a public judge and supreme lord and king; for (as I have proved) after this act of anointing of David king, he was designed only and set apart to be king in the Lord’s fit time; and after this anointing, he was no more formally a king than Doeg or Nabal were kings, but a subject who called Saul the Lord’s anointed and king, and obeyed him as another subject doth his king; but it is certain God by no other act made David king at Hebron, than by Israel’s act of free electing him to be king and leader of the Lord’s people, as God by no other act sendeth down rain on the earth, but by his melting the clouds, and causing rain to fall on the earth; and therefore to say Israel made David king at Hebron, that is, Israel approved only and consented to a prior act of God’s making David king, is just to say Saul prophecied, that is, Saul consented to a prior act of the Spirit of God who prophecied; and Peter preached, (Acts 2.) that is, Peter approved and consented to the Holy Ghost’s act of preaching, which to say, is childish.

Assert. 4. — The king is an head of the commonwealth only metaphorically, by a borrowed speech in a politic sense, because he ruleth, commandeth, directeth the whole politic body in all their operations and functions. But he is not univocally and essentially the head of the commonwealth. 1. The very same life in number that is in the head, is in the members; there be divers distinct souls and lives in the king and in his subjects. 2. The head natural is not made an head by the free election and consent of arms, shoulders, legs, toes, fingers, &c. The king is made king only by the free election of his people. 3. The natural head, so long as the person liveth, is ever the head, and cannot cease to be a head while it is seated on the shoulders; the king, if he sell his people’s persons and souls, may leave off to be a king and head. 4. The head and members live together and die together, the king and the people are not so; the king may die and the people live. 5. The natural head cannot destroy the members and preserve itself; but king Nero may waste and destroy his people. Dr Ferne, M. Symmons, the P. Prelate, when they draw arguments from the head, do but dream, as the members should not resist the head. Natural members should not or cannot resist the head, though the hand may pull a tooth out of the head, which is no small violence to the head; but the members of a politic body may resist the politic head. This or that king is not the adequate and total politic head of the commonwealth; and therefore though you cut off a politic head, there is nothing done against nature. If you cut off all kings of the royal line, and all governors aristocratical, both king and parliament, this were against nature; and a commonwealth which would cut off all governors and all heads, should go against nature and run to ruin quickly. I conceive a society of reasonable men cannot want governors. 6. The natural head communicateth life, sense, and motion to the members, and is the seat of external and internal senses; the king is not so.

Assert. 5. — Hence the king is not properly the head of a family, for as Tholossa saith well, (de Rep. l. 5, c. 5,) Nature hath one intention in making the thumb, another intention in making the whole hand, another in forming the body; so there is one intention of the God of nature in governing of one man, another in governing a family, another in governing a city: nor is the thumb king of all the members; so domestic government is not monarchical properly. 1. The mother hath a parental power as the father hath, (Prov. 4:5; 10:3; 31:17,) so the fifth commandment saith, “Honour thy father and thy mother.”2. Domestic government is natural, monarchical politic. 3. Domestic is necessary, monarchical is not necessary; other government may be as well as it. 4. Domestic is universal, monarchical not so. 5. Domestic hath its rise from natural instinct without any farther instruction; a monarchical government is not but from election, choosing one government, not another. Hence that is a fiduciary power, or a power of trust, wherein the thing put in trust is not either his own proper heritage or gift, so as he may dispose of it as he pleaseth, as men dispose of their goods or heritage. But the king may not dispose of men as men, as he pleaseth; nor of laws as he pleaseth; nor of governing men, killing or keeping alive, punishing and rewarding, as he pleaseth. My life and religion, and so my soul, in some cases, are committed to the king as to a public watchman, even as a flock to the feeder, the city to the watchmen; and he may betray it to the enemy. Therefore, he hath the trust of life and religion, and hath both tables of the law in his custody, ex officio, to see that other men than himself keep the law. But the law is not the king’s own, but given to him in trust. He who receiveth a kingdom conditionally, and may be dethroned if he sell it or put it away to any other, is a fiduciary patron, and hath it only in trust. So Hottoman, (quest. ill. 1;) Ferdinand. Vasquez, (illust. quest. l. 1, c. 4.) Althusius, (polit. c. 24, n. 35,) so saith the law of every factor or deputy, (l. 40, l. 63, procur. l. 16, C. dict. 1.) Antigonus dixit regnum esse nobilem servitutem. Tyberius Caelig;sar called the senate, dominum suum, his lord. (Suetonius in vita Tiberii, c. 29.)

Question XVIII

What is the law of the king, and his power?

Sam. viii.11. “This will be the manner of the king who shall reign over you,” &c,

This place, (1 Sam. viii. 11,) the law or manner of the king is alleged to prove both the absolute power of kings, and the unlawfulness of resistance; therefore I crave leave here to vindicate the place, and to make it evident to all that the place speaketh for no such matter. Grotius argueth thus:[1] “that by this place, the people oppressed with injuries of a tyrannous king have nothing left them but prayers and cries to God; and therefore there is no ground for violent resisting.” Barclay[2] will have us to distinguish inter officium regis, et potestatem, between the king’s office and the king’s power; and he will have the Lord here speaking, not of the king’s office, what he ought to do before God, but what power a king hath beside and above the power of judges, to tyrannise over the people, so as the people hath no power to resist it. He will have the office of the king spoken of Deut. xvii., and the power of the king, 1 Sam, viii., and that power which the people was to obey and submit unto without resisting. But I answer, 1. It is a vain thing to distinguish betwixt the office and the power; for the power is either a power to rule according to God’s law, as he is commanded, (Deut. xvii.) and this is the very office or official power which the King of kings hath given to all kings under him, and this is a power of the royal office of a king, to govern for the Lord his Maker; or this is a power to do ill and tyrannise over God’s people; but this is accidental to a king and the character of a tyrant, and is not from God, and so the law of the king in this place must be the tyranny of the king, which is our very mind. 2. “Reges sine dominatione ne concipi quidem possunt; — judices dominationem in populum minime habebant.”[3] Hence it is clear that Barclay saith, that the judges of Israel and the kings are different in essence and nature; so that domination is so essential to a king, that you cannot conceive a king but he must have domination, whereas the judges of Israel had no domination over the people. Hence I argue, that whereby a king is essentially distinguished from a judge that must be from God; but by domination, which is a power to oppress the subject, a king is essentially distinguished from a judge of Israel; therefore, domination and a power to do acts of tyranny, as they are expressed, (ver. 11-13,) and to oppress a subject, is from God, and so must be a lawful power. But the conclusion is absurd; the assumption is the doctrine of Barclay. The major proposition I prove. 1. Because both the judge and the king was from God; for God gave Moses a lawful calling to be a judge, so did he to Eli and to Samuel, and hence (Deut. xvii, 15) the king is a lawful ordinance of God. If then the judge and the king be both lawful ordinances, and if they differ essentially, as Barclay saith, then that specific form which distinguished the one from the other, to wit, domination and a power to destroy the subject, must be from God; which is blasphemous: for God can give no moral power to do wickedly: for chat is licence, and a power to sin against a law of God, which is absolutely inconsistent with the holiness of God; for so the Lord might deny himself, and dispense with sin. God avert such blasphemies! 2. Now if the kingly power be from God, that which essentially and specifically constituteth a king must be from God, as the office itself is from God. Barclay saith[4] expressly that the kingly power is from God, and that same, which is the specific form that constituteth a king, must be that which essentially separateth the king from the judge, if they be essentially different, as Barclay dreameth. Hence have we this jus regis, this manner or law of the king to tyrannise and oppress, to be a power from God, and so a lawful power, by which you shall have this result of Barclay’s interpretation, — that God made a tyrant as well as a king. 3, By this difference that Barclay putteth betwixt the king and the judge, the judge might be resisted; for he had not this power of domination that Saul hath, contrary to Rom. xiii. 2; Exod. xxii. 28; xx. 12.

But let us try the text [1 Sam. 8:11] first, [email protected]+p%a#;Omi the word cannot enforce us to expone +p%a#;Omi a law, our English rendereth, Show them the manner of the king. Arri. Montanus turneth it ratio regis.[5] I grant the LXX[27]. render it, to\ dikai/wma tou~ basile/wj.[6] The Chaldee Paraphrase saith,[7] Statutum regis. Hieronimus translateth it jus regis, and also Calvin; but I am sure the Hebrew, both in words and sense, beareth a consuetude; yea, and the word +p%a#;Omi signifieth not always a law, as, (Josh. vi. 14 [15],) “They compassed the city +p%f#;[email protected]@a seven times:” the LXX. kata\ to\n kri/ma touto/ [28]; 2 Kings xvii 26, They “know not the manner of the God of the land; (ver. 33) they served their own gods, after the manner of the heathen.” MyIwOg%ha +p%a#;Omik@; cannot be according to the law or right of the heathen, except +p%a#;Omi, be taken in an evil part: the LXX. [ver. 33] kata/ to\ kri/ma tw~n e0qnw~n, ver. 34, “Until this day they do after these manners;” 1 Kings xviii. 28, Baal’s priests “cut themselves with knives M+fp%f#;Omik@; after their manner:” the LXX. kata/ to\n 0e0qismo\n; Gen. xl. 13, Thou shalt give the cup to Pharaoh, according as thou wast wont to do; +p%a#;Omik@; Exod. xxi. 9, “He shall deal with her after the manner of daughters;” 1 Sam. xxvii. 11,”And David saved neither man nor woman alive, to bring tidings to Gath, saying, So did David, and so will his manner be,” wO+p%f#;Omi . It cannot be they meant that it was David’s law, right, or privilege, to spare none alive; 1 Sam. ii. 13, “And the priests’ custom with the people was,” etc. [email protected]+p%a#;Omiw% . This was a wicked custom, not a law; and the LXX. turneth it, kai\ to\ dikai/wma tou~ i9ere/wv: and therefore dikai/wma is not always taken in a good meaning: so P. Martyr,[8] “He meaneth here of an usurped law;” Calvin,[9] Non jus a deo prescriptum, sed tyranidem, — “He speaketh not of God’s law here, but of tyranny;” and Rivetus,[10] +p%a#;Omi signifieth not ever jus, law. Sed aliquando inorem sive modum et rationem agendi, — “The custom and manner of doing:” so Junius[11] and Tremellius. Diodatus[12] exponeth jus, — This law, “namely, (saith he,) that which is now grown to a common custom, by the consent of nations and God’s toleration.” Glossa,[13] (to speak of papists,) Exactionem et dominationem, — “The extortion and domination of king Saul is here meant;” Lyra[14] exponeth it tyranny; Tostatus Abuleas.,[15] “He meaneth here of kings indefinitely who oppressed the people with taxes and tributes, as Solomon and others;” Cornelius à Lapide,[16] “This was an unjust law;” Cajetanus[17] calleth it tyranny; Hugo Cardinal, nameth them, exactiones et servitutes, — “exactions and slaveries;” and Serrarius speaketh not here, Quid Reges jure possint. — “What they may do by right and law:” Sed quid audeant, —”What they will be bold to do, and what they tyranically decern against all laws of nature and humanity;” and so speaketh Thom. Aquinas;[18] so also Mendoza[19] speaketh of the “law of tyrants;” and, amongst the fathers, Clemens Alexandrinus saith on this place, [20]Non humanum pollicetur dominum, sed insolentem daturum minatur tyrannum, — “He promiseth not a humane prince, but threateneth to give them an insolent tyrant;” and the like also saith Bede;[21] and an excellent lawyer, Pet. Rebuffus saith,[22] Etiam loquitur de tyranno qui non erat a Deo electus, and that he speaketh of Saul’s tyrannical usurpation, and not of the law prescribed by God, Deut. xvii., I prove, — 1. He speaketh of such a power as is answerable to the acts here spoken of; but the acts here spoken of are acts of mere tyranny; ver. 11, “And this will be the manner of your king that shall reign oyer you: he will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots.” Now, to make slaves of their sons was an act of tyranny. 2. To take their fields, and vineyards, and oliveyards from them, and give them to his servants, was no better than Ahab’s taking Naboth’s vineyard from him, which by God’s law he might not lawfully sell, except in the case of extreme poverty, and then, in the year of jubilee, he might redeem his own inheritance. 3. (Ver. 15, 16,) To put the people of God to bondage, and make them servants, was to deal with them as the tyrant Pharaoh did. 4. He speaketh of such a law, the execution whereof should “make them cry out to the Lord because of their king;” but the execution of the just law of the king (Deut. xvii.) is a blessing, and not a bondage which should make the people cry out of the bitterness of their spirit. 5. It is clear here that God is, by his prophet, not instructing the king in his duty, but, as Rabbi Levi Ben. Gersom. saith,[23] “Terrifying them from their purpose of seeking a king, and foretelling the evil of punishment that they should suffer under a tyrannous king;” but he speaketh not one word of these necessary and comfortable acts of favour that a good king, by his good government, was to do for his people. Deut. xvii. 15, 16. But he speaketh of contrary facts here; and that he is dissuading them from suiting a king is clear from the text. (1.) Because he saith, Give them their will; but yet protest against their unlawful course. (2.) He biddeth the prophet lay before them the tyranny and oppression of their king; which tyranny Saul exercised in his time, as the story showeth. (3.) Because how ineffectual Samuel’s exhortation was is set down, ver. 19, ” Nevertheless they would not obey the voice of Samuel, but said, Nay, but we will have a king over us.” If Samuel had not been dehorting them from a king, how could they be said in this to refuse to hear the voice of Samuel? 6. The ground of Barclay and royalists here is weak; for they say, That the people sought a king like the nations, and the kings of the nations were all absolute, and so tyrants; and God granted their unlawful desire, and gave them a tyrant to reign over them such as the nations had.[24] The plain contrary is true. They sought not a tyrant; but one of the special reasons why they sought a king was to be freed of tyranny; for 1 Sam. viii. 3, “Because Samuel’s sons turned aside after lucre, and took bribes, and perverted judgment; therefore all the elders of Israel gathered themselves together, and came to Samuel, to Ramah, and there they sought a king.” 7. One could not more clearly speak with the mouth of a false prophet than the author of “Active and Passive Obedience” doth, while he will have Samuel here to describe a king, and to say, “Ye have formerly committed one error in shaking off the yoke of God, and seeking a king; so now beware you fall not in the next error, in casting off the yoke of a king, which God, at your own desire, hath laid on you; for God only hath power to make and unmake kings; therefore prepare yourselves patiently to suffer and bear.

