Question XXI.
What power the people and states of parliament have over the king, and in the state.
It is true the king is the head of the kingdom; but the states of the kingdom are as the temples of the head, and so, as essentially parts of the head as the king is the crown of the head.[1]
Assert. 1. — These ordines regni, the states, have been in famous nations: so there were fathers of families, and princes of tribes amongst the Jews: the Ephori amongst the Lacedemonians, (Polyb. hist. l. 6;) the senate amongst the Romans; the forum superbiense amongst the Arragonians; the parliaments in Scotland, England, France, Spain. Abner communed with the elders of Israel to bring the king home; (2 Sam. iii. 17;) and there were elders in Israel, both in the time of the judges, and in the time of the kings, who did not only give advice and counsel to the judges and kings, but also were judges no less than the kings and judges, which I shall make good by these places: Deut. xxi. 19, the rebellious son is brought to the elders of the city, who had power of life and death, and caused to stone him; Deut. xxii. 18, “The elders of the city shall take that man and chastise him;” Josh. xx. 4, but beside the elders of every city, there were the elders of Israel and the princes, who had also judicial power of life and death, as the judges and king had; Josh. xxii. 30, even when Joshua was judge in Israel, the princes of the congregation and heads of the thousands of Israel did judicially cognosce whether the children of Reuben, of Gad, and of half the tribe of Manasseh, were apostates from God, and the religion of Israel; 2 Sam. v. 3, all the elders of Israel made David king at Hebron; and Num. xii., they are appointed by God not to be the advisers only and helpers of Moses; but (ver. 14-17) to bear a part of the burden of ruling and governing the people, that Moses might be eased. Jeremiah is accused, (xxvi. 10,} upon his life, before the princes; Josh. vii. 4, the princes sit in judgment with Joshua; Josh. ix. 15, Joshua and the princes of the congregation sware to the Gibeonites that they would not kill them. The princes of the house of Israel could not be rebuked for oppression in judgment (Mic. iii. 1-3) if they had not had power of judgment. So (Zeph. iii. 3; Deut. i. 17; 2 Chron. xix. 6, 7) they are expressly made judges in the place of God; and (1 Sam. viii. 2) without advice or knowledge of Samuel, the supreme judge, they convene and ask a king; and without any head or superior, when there is no king, they convene a parliament, and made David king at Hebron; and when David is banished, they convene to bring him home again; when tyrannous Athalia reigneth, they convene and make Joash king, and that without any king; and (Josh. xxii.) there is a parliament convened, and, for any thing we can read, without Joshua, to take cognisance of a new altar. It had been good that the parliaments both of Scotland and of England had convened, though the king had not indicted and summoned a parliament, without the king, to take order with the wicked clergy, who had made many idolatrous altars; and the P. Prelate should have brought an argument to prove it unlawful, in foro Dei, to set up the tables and conventions in our kingdom, when the prelates were bringing in the grossest idolatory into the church — a service for adoring of altars, of bread, the work of the hand of the baker — a god more corruptible than any god of silver and gold.
And against Achab’s will and mind, (1 Kings xviii. 19,) Elias causeth to kill the priests of Baal, according to God’s express law. It is true it was extraordinary; but no otherwise extraordinary than it is at this day. When the supreme magistrate will not execute the judgment of the Lord, those who made him supreme magistrate, under God, who have, under God, sovereign liberty to dispose of crowns and kingdoms, are to execute the judgment of the Lord, when wicked men make the law of God of none effect. 1 Sam. xv. 32, so Samuel killed Agag, whom the Lord expressly commanded to be killed, because Saul disobeyed the voice of the Lord. I deny not but there is necessity of a clear warrant that the magistrate neglect his duty, either in not convening the states, or not executing the judgment of the Lord. I see not how the convening of a parliament is extraordinary to the states; for none hath power ordinary when the king is dead, or when he is distracted, or captive in another land, to convene the estates and parliament, but they only; and in their defect, by the law of nature, the people may convene. But, if they be essentially judges no less than the king, as I have demonstrated to the impartial reader, in the former chapter, I conceive, though the state make a positive law, for order’s cause, that the king ordinarily convene parliaments; yet, if we dispute the matter in the court of conscience, the estates have intrinsically (because they are the estates, and essentially judges of the land) ordinary power to convene themselves. Because, when Moses, by God’s rule, hath appointed seventy men to be catholic judges in the land, Moses, upon his sole pleasure and will, hath not power to restrain them in the exercise of judgment given them of God; for, as God hath given to any one judge power to judge righteous judgment, though the king command the contrary, so hath he given to him power to sit down in the gate, or the bench, when and where the necessity of the oppressed people calleth for it. For the express commandment of God, which saith to all judges, execute judgment in the morning, involveth essentially a precept to all the physical actions, without which it is impossible to execute judgment; — as, namely, if, by a divine precept, the judge must execute judgment; therefore he must come to some public place, and he must cause party and witnesses come before him, and he must consider, cognosce, examine, in the place of judgment, things, persons, circumstances: and so God, who commandeth positive acts of judging, commandeth the judge’s locomotive power, and his natural actions of compelling, by the sword, the parties to come before him, even as Christ, who commandeth his servants to preach, commandeth that the preacher and the people go to church, and that he stand or sit in a place where all may hear, and that he give himself to reading and meditating before he come to preach. And if God command one judge to come to the place of judgment, so doth he command seventy, and so all estates to convene in the place of judgment. It is objected, “That the estates are not judges, ordinary and habitually, but only judges at some certain occasions, when the king, for cogent and weighty causes, calleth them, and calleth them not to judge, but to give him advice and counsel how to judge.”
Arg. 1. — They are no less judges habitually than the king, when the common affairs of the whole kingdom necessitateth these public watchmen to come together; for even the king judgeth not actually, but upon occasion. This is to beg the question, to say that the estates are not judges but when the king calleth them at such and such occasions; for the elders, princes, and heads of families and tribes, were judges ordinary, because they made the king,
Arg. 2. — The kingdom, by God, yea, and church, justice and religion, so far as they concern the whole kingdom, are committed not to the keeping of the king only, but to all the judges, elders, and princes of the land: and they are rebuked as evening wolves, lions, oppressors, (Ezek. xxii. 27; Zec. iii. 3; Isa. iii. 14, 15; Mic. iii. 1-3,) when they oppress the people in judgment, so are they (Deut. i. 15-17; 2 Chron. xix. 6, 7) made judges, and therefore they are no more to be restrained not to convene by the king’s power, (which is in this accumulative and auxiliary, not privative,) than they can be restrained in judgment, and in pronouncing such a sentence, as the king pleased, and not such a sentence; because, as they are to answer to God for unjust sentences, so also for no just sentences, and for not convening to judge, when religion and justice, which are fallen in the streets, calleth for them.
Arg. 3. — As God in a law of nature hath given to every man the keeping and self-preservation of himself and of his brother, Cain ought in his place to be the keeper of Abel his brother; so hath God committed the keeping of the commonwealth, by a positive law, not to the king alone, because that is impossible.[2] (Num. xi. 14, 17; 2 Chron. xix, 1-6; 1 Chron. xxvii.)
Arg. 4. — If the king had such a power as king, and so from God, he should have power to break up the meeting of all courts of parliament, secret councils, and all inferior judicatures; and when the congregation of gods, as Psal. lxxxii., in the midst of which the Lord standeth, were about to pronounce just judgment for the oppressed and poor, they might be hindered by the king; and so they should be as just as the king maketh them, and might pervert judgment, and take away the righteousness of the righteous from him, (Isa. v. 23,) because the king commandeth; and the cause of the poor should not come before the judge, when the king so commandeth. And shall it excuse the estates, to say, we could not judge the cause of the poor, nor crush the priests of Baal, and the idolatrous mass-prelates, because the king forbade us? So might the king break up the meeting of the lords of session, when they were to decern that Naboth’s vineyard should be restored to him, and hinder the states to repress tyranny; and this were as much as if the states should say, We made this man our king, and with our good-will we agree he shall be a tyrant. For if God gave it to him as a king, we are to consent that he enjoy it.
Arg 5. — If Barclay and other flatterers have leave to make the parliament but counsellors and advisers of the king, and the king to be the only and sole judge, the king is, by that same reason, the sole judge, in relation to all judges; the contrary whereof is clear. (Num. xi. 16; Deut. i. 15-17; Chron. xix. 6; Rom, xiii. 1, 2; 1 Pet. ii. 13, 14.) Yea, but (say they) the king, when he sendeth an ambassador, he may tie him to a written commission; and in so far as he exceedeth that, he is not an ambassador; and clear it is, that all inferior judges (1 Pet. ii. 13, 14) are but sent by the king; therefore, they are so judges as they are but messengers, and are to adhere to the royal pleasure of the prince that sent them. Ans. (1.) — The ambassador is not to accept an unjust ambassage, that fighteth with the law of nature. (2.) The ambassador and the judge differ, the ambassador is the king and states’ deputy, both in his call to the ambassy, and also in the matter of the ambassy; for which cause he is not to transgress what is given to him in writ as a rule; but the inferior judges, and the high court of parliament, though they were the king’s deputies, (as the parliament is in no sort his deputy, but he their deputy royal) yet it is only in respect of their call, not in respect of the matter of their commission, for the king may send the judge to judge in general according to the law, justice, and religion, but he cannot depute the sentence, and command the conscience of the judge to pronounce such a sentence, not such. The inferior judge in the act of judging is as independent, and his conscience as immediately subject to God as the king; therefore, the king owes to every sentence his approbative suffrage as king, but not either his directive suffrage, or his imperative suffrage of absolute pleasure.
Arg. 6. — If the king should sell his country, and bring in a foreign army, the estates are to convene, to take course for the safety of the kingdom.
Arg. 7. — If David exhort the princes of Israel to help king Solomon in governing the kingdom, and in building the temple (2 Chron. xxxii.3): — if Hezekiah took counsel with his princes, and his mighty men in the matter of holding off the Assyrians, who were to invade the land: if David (1 Chron. xiii. 1-4) consult with the captains of thousands and hundreds, to bring the ark of God to Kirjath-jearim: if Solomon (1 Kings viii. 1) “assemble the elders of Israel, and all the heads of the tribes, and the chief of the fathers, to bring the ark of the tabernacle to the congregation of the Lord:” if Achab gathered together the states of Israel, in a matter that nearly concerned religion: if the elders and people (1 Kings xx. 8) counsel and decree that king Achab should hearken to Ben-hadad king of Syria, and if Ahasuerus make no decrees, but with consent of his princes, (Esth. i. 21,) nor Darius any act without his nobles and princes: if Hamor and Shechem (Gen. xxxiv. 20} would not make a covenant with Jacob’s sons, without the consent of the men of the city, and Ephron the Hittite would not sell Abraham a burial place in his land without the consent of the children of Heth (Gen. xxiii. 10): — then must the estates have a power of judging with the king or prince in matters of religion, justice, and government, which concern the whole kingdom. But the former is true by the records of Scripture; therefore, so is the latter.
Arg. 8. — The men of Ephraim complain that Jephthah had gone to war against the children of Ammon without them, and hence rose war betwixt the men of Ephraim and the men of Gilead, (Judges xii. 1-3,) and the men of Israel fiercely contended with the men of Judah, because they brought king David home again without them, pleading that they were therein despised, (2. Sam. xix. 41-43,) which evinceth that the whole states have hand in matters of public government, that concern all the kingdom; and when there is no king, (Judg. xx.) the chief of the people, and of all the tribes, go out in battle against the children of Benjamin.
Arg. 9. — Those who make the king, and so have power to unmake him in the case of tyranny, must be above the king in power of government; but the elders and princes made both David and Saul kings.
Arg. 10. — There is not any who say that the princes and people, (1 Sam. xiv.) did not right in rescuing innocent Jonathan from death, against the king’s will and his law.
Arg. 11. — The special ground of royalists is, to make the king the absolute supreme, giving all life and power to the parliament and states, and of mere grace convening them. So saith Ferne, the author of Ossorianum, (p. 69,) but this ground is false, because the king’s power is fiduciary, and put in his hand upon trust, and must be ministerial, and borrowed from those who out him in trust, and so his power must be less, and derived from the parliament. But the parliament hath no power in trust from the king, because the time was when the man who is the king had no power, and the parliament had the same power that they now have; and now, when the king hath received power from them, they have the whole power that they had before — that is, to make laws; and resigned no power to the king, but to execute laws; and his convening of them is an act of royal duty, which he oweth to the parliament by virtue of his office, and is not an act of grace; for an act of grace is an act of free will; and what the king doth of free will, he may not do; and so he may never convene a parliament. But, when David, Solomon, Asa, Hezekiah, Jehoshaphat, Ahaz, convened parliaments, they convened parliaments as kings, and so ex debito et virtute officii, out of debt and royal obligation, and if the king as the king, be lex animata, a breathing and living law, the king, as king, must do by obligation of law what he doth as king, and not from spontaneous and arbitrary grace. If the Scripture holds forth to us a king in Israel, and two princes and elders who made the king, and had power of life and death, as we have seen; then is there in Israel monarchy tempered with aristocracy; and if there were elders and rulers in every city, as the Scripture saith, here was also aristocracy and democracy; and for the warrant of the power of the estates, I appeal to jurists, and to approved authors: Arg. l. aliud. 160, sect. 1; De Jur. Reg. l. 22; Mortuo de fidei. l. 11, 14, ad Mum. l. 3, 1, 4; Sigenius De Rep. Judæor. l. 6, c. 7; Cornelius Bertramo, c. 12, Junius Brutus, Vindic. contra. Tyran. sect. 2; Author Libelli de jur Magistrat. in subd. q. 6; Althus. Politic. c. 18; Calvin Institut. l. 4, c. 20; Pareus Coment. in Rom. xiii.; Pet. Martyr in Lib. Judic. c. 3; Joan Marianus de rege lib. 1, c. 7; Hottoman de jure Antiq. Regni Gallici l. 1, c. 12; Buchanan de jure Regni apud Scotos.
Obj. — The king after a more noble way represenceth the people than the estates doth; for the princes and commissioners of parliament have all their power from the people, and the people’s power is concentrated in the king.
Ans. — The estates taken collectively do represent the people both in respect of office, and of persons, because they stand judges for them; for many represent many, ratione numeri et officii, better than one doth. The king doth improperly represent the people, though the power for actual execution of laws be more in the king, yet a legislative power is more in the estates. Neither will it follow, that if the estates of a kingdom do any thing but counsel a king, they most then command him, for a legal and judicial advice hath influence in the effect to make it a law, not on the king’s will, to cause him give the being of a law to that, which without his will is no law, for this supposeth that he is only judge. Obj. — What power the people reserveth, they reserve it to themselves in unitate, as united in a parliament; and therefore what they do out of a parliament is tumultuous.
Ans. — I deny the consequence; they reserve the power of self-preservation out of a parliament, and a power of convening in parliament for that effect, that they may by common counsel defend themselves.
[1] Principes sunt capitis tempora rex vertex.
[2] Junius Brut. q. 2. p. 31, vind. contr. Tyran.
Question XXII.
Whether the power of the king as king be absolute, or dependent and limited by God’s first mould and pattern of a king.
Dr Ferne (sect. 3, p. 12) showeth us it was never his purpose to plead for absoluteness of an arbitrary commandment, free from all moral restraint laid on the power by God’s law; but only he striveth for a power in the king that cannot be resisted by the subject. But truly we never disputed with royalists of anv absolute power in the king, free from moral subjection to God’s law. 1. Because any bond that God’s law imposeth on the king, cometh wholly from God, and the nature of a divine law, and not from any voluntary contract or covenant, either express or tacito, betwixt the king and the people who made him king; for, if he fail against such a covenant, though he should exceed the cruelty of a king or a man, and become a lion, a Nero, and a mother-killer, he should in all his inhumanity and breach of covenant be accountable to God, not to any man on earth. 2. To dispute with royalists if God’s law lay any moral restraint upon the king, were to dispute whether the king be a rational man or no, and whether he can sin against God, and shall cry in the day of God’s wrath, (if he be a wicked prince) Hills fall on us and cover us, as it is Rev. vi. 15, 16; and whether Tophet be prepared for all workers of iniquity; and certainly I justify the schoolmen in that question: Whether or no God could have created a rational creature, such a one as by nature is impeccable, and not naturally capable of sin before God? If royalists dispute this question of their absolute monarch, they are wicked divines.
We plead not at this time, (saith the Prelate, c. 14, p. 163, stealing from Grotius, Barclay, Arnisæus, who spake it with more sinews of reason;) for a masterly or despotical, or rather for a slavish sovereignty, which is dominium herile, an absolute power, such as the great Turk this day exerciseth over his subjects, and the king of Spain hath over and in his territories without Europe: we maintain only regnam potestatem, quos fundatur in paterna, such royal, fatherly sovereignty, as we live under, blessed be God, and our predecessors. This, (saith he,) as it hath its royal prerogative inherent to the crown naturally, and inseparable from it, so it trencheth not upon the liberty of the person, or the property of the goods of the subject, but in and by the lawful and just acts of jurisdiction.