Ans. 1. — For if he were exhorting to patient suffering of the yoke of a king, he should presume it were God’s revealed and regulating will that they should have a king. But the scope of Samuel’s sermon is to dissuade them from a king, and they by the contrary, (ver. 19,) say, “Nay, but we will have a king;” and there is not one word in the text that may intimate patience under the yoke of a king. 2. There is here the description of a tyrant, not of a king. 3. Here is a threatening and a prediction, not anything that smelleth of an exhortation.

Obj. — But it is evident that God, teaching the people how to behave themselves under the unjust oppressions of their king, set down no remedy but tears, crying to God, and patience; therefore resistance is not lawful.[25]

Ans. — Though this be not the place due to the doctrine of resistance, yet, to vindicate the place, — 1. I say, there is not one word of any lawful remedy in the text; only it is said [1 Sam. 8:18], Mkek@;l;ma yn’p;[email protected])[email protected] [email protected];(az:w% Et clamatis in illa die a faciebus regis vestri. It is not necessarily to be exponed of praying to God;[26] Job xxxv. 9, ” By reason of the multitude of oppressions, they make the oppressed to cry,” w%qy(iz:yA clamare faciunt; Isa. xv. 4, “And Heshbon shall cry: q(az;[email protected] the armed soldiers of Moab shall cry out.” There is no other word here than doth express the idolatrous prayers of Moab; Isa. xvii 12; Hab. ii. 11, “The stone shall cry out of the wall q(fz;ti@ ;” Deut. xxii. 24, “You shall stone the maid, because she cried not, hqf(jcf-)Ol r#Oe)j rbad;@-l(a;” but she is not to be stoned because she prayed not to God; Psal xviii. 4, “David’s enemies cried, and there was none to save, even to the Lord, and he heard not.” 2. Though it were the prophet’s meaning, “they cried to the Lord,” yet it is not the crying of a people humbled, and, in faith, speaking to God in their troubles; Zech. vii. 13, “They cried, and I would not hear;” therefore royalists must make crying to God out of the bitterness of affliction, without humiliation and faith, and such prayers of sinners as God heareth not, (Psal. xviii. 41; John ix. 31; Isa. xvii. 12,) to be the only remedy of a people oppressed by a tyrannous king. Now, it is certain God prescribeth no unlawful means to an oppressed people under their affliction; therefore it is clear here that God speaketh only of evils of punishment, such as is to cry in trouble and not be heard of God, and that he prescribeth here no duty at all, nor any remedy. 3. All protestant divines say, Ex particulari non valet argumentum negative, — “From one particular place, a negative argument is not good.” This remedy is not written in this particular place, therefore it is not written at all in other places of Scripture; so 1 Tim. i. 19, the end of excommunication is, that the party excommunicated may learn not to blaspheme; therefore the end is not also that the church be not infected. It followeth not. The contrary is clear (1 Cor. v. 6). Dr Ferne, and other royalists, teach us that we may supplicate and make prayers to a tyrannous king. We may fly from a tyrannous king; but neither supplicating the king, nor flying from his fury, shall be lawful means left by this argument; because these means are no more in this text (where royalists say the Spirit of God speaketh of purpose of the means to be used against tyranny) than violent resistance is in this text.

Barclay, Ferne, Grotius, Arnisæus, the P. Prelate following them, saith, “An ill king is a punishment of God for the sins of the people, and there is no remedy but patient suffering.”

Ans. — Truly it is a silly argument. The Assyrians coming against the people of God for their sins, is a punishment of God. (Isa. x. 5; xii. 13.) But doth it follow that it is unlawful for Israel to fight and resist the Assyrians, and that they had warrant to do no other thing but lay down arms and pray to God, and fight none at all? Is mere no lawful resisting of ills of punishment, but mere prayers and patience? The Amalekites came out against Israel for their sins, Sennacherib against Hezekiah for the sins of the people; Asa’s enemies fought against him for his sins, and the people’s sins. Shall Moses and the people, Hezekiah and Asa, do then nothing but pray and suffer? Is it unlawful with the sword to resist them? I believe not. Famine is often a punishment of God in a land, (Amos iv. 7, 8,) is it therefore in famine unlawful to till the earth, and seek bread by our industry, and are we to do nothing but to pray for daily bread? It is a vain argument.

Observe, therefore, the wickedness of Barclay, (contra monarch. l. 2, p. 56,) for he would prove, that “a power of doing ill, and that without any punishment to be inflicted by man, is from God; because oar laws punish not perjury, but leaveth it to be punished of God (l. 2, l. de Reb. cred. Cujacius, l. 2, obsc. 19); and the husband in the law of Moses had power to give a bill of divorce to his wife and send her away, and the husband was not to be punished. And also stews and work-houses for harlots, and to take usury, are tolerated in many Christian commonwealths, and yet these are all sorts of murders by the confession of heathen; therefore, (saith Barclay,) God may give a power of tyrannous acts to kings, so as they shall be under no punishment to be indicted by men. Ans. — All this is an argument from fact. 1. A wicked magistracy may permit perjury and lying in the commonwealth, and that without punishment; and some Christian commonwealths, he meaneth his own synagogue of Rome, spiritual Sodom, a cage of unclean birds, suffereth harlots by law, and the whores pay so many thousands yearly to the Pope, and are free of all punishment by law, to eschew homicides, adulteries of Romish priests, and other greater sins; therefore God hath given power to a king to play the tyrant without any fear of punishment to be indicted by man. But if this be a good argument, the magistrate to whom God hath committed the sword to take vengeance on evil doers, (Rom. xiii. 3-6,) such as are perjured persons, professed whores and harlots, hath a lawful power from God to connive at sins and gross scandals in the commonwealth, as they dream that the king hath power given from God to exercise all acts of tyranny without any resistance. But, 1. This was a grievous sin in Eli, that he being a father and a judge, punished not his sons for their uncleanness, and his house, in God’s heavy displeasure, was cut off from the priesthood therefor. Then God hath given no such power to the judge. 2. The contrary duty is lying on the judge, to execute judgment for the oppressed, (Job xxix. 12-17; Jer. xxii 15, 16,) and perverting of judgment, and conniving at the heinous sins of the wicked, is condemned, (Num. v. 31, 32; 1 Sam. xv. 23; 1 Kings xx. 42, 43; Isa. i. 17; x. 1; v. 23,) and therefore God hath given no power to a judge to permit wicked men to commit grievous crimes, without any punishment. As for the law of divorce, it was indeed a permissive law, whereby the husband might give the wife a bill of divorce, and be free of punishment before men, but not free of sin and guiltiness before God, for it was contrary to God’s institution of marriage at the beginning, as Christ saith; and the prophet saith, (Mal. 2,) that the Lord hateth putting away; but that God hath given any such permissive power to the king, that he may do what he pleaseth, and cannot be resisted, this is in question. 3. The law spoken of in the text is by royalists called, not a consuetude of tyranny, but the divine law of God, whereby the king is formally and essentially distinguished from the judge in Israel; now if so, a power to sin and a power to commit acts of tyranny, yea, and a power in the king’s sergeants and bloody emissaries to waste and destroy the people of God, must be a lawful power given of God; for a lawful power it must be if it cometh from God, whether it be from the king in his own person, or from his servants at his commandment, and by either put forth in acts, as the power of a bill of divorce was a power from God, exempting either the husband from punishment before men, or freeing the servant, who at the husband’s command should write it and put it in the hands of the woman. I cannot believe that God hath given a power, and that by law, to one man to command twenty thousand cut-throats to kill and destroy all the children of God, and that he hath commanded his children to give their necks and heads to Babel’s sons without resistance. This I am sure is another matter than a law for a bill of divorce to one woman married by free election of a changeable and unconstant man. But sure I am, God gave no permissive law from heaven like the law of divorce, for the hardness of the heart, not of the Jews only, but also of the whole Christian and heathen kingdoms under a monarch, that one emperor may, by such a law of God as the law of divorce, kill, by bloody cutthroats, such as the Irish rebels are, all the nations that call on God’s name, men, women, and sucking infants. And if Providence impede the catholic issue, and dry up the seas of blood, it is good; but God hath given a law, such as the law of divorce, to the king, whereby he, and all his, may, without resistance, by a legal power given of God, who giveth kings to be fathers, nurses, protectors, guides, yea the breath of nostrils of his church, as special mercies and blessings to his people, he may, I say, by a law of God, as it is 1 Sam. viii. 9, 11, cut off nations, as that lion of the world, Nebuchadnezzar, did. So royalists teach us.

Barclay saith (1. 2. contra Monarch, p. 69) — The Lord spake to Samuel the law of the king, and wrote it in a book, and laid it up before the Lord. But what law? That same law which he proposed to the people when they first sought a king. But that was the law contemning precepts, rather for the people’s obeying than for the king’s commanding; for the people was to be instructed with those precepts, not the king. Those things that concerned the king’s duty (Deut. xvii.) Moses commanded to be put into the ark; but so if Samuel had commanded the king that which Moses (Deut. xvii.) commanded, he had done no new thing, but had done again what was once done actum egisset; but there was nothing before commanded the people concerning their obedience and patience under evil princes. Joseph. Antiq. (l. 6, c. 5;) wrote, ta\ mello/nta kaka/ the evils that were to befall them.