Ans. — 1. Here is another absolute power disclaimed to be in the king; he hath not such a masterly and absolute liberty as the Turk hath. Why? John P. P.. in such a tender and high point as concerneth soul and body of subjects in three Christian kingdoms, you should have taught us. What bonds and fetters any covenant or paction betwixt the king and people layeth upon the king, — why he hath not, as king, the power of the great Turk, I will tell you The great Turk may command any of his subjects to leap into a mountain of fire, and burn himself quick, in conscience of obedience to his law. And what if the subject disobey the great Turk? if the great Turk be a lawful prince, as you will not deny; — and if the king of Spain should command foreign conquered slaves to do the like. Be your doctrine, neither the one nor the other were obliged to resist by violence, but to pray, or fly; which both were to speak to stones, and were like the man who, in case of shipwreck, made his devotion of praying to the waves of the sea, not to enter the place of his bed and drown him. But a Christian king hath not this power; why? and a Christian king (by royalist’s doctrine) hath a greater power than the Turk (if greater can be): he hath power to command his subjects to cast themselves into hell-fire; that is, to press on them a service wherein it is written, — Adore the work of men’s hands in the place of the living God; and this is worse than the Turk’s commandment of bodily burning quick. And what is left to the Christian subjects in this case is the very same, and no other than is left to the Turkish and foreign Spanish subject. Either fly, or make prayers. There is no more left to us.
2. Many royalists maintain that England is a conquered nation. Why, then, see what power, by law of conquest, the king of Spain hath over his slaves; the same must the king of England have over his subjects. For, to royalists, a title by conquest to a crown is as lawful as a title by birth or election; for lawfulness, in relation to God’s law, is placed in an indivisible point, if we regard the essence of lawfulness; and therefore there is nothing left to England, but that all protestants who take the oath of a protestant king, to defend the true protestant religion, should, after prayers conveyed to the king through the tinkers of prelates and papists, leave the kingdom empty to papists, prelates, and atheists.
3. All power restrained that it cannot arise from ten degrees to fourteen, — from the kindly power of Saul (1 Sam. viii. 9, 11) to the kingly power of the great Turk, to fourteen, — must either be restrained by God’s law, or by man’s law, or by the innate goodness and grace of the prince, or fay the providence of God. A restraint from God’s law is vain; for it is no question between us and royalists but God hath laid a moral restraint on kings, and all men, that they have not moral power to sin against God. Is the restraint laid on by man’s law? What law of man? The royalist saith, the king, as king, is above all law of man. Then (say I) no law of man can hinder the king’s power of ten, to arise to the Turkish power of fourteen. All law of man, as it is man’s law, is seconded either with ecclesiastical and spiritual co-action, such as excommunication, or with civil and temporal co-action, such as is the sword, if it be violated. But royalists deny that either the sword of the church in excommunication, or the civil sword, should be drawn against the king. This law of man should be produced by this profound jurist, the P. Prelate, who mocketh at all the statists and lawyers of Scotland. It is not a covenant betwixt the king and people at his coronation; for though there were any such covenant, yet the breach of it doth bind before God, but not before man. Nor can I see, or any man else, how a law of man can lay a restraint on the king’s power of two degrees, to cancel it within a law, more than on a power of ten or fourteen degrees. If the king of Spain, the lawful sovereign of those over-European people, (as royalists say,) have a power of fourteen decrees over those conquered subjects, as a king, I see not how he hath not the like power over his own subjects of Spain, to wit, even of fourteen; for what agreeth to a king, as a king, (and kingly power from God he hath as king,) he hath it in relation to all subjects, except it be taken from him in relation to some subjects, and given by some law of God, or in relation to some other subjects. Now no man can produce any such law. The nature of the goodness and grace of the prince cannot lay bonds on the king to cancel his power, that be should not usurp the power of the king of Spain toward his over-Europeans. 1. Royalists plead for a power due to the king, as king, and that from God, such as Saul had; (1 Sam. viii. 9, 11; x. 25;) but this power should be a power of grace and goodness in the king as a good man; not in the king as a king, and due to him by law; and so the king should have his legal power from God to be a tyrant. But if he were not a tyrant, but should lay limits on his own power, through the goodness of his own nature, no thanks to royalists that he is not a tyrant; for, actu prima, and as he is a king, (as they say) he is a tyrant, having from God a tyrannous power of ten degrees, as Saul had; (1 Sam. viii.;) and why not of fourteen degrees as well as the great Turk, or the king of Spain? If he use it not, it is his own personal goodness, not his official and royal power. The restraint of providence laid by God upon any power to do ill, hindereth only the exercise of the power not to break forth in as tyrannous acts as ever the king of Spain or the great. Turk can exercise toward any. Yea, providence layeth physical restraint, and possibly moral, sometimes, upon the exercise of that power that devils and the most wicked men of the world hath. But royalists must show us that providence hath laid bounds on the king’s power, and made it fatherly and not masterly; so that if it, the power, exceed bounds of fatherly power, and pass over to the despotical and masterly power, it may be resisted by the subjects; but that they will not say.
4. This paternal and fatherly power that God hath given to kings, as royalists teach, trencheth not upon the liberty of the subjects and the property of their goods, but in and by lawful and just acts of jurisdiction (saith the P. Prelate). Well; then it may trench upon the liberty of soul and body of the subjects but in and by lawful and just acts of jurisdiction. But none are to judge of these acts of jurisdiction, whether they be just or not just, but the king, the only judge of supreme and absolute authority and power. And if the king command the idolatrous service in the obtruded service-book, it is a lawful and a just act of jurisdiction. For to royalists, who make the king’s power absolute, all acts are so just to the subject, though he command idolatry and Mahommedanism, that we are to suffer only, and not to resist.
5. The Prelate presumeth that fatherly power is absolute; but so, if a father murder his child, he is not accountable to the magistrate therefor, but, being absolute over his children, only the Judge of the world, not any power on earth, can punish him.
6. We have proved that the king’s power is paternal or fatherly only by analogy, and improperly.
7. What is this prerogative royal, we shall hear by and by.
8. There is no restraint on earth laid upon this fatherly power of the king but God’s law, which is a moral restraint. If then, the king challenge as great a power as the Turk hath, he only sinneth against God, but no mortal man on earth may control him, as royalists teach. And who can know what power it is that royalists plead for, whether a despotical power of lordly power, or a fatherly power? If it be a power above law, such as none on earth may resist it, it is no matter whether it be above law of two degrees, or of twenty, even to the great Turk’s power.
These go for oracles at court: Tacitus, — Principi summum rerum arbitrium Dii dederunt, subditis obsequii gloria relicta est; Seneca, — Indigna digna habenda sunt, Rex qua facit; Salust, — Impune quidvis facere, id est, Regem esse. As if to be a king and to be a god who cannot err were all one. But certainly these authors are taxing the license of kings, and not commanding their power.
But that God hath given no absolute and unlimited power to a king above the law, is evident by this: —
Arg. 1. — He who, in his first institution, is appointed of God by office, even when he sitteth on the throne, to take heed to read on a written copy of God’s law, that he may “learn to fear the Lord his God, and keep all the words of this law,” &c., he is not of absolute power above law. But (Deut. xvii. 18, 19) the king as king, while he sitteth on the throne, is to do this; therefore the assumption is clear, for this is the law of the king as king, and not of a man as a man. But as he sitteth on the throne, he is to read on the book of the law; and (ver. 20) because he is king, “his heart is not to be lifted up above his brethren;” and as king, (ver. 16,) “he is not to multiply horses,” &c. So politicians make this argument good: — they say, Rex est lex viva, animata, et loquens lex, the king as king, is a living, breathing, and speaking law. And there be three reasons of this, — 1. If all were innocent persons, and could do no violence one to another, the law would rule all, and all men would put the law in execution, agenda sponte, by doing right of their own accord; and there should be no need of a king to compel men to do right. But now, because men are by nature averse to good laws, therefore there was need of a ruler, who, by office, should reduce the law into practice; and so is the king the law reduced in practice. 2. The law is ratio sive mens, the reason or mind, free from all perturbations of anger, lust, hatred, and cannot be tempted to ill; and the king, as a man, may be tempted by his own passions, and therefore, as king, he cometh by office out of himself to reason and law; and so much as he hath of law, so much of a king; and in his remotest distance from law and reason he is a tyrant. 3. Abstracta concretis sunt puriora et perfectiora. Justice is more perfect than a just man, whiteness more perfect than the white wall; so the nearer the king comes to a law, for the which he is a king, the nearer to a king, Propter quod unumquodque tale, id ipsum magis tale. Therefore, kings throwing laws to themselves as men, whereas they should have conformed themselves to the law, have erred. Cambyses, the son of Cyrus, because he loved his own sister, would have “the marriage of the brother with the sister lawful.” Anaxarchus said to Alexander, (grieved in mind that he had killed Clytus,) Regi ac Jovi themin atque institiam assidere: — Judgment and righteousness did alway accompany God and the king in all they do; but some, to this purpose, say better: — The law, rather than the king, hath power of life and death.
Arg. 2. — The power that the king hath (I speak not of his gifts) he hath it from the people who maketh him king, as I proved before; but the people have neither formally nor virtually any power absolute to give the king. All the power they have is a legal and natural power to guide themselves in peace and godliness, and save themselves from unjust violence by the benefit of rulers. Now, an absolute power above a law is a power to do ill and to destroy the people, and this the people have not themselves, it being repugnant to nature that any should have a natural power in themselves to destroy themselves, or to inflict upon themselves an evil of punishment to destruction. Though therefore it were given, which yet is not granted, that the people had resigned all power that they have into their king, yet if he use a tyrannical power against the people for their hurt and destruction, he useth a power that the people never gave him, and against the intention of nature; for they invested a man with power to be their father and defender for their good; and he faileth against the people’s intention in usurping an over-power to himself, which they never gave, never had, never could give , for they cannot give what they never had, and power to destroy themselves they never had.
Arg. 3. — All royal power, whereby a king is a king and differenced from a private man, armed with no power of the sword, is from God. But absolute power to tyrannise over the people and to destroy them is not a power from God; therefore there is not any such royal power absolute.
The proposition is evident, because that God who maketh kings and disposeth of crowns, (Prov. viii. 15, 16; 2 Sam. xii. 7; Dan. iv. 32,) must also create and give that royal and official power by which a king is a king. 1. Because God created man, he must be the author of his reasonable soul. If God be the author of things, he must be the author of their forms by which they are that which they are. 2. All power is God’s, (1 Chron. xxix. 11; Matt. vi. 13; Psal. lxii. 11; lxviii. 35; Dan. ii. 37,) and that absolute power to tyrannise, is not from God. 1. Because, if this moral power to sin be from God, it being formally wickedness, God must be the author of sin. 2. Whatever moral power is from God, the exercises of that power, and the acts thereof, must be from God, and so these acts must be morally good and just; for if the moral power be of God, as the author, so must the acts be. Now, the acts of a tyrannical power are acts of sinful injustice and oppression, and cannot be from God. 3. Politicians say, there is no power in rulers to do ill, but to help and defend the people, — as the power of a physician to destroy, of a pilot to cast away the ship on the rock, the power of a tutor to waste the inheritance of the orphan, and the power of father and mother to kill their children, and of the mighty to defraud and oppress, are not powers from God. So Ferdinand. Vasquez illustr. quest. l. 1, c. 26, c. 45; Prickman d. c. 3, sect. Soluta potestas; Althus. pol. cap. 9, n. 25, Barclaius,[1] Grotius, Dr Ferne, (The P. Prelate’s wit could come up to it,) say, “That absolute power to do ill, so as no mortal man can lawfully resist it, is from God; and the king hath this way power from God as no subject can resist it, but he must resist the ordinance of God, and yet the power of tyranny is not simply from God.” Ans. — The law saith, Illud possumus quod jure possumus, Papinus F. filius, D. de cond. Just. It is no power which is not lawful power. The royalists say, power of tyranny, in so far as it may be resisted, and is punishable by men, is not from God. But what is the other part of the distinction? It must be, that tyrannical power is simpliciter from God, or in itself it is from God; but as it is punishable or restrainable by subjects, it is not from God. Now, to be punishable by subjects is but an accident, and tyrannical power is the subject; yea, and it is a separable accident; for many tyrants are never punished, and their power is never restrained: such a tyrant was Saul, and many persecuting emperors. Now, if the tyrannical power itself was from God, the argument is yet valid, and remaineth unanswered. And shall not this fall to the ground as false, which Arnisæus saith, (de autho. princ. c. 2, n. 10,) Dum contra officium facit, magistratus non est magistratus, quippe a quo non injuria, sed jus nasci debeat, l. meminerint. 6. C. unde vi. din. in C. quod quis, 24, n. 4, 5. — Et de hoc neminem dubitare aut dissentire scribit, Marant. disp. 1, num. 14. When the magistrate doth anything by violence, and without law, in so far doing against his office, he is not a magistrate. Then, say I, that power by which he doth, is not of God. None doth, then, resist the ordinance of God who resist the king in tyrannous acts. If the power, as it cannot be punished by the subject nor restrained, be from God, therefore the tyrannical power itself, and without this accident — that it can be punished by men — it must be from God also. But the conclusion is absurd, and denied by royalists. I prove the connection: If the king have such a power above all restraint, the power itself, to wit, king David’s power to kill innocent Uriah, and deflower Bathsheba, without the accident of being restrained or punished by men, it is either from God or not from God. If it be from God, it must be a power against the sixth and seventh commandments, which God gave to David, and not to any subject; and so David lied when he confessed this sin, and this sin cannot be pardoned because it was no sin: and kings, because kings, are under no tie of duties of mercy, and truth, and justice to their subjects, contrary to that which God’s law requireth of all judges (Deut. i. 15-17; xvii. 15-20; 2 Chron. xix. 6, 7; Rom. xiii. 3, 4): if this power be from God, as it is unrestrainable and unpunishable by the subject, it is not from God at all; for how can God give a power to do ill, that is unpunishable by men, and not give that power to do ill? It is inconceivable; for in this very thing that God giveth to David — a power to murder the innocent — with this respect, that it shall be punishable by God only, and not by men, God must give it as a sinful power to do ill, which must be a power of dispensation, to sin, and so not to be punished by either God or man, which is contrary to his revealed will in his word.
If such a power at not restrainable by man be from God by way of permission, as a power to sin in devils and men is, then it is no royal power, nor any ordinance of God; and to resist this power, is not to resist the ordinance of God.
Arg. 4. — That power which maketh the benefit of a king to be no benefit, but a judgment of God, as a making all the people slaves, such as were slaves amongst the Romans and Jews, is not to be asserted by any Christian; but an absolute power to do ill, and to tyrannise, which is supposed to be an essential and constitutive of kings, to difference them from all judges, maketh the benefit of a king no benefit, but a judgment of God, as making all the people slaves. That the major may be clear, it is evident, 1. To have a king is a blessing of God, because to have no king is a judgment; Judg. xvii. 6, “Every man doth what seemeth good in his own eyes.” (Judg, xviii. 1; xix. 1; xxi. 25.) 2. So it is. a part of God’s good providence to provide a king for his people. (1 Sam. xvi. 1; so 2 Sam. v. 12.) And David perceived that the Lord had established him king over Israel, and that he had exalted his kingdom for his people Israel’s sake, 2 Sam. xv. 2, 3, 6; xviii. 3; Rom. xiii. 2-4. If the king be a thing good in itself, then can he not, actu primo, be a curse and a judgment, and essentially a bondage and slavery to the people; also the genuine and intrinsical end of a king is the good, (Rom. xiii. 4,) and the good of a quiet and peaceable life in all godliness and honesty (1. Tim. ii. 2); and he is by office, custos utriusque tabulæ, whose genuine end is to preserve the law from violence, and to defend the subject; — he is the people’s debtor for all happiness possible to be procured by God’s sword, either in peace or war, at home or abroad. For the assumption is evident. An absolute and arbitrary power is a king-law, such as royalists say God gave to Saul (1 Sam. viii. 9, 11; x, 25) to play the tyrant; and this power, arbitrary and unlimited, above all laws, is that which, (1.) Is given to God; (2.) Distinguisheth essentially the kings of Israel from the judge, saith Barclay, Grotius, Arnisæus; (3.) A constitutive form of a king, therefore it must be actu primo, a benefit, and a blessing of God; but if God hath given any such power absolute to a king: as, 1. His will must be a law, either to do or suffer all the tyranny and cruelty of a tiger, a leopard, a Nero, or a Julian; then Hath God given, actu primo, a power to a king, as king, to enslave the people and flock of God, redeemed by the blood of God, as the slaves among the Romans and Jews, who were so under their masters, as their bondage was a plague of God, and the lives of the people of God under Pharaoh, who compelled them to work in brick and day. 2. Though he cut the throats of the people of God, as the lioness Queen Mary did, and command an army of soldiers to come and burn the cities of the land, and kill man, wife, and children; yet in so doing, he doth the part of a king, so as you cannot resist him as a man, and obey him as a king, but must give your necks to him, upon this ground, because this absolute power of his is ordained of God; and there is no power even to kill and destroy the innocent, but it is of God. So saith Paul, Rom. xiii., if we believe court-prophets, or rather lying-spirits, who persuade the king of Britain to make war against his three dominions. Now, it is clear that the distinction of bound and free continued in Israel even under the most tyrannous kings; (2 Kings iv. 1;) yea, even when the Jews were captives under Ahasuerus. (Esth. vii. 4.) And what difference should there be between the people of God under their own kings, and when they were captives under tyrants, serving wood and stone, and false gods, as was threatened as a curse in the law? (Deut. xxviii. 25, 36, 64, 68.) If their own kings, by God’s appointment, have the same absolute power over them, and if he be a tyrant, actu primo, that is, if he be indued with absolute power, and so have power to play the tyrant, then must the people of God be actu primo, slaves, and under absolute subjection; for they are relatives, as lord and servant, conqueror and captive. It is true, they say, kings by office are fathers, they cannot put forth in action their power to destroy. I answer, it is their goodness of nature that they put not forth in action all their absolute power to destroy, which God hath given them as kings, and therefore, thanks are due to their goodness, for that they do not, actu secundo, play the tyrant; for royalists teach, that by virtue of their office God hath given to them a royal power to destroy; therefore, the Lord’s people are slaves under them, though they deal not with them as slaves, but that hindereth not but the people by condition are slaves. So many conquerors of old did deal kindly with their slaves whom they took in war, and dealt with them as sons; but as conquerors they had power to sell them, to kill them, to pat them to work in brick and clay. So say I here, royal power and a king cannot be a blessing, and actu primo a favour of God to the people, for the which they are to pray when they want a king that they may have one, or to praise God when they have one. But a king must be a curse and a judgment, if he be such a creature as essentially, and in the intention and nature of the thing itself, hath by office a royal power to destroy, and that from God; for then the people praying — “Lord give us a king,” should pray, “Make us slaves, Lord; take our liberty and power from us, and give a power unlimited and absolute to one man, by which he may, if he please, waste and destroy us, as all the bloody emperors did the people of God.” Surely, I see not but they should pray for a temptation, and to be led into temptation when they pray God to give them a king; and, therefore, such a power is a vain thing.
Arg. 5. — A power contrary to justice, to peace and the good of the people, that looketh to no law as a rule, and so is unreasonable, and forbidden by the law of God and the civil law, (L. 15. filius de condit. Instit.,) cannot be lawful power, and cannot constitute a lawful judge; but an absolute and unlimited power is such. How can the judge be the minister of God for good to the people (Rom. xiii. 4) if he have such a power as a king, given him of God, to destroy and waste the people?
Arg. 6. An absolute power is contrary to nature, and so unlawful; for it maketh the people give away the natural power of defending their life against illegal and cruel violence, and maketh a man who hath need to be ruled and lawed by nature above all rule and law, and one who, by nature, can sin against his brethren such a one as cannot sin against any but God only, and maketh him a lion and an unsocial man. What a man is Nero, whose life is poetry and painting! Domitian, only an archer; Valentinian, only a painter; Charles IX. of France, only a hunter; Alphonsus Dux Ferrariensis, only an astronomer; Philip of Macedonia, a musician; and all because they are kings. This our king denieth, when he saith, (art. 13,) “There is power legally placed in the parliament more than sufficient to prevent and restrain the power of tyranny.” But if they had not power to play the lions, it is not much that kings are musicians, hunters, &c.
Arg. 7. — God, in making a king to preserve his people, should give liberty without all politic restrain, for one man to destroy many, which is contrary to God’s end in the fifth commandment, if one have absolute power to destroy souls and bodies of many thousands.
Arg. 8. — If the kings of Israel and Judah were under censures and rebukes of the prophets, and sinned against God and the people in rejecting these rebukes, and in persecuting the prophets, and were under this law not to take their neighbour’s wife, or his vineyard from him against his will; and the inferior judges were to accept the persons of none in judgment, small or great; and if the king yet remain a brother, notwithstanding he be a king, then is his power not above any law, nor absolute. For what reason? — 1. He should be under one law of God to be executed by men, and not under another law? Royalists are to show a differrence from God’s word. 2. His neighbours, brother, or subjects, may by violence keep back their vineyards, and chastity from the king. Naboth may by force keep his own vineyard from Achab. By the laws of Scotland, if a subject obtain a decree of the king, of violent possession of the heritages of a subject, he hath by law power to cast out, force, apprehend, and deliver to prison those who are tenants, brooking these lands by the king’s personal commandment. If a king should force a damsel, she may violently resist, and by violence, and bodily opposing of violence to violence, defend her own chastity. Now, that the prophets have rebuked kings is evident: Samuel rebuked Saul, Nathan, David, Elias, king Achab; Jeremiah is commanded to prophecy against the kings of Judah, (Jer. i. 18,) and the prophets practised it. (Jer. xix. 3; xxi. 2; xxii. 13-15; Hos. v. 1.) Kings are guilty before God because they submitted not their royal power and greatness to the rebukes of the prophets, but persecuted them.
Deut. xvii. 20, The king on the. throne remaineth a brother; Psal. xxii. 22, and so the judges or three estates are not to accept of the person of the king for his greatness in judgment; Deut. i. 16, 17, and the judge is to give out such a sentence in judgment as the Lord, with whom there is no iniquity, would give out if the Lord himself: were sitting in judgment; because the judge is in the very stead of God, as his lieutenant; (2 Chron. xix. 6, 7; Psal. lxxxii. 1, 2. Deut. i. 17;) and with God there is no respect of persons. (2 Chron. xix. 7; 1 Pet. i. 17; Acts x. 34.) I do not intend that any inferior judge sent by the king is to judge the king; but those who gave him the throne, and made him king, are truly above him, and to judge him without respect of persons, as God himself would judge if he were sitting on the bench.
God is the author of civil laws and government, and his intention is therein the external peace, and quiet life, and godliness of his church and people, and that all judges, according to their places, be nurse-fathers to the church. (Isa. xlix. 23.) Now God must have appointed sufficient means for this end; but there is no sufficient means at all, but a mere anarchy and confusion, if to one man an absolute and unlimited power be given of God, whereby, at his pleasure, he may obstruct the fountains of justice, and command lawyers and laws to speak not God’s mind, that is justice, righteousness, safety, true religion, but the sole lust and pleasure of one man. And this one having absolute and irresistible influence on all the inferior instruments of justice, may, by this power, turn all into anarchy, and put the people in a worse condition than it there were no judge at all in the land. For that of politicians, that tyranny is better than anarchy, is to be taken cum grano salis; but I shall never believe that absolute power of one man, which is actu primo tyranny, is God’s sufficient way of peaceable government. Therefore, Barclaius[2] saith nothing for the contrary, when he saith, “The Athenians made Draco and Solon absolute law-givers, for, a facto ad jus non valet consequentia.” What if a roving people, trusting Draco and Solon to be kings above mortal men, and to be gods, gave them power to make laws, written not with ink, but with blood, shall other kings have from God the like tyrannical and bloody power from that to make bloody laws? Chytreus (lib. 2) and Sleidan citeth it, (l. 1;) Sueron, Sub pœna periurii non tenentur fidem sevare regi degeneri.
Arg. 9. — He who is regulated by law, and sweareth to the three estates to be regulated by law, and accepteth the crown covenant-wise, and so as the estates would refuse to make him their king, if either he should refuse to swear, or it they did believe certainly that he would break his oath, hath no unlimited and absolute power from God or the people; for, fœdus conditionatum, aut promissio conditionalis mutua, facit jus alteri in alterum, a mutual conditional covenant giveth law and power over one to another. But, from that which hath been said, the king sweareth to the three estates to be regulated by law — he accepteth the crown upon the tenor of a mutual covenant, &c.; for if he should, as king, swear to be king, that is, one who hath absolute power above a law, and also to be regulated by a law, he should swear things contradictory, that is, that he should be their king, having absolute power over them, and according to that power to rule them; and he should swear not to be their king, and to rule them, not according to absolute power, but according to law. If, therefore, this absolute power be essential to a king, as a king, no king can lawfully take the oath to govern according to law, for then he should swear not to reign as king, and not be their king; for how could he be their king, wanting that which God hath made essential to a king as a king?
[1] Barclaius, contra Monarcho. lib. 2. p. 62.
[2] Barclaius contra Monarch. lib. 2, p. 76, 77.
Question XXIII.
Whether the king hath any royal prerogative, or a power to dispense with laws; and some other grounds against absolute monarchy.
A prerogative royal I take two ways: either to be an act of mere will and pleasure above or beside reason or law, or an act of dispensation beside or against the letter of the law.
Assert. 1. — That which royalists call the prerogative royal of princes is the salt of absolute power; and it is a supreme and highest power of a king, as a king, to do above, without or contrary to a law or reason, which is unreasonable. 1. When God’s word speaketh of the power of kings and judges, Deut. xvii. 15-17; i. 15-17, and elsewhere there is not any footstep or any ground for such a power; and, therefore, (if we speak according to conscience,) there is no such thing in the world; and because royalists cannot give us any warrant, it is to be rejected. 2. A prerogative royal must be a power of doing good to the people, and grounded upon some reason or law; but this is but a branch of an ordinary limited power, and no prerogative above or beside law; yea, any power not grounded on a reason different from mere will or absolute pleasure is an irrational and brutish power; and, therefore, it may well be jus persona, the power of the man who is king; it cannot be jus coronæ, any power annexed to the crown; for this holdeth true of all the actions of the king, as a king, illud potest rex, et illud tantum quod jure potest. The king, as king, can do no more than that which upon right and law he may do. 3. To dispute this question, whether such a prerogative agree to any king, as king, is to dispute whether God hath made all under a monarch slaves by their own consent; which is a vain question. Those who hold such a prerogative, must say the king is so absolute and unlimited a god on earth, that either by law, or his sole pleasure beside law, he may regularly and rationally move all wheels in policy; and his uncontrolled will shall be the axletree on which all the wheels are turned. 4. That which is the garland and proper flower of the King of kings, as he is absolute above his creatures, and not tied to any law, without himself, that regulateth his will, that must be given to no mortal man or king, except we would communicate that which is God’s proper due to a sinful man, which must be idolatory. But to do royal acts out of an absolute power above law and reason, is such a power as agreeth to God, as is evident in positive laws and in acts of God’s mere pleasure, where we see no reason without the Almighty for the one side rather than for the other, as God’s forbidding the eating of the tree of knowledge maketh the eating sin and contrary to reason; but there is no reason in the object: for if God should command eating of that tree, not to eat should also be sin. So God’s choosing Peter to glory and his refusing Judas, is a good and a wise act, but not good or wise from the object of the act, but from the sole wise pleasure of God; because, if God had chosen Judas to glory and rejected Peter, that act had been no less a good and a wise act than the former. For when there is no law in the object but only God’s will, the act is good and wise, seeing infinite wisdom cannot be separated from the perfect will of God; but no act of a mortal king, having sole and only will, and neither law nor reason in it, can be a lawful, a wise, or a good act.
Assert. 2. — There is something which may be called a prerogative by way of dispensation. There is a threefold dispensation, — one of power, another of justice, and a third of grace. 1. A dispensation of power is when the will of the law-giver maketh that act to be no sin, which without that will would have been sin, — as if God’s commanding will had not intervened, the Israelites borrowing the ear-rings and jewels of the Egyptians, and not restoring them, had been a breach of the eighth commandment; and in this sense no king hath a prerogative to dispense with a law. 2. There is a dispensation of law and justice not flowing from any prerogative, but from the true intent of the law; and thus the king, yea, the inferior judge, is not to take the life of a man whom the letter of the law would condemn, because the justice of the law is the intent and life of the law; and where nothing is done against the intent of the law, there is no breach of any law. 3. The third is not unlike unto the second, when the king exponeth the law by grace, and this is twofold: (1.) Either when he exponeth it of his wisdom and merciful nature, inclined to mercy and justice, yet, according to the just intent, native sense, and scope of the law, considering the occasion, circumstances of the fact, and comparing both with the law, — and this dispensation of grace I grant to the king, as when the tribute is great and the man poor, the king may dispense with the custom.[1] (2.) The law saith, in a doubtful case the prince may dispense, because it is presumed the law can have no sense against the principal sense and intent of the law.
But there is another dispensation that royalists do plead for, and that is, a power in the king, ex mera gratia absolutæ potestatis regalis, out of mere grace of absolute royal power to pardon crimes which God’s law saith should be punished by death. Now, this they call a power of grace; — but it is not a power of mere grace.
1. Though princes may do some things of grace, yet not of mere grace; because what kings do as kings, and by virtue of their royal office, that they do ex debito officii, by debt and right of their office; and that they cannot but do, it not being arbitrary to them to do the debtful acts of their office: but what they do of mere grace, that they do as good men, and not as kings, and that they may not do. As, for example, some kings, out of their pretended prerogative, have given tour pardons to one man for four murders. Now this the king might have left undone without sin, but of mere grace he pardoned the murderer who killed four men. But the truth is, the king killed the three last, because he hath no power in point of conscience to dispense with blood, Num. xxxv. 31; Gen. ix. 6. These pardons are acts of mere grace to one man, but acts of blood to the community.
2. Because the prince is the minister of God for the good of the subject; and therefore the law saith, “He cannot pardon and free the guilty of the punishment due to him; (Contra l. quod favore, F. de leg. l. non ideo minus, F. de proc. l. legata inutiliter, F. de lega. 1;) and the reason is clear: He is but the minister of God, a revenger to execute wrath upon him that doth evil. And if the judgment be the Lord’s, not man’s, not the king’s, as it is indeed, (Deut. i. 17; 2 Chron. xix. 6,) he cannot draw the sword against the innocent, nor absolve the guilty, except he would take on himself to carve and dispose of that which is proper to his master. Now certain it is, God only, univocally and essentially as God, is the judge, (Psal. lxxv, 7,) and God only and essentially king, (Psal. xcvii. 1; xcix, 1,) and all men in relation to him are mere ministers, servants, legates, deputies; and in relation to him, equivocally and improperly, judges or kings, and mere created and breathing shadows of the power of the King of kings. And look, as the scribe following his own device, and writing what sentence he pleaseth, is not an officer of the court in that point, nor the pen and servant of the judge, so are kings and all judges but forged intruders and bastard kings and judges, in so far as they give out the sentences of men, and are not the very mouths of the King of kings to pronounce such a sentence as the Almighty himself would do, if he were sitting on the throne or bench.
3. If the king, from any supposed prerogative royal, may do acts of mere grace without any warrant of law, because he is above law by office, then also may he do acts of mere rigorous justice, and kill and destroy the innocent, out of the same supposed prerogative; for God’s word equally tyeth him to the place of a mere minister in doing good, as in executing wrath on evil-doers, Rom. xiii. 3, 4. And reason would say, he must be as absolute in the one as in the other, seeing God tyeth him to the one as to the other, by his office and place; yea, by this, acts of justice to ill-doers, and acts of reward to well-doers, shall be arbitrary morally, and by virtue of office to the king, and the word prerogative royal saith this; for the word prerogative is a supreme power absolute that is loosed from all law, and so from all reason of law, and depending on the king’s mere and naked pleasure and will; and the word royal or kingly is an epithet of office and of a judge, — a created and limited judge, and so it must tie this supposed prerogative to law, reason, and to that which is debitum legale officii and a legal duty of an office; and by this our masters, the royalists, make God to frame a rational creature, which they call a king, to frame acts of royalty, good and lawful, upon his own mere pleasure and the super-dominion of his will above a law and reason. And from this it is that deluded counsellors made king James (a man not of shallow understanding) and king Charles to give pardons to such bloody murderers as James a Grant; and to go so far on, by this supposed prerogative royal, that king Charles in parliament at Edinburgh, 1633, did command an high point of religion: — that ministers should use, in officiating in God’s service, such habits and garments as he pleaseth, that is, all the attire and habits of the idolatrous mass-priests that the Romish priests of Baal useth in the oddest point of idolatry (the adoring of bread) that the earth has; and by this prerogative the king commanded the Service Book in Scotland, anno 1637, without or above law and reason. And I desire any man to satisfy me in this, if the king’s prerogative royal may overleap law and reason in two degrees, and if he may as king, by a prerogative royal, command the body of popery in a popish book; — if he may not, by the same reason, over-leap law and reason by the elevation of twenty degrees; — and if you make the king a Julian, (God avert, and give the spirit of revelation to our king,) may he not command all the Alkoran and the religion of the heathen and Indians? Royalists say the prerogative of royalty excludeth not reason, and maketh not the king to do as a brute beast, without all reason, but it giveth a power to a king to do by his royal pleasure, not fettered to the dictates of a law; for in things which the king doth by his prerogative royal he is to follow the advice and counsel of his wise council, though their counsel and advice doth not bind the royal will of the king.