Ans. 1. — It was not that same law, for though this law was written to the people, yet it was the law of the king; and, I pray you, did Samuel write in a book all the rules of tyranny, and teach Saul, and all the kings after him, (for this book was put in the ark of the covenant, where also was the book of the law) how to play the tyrant? And what instruction was it to king or people to write to them a book of the wicked ways of a king, which nature teacheth without a doctor? Sanctius saith on the place, These things which, by men’s fraud and to the hurt of the public, may be corrupted, were kept in the tabernacle, and the book of the law was kept in the ark. Cornelius à Lapide saith, It was the law common to king and people, which was commonly kept with the book of the law in the ark of the covenant, Lyra contradicteth Barclay. He exponeth Legem, legem regni non secundum usurpationem supra positam, sed secundum ordinationem Dei positam. (Deut. xvii.) Theodatius excellently exponeth it, The fundamental laws of the kingdom, inspired by God to temper monarchy with a liberty befitting God’s people, and with equity toward a nation — to withstand the abuse of an absolute power. 2. Can any believe Samuel would have written a law of tyranny, and put that book in the ark of the covenant before the Lord, to be kept to the posterity, seeing he was to teach both king and people the good and the right way, 1 Sam. xii. 23-25. 3, Where is the law of the kingdom called a law of punishing innocent people? 4. To write the duty of the king in a book, and apply it to the king, is no more superfluous than to teach the people tho good and the right way out of the law, and apply general laws to particular persons. 5. There is nothing in the law (1 Sam. viii. 9-12) of the people’s patience, but rather of their impatient crying out, God not hearing nor helping; and nothing of that in this book, for any thing that we know, and Josephus speaketh of the law in 1 Sam. viii., not of this law, 1 Sam. xii.

[1] Grotius de jura belli et pacis, lib. 1, c. 4, n. 3.

[2] Barclaius contra Monarchom. lib. 2, p. 64. Potestatem intelligit non eam quæ competit ex præcepto, neqne etiam quæ ex permissu est, quatenus liberat a peccato, sed quatenus pænis legalibus eximit operantem.

[3] Barclaius contra Monarcho, lib. 2. p. 56, 57.

[4] Barclaius, lib. 3, c. 2.

[5] Arr. Mon. Hæc erit ratio Regis.

[6] [Missing from original.]

[7] Chald. Para, )hy )smn )klmd .

[8] P. Martyr, comment. 1 Sara, viii., verum jus regium describit in Deut. apud Samuelum autem usurpatum.

[9] Calvin, conc. 1 Sam. viii.

[10] Andr. Rivetus in decal., Exod. xx. in 5, mundat., p. 165.

[11] Junius annot., in 1 Sam. ii. 13.

[12] Diodatus annot., 1 Sam. viii. 3.

[13] Glossa interlinearis.

[14] Lyra in locum. hic accipitur jus large sumptum quod reputatur jus propter malum abusum. Nam illa quæ dicuntur hic de jure Regis, magis conungunt per tyranidem.

[15] Tostatus Abulens. in 1 Reg. 8, q. 17 de q. 21.

[16] Cornelius à Lapide. in locum.

[17] Cajetanus, in locum.

[18] Thom. Aquinas, l. 3, de Regni Princip. c. 11.

[19] Mendoza, jus Tyrannorum.

[20] Clemens Alexand. p. 26.

[21] Beda, l. 2, expo. in Samuel.

[22] Pet. Rebuffus tract. de incongrua. prert. p. 110.

[23] Ben. Gersom. in 1 Sam. viii., Pezelius in exp. leg. Mosai. 1. 4, c. 8. Tossan. in not. Bibl. Bosseus de Rep. Christ. potest. supra regem, c. 2, n, 103. Bodin, de Rep. l. 1, c. 19. Brentius, homil. 27, in 1 Sam. viii., Mos regis non de jure, sed de vulgatam consuetudine.

[24] Dr Ferne, sect. 2, p. 55.

[25] Dr. Ferne, part 3, sect. 2, p. 10.

[26] Learned authors teach that God’s law, (Deut. xvii.; and the +p%a#O;mi a manner of the king, (1 Sam. viii. 9,) are opposite one to another, so Gersom. in trinprinc. sac. adu. lat. par. 4, Alp. 66, lit. 1. cons. 8, Buchan. de jure regni apud Scot. Chasson. cat. glo. mundi cons. 24, n. 162, cons. 35. Tholoss. l. 9, c. 1. Rossen. de polus. Rep. c. 2, n. 10. Magdeburg. in trac. de off ma.


[27] Rutherford uses LXX to refer to the Septuaginta, the authoritative version of the Bible in Greek, to which we have referred in verifying Rutherford’s quotes. Its name comes from its origin as the work of 70 scholars.

[28] Not in Septuaginta, but should be kata\ to\ kri/ma tou~to.

Question XIX.

Whether or no the king be in dignity and power above the people.

In this grave question, divers considerations are to be pondered. 1. There is a dignity material in the people scattered — they being many representations of God and his image, which, is in the king also, and formally more as king, he being endued with formal magistratical and public royal authority. In the former regard, this or that man is inferior to the king, because the king hath that same remainder of the image of God that any private man hath, and something more — he hath a politic resemblance of the King of heavens, being a little god, and so is above any one man.

2. All these of the people taken collectively having more of God, as being representations, are, according to this material dignity, more excellent than the king, because many are more excellent than one; and the king, according to the magistratical and royal authority he hath, is more excellent than they are, because he partaketh formally of royalty, which they have not formally.

3. A mean or medium, as it is such, is less than the end, though the thing materially that is a mean may be more excellent. Every mean, as a mean, under that reduplication, hath all its goodness and excellency in relation to the end; yet an angel that is a mean (or medium) and a ministering spirit, ordained of God for an heir of life eternal, (Heb. i. 13,) considered materially, is more excellent than a man. (Psal. viii. 5; Heb. ii. 6-8.)

4. A king and leader, in a military consideration, and as a governor and conserver of the whole army, is more worth than ten thousand of the people, 2 Sam. xviii. 13.

5. But simply and absolutely the people is above, and more excellent, than the king, and the king in dignity inferior to the people; and that upon these reasons: —

Arg. 1. — Because he is the mean ordained for the people, as for the end, that he may save them, (2 Sam. xix 9;) a public shepherd to feed them, (Psal. lxxviii. 70-73;) the captain and leader of the Lord’s inheritance to defend them, (1 Sam. x. 1;) the minister of God for their good. (Rom. xiii. 4.)

Arg. 2. — The pilot is less than the whole passengers; the general less than the whole army; the tutor less than all the children; the physician less than all the living men whose health he careth for; the master or teacher less than all the scholars, because the part is less than the whole; the king is but a part and member (though I grant a very eminent and noble member) of the kingdom.

Arg. 3. — A Christian people, especially, is the portion of the Lord’s inheritance, (Deut. xxxii. 9) the sheep of his pasture — his redeemed ones — for whom God gave his blood. Acts xx. 28. And the killing of a man is to violate the image of God, (Gen. ix. 6,) and therefore the death and destruction of a church, and of thousand thousands of men, is a sadder and a more heavy matter than the death of a king, who is but one man.

Arg. 4 — A king as a king, or because a king, is not the inheritance of God, nor the chosen and called of God, nor the sheep or flock of the Lord’s pasture, nor the redeemed of Christ, for those excellencies agree not to kings because they are kings; for then all kings should be endued with those excellencies, and God should be an acceptor of persons, if he put those excellencies of grace upon men for external respects of highness and kingly power, and worldly glory and splendour; for many living images and representations of God, as he is holy, or more excellent than a politic representation of God’s greatness and majesty, such as the king is; because that which is the fruit of a love of God, which cometh nearer to God’s most special love, is more excellent than that which is farther remote from his special love. Now, though royalty be a beam of the majesty of the greatness of the King of kings and Lord of lords, yet is it such a fruit and beam of God’s greatness, as may consist with the eternal reprobation of the party loved; so now God’s love, from whence he communicateth his image representing his own holiness, cometh nearer to his most special love of election of men to glory.

Arg. 5. — If God give kings to be a ransom for his church, and if he slay great kings for their sake, as Pharaoh king of Egypt, (Isa. xliii. 3,) and Sihon king of the Amorites, and Og king of Bashan; (Psal. cxxxvi. 18-20;) if he plead with princes and kings for destroying his people; (Isa. iii. 12-14;) if he make Babylon and her king a threshing-floor, for the “violence done to the inhabitants of Zion,” (Jer. li. 33-35,) then his people, as his people, must be so much dearer and more precious in the Lord’s eyes than kings, because they are kings; by how much more his justice is active to destroy the one, and his mercy to save the other. Neither is the argument taken off by saying the king must, in this question, be compared with his own people; not a foreign king, with other foreign people, oyer whom he doth not reign, for the argument proveth that the people of God are of more worth than kings as kings; and Nebuchadnezzar and Pharaoh, for the time, were kings to the people of God, and foreign kings are no less essentially kings, than kings native are.

Arg. 6. — Those who are given of God as gifts for the preservation of the people, to be nurse-fathers to them, those must be of less worth before God, than those to whom they are given, since the gift, as the gift, is less than the party on whom the gift is bestowed. But the king is a gift for the good and preservation of the people, as is clear, Isa. i. 28; and from this, that God gave his people a king in his wrath, we may conclude, that a ling of himself, except God be angry with his people, must be a gift.

Arg. 7. — That which is eternal, and cannot politically die, yea, which must continue as the days of heaven, because of God’s promise, is more excellent than that which is both accidental) temporary, and mortal. But the people are both eternal as people, because (Eccles. i. 4) “one generation passeth away, and another generation cometh,” and as a people in covenant with God, (Jer. xxxii. 40, 41,) in respect that a people and church, though mortal in the individuals, yet the church, remaining the church, cannot die; but the king, as king, may and doth die. It is true, where a kingdom goeth by succession, the politicians say, the man who is king dieth, but the king never dieth, because some other, either by birth or free election, succeedeth in his room. But I answer, — 1. People, by a sort of necessity of nature, succeedeth to people, generation to generation, except God’s judgment, contrary to nature, intervene to make Babylon no people, and a land that shall never be inhabited (which I both believe and hope for, according to God’s word of prophesy). But a king, by a sort of contingency, succeedeth to kings; for nature doth not ascertain us there must be kings to the world’s end, because the essence of governors is kept safe in aristocracy and democracy, though there were no kings; and that kings should necessarily have been in the world, if man had never fallen in sin, I am not, by any cogent argument, induced to believe. I conceive there should have been no government but those of fathers and children, husband and wife, and (which is improperly government) some more gifted with supervenient additions to nature, as gifts and excellencies of engines. Now on this point Althusius (polit. c. 38. n. 114) saith, the king, in respect of office, is worthier than the people, (but this is but an accidental respect,) out as the king is a man, he is inferior to the people.

Arg. 8. — He who, by office, is obliged to expend himself, and to give his life for the safety of the people, must be inferior to the people. So Christ saith, the life is more than raiment or food, because both these give themselves to corruption for man’s life; so the beasts are inferior to man, because they die for our life, that they may sustain oar life. And Caiaphas prophesied right, that it was better that one man die than the whole nation perish (John xi. 50); and in nature, elements, against their particular inclination, defraud themselves of their private and particular ends, that the commonwealth of nature may stand; as heavy elements ascend, light descend, lest nature should parish by a vacuity. And the good Shepherd (John x,) giveth his life for his sheep; so both Saul and David were made kings to fight the Lord’s battles, and to expose their lives to hazard for the safety of the church and people of God. But the king, by office, is obliged to expend his life for the safety of the people of God; he is obliged to fight the Lord’s battles for them; to go betwixt the flock and death, as Paul was willing to be spent for the church. It may be objected, Jesus Christ gave himself a ransom for his church, and his life for the life of the world, and was a gift given to the world, (John iii. 16; iv. 10,) and he was a mean to save us; and so, what arguments we have before produced to prove that the king must be inferior to the people, because he is a ransom, a mean, a gift, are not conclusive, I answer, — 1. Consider a mean reduplicatively, and formaliter, as a mean; and secondly, as a mean materially, that is, the thing which is a mean. 2. Consider that which is only a mean, and ransom, and gift, and no more; and that which, beside that it is a mean, is of a higher nature also. So Christ formally as a mean, giving his temporal life for a time, according to the flesh, for the eternal life of all the catholic church, to be glorified eternally — (not his blessed god-head and glory, which, as God, he had with the Father from eternity) — in that respect Christ hath the relation of a servant, ransom, gift, and some inferiority in comparison of the church of God; and his Father’s glory, as a mean, is inferior to the end, but Christ materially, in concreto. Christ is is not only a mean to save his church, but, as God (in which consideration he was the immortal Lord of life) he was more than a mean, — even the Author, Efficient and Creator of heaven and earth; and so there is no ground to say that he is inferior to the church, but the absolute head, king, — the chief of ten thousand; — more in excellency and worth than ten thousand millions of possible worlds of men and angels. But such a consideration cannot befall any mortal king; because, consider the king materially as a mortal man, he must be inferior to the whole church, for he is but one, and so of less worth than the whole church; as the thumb, though the strongest of the fingers, yet it is inferior to the hand, and far more to the whole body, as any part is inferior to the whole. Consider the king reduplicative and formally as king, and by the official relation he hath, he is no more then but a royal servant, an official mean tending, ex officio, to this end, to preserve the people, to rule and govern them; and a gift of God, given by virtue of his office, to rule the people of God, and so any way inferior to the people.

Arg. 9. — Those who are before the people, and may be a people without a king, must be of more worth than that which is posterior and cannot be a king without them. For thus, God’s self-sufficiency is proved, in that he might be, and eternally was, blessed for ever, without his creature; but his creature cannot subsist in being without him. Now, the people were a people many years before there was a government, (save domestic,) and are a people where there is no king, but only an aristocracy or a democracy; but the king can be no king without a people. It is vain that some say, the king and kingdoms are relatives, and not one is before another, for it is true in the naked relation; so are father and son, master and servant, Relata simul natura; but sure there is a priority of worth and independency, for all that, in the father above the son, and in the master above the servant, and so in the people above the king; take away the people, and Dionysius is but a poor schoolmaster.

Arg. 10. — The people in power are superior to the king, because every efficient and constituent cause is more excellent than the effect. Every mean is inferior in power to the end; (So Jun. Brutus, q. 31. Bucher l. 1. c. 16. Author Lib. de offic. Magistr. q. 6. Henænius disp. 2, n. 6. Joan Roffensis Epist. de potest. pap. l. 2, c. 5. Spalato de Repu. Ecclesiast. l. 6, c. 2, n. 3:) but the people is the efficient and constituent cause, the king is the effect; the people is the end; both intended of God to save the people, to be a healer and a physician to them (Isa. iii. 7); and the people appoint and create the king out of their indigence, to preserve themselves from mutual violence. Many things are objected against this. That the efficient and constituent cause is God, and the people are only the instrumental cause; and Spalato saith, that the people doth indirectly only give kingly power, because God, at their act of election, ordinarily giveth it.

Ans. — 1. The Scripture saith plainly, as we heard before, the people made kings; and if they do, as other second causes produce their effects, it is all one that God, as the principal cause, maketh kings, else we should not argue from the cause to the effect amongst the creatures. 2. God, by that same action that the people createth a king, doth also, by them, as by his instruments, create a king; and that God doth not immediately, at the naked presence of the act of popular election, confer royal dignity on the man, without any action of the people, as they say, by the church’s act of conferring orders, God doth immediately, without any act of the church, infuse from heaven supernatural liabilities on the man, without any active influence of the church, is evident by this. 1. The royal power to make laws with the king, and so a power eminent in their states representative to govern themselves, is in the people; for if the most high acts of royality be in them, why not the power also? And so, what need to fetch a royal power from heaven to be immediately infused in him, seeing the people hath such a power in themselves at hand? 2. The people can, and doth, limit and bind royal power in elected kings, therefore they have in them royal power to give to the king. Those who limit power, can take away so many degrees of royal power; and those who can take away power, can give power; and it is inconceiveable to say that people can put restraint upon a power immediately coming from God. If Christ immediately infused an apostolic spirit into Paul, mortal men cannot take from him any degrees of that infused spirit; if Christ infuse a spirit of nine degrees, the church cannot limit it to six degrees only. But royalists consent that the people may choose a king upon such conditions to reign, as he hath royal power of ten degrees, whereas his ancestor had by birth a power of fourteen decrees. 3. It is not intelligible that the Holy Ghost should give commandment unto the people to make this man king, (Deut. xvii. 15, 16,) and forbid them to make that man king, if the people had no active influence in making a king at all; but God, solely and immediately from heaven, did infuse royalty in the king without any action of the people, save a naked consent only; and that after God had made the king, they should approve only with an after-act of naked approbation. 4. If the people by other governors, as by heads of families and other choice men, govern themselves and produce these same formal effects of peace, justice, religion, on themselves, which the king doth produce, then is there a power of the same kind, and as excellent as the royal power, in the people; and there is no reason but this power should be held to come immediately from God, as the royal power; for it is every way of the same nature and kind, as I shall prove. Kings and judges differ not in nature and specie, but it is experienced that people do. by aristocratical guides, govern themselves, &c.; so then, it God immediately infuse royalty when the people chooseth a king, without any action of the people, then must God immediately infuse a beam of governing on a provost and bailie, when the people choose such, and that without any action of the people, because all powers are, in abstracto, from God. (Rom. xiii. 2.) And God as immediately maketh inferior judges as superior, (Prov. viii. 16;) and all promotion (even to be a provost or mayor) cometh from God only, as to be a king; except royalists say, all promotion cometh from the east and from the west, and not from God, except promotion to the royal throne; the contrary whereof is said, Psal. lxxv. 6, 7; 1 Sam. ii. 7, 8. Not only kings, but all judges are gods, (Psal. lxxxii. 1, 2,) and therefore all must be the same way created and moulded of God, except by Scripture royalists can show us a difference. An English prelate[1] giveth reasons why people, who are said to make kings as efficients and authors, cannot unmake them: the one is, because God, as chief and sole supreme moderator, maketh kings; but I say, Christ, as the chief moderator and head of the church, doth immediately confer abilities upon a man to be a preacher; and though, by industry, the man acquire abilities, yet in regard the church doth not so much as instrumentally confer those abilities, they may be said to come from God immediately, in relation to the church who calleth the man to the ministry. Yea, royalists, as our excommunicated Prelate learned from Spalato, say, that God, at the naked presence of the church’s call, doth immediately infuse that from heaven by which the man is now in holy orders and a pastor, whereas he was not so before; and yet prelates cannot deny but they can unmake ministers, and have practised this in their unhallowed courts; and, therefore, though God immediately, without any action of the people, make kings, this is a weak reason to prove they cannot unmake them. As for their indellible character, that prelates cannot take from a minister; it is nothing, if the church may unmake a minister, though his character go to prison with him. We seek no more but to annul the reason. God immediately maketh kings and pastors, therefore no power on earth can unmake them. This consequence is as weak as water. 2. The other cause is, because God hath erected no tribunal on earth higher than the king’s tribunal, therefore no power on earth can unmake a king. The antecedent and consequence is both denied, and is a begging of the question; for the tribunal that made the king is above the king. Though there be no tribunal formally regal and kingly above the king, yet is there a tribunal virtual eminently above him in the case of tyranny; for the states and princes have a tribunal above him.

Assert. — To this the constituent cause is of more power and dignity than the effect, and so the people are above the king. The P. Prelate borrowed an answer from Arnisæus, and Barclay, and other royalists, and saith, If we knew anything in law, or were ruled by reason, “every constituent, (saith Arnisæus[2] and Barclay, more accurately than the P. Prelate had a bead to transcribe their words,) where the constituent hath resigned all his power in the hand of the prince whom he constitutes, is of more worth and power than he in whose hand he resigns the power: so the proposition is false. The servant who hath constituted his master lord of his liberty, is not more worthy than his master whom he hath made his lord, and to whom he hath given himself as a slave, (for after he hath resigned his liberty he cannot repent, he must keep covenant though to his hurt,) yea, such a servant is not only not above his master, but he cannot move his foot without his master.” “The governor of Britain (saith Arnisæus) being despised by king Philip, resigned himself as vassal to king Edward of England; but did not for that make himself superior to king Edward. Indeed, he who constituteth another under him as a legate is superior; but the people do constitute a king above themselves, not a king under themselves; and, therefore, the people are not by this made the king’s superior, but his inferior.”

Ans. 1. — It is false that the people doth, or can by the law of nature, resign their whole liberty in the hand of a king. 1. They cannot resign to others that which they have not in themselves, Nemo potest dare quod non habet; but the people hath not an absolute power in themselves to destroy themselves, or to exercise those tyrannous acts spoken of, 1 Sam. viii. 11-15, &c.; for neither God nor nature’s law hath given any such power. 2, He who constituteth himself a slave is supposed to be compelled to that unnatural act of alienation of that liberty which he hath from his Maker from the womb, by violence, constraint, or extreme necessity, and so is inferior to all free men; but the people doth not make themselves slaves when they constitute a king over themselves; because God, giving to a people a king, the best and most excellent governor on earth, giveth a blessing and special favour, (Isa. i. 26; Hos. i. 11; Isa. iii. 6, 7; Psal. lxxix. 70-72;) but to lay upon his people the state of slavery, in which they renounce their whole liberty, is a curse of God. (Gen. ix. 25; xxvii. 29; Deut. xxviii. 32, 36.) But the people, having their liberty to make any of ten, or twenty, their king, and to advance one from a private state to an honourable throne, whereas it was in their liberty to advance another, and to give him royal power of ten degrees, whereas they might give him power of twelve degrees, of eight, or six, must be in excellency and worth above the man whom they constitute king, and invest with such honour; as honour in the fountain, and honos participans et originans, must be more excellent and pure than the derived honour in the king, which is honos participatus et originatus. If the servant give his liberty to his master, therefore he had that liberty in him, and in that act, liberty must be in a more excellent way in the servant, as in the fountain, than it is in the master; and so this liberty must be purer in the people than in the king; and therefore, in that both the servant is above the master, and the people worthier than the king. And when the people give themselves conditionally and covenant-wise to the king, as to a public servant, and patron, and tutor, — as the governor of Britain, out of his humour, gave himself to king Edward — there is even here a note of superiority. Every giver of a benefit, as a giver, is superior to Him to whom the gift is given; though after the servant hath given away his gift of liberty, by which he was superior, he cannot be a superior, because by his gift he hath made himself inferior. The people constituteth a king above themselves, I distinguish supra se, above themselves; according to the fountain-power of royalty, — that is false; for the fountain-power remaineth most eminently in the people, 1. Because they give it to the king, ad modum recipientis, and with limitations; therefore it is unlimited in the people, and bounded and limited in the king, and so less in the king than in the people. 2. If the king turn distracted, and an ill spirit from the Lord come upon Saul, so as reason be taken from a Nebuchadnezzar, it is certain the people may put curators and tutors over him who hath the royal power. 3. If the king be absent and taken captive, the people may give the royal power to one, or to some few, to exercise it ascustodes regni. And, 4. If he die, and the crown go by election, they may create another, with more or less power. All which evinceth, that they never constituted over themselves a king, in regard of fountain-power; for if they give away the fountain, as a slave selleth his liberty, they could not make use of it. Indeed they set a king above them, quoad potestatem legum executivam, in regard of a power of executing laws and actual government for their good and safety; but this proveth only that the king is above the people, kata/ ti, in some respect. But the most eminent and fountain-power of royalty remaineth in the people as in an immortal spring} which they communicate by succession to this or that mortal man, in the manner and measure that they think good. Ulpian[3] and Bartolus,[4] cited by our Prelate out of Barclaius, are only to be understood of the derived, secondary, and borrowed power of executing laws, and not of the fountain-power, which the people cannot give away, no more than they can give away their rational nature; for it is a power natural to conserve themselves, essentially adhering to every created being. For if the people give all their power away, what shall they reserve to make a new king, if this man die? What if the royal line should cease? there be no prophets immediately sent of God to make kings. What if he turn tyrant, and destroy his subjects with the sword? The royalists say, they may fly; but, when they made him king, they resigned all their power to him, even their power of flying; for they bound themselves by an oath (say royalists) to all passive and lawful active obedience; and, I suppose, to stand at his tribunal, if he summoned the three estates, upon treason, to come before him, is contained in the oath, that royalists say, bindeth all, and is contradictory to flying.