Ans. 1. — I answer, it is to me, and I am sure to many more learned, a great question, — if the will of any reasonable creature, even of the damned angels, can will or choose anything which their reason, corrupted as it is, doth not dictate hic et nunc to be good? For the object of the will of all men is good, either truly, or apparently good to the doer; for the devil could not suit in marriage souls except he war in the clothes of an angel of light; sin, as sin, cannot sell, or obtrude itself upon any, but under the notion of good. I think it seemeth good to the great Turk to command innocent men to cast themselves over a precipice two hundred fathoms high into the sea, and drown themselves to pleasure him; so the Turk’s reason (for he is rational, if he be a man) dictateth, to his vast pleasure, that that is good which he commandeth.
2. Counsellors to the king, who will speak what will please the queen, are but naked empty titles, for they speak que placent, non que prosunt, what may please the king whom they make glad with their lies, not what law and reason dictateth.
3. Absoluteness of an unreasonable prerogative doth not deny counsel and law also, for none more absolute, de facto, I cannot say de jure, than the kings of Babylon and Persia; for Daniel saith of one of them, (Dan. v. 19,) “Whom he would he slew, and whom he would he kept alive, and whom he would he set up, and whom he would he put down;” and yet these same kings did nothing but by advice of their princes and counsellors; yea, so as they could not alter a decree and law, as is clear; (Esth. i. 14-17, 21) yea, Darius, de facto, an absolute prince, was not able to deliver Daniel, because the law was passed; that he should be cast into the lions’ den. (Dan. vi. 14-16.)
4. That which the Spirit of God condemneth at a point of tyranny in Nebuchadnezzar, is no lawful prerogative royal; but the Spirit of God condemneth this as tyranny in Nebuchadnezzar, — that he slew whom he would, he kept alive whom he would, he set up whom he would, he put down whom he would. This is too God-like. (Deut. xxxii. 39.) So Polanus[2] and Rollocus[3] on the place say, he did these things, (ver 19,) Ex abusu legitimæ potestatis; for Nebuchadnezzar’s will, in matters of death and life, was his law, and he did what pleased himself, above all law, beside and contrary to it. And our flatterers of kings draw the king’s prerogative out of Ulpian’s words, who saith, “That is a law which seemeth good to the prince;” but Ulpian was far from making the prince’s will a rule of good and ill; for he saith the contrary, “That the law ruleth the just prince.”
5. It is considerable here, that Sanches[4] defineth the absolute power of kings to be a plenitude and fulness of power, subject to no necessity, and bounded with rules of no public law; and so did Baldus[5] before him. But all politicians condemn that of Caligula, (as Suetonius saith,[6]) which he spake to Alexander the Great, “Remember that thou must do all things, and that thou hast a power to do to all men what thou pleasest.” And lawyers say, that this is tyranny. Chilon, one of the seven wise of Greece, (as Rodigi,[7]) saith better, “Princes are like gods, because they only can do that which is just; and this power, being merely tyrannical, can be no ground of a royal prerogative. There is another power (saith Sanches) absolute, by which a prince dispenseth without a cause in a human law; and this power, saith he, may be defended. But he saith, what the king doth by this absolute power he doth it valide, validly, but not jure, by law; but by valid acts the Jesuit must mean royal acts. But no acts void of law and reason (say we) can be royal acts; for royal acts are acts performed by a king, as a king, and by a law. and so cannot be acts above or beside a law. It is true a king may dispense with the breach of a human law, as a human law, that is, if the law be death to any who goeth upon the walls of the city, the king may pardon any, who, going up, discovereth the enemies approach, and saveth the city. But, 1. The inferior judge according to the e9ptekeia that benign interpretation that the soul and intent of the law requireth, may do this as well as the king. 2. All acts of independent prerogative are above a law, and acts of free will having no cause or ground in the law, otherwise it is not founded upon absolute power, but on power ruled by law and reason. But to pardon a breach of the letter of the law of man by exponing it according to the true intent of the law, and benignly, is an act of legal obligation, and so of the ordinary power of all judges; and if either king or judge kill a man for the violation of the letter of the law, when the intent of the law contradicteth the rigid sentence, he is guilty of innocent blood. If that learned Ferdinandus Vasquez be consulted, he is against this distinction of a power ordinary and extraordinary in men;[8] and certainly, if you give to a king a prerogative above a law, it is a power to do evil as well as good; but there is no lawful power to do evil; and Dr Ferne is plunged in a contradiction by this, for he saith, (sect. 9, p. 58,) “I ask when these emperors took away lives and goods at pleasure? Was that power ordained by God? No; but an illegal will and tyranny; but (p. 61) the power, though abused to execute such a wicked commandment, is an ordinance of God.”
Obj. 1. — For the lawfulness of an absolute monarchy, — the Eastern, Persian, and Turkish monarchy maketh absolute monarchy lawful, for it is an oath to a lawful obligatory thing; and judgment (Ezek. xvii. 16, 18) is denounced against Judah for breaking the oath of the king of Babylon, and it is called the oath of God, and doubtless was an oath of absolute subjection; and the power (Rom. xiii.) was absolute, and yet the apostle calleth it an ordinance of God. The sovereignty of masters over servants was absolute, and the apostle exhorteth not to renounce that title as too rigid, but exhorteth to moderation in the use of it.
Ans. 1. — That the Persian monarchy was absolute is but a facto ad jus, and no rule of a lawful monarchy; but that it was absolute, I believe not. Darius, who was an absolute prince, as many think, but I think not, would gladly have delivered Daniel from the power of a law, (Dan. vi. 14,) “And he set his heart on Daniel to deliver him, and he laboured till the going down of the sun to deliver him,” and was so sorrowful that he could not break through a law, that he interdicted himself of all pleasures of musicians; and if ever he had used the absoluteness of a prerogative royal, I conceive he would have done it in this; yet he could not prevail. But in things not established by law I conceive Darius was absolute, as to me is clear, (Dan vi. 24,) but absolute not by a divine law, but de facto, quod transierat in jus humanum, by fact, which was now become a law.
2. It was God’s oath, and God tied Judah to absolute subjection, therefore, people may tie themselves. It followeth not, except you could make good this inference: 1. God is absolute, therefore the king of Babylon may lawfully be absolute. This is a blasphemous consequence. 2. That Judah was to swear the oath of absolute subjection in the latitude of the absoluteness of the kings of Chaldea, I would see proved. Their absoluteness by the Chaldean laws was to command murder, idolatry, (Dan. iii. 4, 5,) and to make wicked laws. (Dan. vi. 7, 8.) I believe Jeremiah commanded not absolute subjection in this sense, but the contrary. (Jer. x. 11.) They were to swear the oath in the point of suffering; but what if the king of Chaldea had commanded them all, the whole holy seed, men, women and children, out of his royal power, to give their necks all in one day to his sword, were they obliged by this oath to prayers and tears, and only to suffer? and was it against the oath of God to defend themselves by arms? I believe the oath did not oblige to such absolute subjection, and though they had taken arms in their own lawful defence, according to the law of nature, they had not broken the oath of God. The oath was not a tie to an absolute subjection of all and.every one, either to worship idols, or then to fly or suffer death. Now, the Service Book commanded, in the king’s absolute authority, all Scotland to commit grosser idolatry, in the intention of the work, if not in the intention of the commander, than was in Babylon. We read not that the king of Babylon pressed the consciences of God’s people to idolatry, or that all should either fly the kingdom, and leave their inheritances to papists and prelates, or then come under the mercy of the sword of papists and atheists by sea or land. 3. God may command against the law of nature, and God’s commandment maketh subjection lawful, so as men may not now, being under that law of God, defend themselves. What then? Therefore we owe subjection to absolute princes, and their power must be a lawful power, it nowise is consequent. God’s commandment by Jeremiah made the subjection of Judah lawful, and without that commandment they might have taken arms against the king of Babylon, as they did against the Philistines; and God’s commandment maketh the oath lawful. As suppose Ireland would all rise in arms, and come and destroy Scotland, the king of Spain leading, then we were by this argument not to resist. 4. It is denied, that the power, (Rom. xiii.,) as absolute, is God’s ordinance. And I deny utterly that Christ and his apostles did swear non-resistance absolute to the Roman emperor.
Obj. 2. — It seemeth, (1 Pet. ii. 18, 19,) if well-doing be mistaken by the reason and judgment of an absolute monarch for ill-doing, and we punished, yet the magistrate’s will is the command of a reasonable will, and so to be submitted unto; because such a one suffereth by law, where the monarch’s will is a law, and in this case some power must judge. Now in an absolute monarchy all judgment resolveth in the will of the monarch, as the supreme law; and if ancestors have submitted themselves by oath, there is no repeal or redressment.
Ans. — Whoever was the author of this treatise he is a bad defender of the defensive wars in England, for all the lawfulness of wars then must depend on this: 1. Whether England be a conquered nation at the beginning? 2. If the law-will of an absolute monarch, or a Nero, be a reasonable will, to which we must submit in suffering ill, I see not but we must submit to a reasonable will, if it be reasonable will in doing ill, no less than in suffering ill. 3. Absolute will in absolute monarchies is no judge de jure, but an unlawful and a usurping judge. (1 Pet. ii. 18,19.) Servants are not commanded simply to suffer. (I can prove suffering formally not to fall under any law of God, but only patient suffering. I except Christ, who was under a peculiar commandment to suffer.) But servants, upon supposition that they are servants, and buffeted unjustly by their masters, are, by the apostle Peter, commanded (ver. 20) to suffer patiently. But it doth not bind up a servant’s hand to defend his own life with weapons if his master invade him, without cause, to kill him; otherwise, if God call him to suffer, he is to suffer in the manner and way as Christ did, not reviling, not threatening. 4. To be a king and an absolute master to me are contradictory. A king essentially is a living law; an absolute man is a creature that they call a tyrant, and no lawful king. Yet do I not mean that any that is a king, and usurpeth absoluteness, leaveth off to be a king; but in so far as he is absolute he is no more a king than in so far as he is a tyrant. But further, the king of England saith in a declaration, 1. The law is the measure of the king’s power. 2. Parliaments are essentially lord-judges, to make laws essentially, as the king is, therefore, the king is not above the law. 3. Magna Charta, saith the king, can do nothing but by laws, and no obedience is due to him but by law. 4. Prescriptions taketh away the title of conquests:
Obj. 3. — The king, not the parliament, is the anointed of God.
Ans. — The parliament is as good, even a congregation of gods. (Ps. lxxxii. 6.)
Obj. 4. — The parliament in the court, in their acts, they say, with consent of our sovereign lord.
Ans. — They say not at the commandment and absolute pleasure of our sovereign lord. He is their lord materially, not as they are formally a parliament, for the king made them not a parliament; but sure I am the parliament had power before he was king, and made him king. (1 Sam. x. 17, 18.)
Obj. 5. — In an absolute monarchy there is not a resignation of men to any will as will, but to the reasonable will of the monarch, which, having the law of reason to direct it, is kept from injurious acts.
Ans. — If reason be a sufficient restraint, and if God hath laid no other restraint upon some lawful king, then is magistracy a lame, a needless ordinance of God; for all mankind hath reason to keep themselves from injuries, and so there is no need of judges or kings to defend them from either doing or suffering injuries. But certainly this must be admirable, — if God, as author of nature, should make the lion king of all beasts, the lion remaining a devouring beast, and should ordain by nature all the sheep and lambs to come and submit their bodies to him, by instinct of nature, and to be eaten at his will, and then say, the nature of a beast in a lion is a sufficient restraint to keep the lion from devouring lambs. Certainly, a king being a sinful man, and having no restraint on his power but reason, he may think it reason to allow rebels to kill, drown, hang, torture to death, an hundred thousand protestants, men, women, infants in the womb, and sucking babes, as is clear in Pharaoh, Manaseh, and other princes.
Obj. 6. — There is no court or judge above the king, therefore he is absolutely supreme.
Ans. — The antecedent is false. 1. The court that made the king of a private man is above him; and here are limitations laid on him at his coronation. 2. The states of parliament are above him, to censure him. 3. In case of open tyranny, though the states had not time to convene in parliament, if he bring on his people an host of Spaniards or foreign rebels, his own conscience is above him, and the conscience of the people far more, called conscientia terra, may judge him in so far as they may rise up and defend themselves.
Obj. 7. — Here the Prelate, (c. 14, p. 144,) borrowing from Grotius, Barclay, Arnisæus, (or it is possible he be not so far travelled, for Dr Ferne hath the same,) “Sovereignty weakened in aristocracy cannot do its work, and is in the next place to anarchy and confusion. When Zedekiah was overlorded by his nobles, he could neither save himself nor the people, nor the prophet, the servant of God, Jeremiah; nor could David punish Joab when he was overawed by that power he himself had put in his head. To weaken the hand is to distemper the whole body; if any good prince, or his royal ancestors, be cheated of their sacred right by fraud or force, he may, at his fittest opportunity, resume it. What a sin it is to rob God or the king of their due!”
Ans. — Aristocracy is no less an ordinance of God than royalty, for (Rom. xiii. 1, and 1 Tim. ii.) — 1. All in authority are to be acknowledged as God’s vice-regents, the senate, the consuls, as well as the emperor; and so one ordinance of God cannot weaken another, nor can any but a lawless animal say, aristocracy bordereth with confusion; but he must say, order and light are sister-germans to confusion and darkness. 2. Though Zedekiah, a man void of God, was over-awed by his nobles, and so could not help Jeremiah, it followeth not that because kings may not do this and this good, therefore they are to be invested with power to do all ill: if they do all the good that they have power to do, they will find way to help the oppressed Jeremiahs, And, because power to do both good and evil is given by the devil to our Scottish witches, it is a poor consequent that the states should give to the king power absolute to be a tyrant. 3. A state must give a king more power than ordinary, especially to execute laws, which requireth singular wisdom, when a prince cannot always have his great council about with him to advise him. 1. That is power borrowed, and by loan, and not properly his own; and therefore it is no sacrilege in the states to resume what the king hath by a fiduciary title, and borrowed from them. 2. This power was given to do good, not evil. David had power over Joab to punish him for his murder, but he executed it not upon carnal fears, and abused his power to kill innocent Uriah, which power neither God nor the states gave him. But how proveth ho the states took power from David, or that Joab took power from David to put to death a murderer? That I see not. 3. If princes’ power to do good be taken from them, they may resume it when God giveth opportunity; but this is to the Prelate perjury, that the people by oath give away their power to their king and resume it when he abuseth it to tyranny. But it is no perjury in the king to resume a taken-away power, which, if it be his own, is yet lis sub judice, a great controversy, Quod in Cajo licet, in Nevio non licet. So he teacheth the king that perjury and sacrilege is lawful to him. If princes’ power to do ill and cut the whole land off as one neck, (which was the wicked desire of Caligula,) be taken from them by the states, I am sure this power was never theirs, and never the people’s; and you cannot take the prince’s power from him which was never his power. I am also sure the prince should never resume an unjust power, though he were cheated of it.
P. Prelate. — It is a poor shift to acknowledge no more for the royal prerogative than the municipal law hath determined, as some smatterers in the law say. They cannot distinguish betwixt a statute declarative and a statute constitutive; but the statutes of a kingdom do declare only what is the prerogative royal, but do not constitute or make it. God Almighty hath by himself constituted it. It is laughter to say the decalogue was not a law till God wrote it.
Ans. — Here a profound lawyer calleth all smatterers in the law, who cannot say that non ens, a prerogative royal, that is, a power contrary to God and man’s law to kill and destroy the innocent, came not immediately down from heaven. But I profess myself no lawyer; but do maintain against the Prelate that no municipal law can constitute a power to do ill, nor can any law either justly constitute or declare such a fancy as a prerogative royal. So far is it from being like the decalogue, that is, a law before it be written, that this prerogative is neither law before it be written, nor after court-hunters have written for it; for it must be eternal as the decalogue if it have any blood from so noble a house. In what scripture hath God Almighty spoken of a fancied prerogative royal?
P. Prelate (p. 145). — Prerogative resteth not in its natural seat, but in the king. God saith, Reddite, not Date, render to kings that which is kings, not give to kings; it shall never be well with us if his anointed and his church be wronged.
Ans. — The Prelate may remember a country proverb: he and his prelates (called the church, — the scum of men, not the church,) are like the tinker’s dogs, — they like good company — they must be ranked with the king. And hear a false prophet: It shall never be well with the land while arbitrary power and popery be erected, saith he, in good sense.