Arnisæus, a more learned jurist and divine than the P. Prelate, answereth the other maxim, “The end is worthier than the mean leading to the end, because it is ordained for the end. These means, (saith he,) which refer their whole nature to the end, and have all their excellency from the end, and have excellency from no other thing but from the end, are less excellent than the end. That is true, such an end as medicine is for health.” And Hugo Grotius, (l. 1, c. 3, n. 8,) “Those means which are only for the end, and for the good of the end, and are not for their own good, also are of less excellency, and inferior to the end; but so the assumption is false. But these means which, beside their relation to the end, have an excellency of nature in themselves, are not always inferior to the end. The disciple, as he is instituted, is inferior to the master; but as he is the son of a prince, he is above the master. But by this reason the shepherd should be inferior to brute beasts, to sheep; and the master of the family is for the family, and referreth all that he hath for the entertaining of the family; but it followeth not therefore the family is above him. The form is for the action, is therefore the action more excellent than the form, and an accident than the subject or substance?” And Grotius saith, “Every government is not for the good of another, but some for its own good, as the government of a master over the servant, and the husband over the wife.

Ans. — I take the answer thus: Those who are mere means, and only means referred to the end, they are inferior to the end; but the king, as king, hath all his official and relative goodness in the world, as relative to the end. All that you can imagine to be in a king, as a king, is all relative to the safety and good of the people, (Rom. xiii. 4,) “He is a minister for thy good.” He should not, as king, make himself, or his own gain and honour, his end. I grant, the king, as a man, shall die as another man, and so he may secondarily intend his own good; and what excellency he hath as a man, is the excellency of one mortal man, and cannot make him amount in dignity, and in the absolute consideration of the excellency of a man, to be above many men and a whole kingdom; for the more good things there be, the better they are, so the good things be multiplicable, as a hundred men are better than one; otherwise, if the good be such as cannot be multiplied, as one God, the multiplication maketh them worse, as many gods are inferior to one God. Now if royalists can show us any more in the king than these two, we shall be obliged to them; and in both he is inferior to the whole.

The Prelate and his followers would have the maxim to lose credit; for then (say they) the shepherd should be inferior to the sheep; but in this the maxim faileth indeed, because the shepherd is a reasonable man, and the sheep brute beasts, and so must be more excellent than all the flocks of the world. Now, as he is a reasonable man, he is not a shepherd, nor in that relation referred to the sheep and their preservation as a mean to the end; but he is a shepherd by accident, for the unruliness of the creatures, for man’s sin, withdrawing themselves from that natural dominion that man had over the creatures before the fall; in that relation of a mean to the end, and so by accident, is this official relation put on him; and according to that official relation, and by accident, man is put to be a servant to the brutish creature, and a mean to so base an end. But all this proveth him, through man’s sin and by accident, to be under the official relation of a mean to baser creatures than himself, as to the end, but not a reasonable man. But the king, as king, is an official and royal mean to this end, that the people may lead a godly and peaceable life under him; and this official relation being an accident, is of less worth than the whole people, as they are to be governed. And I grant the king’s son, in relation to blood and birth, is more excellent than his teachers; but as he is taught, he is inferior to his teacher. But in both considerations the king is inferior to the people; or though he command the people, and so have an executive power of law above them, yet have they a fountain-power above him, because they made him king, and in God’s intention he is given as king for their good, according to this, “Thou shalt feed my people Israel,” and that, “I gave him for a leader of my people.”

The P. Prelate saith: “The constituent cause is more excellent than the effect constituted, where the constitution is voluntary, and dependeth upon the free act of the will, as when the king maketh a viceroy or a judge, durante beneplacito, during his free will, but not when a man maketh over his right to another; for then there should be neither faith nor truth in covenants, if people might make over their power to their king, and retract and take back what they have once given.

Ans. — This is a begging of the question; for it is denied that the people can absolutely make away their whole power to the king. It dependeth on the people that they be not destroyed. They give to the king a politic power for their own safety, and they keep a natural power to themselves which they must conserve, but cannot give away; and they do not break their covenant when they put in action that natural power to conserve themselves; for though the people should give away that power, and swear though the king should kill them all, they should not resist, nor defend their own lives, yet that being against the sixth commandment, which enjoineth natural self-preservation, it should not oblige the conscience, for it should be intrinsically sinful; for it is all one to swear to non-sell-preservation as to swear to self-murder.

“If the people, (saith the Prelate, begging the answer from Barclay,[5]) the constituent, be more excellent than the effect, and so the people above the king, because they constitute him king, then the counties and corporations may make void all the commissions given to the knights and burgesses of the House of Commons, and send others in their place, and repeal their orders; therefore Buchanan saith, that orders and laws in parliament were but proboula/mata preparatory consultations, and had not the force of a law, till the people give their consent and have their influence authoritative, upon the statutes and acts of parliament; but the observator holdeth that the legislative power is whole and entire in the parliament. But when the Scots were preferring petitions and declarations they put all power in the collective body, and kept their distinct tables.

Ans. — 1. There is no consequence here: the counties and incorporations that send commissioners to parliament, may make void their commissions and annul their acts, because they constitute them commissioners. If they be unjust acts, they may disobey them, and so disannul them; but, it is presumed, God hath given no moral power to do ill, nor can the counties and corporations give any such power to evil, for they have not any such from God. If they be just acts, they are to obey them, and cannot retract commissions to make just orders. Illud tantum possumus quod jure possumus, and therefore, as power to govern justly is irrevocably committed by the three estates who made the king to the king, so is that same power committed by the shires and corporations to their commissioners, to decree in parliament what is just and good irrevocably; and to take any just power from the king which is his due, is a great sin. But when he abuseth his power to the destruction of his subjects, it is lawful to throw a sword out of a madman’s hand, though it be his own proper sword, and though he have due right to it, and a just power to use it for good; for all fiduciary power abused may be repealed. And if the knights and burgesses of the House of Commons abuse their fiduciary power to the destruction of these shires and corporations who put the trust on them, the observator did never say that parliamentary power was so entire and irrevocably in them, as that the people may not resist them, annul their commissions and rescind their acts, and denude them of fiduciary power, even as the king may be denuded of that same power by the three estates; for particular corporations are no more to be denuded of that fountain-power of making commissioners, and of the self-preservation, than the three estates are. 2. The P. Prelate cometh not home to the mind of Buchanan, who knew the fundamental laws of Scotland, and the power of parliaments; for his meaning was not to deny a legislative power in the parliament; but when he calleth their parliamentary declarations proboula/matahis meaning is only that which lawyers and schoolmen both say, Leges non promulgatæ non habent vim legis actu completo obligatoriæ, — “Laws not promulgated do not oblige the subject while they be promulgated;” but he fulfils Buchanan, when he saith, “Parliamentary laws must have the authoritative influence of the people, before they can be formal laws, or any more than proboula/mata or preparatory notions. And it was no wonder when the king denied a parliament, and the supreme senate of the secret council was corrupted, that the people did then set up tables, and extraordinary judicatures of the three estates, seeing there could not be any other government for the time.

Barclay[6] answereth to this: “The mean is inferior to the end, it holdeth not; the tutor and curator is for the minor, as for the end, and given for his good; but it followeth not that, therefore, the tutor, in the administration of the minor or pupil’s inheritance, is not superior to the minor.”

Ans. — It followeth well that the minor virtually, and in the intention of the law, is more excellent than the tutor, though the tutor can exercise more excellent acts than the pupil, by accident, for defect of age in the minor, yet he doth exercise those acts with subordination to the minor, and with correction, because he is to render an account of his doings to the pupil coming to age; so the tutor is only more excellent and superior in some respect, kata/ ti but not simply, and so is the king in some respect above the people.

The P. Prelate beggeth from the royalists another of our arguments, Quod efficit tale, est magis tale,[7] — “That which maketh another such, is far more such itself.” If the people give royal power to the king, then far more is the royal power in the people. By this (saith the Prelate) it shall follow, if the observator give all his goods to me, to make me rich, the observator is more rich: if the people give most part of their goods to foment the rebellion, then the people are more rich, having given all they have upon the public faith.

Ans. — 1. This greedy Prelate was made richer than ten poor pursuivants, by a bishopric; it will follow well, — therefore, the bishopric is richer than the bishop, whose goods the curse of God blasteth. 2. It holdeth in efficient causes, so working in other things as the virtue of the effect remaineth in the cause, even after the production of the effect. As the sun maketh all things light, the fire all things hot, therefore the sun is more light, the fire more hot; but where the cause doth alienate and make over, in a corporal manner, that which it hath to another, as the hungry Prelate would have the observator’s goods, it holdeth not; for the effect may exhaust the virtue of the cause, but the people doth, as the fountain, derive a stream of royalty to Saul, and make him king, and yet so as they keep fountain-power of making kings in themselves; yea, when Saul is dead to make David king at Hebron, and when he is dead to make Solomon king, and after him to make Rehoboam king; and, therefore, in the people there is more fountain-power of making kings than in David, in Saul, in any king of the world. As for the Prelate’s scoff about the people’s giving of their goods to the good cause, I hope it shall, by the blessing of God, enrich them more; whereas prelates, by the rebellion in Ireland, (to which they assent, when they council his Majesty to sell the blood of some hundred thousands of innocents killed in Ireland,) are brought, from thousands a year, to beg a morsel of bread.

The P. Prelate (p. 131) answereth that maxim, Quod efficit tale, id ipsum est magis tale, — “That which maketh another such, it is itself more such.” It is true, de principio formali effectivo, (as I learned in the university,) of such an agent as is formally such in itself as is the effect produced. Next, it is such as is effective and productive of itself, as when fire heateth cold water, so the quality must be formally inherent in the agent; as wine maketh drink, it followeth not, wine is more drunk, because drunkenness is not inherent in the wine, nor is it capable of drunkenness; and, therefore, Aristotle qualifieth the maxim with this, Quod efficit tale est magis tale, modo utrique insit, — “and it holdeth not in agents, who operate by donation, if the right of the king be transferred from the people to the king.” The donation divesteth the people totally of it, except the king have it by way of loan, which, to my thinking, never yet any spoke. Sovereignty never was, never can be, in the community. Sovereignty hath power of life and death, which none hath over himself, and the community conceived without government, all as equal, endowed with nature’s and native liberty, of that community no one can have power over the life of another. And so the argument may be turned home, if the people be not tales, such by nature, (as hath formally royal power, he should say,) they cannot give the ting royal power; also, none hath power of life and death, either more eminently or formally, the people, either singly or collectively, have not power over their own life, much less over their neighbours’.