P. Prelate (c. 16, p. 170, 171). — The king hath his right from God, and cannot make it away to the people. Render to Cæsar the things that are Cæsar’s. Kings’ persons, their charge, their right, their authority, their prerogative, are by Scriptures, fathers, jurists, sacred, inseparable ordinances inherent in their crowns, — they cannot be made away: and when they are given to inferior judges, it is not ad minuendam majestatem, sed solicitudinem, to lessen sovereign majesty, but to ease them.
Ans. — The king hath his right from God. What, then not from the people? I read in Scripture, the people made the king, never that the king made the people. All these are inseparably in the crown, but he stealeth in prerogative royal, in the clause which is now in question, “Render to Cæsar all Cæsar’s;” and therefore, saith he, render to him a prerogative, that is, an absolute power to pardon and sell the blood of thousands. Is power of blood either the the king’s, or inherent inseparably in his crown? Alas! I fear prelates have made blood an inseparable accident of his throne. When kings, by that public power given to them at their coronation, maketh inferior judges, they give them power to judge for the Lord, not for men. (Deut. i. 17; 2 Chron. xix. 6.) Now, they cannot both make away a power and keep it also; for the inferior judge’s conscience hangeth not at the king’s girdle. He hath no less power to judge in his sphere than the king hath in his sphere, though the orb and circle of motion be larger in compass in the one than in the other; and if the king cannot give himself royal power, but God and the people must do it, how can he communicate any. part of that power to inferior judges except by trust? Yea, he hath not that power that other men have in many respects: —
1. He may not marry whom he pleaseth; for he might give his body to a leper woman, and so hurt the kingdom. — 2. He may not do as Solomon and Ahab, marry the daughter of a strange god, to make her the mother of the heir of the crown. He must in this follow his great senate. He may not expose his person to hazard of wars. — 3. He may not go over sea and leave his watch-tower, without consent. — 4. Many acts of parliament of both kingdoms discharge papists to come within ten miles of the king. — 5. Some pernicious counsellors have been discharged his company by laws. — 6. He may not eat what meats he pleaseth. — 7. He may not make wasters his treasurers. — 8. Nor dilapidate the rents of the crown. — 9. He may not disinherit his eldest son of the crown at his own pleasure. — 10. He is sworn to follow no false gods and false religions, nor is it in his power to go to mass. — 11. If a priest say mass to the king, by the law he is hanged, drawn and quartered. — 12. He may not write letters to the Pope, by law. — 13. He may not, by law, pardon seducing priests and Jesuits. — 14. He may not take physic for his health but from physicians, sworn to be true to him. — 15. He may not educate his heir as he pleaseth. — 16. He hath not power of his children, nor hath he that power that I other fathers have, to marry his eldest son as he pleaseth. — 17. He may not befriend a traitor. — 18. It is high treason for any woman to give her body to the king, except she be his married wife. — 19. He ought not to build sumptuous houses without advice of his council. — 20. He may not dwell constantly where he pleaseth. — 21. Nor may he go to the country to hunt, far less to kill his subjects and desert the parliament. — 22. He may not confer honours and high places without his council. — 23. He may not deprive judges at his will. — 24. Nor is it in his power to be buried where he pleaseth, but amongst the kings. Now, in most of these twenty-tour points, private persons have their own liberty far less restricted than the king.
[l] In re dubia possunt dispensare principes, quia nullus sensus presumitur, qui vincat principatem, lib. l., sect. initium ib.
[2] Polanus in Daniel, e. 5, 19.
[4] Th. Sanches de matr. tom. 1, lib. 2, dis. 15, n. 3, est arbitrii plenitudo, nulli necessitati subjecta, nulliusq. []; publici juris regulis limitata.
[5] Baldus, lib. 2, n. 40, C. de servit. et aqua.
[6] Suetoni. in Caligu. cap. 29, memento ubi omnia, et in omnes licere.
[7] Cælina Rodigi, lib. 8, Lect. Antiq. c. l.
[8] Vasqez, illust. quest. lib. 1, c. 26, n. 2. [Footnote exponent missing from original.]
Question XXIV.
What power the king hath in relation to the law and the people, and how a king and a tyrant differ.
Mr Symmons saith, (sect. 6, p. 19,) that authority is rooted rather in the prince than in the law; for as the king giveth being to the inferior judge, so he doth to the law itself, making it authorisable; for propter quod unum-quodqiie tale, id ipsum magis tale, and therefore the king is greater than the law: others say, that the king is the fountain of the law, and the sole and only lawgiver.
Assertion First. — 1. The law hath a two-fold consideration, — (1.) Secundum esse pœnale, in relation to the punishment to be inflicted by man.[1] (2.) Secundum esse legis, as it is a thing legally good in itself. In the former notion it is this way true, — human laws take life and being, so as to be punished or rewarded by men, from the will of princes and law-givers; and so Symmons saith true, because men cannot punish or reward laws but where they are made; and the will of rulers putteth a sort of stamp on a law, that it bringeth the commonwealth under guiltiness if they break this law. But this maketh not the king greater than the law, for therefore do rulers put the stamp of relation to punishment on the law, because there is intrinsical worth in the law prior to the act of the will of lawgivers for which it meriteth to be enacted; and, therefore, because it is authorisable as good and just, the king putteth on it this stamp of a politic law. God formeth being and moral aptitude to the end in all laws, to wit, the safety of the people, and the king’s will is neither the measure nor the cause of the goodness of kings.
2. If the king be he who maketh the law good and just, because he is more such himself, then as the law cannot crook, and err, nor sin, neither can the king sin, nor break a law. This is blasphemy; every man is a liar: a law which deserveth the name of a law cannot lie.
3. His ground is, that there is such majesty in kings, that their will must be done either in us or on us. A great untruth. Ahab’s will must neither be done of Elias, for he commandeth things unjust, nor yet on Elias, for Elias fled, and lawfully we may fly tyrants; and so Ahab’s will in killing Elias was not done on him.
Assertion Second. — 1. Nor can it be made good, that the king only hath power of making laws, because his power were then absolute to inflict penalties on subjects, without any consent of theirs; and that were a dominion of masters, who command what they please, and under what pain they please. And the people consenting to be ruled by such a man, they tacitly consent to penalty of laws, because natural reason saith, an ill-doer should be punished; (Florianus in l. inde. Vasquez, l. 2, c. 55, n. 3.) therefore they must have some power in making these laws.
2. Jer. xxvi., It is clear the princes judge with the people. A nomothetic power differeth gradually only from a judicial power, both being collateral means to the end of government, the people’s safety. But parliaments judge, therefore they have a nomothetic power with the king.
3. The parliament giveth all supremacy to the king, therefore to prevent tyranny, it must keep a co-ordinate power with the king in the highest acts.
4. If the kingly line be interrupted, if the king be a child or a captive, they make laws who make kings: therefore, this nomothetic power recurreth into the states, as to the first subject.
Obj. — The king is the fountain of the law, and subjects cannot make laws to themselves more than they can punish themselves. He is only the supreme.[2]
Ans. — The people being the fountain of the king must rather be the fountain of laws. It is false that no man maketh laws to himself. Those who teach others teach themselves also. (1 Tim. ii. 12; 1 Cor. xiv. 34,) though teaching be an act of authority. But they agree to the penalty of the law secondarily only; and so doth the king who, as a father, doth not will evil of punishment to his children, but by a consequent will. The king is the only supreme in the power ministerial of executing laws; but this is a derived power, so as no one man is above him; but in the fountain-power of royalty the states are above him.
5. The civil law is clear, that the laws of the emperor have force only from this fountain, because the people have transferred their power to the king. Lib. 1, digest. tit. 4. de constit. Princip. leg. 1, sic Ulpian. Quod principi placuit, (loquitur de principe formaliter, qua princeps est, non qua est homo,) legis habet vigorem, utpote cum legi regia, quæ de imperio ejus lata est. populus ei, et in cum, omne suum imperium et potestatem conferat. Yea, the emperor himself may be convened before the prince elector. (Aurea Bulla Carol. 4, Imper. c. 5.) The king of France may be convened before the senate of Paris. The states may resist a tyrant, as Bossius saith, (de principe, et privileg. ejus, n. 55. Paris de puteo, in tract, syno. tit. de excess, reg. c. 3.) Divines acknowledge that Elias rebuked the halting of Israel betwixt God and Baal, that their princes permitted Baal’s priests to converse with the king. And is not this the sin of the land, that they suffer their king to worship idols? And, therefore, the land is punished for the sins of Manasseh, as Knox observeth in his dispute with Lethington, where he proveth that the states of Scotland should not permit the queen of Scotland to have her abominable mass. (Hist. of Scotland.) Surely the power, or sea prerogative, of a sleepy or mad pilot, to split the ship on a rock, as I conceive, is limited by the passengers. Suppose a father in a distemper would set his own house on fire, and burn himself and his ten sons, I conceive his fatherly prerogative, which neither God nor nature gave, should not be looked to in this, but they may bind him. Yea, Althusius (polit. c. 39), answering this, “That in democracy the people cannot both command and obey,” saith, It is true, secundum idem, ad idem, et eodem tempore. But the people may (saith he) choose magistrates by succession. Yea, I say, 1. They may change rulers yearly to remove envy: a yearly king were more dangerous, the king being almost above envy. Men incline more to flatter than to envy kings. 2. Aristotle saith, (polit. l. 4, c. 4, l. 6, c. 2,) The people may give their judgment of the wisest.
Obj. 1. — Williams, bishop of Ossory, in Vindic. Reg. (a looking-glass for rebels,) saith, “To say the king is better than any one, doth not prove him to be better than two; and if his supremacy be no more, then any other may challenge as much, for the prince is singulis major. A lord is above all knights; a knight above all esquires; and so the people have placed a king under them, not above them.
Ans. — The reason is not alike: 1. For all the knights united cannot make one lord; and all the esquires united cannot make one knight; but all the people united made David king at Hebron. 2. The king is above the people, by eminence of derived authority as a watchman, and in actual supremacy; and he is inferior to them in fountain-power, as the effect to the cause.
Obj. 2. — The parliament (saith Williams) “may not command the king; why, then, make they supplication to him, if their vote be a law?
Ans. — They supplicate, ex decentta, of decency and conveniency for his place, as a city supplicate a lord mayor; but they supplicate not ex debito, of obligation, as beggars seek alms, then should they be cyphers. When a subject oppressed supplicateth his sovereign for justice, the king is obliged, by office, to give justice; and to hear the oppressed is not an act of grace and mercy, as to give alms, though it should proceed from mercy in the prince, (Psal. lxxii. 13,) but an act of royal debt.
Obj. 3. — The P. Prelate (c. 9, pp. 103, 104) objecteth: The most you claim to parliament is a co-ordinate power, which, in law and reason, run in equal terms. In law, par in parem non habet imperium; an equal cannot judge an equal, much less may an inferior usurp to judge a superior. Our Lord knew, gratia. visionis, the woman taken in adultery to be guilty, but he would not sentence her; to teach us, not improbably, not to be both judge and witness. The parliament are judges, accusers, and witnesses against the king in their own cause, against the imperial laws.
Ans. 1. — The parliament is co-ordinate ordinarily with the king in the power of making laws; but the co-ordination on the king’s part is by derivation, on the parliament’s part, originaliter et fontaliter, as in the fountain. 2. In ordinary there is coordination; but if the king turn tyrant, the estates are to use their tountain-power. And that of the law, par in parem, &c. is no better from his pen, that stealeth all he hath, than from Barclaius, Grotius, Arnisæus, Blackwood, &c.: it is cold and sour. We hold the parliament that made the king at Hebron to be above their own creature, the king. Barclaius saith more accurately, (1. 5, cont. Monarch, p. 129,). It is absurd that the people should both be subject to the king, and command the king also. — Ans. 1. It is not absurd that a father natural, as a private man, should be subject to his son; even that Jesse, and his elder brother, the lord of all the rest, be subject to David their king. Royalists say, Our late queen, being supreme magistrate, might by law have put to death her own husband, for adultery or murder. 2. The parliament should not be both accuser, judge, and witness in their own cause. 1. It is the cause of religion, of God, of protestants, and of the whole people. 2. The oppressed accuse; there is no need of witnesses in raising arms against the subjects. 3. The P. Prelate could not object this, if against the imperial laws the king were both party and judge in his own cause; and in these acts of arbitrary power, which he hath done through bad counsel, in wronging fundamental laws, raising arms against his subjects, bringing in foreign enemies into both his kingdoms, &c. Now this is properly the cause of the king, as he is a man, and his own cause, not the cause of God; and by no law of nature, reason, or imperial statutes, can he be both judge and party. 4. If the king be sole supreme judge without any fellow sharers in power, (1.) He is not obliged by law to follow counsel or hold parliaments; for counsel is not command. (2.) It is impossible to limit him even in the exercises of his power, which yet Dr Ferne saith cannot be said; for if any of his power be retrenched, God is robbed, saith Maxwell. (3.) He may by law play the tyrant gratis. Ferne objecteth, (sect. 7, p. 26,) — The king is a fundamental with the estates; now foundations are not to be stirred or removed.
Ans. — The king, as king, inspired with law, is a fundamental, and his power is not to be stirred; but as a man wasting his people, he is a destruction to the house and community, and not a fundamental in that notion.
Some object: The three estates, as men, and looking to their own ends, not to law and the public good, are not fundamentals, and are to be judged by the king.
Ans. — By the people, and the conscience of the people, they are to be judged.
Obj. — But the people also do judge as corrupt men, and not as the people, and a politic body providing for their own safety.
Ans. — I grant all; when God will bring a vengeance on Jerusalem, prince and people both are hardened to their own destruction. Now, God hath made all the three. In every government where there is democracy, there is some chosen ones resembling an aristocracy, and some one for order, presiding in democratical courts, resembling a king. In aristocracy, as in Holland, there is somewhat of democracy, — the people have their commissioners, and one duke or general, as the prince of Orange is some umbrage of royalty: and in monarchy there are the three estates of parliament, and these contain the three estates, and so somewhat of the three forms of government; and there is no one government just that hath not some of all three. Power and absolute monarchy is tyranny; unmixed democracy is contusion; untempered aristocracy is factious dominion; and a limited monarchy hath from democracy respect to public good, without confusion. From aristocracy safety in multitude of counsels without factious emulation, and so a bar laid on tyranny by the joint powers of many; and from sovereignty union of many children in one father; and all the three thus comempered have their own sweet fruits through God’s blessing, and their own diseases by accident, and through men’s corruption; and neither reason nor Scripture shall warrant any one in its rigid purity without mixture. And God having chosen the best government to bring men fallen in sin to happiness, must warrant in any one a mixture of all three, as in mixed bodies the four elements are reduced to a fit temper resulting of all the four, where the acrimony of all the four first qualities is broken, and the good of all combined in one.
1. The king, as the king, is an unerring and living law, and by grant of Barclay,[3] of old, was one of excellent parts, and noble through virtue and goodness; and the goodness of a father as a father, of a tutor as a tutor, of a head as a head, of a husband as a husband, do agree to the king as a king; so, as king, he is the law itself, commanding, governing, saving. 2. His will as king, or his royal will, is reason, conscience, law. 3. This will is politicly present (when his person is absent) in all parliaments, courts, and inferior judicatures. 4. The king, as king, cannot do wrong or violence to any. 5. Amongst the Romans the name king and tyrant were common to one thing. (1.) Because, de facto, some of their kings were tyrants, in respect of their dominion, rather than kings. (2.) Because he who was a tyrant, de facto, should have been, and was a king too, de jure. 6. It is not lawful either to disobey or resist a king as a king, no more than it is lawful to disobey a good law. 7. What violence, what injustice and excess of passion the king mixeth in with his acts of government, are merely accidental to a king as king; for, because men by their own innate goodness will not, yea, morally cannot do that which is lawful and just one to another, and do naturally, since the fall of man, violence one to another; therefore, if there had not been sin, there should not have been need of a king, more than there should have been need of a tutor to defend the child whose father is not dead, or of a physician to cure sickness where there is health.; for, remove sin, and there is neither death nor sickness; but because sin is entered into the world, God devised, as a remedy of violence and injustice, a living, rational, breathing law, called a king, a judge, a father. Now the aberrations, violence, and oppression of this thing which is the living, rational, breathing law, is no medium, no mean intended by God and nature to remove violence. How shall violence remove violence? Therefore an unjust king, as unjust, is not that genuine ordinance of God, appointed to remove injustice, but accidental to a king. So we may resist the injustice of the king, and not resist the king. 8. If, then, any cast off the nature of a king, and become habitually a tyrant, in so far he is not from God, nor any ordinance which God doth own. If the office of a tyrant (to speak so) be contrary to a king’s offices, it is not from God, and so neither is the power from God. 9. Yea, laws, (which are no less from God than the king’s are.) when they begin to be hurtful, cessant materialiter, they leave off to be laws; because they oblige non secundum vim verborum, sed in vim sensus, not according to the force of words, but according to sense, — l. non figura literarum F. de actione et obligatione, l. ita stipulatus. But who (saith the royalists) shall be judge betwixt the king and the people, when the people allege that the king is a tyrant.