Ans. — 1. The Prelate would make the maxim true of a formal cause, and this he learned in the University of St. Andrews. He wrongeth the university; he rather learned it while he kept the calves of Crail. The wall is white from whiteness; therefore, whiteness is more white by the Prelate’s learning. Never such thing was taught in that learned university. 2. Principium formale effectivum is as good logic as principium effectivum materiale, formale, finale. The Prelate is in his accuracy of logic now. He yet maketh the causality of the formal cause all one with the causality of the efficient; but he is weak in his logic. 3. He confoundeth a cause equivocal and a cause univocal, and in that case the maxiim holdeth not. Nor is it necessary to make true the maxim, that the quality be inherent in the cause the same way; for a city maketh a mayor, but to be a mayor is one way in the city, and another way in him who is created mayor. The Prelate’s maxim would help him, if we reasoned thus: The people maketh the king, therefore the people is more a king, and more formally a sovereign than the king. But that is no more our argument than the simile that Maxwell used, as near heart and mouth both. Wine maketh drunk the Prelate, therefore wine is more drunk. But we reason thus: The fountain-power of making six kings is in the people, therefore there is more fountain-power of royalty in the people than in any one king. For we read that Israel made Saul king, and made David king, and made Abimelech king; but never that king Saul made another king, or that an earthly king made another absolute king. 4. The Prelate will have the maxim false, where the agent worketh by donation, which yet holdeth true by his own grant (c. 9, p. 98). The king giveth power to a deputy, therefore there is more power in the king. 5. He supposeth that which is the basis and foundation of all the question, that people divesteth themselves totally of their fountain-power, which is most false. 6. Either they must divest themselves totally (saith he) of their power, or the king hath power from the people, by way of loan, which, to my thinking, never any yet spake. But the P. Prelate’s thinking is short, and no rule to divines and lawyers; for, to the thinking of the learned jurists, this power of the king is but fiduciary, and that is (whether the Prelate think it or think it not) a sort of power by trust, pawn or loan. Rex director Regni, non proprietarius, (Molinæ. in consuet. Parisi. Tit. 1, 9; 1 Gloss. 7, n. 9,} — “The king is a life-renter, not a lord, or proprietor of his kingdom.” So Novel. 85, in principet c. 18, Quod magistratus sit nudus dispensator et defensor jurium regni, non proprietarius, constat, ex eo quod non posset alienare imperium, oppida, urbes, regiones ve, vel res subditorum, bonave regni. So Gregory, l. 3, c. 8, de Repub. per c. 1, Sect. præterea, de propo. feud. Hottoman, quest, illust. 1; Ferdinan. Vasquez, l. 1, c. 4; Bossius, de princip. et privileg. illius, n. 290, — “The king is only a steward, and a defender of the laws of the kingdom, not a proprietor, because he hath not power to make away the empire, cities, towns, countries, and goods of the subjects;” and, bona commissa magistratus, sunt subjecta restitutioni, et in prejudicium successorum alienari non possunt, (per l. ult. Sect. sed nost. C. Comment. de leg. l. peto 69, fratrem de leg. 2, l. 32, ult. d. t.) — “All the goods committed to any magistrate are under restitution; for he hath not power to make them away, to the prejudice of his successors.” The Prelate’s thoughts reach not the secrets of jurists, and therefore he speaketh with a warrant; he will say no more than his short-travelled thoughts can reach, and that is but at the door. 7. Sovereignty is not in the community, (saith the P. Prelate). Truly it neither is, nor can be, more than ten, or a thousand, or a thousand thousands, or a whole kingdom, can be one man; for sovereignty is the abstract, the sovereign is the concrete. Many cannot be one king or one soverign: a sovereign must be essentially one; and a multitude cannot be one. But what then? May not the sovereign power be eminently, fontaliter, originally and radically in the people? I think it may, and must be. A king is not an under judge: he is not a lord of council and session formally, because he is more. The people are not king formally, because the people are eminently more than the king; for they make David king, and Saul king; and the power to make a lord of council and session; is in the king (say royalists). 8. A community hath not power of life and death; a king hath power of life and death (saith the Prelate). What then? Therefore a community is not king. I grant all. The power of making a king, who hath power of life and death, is not in the people. Poor man! It is like prelates’ logic. Samuel is not a king, therefore he cannot make David a king. It followeth not by the Prelate’s ground. So the king is not an inferior judge. What! Therefore he cannot make an inferior judge? 9. The power of life and death is eminently and virtually in the people, collectively taken, though not formally. And though no man can take away his own life, or hath power over his own life formally, yet a man, and a body of men, hath power over their own lives, radically and virtually, in respect they may render themselves to a magistrate, and to laws which, if they violate, they most be in hazard of their lives; and so they virtually have power of their own lives, by putting them under the power of good laws, for the peace and safety of the whole. 10. This is a weak consequence. None hath power of his own life, therefore, far less of his neighhour’s (saith the Prelate). I shall deny the consequence, The king hath not power of his own life, that is, according to the Prelate’s mind, he can neither, by the law of nature, nor by any civil law, kill himself; therefore, the king hath far less power to kill another; it followeth not: for the judge hath more power over his neighbour’s life than over his own. 11. But, saith the P. Prelate, the community conceived without government, all as equal, endowed with nature’s and native liberty, hath no power of life and death, because all are born free; and so none is born with dominion and power over his neighbour’s life. Yea, but so, Mr P. Prelate, a king considered without government, and as born a free man, hath not power of any man’s life more than a community hath; for king and beggar are born both alike free. But a community, in this consideration, as they come from the womb, have no politic consideration at all. If you consider them as without all policy, you cannot consider them as invested with policy; yea, if you consider them so as they are by nature, void of all policy, they cannot so much as add their after-consent and approbation to such a man to be their king, whom God immediately from heaven maketh a king; for to add such an after-consent, is an act of government. Now, as they are conceived to want all government, they cannot perform any act of government. And this is as much against himself as against us.

2. The power of a part and the power of the-whole is not alike. Royalty never advanceth the king above the place of a member; and lawyers say, the king is above the subjects, in sensu diviso, in a divisive sense, he is above this or that subject; but he is inferior to all the subjects collectively taken, because he is for the whole kingdom, as a mean for the end.

Obj. — If this be a good reason, that he is a mean for the whole kingdom as for the end; that he is therefore inferior to the whole kingdom, then is he also inferior to any one subject; for he is a mean for the safety of every subject, as for the whole kingdom.

Ans. — Every mean is inferior to its complete, adequate, and whole end; and such an end is the whole kingdom in relation to the king; but every mean is not always inferior to its incomplete, inadequate, and partial end. This or that subject is not adequate, but the inadequate and incomplete end in relation to the king.

The Prelate saith, Kings are Dii Elohim, gods; and the manner of their propagation is by filiation, by adoption, sons of the Most High, and God’s first-born. Now, the first-born is not above every brother severally; but if there were thousands, millions, numberless numbers, he is above all in precedency and power.

Ans. — Not only kings but all inferior judges are gods. Psal. lxxxii., God standeth in the congregation of the gods, that is not a congregation of kings. So (Exod. xxii. 8) the master of the house shall be brought MyhiOl)vhf d(a to the gods, or to the judges. And that there were more judges than one, is clear by ver. 9; and if they shall condemn N(uy#Oir:yA jarshignur, condemnarint, (John x. 35,) ei]pen qeou\j. He called them gods; Exod. iv. 16, “Thou shalt be to Aaron MyhiOl)l’ as a god.” They are gods analogically only. God is infinite, not so the king. God’s will is a law, not so the king’s. God is an end to himself, not so the king. The judge is but God by office, and representation, and conservation of the people. It is denied that the firstborn is in power before all his brethren, though there were millions. That is but said, one, as one, is inferior to a multitude. As the first-born was a politic ruler to his brethren, he was inferior to them politically.

Obj. — The collective university of a kingdom are subjects, sons, and the king their father, no less than this or that subject is the king’s subject. For the university of subjects are either the king, or the king’s subjects; for all the kingdom must be one of these two; but they are not the king, therefore they are his subjects.

Ans. — All the kingdom, in any consideration, is not either king or subjects. I give a third: The kingdom collective is neither properly king nor subject; but the kingdom embodied in a state, having collateral, is a co-ordinate power with the king.

Obj. — The university is ruled by laws, therefore they are inferior to the king who ruleth all by law.

Ans. — The university, properly, is no otherwise ruled by-laws than the king is ruled by laws. The university, formally, is the complete politic body, endued with a nomothetic faculty, which cannot use violence against itself, and so is not properly under a law.

[1] Joan. Roffens. de potest. pap. 1. 2, c. 5.

[2] Arnisæus de authorit. princip. c. 1. n. 1.

[3] Ulpian l.1, ad Sc. Tubil. Populus omne suum imperium et potestatem confert in Regem.

[4] Bartolus ad l. hostes 24, f. de capt. et host.

[5] Sac Sanc. Maj. c. 9, p., 129, stolen from Barcla., lib. 6, c. 12.

[6] Barcla., lib. 4, cont. Monarcho., c. 11, p. 27.

[7] Sacr. Sanc. Mai., c. 13, p. 100. stolen out of Arnisæus de jure Majest. c. 3, n. 1, p. 34.

Question XX.

Whether or no inferior judges be univocally and essentially judges, and the immediate vicars of God, no less than the king, or if they be only the deputies and vicars of the king.

It is certain that, in one and the same kingdom, the power of the king is more in extension than the power of any inferior judge; but if these powers of the king and the inferior judges differ intensive and in spece, and nature is the question, though it be not all the question.

Assert. — Inferior judges are no less essentially judges, and the immediate vicars of God, than the king. Those who judge in the room of God, and exercise the judgment of God, are essentially judges and deputies of God, as well as the king; but inferior judges are such, therefore the proposition is clear. The formal reason, why the king is univocally and essentially a judge, is, because the king’s throne is the Lord’s throne; 1 Chron. xxix. 23, “Then Solomon sat on the throne of the Lord, as king, instead of David his father.” 1 Kings i. 13, It is called David’s throne, because the king is the deputy of Jehovah; and the judgment is the Lord’s. I prove the assumption. Inferior judges appointed by king Jehoshaphat have this place, 2 Chron. xix, 6, “The king said to the judges, Take heed what ye do, [email protected]%+p%;#O;[email protected])fl; )[email protected] for ye judge not for man, but for the Lord.” Then, they were deputies in the place of the Lord, and not the king’s deputies in the formal and official acts of judging. Ver. 7, “Wherefore, now, let the fear at the Lord be upon you, take heed and do it; for there is no iniquity with the Lord our God, nor respect of persons, or taking of gifts.

Hence I argue, 1. If the Holy Ghost, in this good king; forbid inferior judges, wresting of judgment, respecting of persons, and taking of gifts, because the judgment is the Lord’s, and if the Lord himself were on the bench, he would not respect persons, nor take gifts, then he presumeth, that inferior judges are in the stead and place of Jehovah, and that when these inferior judges should take gifts, they make, as it were, the Lord, whose place they represent, to take gifts, and to do iniquity, and to respect persons; but that the Holy Lord cannot do. 2. If the inferior judges, in the act of judging, were the vicars and deputies of king Jehoshaphat, he would have said, judge righteous judgment. Why? For the judgment is mine, and if I, the king, were on the bench, I would not respect persons, nor take gifts; and you judge for me, the Supreme Judge, as my deputies. But the king saith, They judge not for man, but for the Lord. 3. If, by this, they were not God’s immediate vicars, but the vicars and deputies of the king, then, being mere servants, the king might command them to pronounce such a sentence, and not such a sentence as I may command my servant and deputy, in so far as he is a servant and deputy, to say this, and say not that; but the king cannot limit the conscience of the inferior judge, because the judgment is not the king’s, but the Lord’s. 4. The king cannot command any other to do that as king, for the doing whereof he hath no power from God himself; but the king hath no power from God to pronounce what sentence he pleaseth, because the judgment is not his own but God’s. And though inferior judges be sent of the king, and appointed by him to be judges, and so have their external call from God’s deputy the king, yet, because judging is an act of conscience, as one man’s conscience cannot properly be a deputy for another man’s conscience, so neither can an inferior judge, as a judge, be a deputy for a king. Therefore, the inferior judges have designation to their office from the king; but if they have from the king that they are judges, and be not God’s deputies, but the king’s, they could not be commanded to execute judgment for God, but for the king: (Deut. i. 17,) Moses appointed judges; but not as his deputies to judge and give sentence, as subordinate to him; for the judgment (saith, he) is the Lord’s, not mine, 3. If all the inferior judges in Israel were but the deputies of the king, and not immediately subordinate to God as his deputies, then could neither inferior judges be admonished nor condemned in God’s word for unjust judgment, because their sentence should be neither righteous nor unrighteous, judgment, but in so far as the king should approve it or disapprove it; and, indeed, that royalist, Hugo Grotius[1] saith so, — that an inferior judge can do nothing against the will of the supreme magistrate if it be so. Whenever God commandeth inferior judges to execute righteous judgment, it must have this sense, “Respect. not persons in judgment, except the king command you; crush not the poor, oppress not the fatherless, except the king command you.” I understand not such policy. Sure I am the Lord’s commandments, rebukes and threats, oblige, in conscience, the inferior judge as the superior, as is manifest in these scriptures, Jer. v. 1; Isa. i. 17, 21; v. 7; x. 2; lix. 14; Jer. xxii. 3; Ezek. xviii. 8; Amos v. 7; Mic. iii. 9; Hab. i. 4; Lev. xix, 15; Deut. xvii. 11; i. 17; Exod. xxiii. 2.

Grotius saith,[2] “It is here as in a category: the middle specie is, in respect of the superior, a specie, — in respect of the inferior, a genus; so inferior magistrates in relation to those who are inferior to them and under them, are magistrates or public persons; but in relation to superior magistrates, especially the king, they are private persons, and not magistrates.

Ans — Jehoshaphat esteemed not judges, appointed by himself, private men, 2 Chron. xix. 6, 7, “Ye judge not for men, but for the Lord.” We shall prove that under-judges are powers ordained of God: in Scotland the king can take no man’s inheritance from him because he is the king; but if any man possess lands belonging to the crown, the king, by his advocate, must stand before the lord-judges of the session, and submit the matter to the laws of the land; and if the king, for property of goods, were not under a law, and were not to acknowledge judges as judges, I see not how the subjects in either kingdoms have any property. I judge it blasphemy to say, that a sentence of an inferior judge must be no sentence, though never so legal nor just, if it be contrary to the king’s will, as Grotius saith.

He citeth that of Augustine: “If the consul command one thing, and the emperor another thing, you contemn not the power, but you choose to obey the highest.” Peter saith, He will have us one way to be subject to the king, as to the supreme, sine ulla exceptione, without any exception; but to those who are sent by the king, as having their power from the king.

Arg. 1. — When the consul commandeth a thing lawful, and the king that same thing lawful, or a thing not unlawful, we are to obey the king rather than the consul. So I expone Augustine. We are not to obey the king and the consul the same way, that is, with the same degree of reverence and submission; for we owe more submission of spirit to the king than to the consul; but magis et minus non variant speciem, more or less varieth not the nature of things. But if the meaning be that we are not to obey the inferior judge, commanding things lawful, if the king command the contrary, this is utterly denied. But saith Grotius, “The inferior judge is but the deputy of the king, and hath all his power from him; therefore we are to obey him for the king.” — Ans. The inferior judge may be called the deputy of the king, (where it is the king’s place to make judges,) because he hath his external call from the king, and is judge in foro soli, in the name and authority of the king; but being once made a judge, in foro poli, before God, he is as essentially a judge, and in his official acts, no less immediately subjected to God than the king himself.

Arg. 2. — These powers to whom we are to yield obedience, because they are ordained of God, these are as essentially judges as the supreme magistrate the king; but inferior judges are such, therefore inferior judges are as essentially judges as the supreme magistrate. The proposition is, Rom. xiii 1, for that is the apostle’s arguments; whence we prove kings are to be obeyed, because they are powers from God. I prove the assumption: inferior magistrates are powers from God, Deut. i 17; xix. 6, 7; Exod. xxii. 7; Jer. v. i.; and the apostle saith, “The powers that be are ordained of God.”

Arg. 3. — Christ testified that Pilate had power from God as a judge (say royalists) no less than Cæsar the emperor. (John xix. 11; 1 Pet. ii. 12.) We are commanded to obey the king and those that are sent by him, and that for the Lord’s sake, and for conscience to God; and (Rom. xiii. 5) we must be subject to all powers that are of God, not only for wrath, but for conscience.

Arg. 4. Those who are rebuked because they execute not just judgment, as well as the king, are supposed to be essentially judges, as well as the king; but inferior judges are rebuked because of this, Jer. xxii. 15-17; Ezek. xlv. 9-12; Zeph. iii. 3; Amos v. 6, 7; Eccles. iii. 16; Mic. iii. 2-4; Jer. v. 1, 31.

Arg. 5. — He is the minister of God for good, and hath the sword not in vain, but to execute vengeance on the evil-doers, no less than the king. (Rom. xiii. 2-4.) He to whom agreeth, by an ordinance of God, the specific acts of a magistrate, is essentially a magistrate.

Arg 6. — The resisting of the inferior magistrate in his lawful commandments is the resisting of God’s ordinance, and a breach of the fifth commandment, as is disobedience to parents; and not to give him tribute, and fear, and honour, is the same transgression, Rom. xiii. 1-7.

Arg. 7. — These styles, of gods, of heads of the people, of fathers, of physicians and healers of the sons of the Most High, of such as reign and decree by the wisdom of God, &c., that are given to kings, for the which royalists make kings only judges, and all inferior judges but deputed, and judges by participation, and at the second hand, or given to inferior judges. (Exod, xxii. 8, 9; John x. 35.) Those who are appointed judges under Moses (Deut. i. 16) are called, in Hebrew or Chaldee, (1 Kings viii. 1, 2; v. 2; Mic. iii. 1; Josh. xxiii. 2; Num. i. 16,) y#’O)rF rascey#O’yrI [8] fathers, (Acts vii. 2; Josh. xiv. 1; xix. 15; 1 Chron. viii. 28,) healers, (Isa. iii. 7,) gods, and sons of the Most High. (Psal. lxxxii. 1, 2, 6, 7; Prov. viii. 16, 17.) I much doubt if kings can infuse godheads in their subjects. I conceive they have, from the God of gods, these gifts whereby they are enabled to be judges; and that kings may appoint them judges, but can do no more: they are no less essentially judges than themselves.

Arg. 8. — If inferior judges be deputies of the king, not of God, and have all their authority from the king, then may the king limit the practice of these inferior judges. Say that an inferior judge hath condemned to death a paricide, and he be conveying him to the place of execution, the king cometh with a force to rescue him out of his hand; if this inferior magistrate bear God’s sword for the terror of ill-doers, and to execute God’s vengeance on murderers, he cannot but resist the king in this, which I judge to be his office; for the inferior judge is to take vengeance on ill-doers, and to use the co-active force of the sword, by virtue of his office, to take away this paricide. Now, if he be the deputy of the king, he is not to break the jaws of the wicked (Job xxix. 17); not to take vengeance on evil-doers (Rom. xiii. 4); nor to execute judgment on the wicked, Psal. cxlix. 9); nor to execute judgment for the fatherless (Deut. x. 18); except a mortal man’s creator, the king, say Amen. Now, truly then, God, in all Israel, was to rebuke no inferior judge for perverting judgment, — as he doth, Exod. xxiii. 26; Mic. iii. 2-4; Zech. iii. 3; Num. xxv. 5; Deut. i. 16; for the king only is lord of the conscience of the inferior judge who is to give sentence, and execute sentence righteously, upon condition that the king, the only univocal and proper iudge, first decree the same, as royalists teach.

Hear our Prelate (c. 4, p. 46). — How is it imaginable that kings can be said to judge in God’s place, and not receive the power from God? But kings judge in God’s place. (Deut. i. 17; 2 Chron. xix. 6.) Let no man stumble (this is his prolepsis) at this, that Moses in the one place, and Jehoshaphat in the other, spake to subordinate judges under them. This weakeneth nowise our argument; for it is a ruled case in law, Quod quis facit per alium, facit per se, all judgments of inferior judges are in the name, authority, and by the power of the supreme, and are but communicatively and derivatively from the sovereign power.

Ans. — How is it possible that inferior judges (Deut. i. 17; 2 Chron. xix. 8) can be said to judge in God’s place, and not receive the power from God immediately, without any consent or covenant of men? So saith the P. Prelate. But inferior judges judge in the place of God, as both the P. Prelate and Scripture teach. (Deut. i. 17; 2 Chron. xix. 6.) Let the Prelate see to the stumbling conclusion, for so he feareth it proves to his bad cause. He saith the places, Deut. i. 17; 2 Chron. xix. 6, prove that the king judgeth in the room of God, because his deputies judge in the place of God. The Prelate may know we would deny this stumbling and lame consequence; for 1. Moses and Jehoshaphat are not speaking to themselves, but to other inferior judges, and doth publicly exhort them. Moses and Jehoshaphat are persuading the regulation of the personal actions of other men who might pervert judgment. 2. The Prelate is much upon his law, after he had foresworn the gospel and religion of the church where he was baptized. “What the king doth by another, that he doth by himself.” But were Moses and Jehoshaphat afraid that they should pervert judgment in the unjust sentence pronounced by under judges, of which sentence they could not know any thing? And do inferior judges so judge in the name, authority, and power of the King, as not in the name, authority, and power of: the Lord of lords and King of kings? or is the judgment the king’s? So; the Spirit of God saith no such matter. The judgment executed by those inferior judges is the Lord’s, not a mortal king’s; therefore, a mortal king may not hinder them to execute judgment.

Obj. — He cannot suggest an unjust sentence, and command an inferior judge to give out a sentence absolvatory on cut-throats, but he may hinder the execution of any sentence against Irish cut-throats. Ans. — It is all one to hinder the execution of a just sentence, and to suggest or command the inferior judge to pronounce an unjust one; for inferior judges, by conscience of their office, are both to judge righteously, and by force and power of the sword given to them of God (Rom. xiii. 1-4) to execute the sentence; and so God hath commanded inferior judges to execute judgment, and hath forbidden them to wrest judgment, to take gifts, except the king command them so to do.

The king is by the grace of God, the inferior judge is judge by the grace of the king; even as the man is the image of God, and the woman the man’s image.[3]

Ans. 1. — This distinction is neither true in law nor conscience. Not in law, for it distinguisheth not betwixt ministros regis, et ministros regni. The servants of the king are his domestics, the judges are ministri regni, non regis; the ministers and judges of the kingdom, not of the king. The king doth not show grace, as he is a man, in making such a man a judge; but justice as a king, by a royal power received from the people, and by an act of justice, he makes judges of deserving men; he should neither for favour nor bribes make any one judge in the land. 2. It is by the grace of God that men are to be advanced from a private condition to be inferior judges, as royal dignity is a free gift of God; 1 Sam. ii. 7, “The Lord bringeth low and lifteth up;” Psal. lxxv. 7, “God putteth down one and setteth up another.” Court flatterers take from God and give to kings; but to be a judge inferior is no less an immediate favour of God than to be king, though the one be a greater favour than the other. Magis honos and Majoc honos are to be considered.