Ans. — There is a court of necessity no less than a court of justice; and the fundamental laws must then speak, and it is with the people, in this extremity, as if they had no ruler.
Obj. 1. — But if the law be doubtful, as all human, all civil, all municipal laws may endure great dispute, — the peremptory person exponing the law must be the supreme judge. This cannot be the people, therefore it must be the king.
Ans. 1. — As the Scriptures in all fundamentals are clear, and expone themselves, and actu primo condemn heresies, so all laws of men in their fundamentals, which are the law of nature and of nations, are clear; and, 2. Tyranny is more visible and intelligible than heresy, and is soon decerned. If a king bring in upon his native subjects twenty thousand Turks armed, and the king lead them, it is evident they come not to make a friendly visit to salute the kingdom, and depart in peace. The people have a natural throne of policy in their conscience to give warning, and materially sentence against the king as a tyrant, and so by nature are to defend themselves. Where tyranny is more obscure, and the thread small, that it escape the dye of men, the king keepeth possession; but I deny that tyranny can be obscure long.
Obj. 2. — Dr Ferne (p. 3, sect. 5, p. 39). — A king may not, or cannot easily alter the frame of fundamental laws, he may make some actual invasion in some transient and I unfixed acts; and it is safer to bear these, than to raise a civil war of the body against the head.
Ans. 1. — If the king, as king, may alter any one wholesome law, by that same reason he may alter all. 2. You give short wings to an arbitrary prince, if he cannot ovenly all laws to the subversion of the fundamentals of a state, if you make him, as you do, (1.) One who hath the sole legislative power, who allenarly by himself maketh laws, and his parliament and council are only to give him advice, which by law he may as easily reject as they can speak words to him, he may in one transient act (and it is but one) cancel all laws made against idolatry and popery, and command, through bad counsel, in all his dominions, the Pope to be acknowledged as Christ’s vicar, and all his doctrine to be established as the catholic true religion. It is but one transient act to seal a pardon to the shedding of the blood of two hundred thousand killed by papists. (2.) If you make him a king, who may not be resisted in any case, and though he subvert all fundamental laws, he is accountable to God only: his people have no remedy, but prayers or flight.
Obj. 3. — Ferne (p. 3. sect. 5, p. 39). — Limitations and mixtures in monarchies do not imply a forcible restraining power in subjects, for the preventing of the dissolution of the state, but only a legal restraining power; and if such a restraining power be in the subjects by reservation, then it must be expressed in the constitution of the government, and in the covenant betwixt the monarch and his people. But such a condition is unlawful, which will not have the sovereign power secured, — is unprofitable for king and people, — a seminary for seditions and jealousies.
Ans. 1. — I understand not a difference betwixt forcible restraining and legal restraining: for he must mean by “legal,” man’s law, because he saith it is a law in the covenant betwixt the monarch and his people. Now, if this be not forcible and physical, it is only moral in the conscience of the king, and a cypher and a mere vanity; for God, not the people, putteth a restraint of conscience on the king, that he may not oppress his poor subjects; but he shall sin against God — that is a poor restraint: the goodness of the king, a sinful man, inclined from the womb to all sin, and so to tyranny, is no restraint.
2. There is no necessity that the reserve be expressed in the covenant between king and people, more than in contract of marriage between a husband and a wife; beside her jointure, you should set down this clause in the contract, that if the husband attempt to kill the wife, or the wife the husband, in that case it shall be lawful to either of them to part company. For Dr Ferne saith,[4] “That personal defence is lawful in the people, if the king’s assault be sudden, without colour of law, or inevitable.” Yet the reserve of this power of defence is not necessarily to be expressed in the contract betwixt king and people. Exigencies of the law of nature cannot be set down in positive covenants, they are presupposed.
3. He saith, “A reservation of power whereby sovereignty is not secured, is unlawful,” Lend me this argument: the giving away of a power of defence, and a making the king absolute, is unlawful, because by it the people is not secured; but one man hath thereby the sword of God put in his hand, whereby ex officio he may, as king, cut the throats of thousands, and be accountable to none therefor, but to God only. Now, if the non-securing of the king make a condition unlawful, the non-securing of a kingdom and church, yea, of the true religion, (which are infinitely in worth above one single man,) may far more make the condition unlawful. 4. A legal restraint on a king is no more unprofitable, and a seminary of jealousies between king and people, than a legal restraint upon people; for the king, out of a non-restraint, as out of seed, may more easily educe tyranny and subversion of religion. If outlandish women tempt even a Solomon to idolatry, as people may educe sedition out of a legal restraint laid upon a king, to say nothing that tyranny is a more dangerous sin than sedition, by how much more the lives of many, and true religion, are to be preferred to the safety of one, and a false peace.
Obj. 4. — An absolute monarch is free from all forcible restraint, and so far as he is absolute from all legal restraints of positive laws. Now, in a limited monarch, there is only sought a legal restraint; and limitation cannot infer a forcible restraint, for an absolute monarch is limited also, not by civil compact, but by the law of nature and nations, which he cannot justly transgress. If therefore an absolute monarch, being exorbitant, may not be resisted because he transgresseth the law of nature, how shall we dunk a limited monarch may be resisted for transgressing the bounds set by civil agreement.
Ans. 1. — A legal restraint on the people is a forcible restraint; for if law be not backed with force, it is only a law of rewarding well-doing, which is no restraint, but an encouragement to do evil. If, then, there be a legal restraint upon the king, without any force, it is no restraint, but only such a request as this: be a just prince, and we will give your majesty two subsidies in one year. 2. I utterly deny that God ever ordained such an irrational creature as an absolute monarch. If a people unjustly, and against nature’s dictates, make away irrevocably their own liberty, and the liberty of their posterity, which is not their’s to dispose off, and set over themselves as base slaves, a sinning creature, with absolute power, he is their king, but not as he is absolute, and that he may not be forcibly resisted, notwithstanding the subjects did swear to his absolute power, (which oath in the point of absoluteness is unlawful, and so not obligatory,) I utterly deny. 3. An absolute monarch (saith he) is limited, but by law of nature. That is, Master Doctor, he is not limited as a monarch, not as an absolute monarch, but as a son of Adam; he is under the limits of the law of nature, which he should have been under though he had never been a king all his days, but a slave. But what then? Therefore, he cannot be resisted. Yes, Doctor, by your own grant he can be resisted: if he invade an innocent subject (say you) suddenly, without colour of law, or inevitably; and that because he transgresseth the law of nature. You say a limited monarch can less be resisted for transgressing the bounds set by civil agreement. But what if the thus limited monarch transgress the law of nature, and subvert fundamental laws? He is then, you seem to say, to be resisted. It is not for simple transgression of a civil agreement that he is to be resisted. The limited monarch is as essentially the Lord’s anointed, and the power ordained of God, as the absolute monarch. Now resistance by all your grounds is unlawful, because of God’s power and place conferred upon him, not because of men’s positive covenant made with him.
To find out the essential difference betwixt a king and a tyrant, we are to observe, that it is one thing to sin against a man, another thing against a state. David, killing Uriah, committed an act of murder. But upon this supposition, that David is not punished for that murder, he did not so sin against the state, and catholic good of the state, that he turneth tyrant and ceaseth to be a lawful king. A tyrant is he who habitually sinneth against the catholic good of the subjects and state, and subverteth law. Such a one should not be, as Jason, of whom it is said by Æneas Silvius, Graviter ferebat, si non regnaret, quasi nesciret esse privatus. When such as are monstrous tyrants are not taken away by the estates, God pursueth them in wrath. Domitian was killed by his own family, his wife knowing of it; Aurelianus was killed with a thunderbolt; Darius was drowned in a river; Dioclesian, fearing death, poisoned himself; Salerius died eaten with worms, — the end also of Herod and Antiochus; Maxentras was swallowed up in a standing river; Julian died, being stricken through with a dart thrown at him by a man or an angel, it is not known; Valens, the Arian, was burnt with fire in a litttle village by the Gothes; Anastasius, the Eutychian emperor, was stricken by God with thunder; Gundericus Vandalus, when he rose against the church of God, being apprehended by the devil, died. Sometime the state have taken order with tyrants: the empire was taken from Viteilius, Heliogabalus, Maximinus, Didius, Julianus; so was the two Childerici of France served; so were also Sigebertus, Dagabertus, and Luodovic II. of France: Christiernus of Denmark, Mary of Scotland, who killed her husband and raised forces against the kingdom; so was Henricus Valesius of Poland, for flying the kingdom; Sigismundus of Poland, for violating his faith to the states.
[1] Barclaius, lib. 4, c. 23, p. 325.
[2] Symmons’ Loyal Subject, sect. 5, p. 8.
[3] Barcl. ad versus Monarcho. lib. 1, p. 24.
[4] Dr Ferne, p. 3, sect. 5, p. 40. [Footnote exponent missing from original.]
Question XXV.
What force the supreme law hath over the king, even that law of the people’s safety, called “salus populi.”
The law of the twelve tables is, salus populi, suprema lex. The safety of the people is the supreme and cardinal law to which all laws are to stoop. And that from these reasons: —
1. Originally: Because if the people be the first author, fountain and efficient under God, of law and king, then their own safety must be principally sought, and their safety must be far above the king, as the safety of a cause, especially of an universal cause, such as is the people, must be more than the safety of one, as Aristotle saith, (1. 3. polit., alias l. 5,) ou0 mh/ti pefnki to\ me/roj u9pere/xwn tou~ panto\j [2] — “The part cannot be more excellent than the whole;” nor the effect above the cause.
2. Finaliter. This supreme law must stand; for if all law, policy, magistrates and power be referred to the people’s good as the end, (Rom. xiii. 4,) and to their quiet and peaceable life in godliness and honesty, then must this law stand, as of more worth than the king, as the end is of more worth than the means leading to the end, for the end is the measure and rule of the goodness of the mean; and, finis ultimus in influxu est potentissimus, the king is good, because he conduceth much for the safety of the people; therefore, the safety of the people must be better.
3. By way of limitation: because no law in its letter hath force where the safety of the subject is in hazard; and if law or king be destructive to the people they are to be abolished. This is clear in a tyrant or a wicked man.
4. In the desires of the most holy: Moses, a prince, desired for the safety of God’s people, and rather than God should destroy his people, that his name should be rased out of the book of life; and David saith, (1 Chron. xxi. 17,) “Let thine hand, I pray thee, O Lord my God, be on me, and on my father’s house; but not on thy people, that they should be plagued.” This being a holy desire of these two public spirits, the object must be in itself true, and the safety of God’s people and their happiness must be of more worth than the salvation of Moses and the life of David and his father’s house.
The Prelate (c. 16, p. 159) borroweth an answer to this — for he hath none of his own — from Dr Ferne (sect. 7, p. 28): The safety of the subjects is the prime end of the constitution of government; but it is not the sole and adequate end of government in monarchy; for that is the safety of both king and people. And it beseemeth the king to proportion his laws for their good; and it becometh the people to proportion all their obedience, actions, and endeavours for the safety, honour, and happiness of the king. It is impossible the people can have safety when sovereignty is weakened.
Ans. — The Prelate would have the other half of the end, why a king is set over a people, to be the safety and happiness of the king, as well as the safety of the people. This is new logic indeed, that one and the same thing should be the mean and the end. The question is, For what end is a king made so happy as to be exalted king? The Prelate answereth, He is made happy that he may be happy, and made a king that he may be made a king. Now, is the king, as king, to intend this half end? that is, whether or no accepteth he the burden of setting his head and shoulders under the crown, for this end, that he may not only make the people happy, but also that he may make himself rich and honourable above his brethren, and enrich himself? I believe not; but that he feed the people of God; for if he intend himself, and his own honour, it is the intention of the man who is king, and intentio operantis, but it is not the intention of the king, as the king, or intentio operis. The king, as a king, is formally and essentially the “minister of God for our good,” (Rom. xiii. 4; 1 Tim. ii. 2,) and cannot come under any notion as a king, but as a mean, not as an end, nor as that which he is, to seek himself. I conceive God did forbid this in the moulding of the first king. (Deut. xvii. 18, 19, 26.) He is a minister by office, and one who receiveth honour and wages for this work, that, ex officio, he may feed his people. But the Prelate saith, the people are to intend his riches and honour. I cannot say but the people may intend to honour the king; but the question is not, whether the people be to refer the king and his government as a mean to honour the king?
I conceive not. But that end which the people, in obeying the king, in being ruled by him, may intend, is, (1 Tim. ii. 2,) “That under him they may lead a quiet and peaceable life, in all godliness and honesty.” And God’s end in giving a king is the good and safety of his people.
P. Prelate (c. 16, p. 160). — To reason from the one part and end of monarchical government — the safety of the subjects, to the destruction and weakening of the other part of the end — the power of sovereignty and the royal prerogative, is a caption a divisis. If the king be not happy, and invested with the full power of a head, the body cannot be well. By anti-monarchists, the people at the beginning were necessitated to commit themselves, lives and fortunes, to the government of a king, because of themselves they had not wisdom and power enough to do it; and therefore, they enabled him with honour and power, without which, he could not do this, being assured that he could not choose, but most earnestly and carefully endeavour this end, to wit, his own and the people’s happiness; therefore, the safety of the people issueth from the safety of the king, as the life of the natural body from the soul. “Weak government is near to anarchy. Puritans will not say, Quovis modo esse, etiam pœnale, is better than non esse: the Scripture saith the contrary; it were better for some never to have been born than to be. Tyranny is better than no government.
Ans. 1. — He knows not sophisms of logic who calleth this argument a divisis; for the king’s honour is not the end of the king’s government. He should seek the safety of state and church, not himself; himself is a private end, and a step to tyranny.
2. The Prelate lieth when he maketh us to reason from the safety of the subject to the destruction, of the king. Ferne, Barclay, Grotius, taught the hungry scholar to reason so. Where read he this? The people must be saved, that is the supreme law, therefore, destroy the king. The devil and the Prelate both shall not fasten this on us. But thus we reason: when the man who is the king endeavoureth not the end of his royal place, but, through bad counsel, the subversion of laws, religion, and bondage of the kingdom, the free estates are to join with him for that end of safety, according as God hath made them heads of tribes and princes of the people; and if the king refuse to join with them, and will not do his duty, I see not how they are in conscience liberated before God from doing their part.
3. If the P. Prelate call resisting the king by lawful defensive wars, the destruction of the head, he speaketh with the mouth of one excommunicated and delivered up to Satan.
4. We endeavour nothing more than the safety and happiness of the king, as king; but his happiness is not to suffer him to destroy his subjects, subvert religion, arm papists who have slaughtered above two hundred thousand innocent protestants, only for the profession of that true religion which tho king hath sworn to maintain. Not to rise in arms to help the king against these were to gratify him as a man, but to be accessory to his soul’s destruction as a king.
5. That the royal prerogative is the end of a monarchy ordained by God, neither Scripture, law, nor reason can admit.
6. The people are to intend the safety of other judges as well as the king’s. If parliaments be destroyed, whose it is to make laws and kings, the people can neither be sale, free to serve Christ, nor happy.
7. It is a lie that people were necessitated at the beginning to commit themselves to a king; for we read of no king while Nimrod arose: fathers of families (who were not kings), and others, did govern till then.
8. It was not want of wisdom, (for in many, and in the people, there must be more wisdom than in one man,) but rather corruption of nature and reciprocation of injuries that created kings and other judges.
9. The king shall better compass his end, to wit, the safety of the people, with limited power, (placent mediocria,) and with other judges added to help him, (Num. ii. 14, 16; Deut. i. 12-15,) than to put in one man’s hand absolute power; for a sinful man’s head cannot bear so much new wine, such as exorbitant power is.
10: He is a base flatterer who saith, The king cannot choose, but earnestly and carefully endeavour his own and the people’s happiness; that is, the king is an angel, and cannot sin and decline from the duties of a king. Of the many kings of Judah and Israel, how many chose this? All the good kings that have been may be written in a gold ring.
11. The people’s safety dependeth indeed on the king, as a king and a happy governor; but the people shall never be fattened to eat the wind of an imaginary prerogative royal.
12. Weak government, that is, a king with a limited power, who hath more power about his head than within his head, is a strong king, and far from anarchy.
13. I know not what he meaneth, but his master Arminius’s way and words are here, for Arminians say,[1] “That being in the damned, eternally tormented, is no benefit; it were better they never had being than to be eternally tormented;” and this they say to the defiance of the doctrine of eternal reprobation, in which we teach, that though by accident, and because of the damned’s abuse of being and life, it were to them better not to be, as is said of Judas, yet simpliciter comparing being with non-being, and considering the eternity of miserable being in relation to the absolute liberty of the Former of all things, who maketh use of the sinful being of clay-vessels for the illustration of the glory of his justice and power, (Rom. ix. 17, 22; 1 Pet. ii. 8; Jude v. 4,) it is a censuring of God and his unsearchable wisdom, and a condemning of the Almighty of cruelty, (God avert blasphemy of the unspotted and holy Majesty,) who, by Arminian grounds, keepeth the damned in life and being, to be fuel eternally for Tophet, to declare the glory of his justice. But the Prelate behoved to go out of his way to salute and gratify a proclaimed enemy or free grace, Arminius, and hence he would infer that the king, wanting his prerogative royal and fulness of absolute power to do wickedly, is in a penal and miserable condition, and that it were better for the king to be a tyrant, with absolute liberty to destroy and save alive at his pleasure, as is said of a tyrant, (Dan. v. 19,) than to be no king at all. And here consider a principle of royalists’ court faith: — 1. The king is no king, but a lame and miserable judge, if he have not irresistible power to waste and destroy. 2. The king cannot be happy, nor the people safe, nor can the king do good in saving the needy, except he have the uncontrollable and unlimited power of a tyrant to crush the poor and needy, and lay waste the mountain of the Lord’s inheritance. Such court-ravens who feed upon the souls of living kings, are more cruel than ravens and vultures, who are but dead carcases.
Williams, bishop of Ossory, answereth to the maxim, Salus populi, &c. “No wise king but will carefully provide for the people’s safety, because his safety and honour is included in theirs, his destruction in theirs.” And it is, saith Lipsius, egri animi proprium nihil diu pati. Absalom was persuaded there was no justice in the land when he intendeth rebellion; and the poor Prelate, following him, spendeth pages to prove that goods, life, chastity, and fame, dependeth on the safety of the king, as the breath of our nostrils, our nurse-father, our head, corner-stone, and judge (c. 17, 8, 18, 1). The reason why all disorder was in church and state was not because there was no judge, no government; none can be so stupid as to imagine that. But because, 1. They wanted the most excellent of governments, 2. Because aristocracy was weakened so as there was no right. No doubt priests there were, but (Hos. iv.) either they would not serve, or were over-awed. No doubt in those days they had judges, but priests and judges were stoned by a rascally multitude, and they were not able to rule; therefore it is most consonant to Scripture to say, Salus regis suprema populi salus, the safety of the king and his prerogative royal is the safest sanctuary for the people.” So Hos. iii. 4; Lament, ii. 9.
Ans. 1. — The question is not of the wisdom, but of the power of the king, if it should be bounded by no law.
2. The flatterer may know, there be more foolish kings in the world than wise, and that kings misled with idolatrous queens, and by name Ahab ruined himself, and his posterity and kingdom.
3. The salvation and happiness of men standing in the exalting of Christ’s throne and the gospel, therefore every king and every man will exalt the throne; and so let them have an uncontrollable power, without constraint of law, to do what they list, and let no bounds be set to kings over subjects. By this argument their own wisdom is a law to lead them to heaven.
4. It is not Absalom’s mad malcontents in Britain, but there were really no justice to protestants, — all indulgence to papists, popery, Arminianism, — idolatry printed, preached, professed, rewarded by authority, parliaments and church assemblies; the bulwarks of justice and religion were denied, dissolved, crushed, &c.
5. That by a king he understandeth a monarch, (Judg. xvii.) and that such a one as Saul, of absolute power, and not a judge, cannot be proved, for there were no kings in Israel in the judges’ days, — the government not being changed till near the end of Samuel’s government.
6. And that they had no judges, he saith, it is not imaginable. But I rather believe God than the Prelate. Every one did what was right in his own eyes, because there was none to put ill-doers to shame. Possibly the estates of Israel governed some way for mere necessity, but wanting a supreme judge, which they should have, they were loose; but this was not because where there is no king, as P. P. would insinuate, there was no government, as is dear.
7. Of tempered and limited monarchy I think as honourably as the Prelate, but that absolute and unlimited monarchy is more excellent than aristocracy, I shall then believe when royalists shall prove such a government, in so far as it is absolute, to be of God.
8. That aristocracy was now weakened I believe not, seeing God so highly commendeth it, and calleth it his own reigning over his people. (1 Sam. viii. 7.) The weakening of it through abuse is not to a purpose, more than the abuse of monarchy.
9. No doubt, saith he, (Hos. iv.) they were priests and judges, but they were over-awed, as they are now. I think he would say, (Hos. iii. 4,) otherwise he citeth Scripture sleeping, that the priests of Antichrist be not only over-awed, but out of the earth. I yield that the king be limited, not over-awed, I think God’s law and man’s law alloweth.
10. The safety of the king, as king, is not only safety, but a blessing to church and state, and therefore this P. Prelate and his fellows deserve to be hanged before the sun, who have led him on a war to destroy him and his protestant subjects. But the safety and flourishing of a king, in the exerases of an arbitrary unlimited power against law and religion, and to the destruction of his subjects, is not the safety of the people, nor the safety of the king’s soul, which these men, if they be the priests of the Lord, should care for.
The Prelate cometh to refute the learned and worthy Observator. The safety of the people is the supreme law, therefore the king is bound in duty to promote all and every one of his subjects to all happiness. The Observator hath no such inference, the king is bound to promote some of his subjects, even as king, to a gallows, especially Irish rebels, and many bloody malignants. But the Prelate will needs have God. rigorous (hallowed be his name) if it be so; for it is impossible to the tenderest-hearted father to do so. Actual promotion of all is impossible. That the king intend it of all his subjects, as good subjects, by a throne established on righteousness and judgment is that which the worthy Observator meaneth. Other things here are answered.
The sum of his second answer is a repetition of what he hath said. I give my word, in a pamphlet of one hundred and ninety-four pages, I never saw more idle repetitions of one thing twenty times before said; but (p. 168) he saith, “The safety of the king and his subjects, in the moral notion, may be esteemed morally the same, no less than the soul and the body make one personal subsistence.”
Ans. — This is strange logic. The king and his subjects are ens per aggregationem, and the king, as king, hath one moral subsistence, and the people another. Hath the father and the son, the master and the servant, one moral subsistence? But the man speaketh of their well-being, and then he must mean that our king’s government — that was not long ago, and is yet, to wit, the popery, Arminianism, idolatry, cutting off men’s ears and noses, banishing, imprisonment for speaking against popery, arming of papists to slay protestants, pardoning the blood of Ireland, that I fear, shall not be soon taken away, &c., — is identically the same with the life, safety, and happiness of protestants. Then life and death, justice and injustice, idolatry and sincere worship, are identically one, as the soul of the Prelate and his body are one.
The third is but a repetition. The acts of royalty (saith the Observator) are acts of duty and obligation, therefore, not acts of grace properly so called; therefore we may not thank the king for a courtesy. This is no consequence. What fathers do to children are acts of natural duty and of natural grace, and yet children owe gratitude to parents, and subjects to good kings, in a legal sense. No, but in way of courtesy only. The observator said, the king is not a father to the whole collective body, and it is well said he is son to them, and they his maker. Who made the king? Policy answereth, The state made him, and divinity, God made him.
The Observator said well, the people’s weakness is not the king’s strength. The Prelate saith, Amen. He said. That that perisheth not to the king, which is granted to the people. The Prelate (p. 170) denieth, because, what the king hath in trust from God, the king cannot make away to another, nor can any take it from him without sacrilege.
Ans. — True indeed, if the king had royalty by immediate trust and infusion by God, as Elias had the spirit of prophecy, that he cannot make away. Royalists dream that God, immediately from heaven, now infuseth faculty and right to crowns without any word of God. It is enough to make an enthusiast leap up to the throne and kill kings. Judge if these fanatics be favourers of kings. But if the king have royalty mediately, by the people’s free consent, from God, there is no reason but people give as much power, even by ounce weights, (for power is strong wine and a great mocker,) as they know a weak man’s head will bear, and no more. Power is not an immediate inheritance from heaven, but a birthright of the people borrowed from them; they may let it out for their good, and resume it when a man is drunk with it. The man will have it conscience on the king to fight and destroy his three kingdoms for a dream, his prerogative above law. But the truth is, prelates do engage the king, his house, honour, subjects, church, for their cursed mitres.
The Prelate (p. 172) vexeth the reader with repetitions, and saith, The king must proportion his government to the safety of the people on the one hand, and to his own safety and power on the other hand.
Ans. — What the king doth as king, he doeth it for the happiness of his people. The king is a relative; yea, even his own happiness that he seeketh, he is to refer to the good of God’s people. He saith farther, The safety of the people includeth the safety of the king, because the word populus is so taken; which he proveth by a raw, sickly rabble of words, stolen out of Passerat’s dictionary. His father, the schoolmaster, may whip him for frivolous etymologies.
This supreme law, saith the Prelate, (p. 175,) is not above the law of prerogative royal, the highest law, nor is rex above lex. The democracy of Rome had a supremacy above laws, to make and unmake laws; and will they force this power on a monarch, to the destruction of sovereignty?
Ans. — This, which is stolen from Spalato, Barclay, Grotius, and others, is easily answered. The supremacy of people is a law of nature’s self-preservation, above all positive laws, and above the king, and is to regulate sovereignty, not to destroy it. If this supremacy of majesty was in people before they have a king, then, 1. They lose it not by a voluntary choice of a king; for a king is chosen for good, and not for the people’s loss, therefore, they must retain this power, in habit and potency, even when they have a king. 2. Then supremacy of majesty is not a beam of divinity proper to a king only. 3. Then the people, having royal sovereignty virtually in them, make, and so unmake a king, — all which the Prelate denieth.
This supreme law (saith the Prelate, p. 176, begging it from Spalato, Arnisæus, Grotius) advances the king, not the people; and the sense is, the kingdom is really some time in such, a case that the sovereign most exercise an arbitrary power, and not stand upon private men’s interests, or transgressing of laws made for the private good of individuals, but for the preservation of itself, and the public, may break through all laws. This he may, in the case when sudden foreign invasion threateneth ruin inevitably to king and kingdom: a physician may rather cut a gangrened member than suffer the whole body to perish. The dictator, in case of extreme dangers, (as Livy and Dion. Halicarnast show us,) had power according to his own arbitrament, had a sovereign commission in peace and war, of life, death, persons, &c., not co-ordinate, not subordinate to any.
Ans. 1. — It is not an arbitrary power, but naturally tied and fettered to this same supreme law, salus populi, the safety of the people, that a king break through not the Law, but the letter of the law, for the safety of the people; as the chirurgeon, not by any prerogative that he hath above the art of chirurgery, but by necessity, cutteth off a gangrened member. Thus it is not arbitrary to the king to save his people from ruin, but by the strong and imperious law of the people’s safety he doth it; for if he did it not, he were a murderer of his people. 2. He is to stand upon transgression of laws according to their genuine sense of the people’s safety; for good laws are not contrary one to another, though, when he breaketh through the letter of the law, yet he breaketh not the law; for if twenty thousand rebels invade Scotland, he is to command all to rise, though the formality of a parliament cannot be had to indict the war, as our law provideth; but the king doth not command all to rise and defend themselves by prerogative royal, proper to him as king, and incommunicable to any but to himself.
1. There is no such din and noise to be made for a king and his incommunicable prerogative; for .though the king were not at all, yea, though he command the contrary, (as he did when he came against Scotland with an English army,) the law of nature teacheth all to rise, without the king.
2. That the king command this as king, is not a particular positive law; but he doth it as a man and a member of the kingdom. The law of nature (which knoweth no dream of such a prerogative) forceth him to it, as every member is, by nature’s indictment, to care for the whole.
3. It is poor hungry skill in this new statist, (for so he nameth all Scotland,) to say that any laws are made for private interests, and the good of some individuals. Laws are not laws if they be not made for the safety of the people.
4. It is false that the king, in a public danger, is to care for himself as a man, with the ruin and loss of any; yea, in a public calamity, a good king, as David, is to desire he may die that the public may be saved, 2 Sam. xxiv. 17; Exod. xxxii. 32. It is commended of all, that the emperor Otho, yea, and Richard II. of England, as M. Speed saith (Hist. of England, p. 757,) resigned their kingdoms to eschew the effusion of blood. The Prelate adviseth the king to pass over all laws of nature, and slay thousands of innocents, and destroy church and state of three kingdoms, for a straw, and supposed prerogative royal.
1. Now, certainly, prerogative and absoluteness to do good and ill, must be inferior to a law, the end whereof is the safety of the people. For David willeth the pestilence may take him away, and so his prerogative, that the people may be saved (2. Sam. xxiv. 17); for prerogative is cumulative to do good, not privative to do ill; and so is but a mean to defend both the law and the people.
2. Prerogative is either a power to do good or ill, or both. If the first be said, it must be limited by the end and law for which it is ordained. A mean is no farther a mean, but in so far as it conduceth to the end, the safety of all. If the second be admitted, it is licence and tyranny, not power from God. If the third be said, both reasons plead against this, that prerogative should be the king’s end in the present wars.
3. Prerogative being a power given by the mediation of the people; yea, suppose (which is raise) that it were given immediately of God, yet it is not a thing for which the king should raise, war against his subjects; for God will ask no more of the king than he giveth to him. The Lord reapeth not where he soweth not. If the militia, and other things, be ordered hitherto for the holding off Irish and Spanish invasion by sea, and so for the good of the land, seeing the king in his own person cannot make use of the militia, he is to rejoice that his subjects are defended. The king cannot answer to God for the justice of war on his part. It is not a case of conscience that the king should shed blood for, to wit, because the under-officers are such men, and not others of his choosing, seeing the kingdom is defended sufficiently except where cavaliers destroy it. And to me this is an unanswerable argument, that the cavaliers destroy not the kingdoms for this prerogative royal, as the principal ground, but for a deeper design, even for that which was working by prelates and malignants before the late troubles in both kingdoms.
4. The king is to intend the safety of his people, and the safety of the king as a governor; but not as this king, and this man Charles, — that is a selfish end. A king David is not to look to that; for when the people was seeking his life and crown, he saith, (Psal. iii. 8,) “Thy blessing upon thy people.” He may care for, and intend that the king and government be safe; for if the kingdom be destroyed, there cannot be a new kingdom and church on earth again to serve God in that generation, (Psal. lxxxix. 47.) but they may easily have a new king again; and so the satety of the one cannot in reason be intended as a collateral end with the safety of the other; for there is no imaginable comparison betwixt one man, with all his accidents of prerogative and absoluteness, and three national churches and kingdoms. Better the king weep for a childish trifle of a prerogative than that popery be erected, and three kingdoms be destroyed by cavaliers for their own ends.
5. The dictator’s power is, 1. A tact, and proveth not a point of conscience. 2. His power was in an exigence of extreme danger of the commonwealth. The P. Prelate pleadeih for a constant absoluteness above laws to the kin or at all times, and that jure divino, 3. The dictator was the people’s creature; therefore the creator, the people, had that sovereignty over him. 4. The dictator was not above a king; but the Romans ejected kings. 5. The dictator’s power was not to destroy a state: he might be, and was resisted; he might be deposed.
P. Prelate (p. 177). — The safety of the people is pretended as a law, that the Jews must put Christ to death, and that Saul spared Agag.
Ans. 1. — No shadow for either in the word of God. Caiaphas prophecied, and knew not what he said; but that the Jews intended the salvation of the elect, in killing Chnst, or that Saul intended a public good in sparing Agag, snall be the Prelate’s divinity, not mine. 2. What, howbeit many should abuse this law of the people’s safety, to wrong good kings, it ceaseth not therefore to be a law, and licenceth not ill kings to place a tyrannical prerogative above a just dictate of nature.
In the last chapter (c. 16) the Prelate hath no reasons, only he would have kings holy, and this he proveth from Apocrypha books, because he is ebb in Holy Scripture; but it is Romish holiness, as is clear, — 1. He must preach something to himself, that the king adore a tree-altar. Thus kings must be most reverend in their gestures (p. 182). 2. The king must hazard his sacred life and three kingdoms, his crown, royal posterity, to preserve sacred things, that is, anti-christian Romish idols, images, altars, ceremonies, idolatry, popery. 4. He must, upon the same-pain, maintain sacred persons, that is, greasy apostate prelates. The rest, I am weary to trouble the reader withall, but know ex ungue leonem.
[1] Jac. Armini. Declar. Remonstrant. in suod. dordrac.
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[2] Not yet checked against original Aristotle text.
Question XXVI.
Whether the King be above the Law or No.
We may consider the question of the law’s supremacy over the king, either in the supremacy of constitution of the king, or or direction, or of limitation, or of co-action and punishing. Those who maintain this, “The king is not subject to the law,” if their meaning be, “The king as king is not subject to the law’s direction,” they say nothing; for the king, as the king, is a living law; then they say, “The law is not subject to the law’s direction:” a very improper speech; or, the king, as king, is not subject to the co-action of the law: that is true; for he who is a living law, as such, cannot punish himself, as the law saith.