Arg. 9. — Those powers which differ gradually, and per magis et minus, by more and less only, differ not in nature and species, and constitute not kings and inferior judges different univocally. But the power of kings and inferior judges are such; therefore kings and inferior judges differ not univocally. That the powers are the same in nature, I prove, 1. by the specific acts and formal object of the power of both; for both are powers ordained of God. (Rom. xiii. 1.) To resist either, is to resist the ordinance of God. 2. Both are by office a terror to evil workers, ver. 3. 3. Both are the ministers of God for good. Though the king send and give a call to the inferior judge, that doth no more make the inferior judge’s powers in nature and specie different than ministers of the Word, called by ministers of the Word, have offices different in nature. Timothy’s office to be preacher of the Word differeth not in specie from the office of the presbytery which laid hands on him, though their office by extension be more than Timothy’s office. The people’s power is put forth in those same acts, when they choose one to be their king and supreme governor, and when they set up an aristocratical government, and choose many, or more than one, to be their governors; for the formal object of one or many governors is justice and religion, as they are to be advanced. The form and manner of their operation is, brachio seculari, by a co-active power, and by the sword. The formal acts of king and many judges in aristocracy are these same, the defending of the poor and needy from violence, the conservation of a community in a peaceable and a godly life. (1 Tim. ii. 2; Job xxix. 12, 13; Isa. i. 17.) These same laws of God that regulateth the king in all his acts of royal government, and tyeth and obligeth his conscience, as the Lord’s deputy, to execute judgment for God, and not in the stead of men, in God’s court of heaven, doth in like manner tie, and oblige the conscience of aristocratical judges, and all inferior judges, as is clear and evident by these places, 1 Tim. ii. 2, not only kings, but all in authority pa/ntev oi3 e0n u9peroxh|~ o!ntev are obliged to procure that their subjects lead a quiet and peaceable life, in all godliness and honesty. All in conscience are obliged (Deut. i. 16) to judge righteously between every man and his brother, and the stranger that is with them. Neither are they to respect persons in judgment, but are to hear the small as well as the great, nor to be afraid of the face of men, — the judgment administered by all, is God’s. (2 Chron. xix. 6.) All are obliged to fear God, (Deut. xvii. 19, 20,) to keep the words of the law; not to be lifted up in heart above their brethren. (Isa. i. 17; Jer. xiii. 2, 3,) Let any man show me a difference, according to God’s word, but in the extension, that what the king is to do as a king, in all the kingdom and whole dominions, (if God give to him many, as he gave to David, and Solomon, and Joshua,) that the inferior judges are to do in such and such circuits, and limited places, and I quit the cause; so as the inferior judges are little kings, and the king a great and delated judge, — as a compressed hand or fist, and the hand stretched out in fingers and thumb, are one hand; so here. 4. God owneth inferior judges as a congregation of gods; (Psal. lxxxii. 1, 2;) for that God sitteth in a congregation or senate of kings or monarchs, I shall not believe till I see royalists show to me a commonwealth of monarchs convening in one judicature. All are equally called gods, (John x. 35; Exod. xxii. 8,) if for any cause, but because all judges, even inferior, are the immediate deputies of the King of kings, and their sentence in judgment as the sentence of the Judge of all the earth, I shall he informed by the P. Prelate, when he shall answer my reasons, if his interdicted lordship may cast an eye to a poor presbyter below; and as wisdom is that by which kings reign, (Prov. viii. 15, so also ver. 16,) by which princes role, and nobles, even all the judges of the earth; all that is said against this is, that the king hath a prerogative royal, by which he is differenced from all judges in Israel, called jus regis +p%a#;Omi for, (saith Barclay,[4]) the king, as king, essentially hath a domination and power above all, so as none can censure him, or punish him, but God, because there be no thrones above his but the throne of God. The judges of Israel, as Samuel, Gideon, &c. had no domination, — the dominion was in God’s hand. “We may resist an inferior judge, (saith Arnisæus,[5]) otherwise there were no appeal from him, and the wrong we suffer were irreparable” as saith Marantius.[6] “And all the judges of the earth (saith Edward Symmons[7]) are from God more remotely; namely, mediante rege, by the mediation of the Supreme, even as the lesser stars have their light from God by the mediation of the sun. To the first I answer: — There was a difference betwixt the kings of Israel and their judges, no question; but if it be an essential difference, it is a question. For, 1. The judges were raised up in an extraordinary manner, out of any tribe, to defend the people, and vindicate their liberty, God remaining their king: the king, by the Lord’s appointment, was tyed, after Saul, to the royal tribe of Judah, till the Messiah’s coming. God took his own blessed liberty to set up a succession in the ten tribes. 2. The judges were not by succession from father to son: the kings were, as I conceive, for the typical eternity of the Messiah’s throne, presignified to stand from generation to generation. 3. Whether the judges were appointed by the election of the people, or no, some doubt; because Jephthah was so made judge: but I think it was not a law in Israel that it should be so. But the first mould of a king (Deut. xvii.) is by election. But that God gave power of domineering, that is, of tyrannising, to a king, so as he cannot be resisted, which he gave not to a judge, I think no scripture can make good. For by what scripture can royalists warrant to us that the people might rise in arms to defend themselves against Moses, Gideon, Eli, Samuel, and other judges, if they should have tyrannised over the people; and that it is unlawful to resist the most tyrannous king in Israel and Judah? Yet Barclay and others must say this, if they be true to that principle of tyranny, that the jus regis, the law or manner of the king (1 Sam. viii. 9, 11; and 1 Sam. x, 25) doth essentially differ betwixt the kings of Israel and the judges of Israel. But we think God gave never any power of tyranny to either judge or king of Israel; and domination in that sense was by God given to none of them. Arnisæus hath as little for him, to say the inferior magistrate may be resisted, because we may appeal from him; but the king cannot be resisted, quia sanctitas majestatis id non permittit, the sanctity of royal majesty will not permit us to resist the king.

Ans. — That is not Paul’s argument to prove it unlawful to resist kings, as kings, and doing their office, because of the sanctity of their majesty; that is, as the man intendeth, because of the supreme, absolute, and unlimited power that God hath given him. But this is a begging of the question, and all one as to say, the king may not be resisted, because he may not be resisted; for sanctity of majesty, if we believe royalists, includeth essentially an absolute supremacy of power, whereby they are above the reach of all thrones, laws, powers, or resistance on earth. But the argument is, resist not, because the power is of God. But the inferior magistrate’s power is of God. Resist not, because you resist God’s ordinance in resisting the judge; but the inferior judge is God’s ordinance. (Rom. xiii. 1; Deut. i. 17; 2 Chron. xix. 6.) Mr Symmons saith, “All judges on earth are from the king, as stars have their light from the sun.” I answer, 1. Then aristocracy were unlawful, for it hath not its power from monarchy. Had the lords of the Philistines have the states of Holland, no power but from a monarchy? Name the monarch. Have the Venetians any power from a king? Indeed, our Prelate saith from Augustine, (Confess. lib. 3, cap. 8,) Generale pactum at societatis humanæ, obedire Regibus suis, it is an universal covenant of human society, and a dictate of nature, that men obey their kings. “I beg the favour of sectaries (saith he) to show as much for aristocracy and democracy.” Now all other governments, to those born at court, are the inventions of men. But I can show that same warrant for the one as for the other; because it is as well the dictate of nature that people obey their judges and rulers as it is that they obey their kings. And Augustine speaketh of all judges in that place, though he name kings; for kingly government is no more of the law of nature than aristocracy or democracy; nor are any born judges or subjects at all. There is a natural aptitude in all to either of these, for the conservation of nature, and that is all. Let us see that men, naturally inclining to government, incline rather to royal government than to any other. That the P. Prelate shall not be able to show; for fatherly government, being in two, is not kingly, but nearer to aristocracy; and when many families were on earth, every one independent within themselves, if a common enemy should invade a tract of land governed by families, I conceive, by nature’s light, they should incline to defend themselves, and to join in one politic body for their own safety, as is most natural. But, in that case they, having no king, and there were no reason of many fathers all alike loving their own families and sell-preservation, why one should be king over all, rather than another, except by voluntary compact. So it is clear that nature is nearer to aristocracy before this contract than a monarchy. And let him show us in multitudes of families dwelling together, before there was a king, as clear a warrant for monarchy as here is for aristocracy; though to me both be laudable and lawful ordinances of God, and the difference merely accidental, being one and the same power from the Lord, (Rom. xiii. 1,) which is in divers subjects; in one as a monarchy, in many as in aristocracy; and the one is as natural as the other, and the subjects are accidental to the nature of the power. 2. The stars have no light at all but in actual aspect toward the sun; and they are not lightsome bodies by the free will of the sun, and have no immediate light from God formally, but from the sun; so as if there were no sun, there should be no stars. 3. For actual shining and sending out of beams of light actu secundo, they depend upon the presence of the sun; but for inferior judges, though they have their call from the king, yet have they gifts to govern from no king on earth, but only from the King of kings. 4. When the king is dead, the judges are judges, and they depend not on the king for their second acts of judging; and for the actual emission and putting forth their beams and rays of justice upon the poor and needy, they depend on no voluntary aspect, information or commandment of the king, but on that immediate subjection of their conscience to the King of kings. And their judgment which they execute is the Lord’s immediately, and not the king’s; and so the comparison halteth.

Arg. 10. — If the king dyine, the judges inferior remain powers from God, the deputies of the Lord of Hosts, having their power from God, then are they essentially judges; yea, and if the estates, in their prime representators and leaders, have power in the death of the king to choose and make another king, then are they not judges and rulers by derivation and participation, or improperly; but the king is rather the ruler by derivation and participation than those who are called inferior judges. Now, if these judges depend in their sentences upon the immediate will of him who is supposed to be the only judge, when this only judge dieth, they should cease to be judges: for Expirante mandatore exspirat mandatum; because the fountain-judge drying up, the streams must dry up. Now, when Saul died, the princes of the tribes remain by God’s institution princes, and they by God’s law and warrant (Deut. xvii.) choose David their king.

Arg. 11. — If the king, through absolute power, do not send inferior judges, and constitute them, but only by a power from the people; and if the Lord have no less immediate influence in making inferior judges than in making kings, then there is no ground that the king should be sole judge, and the inferior judge only judge by derivation from him, and essentially his deputy, and not the immediate deputy of God. If the former is true, therefore, so is the latter. And, 1. That the king’s absolute will maketh not inferior judges, is clear, from Deut. i. 15. Moses might not follow his own will in making inferior judges whom he pleased: God tyed him to a law, (ver. 13,) that he should take wise men, known amongst the people, and fearing God, and hating covetousness. And these qualifications were not from Moses, but from God; and no less immediately from God than the inward qualification of a king (Deut. xvii.); and therefore, it is not God’s law that the king may make inferior judges only, Durante beneplacito, during his absolute will; for if these divine qualifications remain in the seventy elders, Moses, at his will, could not remove them from their places. 2. That the king can make heritable judges more than he can communicate faculties and parts of judging, I doubt. Riches are of fathers, but not promotion, which is from God, and neither from the east nor the west: that our nobles are born lords of parliament, and judges by blood, is a positive law. 3. It seemeth to me, from Isa. iii. 1-4, that the inferior judge is made by consent of the people; nor can it be called a wronging of the king, that all cities and burghs of Scotland and England have power to choose their own provosts, rulers, and mayors. 4. If it be warranted by God, that the lawful call of God to the throne be the election of the people, the call of inferior judges must also be from the people, mediately or immediately. So I see no ground to say, that the inferior judge is the king’s vicegerent, or that he is in respect of the king, or in relation to supreme authority, only a private man.

Arg. 12. These judges cannot but be univocally and essentially judges no less than the king, without which in a kingdom justice is physically impossible; and anarchy, and violence, and confusion, must follow, if they be wanting in the kingdom. But without inferior judges, though there be a king, justice is physically impossible; and anarchy and confusion, &c. must follow. Now this argument is more considerable, that without inferior judges, though there be a king in a kingdom, justice and safety are impossible; and if there be inferior judges, though there be no king, as in aristocracy, and when the king is dead, and another not crowned, or the king is minor, or absent, or a captive in the enemy’s land, vet justice is possible, and the kingdom preserved; the medium of the argument is grounded upon God’s word, Num. xi. 14, 15, when Moses is unable alone to judge the people, seventy elders are joined with him (ver. 16, 17); so were the elders adjoined to help him (Exod. xxiv. 1; Deut. v. 23; xxii. 16; Josh. xiii. 2; Judg. viii. 14; xi. 5, 11; 1 Sam. xi. 3; 1 Kings xx. 7; 2 Kings vi. 32; 2 Chron. xxxiv. 29; Ruth iv. 4; Deut. xix. 12; Ezek. viii. 1; Lam. i. 19); then were the elders of Moab thought to have a king. The natural end of judges hath been indigence and weakness, because men could not in a society defend themselves from violence; therefore, by the light of nature they gave their power to one or more, and made a judge or judges to obtain the end of self-preservation. But nature useth the most efficacious means to obtain its end; but in a great society and kingdom, the end is more easily attained by many governors than by one only; for where there is but one, he cannot minister justice to all; and the farther that the children are removed from their father and tutor, they are the nearer to violence and injustice. Justice should be at as easy a rate to the poor at a draught of water. Samuel went yearly through the land to Bethel, Gilgal, Mizpeh, (1 Sam. vii. 16,) and brought justice to the doors of the poor. So were our kings of Scotland obliged to do of old; but now justice is as dear as gold. It is not a good argument to prove inferior judges to be only vicars and deputies of the king, because the king may censure and punish them when they pervert judgment. 1. Because the king, in that punisheth them not as judges, but as men. 2. That might prove all the subjects to be vicars and deputies of the king, because he can punish them all, in the case of their breach of laws.

[1] Grotius de jure belli et pac. lib. 1, c. 4, Nam omnis facultas gubernandi in magistratibus, summa potestati ita. subjicitur ut quioquid contra voluntatem summi imperantis faciant, id defectum ait ea facultate, ac proinde de pro actu privato habendum.

[2] Grotius ib. species intermedia, si genus respicias, est species, srepeciem infra positam, est genus; ita magistratus illi, inferiorum quidem ratione habita sunt publicæ, personæ, ac superiorea si considerentur, sunt privati.

[3] Symmon’s Loyal Subjects’ Belief, sect. 1, p. 3.

[4] Inferiores Judices sunt improprie Vicarii Regis, quod missionem externam ad officium, sed immediati Dei vicarii. quoad officium in quod misai sunt. Barclaius contr. Monarch. l. 2, p. 56, 57.

[5] Arnisæus de authoritate princip. c. 3, n. 9.

[6] Marant. disp. l.. Zoan. tract. 3, de defens. Mynsing. obs, 18, cent. 5.

[7] Symmons, sect. 1, p. 2.


[8] Original in Estrangela Syriac, y$Yr , transliterated by Rutherford into Hebrew.

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