Assert. 1. — The law hath a supremacy of constitution above the king: —
1. Because the king by nature is not king, as is proved; therefore, he must be king by a politic constitution and law; and so the law, in that consideration, is above the king, because it is from a civil law that there is a king rather than any other kind of governor. 2. It is by law, that amongst many hundred men, this man is king, not that man; and because, by the which a thing is constituted, by the same thing it is, or may be dissolved; therefore, 3. As a community, finding such and such qualifications as the law requireth to be in a king, in this man, not in that man, — therefore upon law-ground they make him a king, and, upon law-grounds and just demerit, they may unmake him again; for what men voluntary do upon condition, the condition being removed, they may undo again.
Assert. 2. — It is denied by none but the king is under the directive power of the law, though many liberate the king from the co-active power of a civil law. But I see not what direction a civil law can give to the king if he be above all obedience, or disobedience, to a law, seeing all law-direction is in ordine ad obedientiam, in order to obey, except thus far, that the light that is in the civil law is a moral or natural guide to conduct a king in his walking; but this is the morality of the law which enlighteneth and informeth, not any obligation that aweth the king; and so the king is under God’s and nature’s law. This is nothing to the purpose.
Assert. 3. — The king is under the law, in regard of some coercive limitation; because, 1. There is no absolute power given to him to do what he listeth, as a man. And because, 2. God, in making Saul a king, doth not by any royal stamp give him a power to sin, or to play the tyrant; for which cause I expone these of the law, omnia sunt possibilia regi, imperator omnia potest. Baldus in sect. F. de no. for. fidel. in F. et in prima constitut. C. col. 2. Chassanæus in catalog, glories mundi. par. 5. considerat. 24. et tanta est ejus celsitudo, ut non posset et imponi lex in regno suo. Curt. in consol. 65.col. 6. ad. F. Petrus Rebuff. Notab. 3. repet. l. unscæ. C. de sentent. quæ pro eo quod n. 17, p. 363. All these go no otherwise but thus, The king can do all things which by a law he can do, and that holdeth him, id vossumus quod jure possumus; and, therefore, the king cannot be above the covenant and law made betwixt him and his people at his coronation-oath; for then the covenant and oath should bind him only by a natural obligation, as he is a man, not by a civil or politic obligation, as he is a king. So then, 1. It were sufficient that the king should swear that oath in his cabinet-chamber, and it is but a mocking of an oath that he swear it to the peopled 2. That oath given by the representative-kingdom should also oblige the subjects naturally, in foro Dei, not politically, in foro humano, upon the same reason. 3. He may be resisted as a man.
Assert. 4. — The fourth case is, if the king be under the obliging politic co-action of civil laws, for that he, in foro Dei, be under the morality of civil laws, so as he cannot contravene any law in that notion but he must sin against God, is granted on all hands. (Deut. xvii. 20; Josh. i. 3; 1 Sam. xii. 15.) That the king bind himself to the same law that he doth bind others, is decent, and obligeth the king as he is a man; because, 1. (Matt. vii. 12,) It is said to be the law and the prophets, ” All things whatsoever ye would men should do unto you, do ye even so to them.” 2, It is the law, imperator l. 4. digna vox. C. de lege et tit. Quod quisque juris in alium statuit, eodem et ipse utatur. Julius Cæsar commanded the youth who had deflowered the emperor’s daughter to be scourged above that which the law allowed. The youth said to the emperor, Dixisti legem Cæsar, — “You appointed the law, Cæsar.” The emperor was so offended with himself that he had failed against the law, that for the whole day he refused to taste meat.[1]
Assert. 5. — The king cannot but be subject to the co-active power of fundamental laws. Because, 1. This is a fundamental law that the free estates lay upon the king, that all the power that they give to the king, as king, is for the good and safety of the people; and so what he doth to the hurt of his subjects, he doth it not as king. 2. The law saith, Qui habet potestatem constituendi etiam et jus adimendi, l. nemo. 37. l. 21. de reg. jure. Those who have power to make have power to unmake kings. 3. Whatever the king doth as king, that he doth by a power borrowed from (or by a fiduciary power which is his by trust) the estates, who made him king. He must then be nothing but an eminent servant of the state, in the punishing of others. If, therefore, he be unpunishable, it is not so much because his royal power is above all law co-action, as because one and the same man cannot be both the punisher and the punished; and this is a physical incongruity rather than a moral absurdity. So the law of God layeth a duty on the inferior magistrate to use the sword against the murderer, and that by virtue of his office; but I much doubt, if for that he is to use the sword against himself in the case of murder, for this is a truth I purpose to make good, That suffering, as suffering, according to the substance and essence of passion, is not commanded by any law of God or nature to the sufferer, but only the manner of suffering. I doubt if it be not, by the law of nature, lawful even to the ill-doer, who hath deserved death by God’s law, to fly from the sword of the lawful magistrate; only the manner of suffering with patience is commanded of God. I know the law saith here, That the magistrate is both judge and the executor of the sentence against himself, in his own cause, for the excellency of his office.[2] Therefore these are to be distinguished, whether the king, ratione demeriti et jure, by law be punishable, or if the king can actually be punished corporally by a law of man, he remaining king; and since he must be a punisher himself, and that by virtue of his office. In matters of goods, the king may be both judge and punisher of himself, as our law provideth that any subject may plead his own heritage from the king before the inferior judges, and if the king be a violent possessor, and in mala fide for many years, by law he is obliged, upon a decree of the lords, to execute the sentence against himself, ex officio, and to restore the lands, and repay the damage to the just owner; and this the king is to do against himself, ex officio. I grant here the king, as king, punisheth himself as an unjust man, but because bodily suffering is mere violence to nature, I doubt if the king, ex officio, is to do or inflict any bodily punishment on himself. Nemo potest a scipso cogi. l. ille a quo, sect. 13.
Assert. 6. — There be some laws made in favour of the king, as king, as to pay tribute. The king must be above this law as king. True, but if a nobleman of a great rent be elected king, I know not if he can be free from paying to himself, as king, tribute, seeing this is not allowed to the king by a divine law, (Rom. siii. 6,) as a reward of his work; and Christ expressly maketh tribute a thing due to Cæsar as a king. (Matt. xxii. 21.) There be some solemnities of the law from which the king may be free; Prickman (D. c. 3, n. 78) relateth what they are; they are not laws, but some circumstances belonging to laws, and he answereth to many places alleged out of the lawyers, to prove the king to be above the law. Malderus (in 12. Art. 4, 5, 9, 96,) will have the prince under that law, which concerneth all the commonwealth equally in regard of the matter, and that by the law of nature; but he will not have him subject to these laws which concerneth the subjects as subjects, as to pay tribute. He citeth, Francisc. a Vict. Covarruvias, and Turrecremata. He also will have the prince under positive laws, such as not to transport victuals; not because the law bindeth him as a law, but because the making of the law bindeth him, tanquam conditio sine qua non, even “as he who teacheth another that he should not steal, he should not steal himself,” (Rom. ii.) But the truth is, this is but a branch of the law of nature, that I should not commit adultery, and theft, and sacrilege, and such sins as nature condemneth, if I shall condemn them in others, and doth not prove that the king is under the co-active power of civil laws. Ulpianus (L 31. F. de regibus) saith, “The prince is loosed from laws.” Bodine (de Repub. l. 7, c. 8). — “Nemo imperat sibi,” no man commandeth himself. Tholosanus saith, (de Rep. l. 7, c. 20,) “Ipsius est dare, non accipere leges,” the prince giveth laws, but receiveth none. Donellus (Lib. 1, Comment, c. 17) distinguisheth betwixt a law and a royal law proper to the king. Trentierus (vol. i. 79, 80) saith, “The prince is freed from laws;” and that he obeyeth laws, de honestate, non de necessitate, upon honesty, not of necessity. Thomas P. (1. q. 96, art. 6,) and with him Soto Gregorius de Valentia, and other schoolmen, subject the king to the directive power of the law, and liberate him of the co-active power of the law.
Assert. 7. — If a king turn a parricide, a lion, and a waster and destroyer of the people, as a man he is subject to the co-active power of the laws of the land. If any law should hinder that a tyrant should not be punished by law, it must be because he hath not a superior but God, for royalists build all upon this; but this ground is false: —
Arg. 1. — Because the estates of the kingdom, who gave him the crown, are above him, and they may take away what they gave him; as the law of nature and God saith, If they had known he would turn tyrant, they would never have given him the sword; and so, how much ignorance is in the contract they made with the king, as little of will is in it; and so it is not every way willing, but, being conditional, is supposed to be against their will. They gave the power to him only for their good, and that they may make the king, is clear. (2 Chron. xxiii. 11; 1 Sam. x. 17, 24; Deut. xvii. 14-17; 2 Kings xi. 12; 1 Kings xvi. 21; 2 Kings x. 5; Judg. ix. 8.) Fourscore valiant men of the priests withstood Uzziah with corporal violence, and thrust him out, and cut him off from the house of the Lord. (2 Chron. xxvi. 18.)
Arg. 2. — If the prince’s place do not put him above the laws of church discipline, (Matt. xviii.. for Christ excepteth none, and how can men except?) and if the rod of Christ’s “lips smite the earth, and slay the wicked,” (Isa. xi. 4.) and the prophets Elias, Nathan, Jeremiah, Isaiah, &c., and John Baptist, Jesus Christ, and his Apostles, have used this rod of censure and rebuke, as servants under God, against kings, this is a sort of spiritual co-action of laws put in execution by men; and by due proportion corporal co-action being the same ordinance of God, though of another nature, must have the like power over all, whom the law of God hath not excepted; but God’s law excepteth none at all.
Arg. 3. — It is presumed that God hath not provided better for the safety of the part than of the whole, especially when he maketh the part a mean for the safety of the whole. But if God have provided that the king, who is a part of the commonwealth, shall be free of all punishment, though he be a habitual destroyer of the whole kingdom, seeing God hath given him to be a father, tutor, saviour, defender thereof, and destined him as a mean for their safety, then must God have worse, not better, provided for the safety of the whole than of the part. The proposition, is dear, in that God (Rom. xiii. 4; 1 Tim. ii. 2) hath ordained the ruler, and given to him the sword to defend the whole kingdom and city; but we read nowhere that the Lord hath given the sword to the whole kingdom, to defend one man, a king, though a ruler, going on in a tyrannical way of destroying all his subjects. The assumption is evident: for then the king, turning tyrant, might set an army of Turks, Jews, or cruel Papists to destroy the church of God, without all fear of law or punishment. Yea, this is contrary to the doctrine of royalists: for Winzetus (adversus Buchananum, p. 275) saith of Nero, that he, seeking to destroy the senate and people of Rome, and seeking to make new laws for himself, excidit jure regni) lost right to the kingdom. And Barclaius (Monarch. l. 3, c. ult. p. 213,) saith, a tyrant, such as Caligula, spoliare se jure regni, spoileth himself of the right to the crown. And in that same place,regem, si regnum suum alienæ ditioni manciparit, regno cadere, if the king sell his kingdom, he loseth the title to the crown. Grotius, (de jure belli et pacis, l. i. c. 4, n. 7,) Si rex hostili animo in totius populi exitium feratur, amittit regnum, if he turn enemy to the kingdom, for their destruction, he loseth his kingdom, because (saith he) voluntas imperandi, et voluntas perdendi, simul consistere non possunt, a will or mind to govern and to destroy cannot consist together in one. Now, if this be true, that a king, turning tyrant, loseth title to the crown, this is either a falling from his royal title only in God’s court, or it is a losing of it before men, and in the court of his subjects. If the former be said, 1. He is no king, having before God lost his royal title; and yet the people is to obey him as “the minister of God,” and a power from God, when as he is no such thing. 2. In vain do these authors provide remedies to save the people from a tyrannous waster of the people, if they speak of a tyrant who is no king in God’s court only, and yet remaineth a king to the people in regard of the law: for the places speak of remedies that God hath provided against tyrants cum titulo, such as are lawful kings, but turn tyrants. Now by this they provide no remedy at all, if only in God’s court, and not in man’s court also, a tyrant lose his title. As for tyrants sine titulo, such as usurp the throne, and have no just claim to it, Barclaius (adver. Monarch, l. iv. c. 10. p. 268) saith, “Any private man may kill him as a public enemy of the state:” but if he lose his title to the crown in the court of men, then is there a court on earth to judge the king, and so he is under the co-active power of a law; — then a king may be resisted, and yet those who resist him do not incur damnation; the contrary whereof royalists endeavour to prove from Rom. xiii.; — then the people may unking one who was a king. But I would know who taketh that qei~on ti from him, whereby he is a king, that beam of divine majesty? Not the people; because royalists say, they neither can give nor take away royal dignity, and so they cannot unking him.
Arg. 4. — The more will be in the consent, (saith Ferd. Vasquez, l. i. c. 41,) the obligation is the stricter. So doubled words (saith the law, l. 1, sect. 13, n. 13) oblige more strictly. And all laws of kings, who are rational fathers, and so lead us by laws, as by rational means to peace and external happiness, are contracts of king and people. Omnis lex sponsio et contractus Reip. sect. 1, Inst. de ver. relig. Now the king, at his coronation-covenant with the people, giveth a most intense consent, an oath, to be a keeper and preserver of all good laws: and so hardly he can be freed from the strictest obligation that law can impose. And if he keep laws by office, he is a mean to preserve laws; and no mean can be superior and above the end, but inferior thereunto.
Arg. 5. — Bodine proveth, (de Rep. l. 2, c. 5, p. 221,) that emperors at first were but princes of the commonwealth, and that sovereignty remained still in the senate and people. Marius Salomonius, a learned Roman civilian, wrote six books do principatu. to refute the supremacy of emperors above the state. Ferd. Vasq. (illust. quest. part. 1. l. 1, n. 21) proveth, that the prince, by royal dignity, leaveth not off to be a citizen, a member of the politic body, and not a king, but a keeper of laws.
Arg. 6. — Hence, the prince remaineth, even being a prince, a social creature, a man as well as a king; one who must buy, sell. promise, contract, dispose: therefore, he is not regula regulans, but under rule of law; for it is impossible, if the king can, in a political way, live as a member of a society, and do and perform acts of policy, and so perform them, as he may, by his office, buy and not pay; promise, and vow, and swear to men, and not perform, nor be obliged to men to render a reckoning of his oath, and kill and destroy, — and yet in curia politicæ societatis, in the court of human policy, be free: and that he may give inheritances, as just rewards of virtue and well-doing, and take them away again. Yea, seeing, these sins that are not punishable before men, are not sins before men, if all the sins and oppressions of a prince be so above the punishment that men can inflict, they are not sins before men; by which means the king is loosed from all guiltiness of the sins against the second table: for the ratio formalis, the formal reason, why the judge, by warrant from God, condemneth, in the court of men, the guilty man, is, that he hath sinned against human society through the scandal of blasphemy, or chat through some other heinous sin he hath defiled the land. Now this is incident to the king as well as to some other sinful man.
To these, and the like, hear what the axcommunicated Prelate hath to say, (c. 15, p. 146, 147,) “They say (he meaneth the Jesuits) every society of men is a perfect republic, and so must have within itself a power to preserve itself from ruin, and by that to punish a tyrant.” He answereth, “A society without a head, is a disorderly rout, not a politic body; and so cannot have this power.
Ans. 1. — The Pope giveth to every society politic power to make away a tyrant, or heretical king, and to unking him, by his brethren, the Jesuits’, way. And observe how papists (of which number I could easily prove the P. Prelate to be, by the popish doctrine that he delivered, while the iniquity of time, and dominion of prelates in Scotland, advanced him, against all worth of true learning and holiness, to be a preacher in Edinburgh) and Jesuits agree, as the builders of Babylon. It is the purpose of God to destroy Babylon.
2. This answer shall infer, that the aristocratical governors of any free state, and that the Duke of Venice, and the senate there, is above all law, and cannot be resisted, because without their heads they are a disorderly rout.
3. A political society, as by nature’s instinct they may appoint a head, or heads, to themselves, so also if their head, or heads, become ravenous wolves, the God of nature hath not left a perfect society remediless; but they may both resist, and punish the head, or heads, to whom they gave all the power that they have, for their good, not for their destruction.
4. They are as orderly a body politic, to unmake a tyrannous commander, as they were to make a just governor. The Prelate saith, “It is alike to conceive a politic body without a governor, as to conceive the natural body without a head.” He meaneth, none of them can be conceivable. I am not of his mind. When Saul was dead, Israel was a perfect politic body; and the Prelate, if he be not very obtuse in his head, (as this hungry piece, stolen from others, showeth him to be,) may conceive a visible political society performing a political action, (2 Sam. v. 1-3,) making David king at a visible and conceivable place, at Hebron, and making a covenant with him. And that they wanted not all governors, is nothing to make them chimeras inconceivable. For when so many families, before Nimrod, were governed only by fathers of families, and they agreed to make either a king, or other governors, a head, or heads, over themselves, though the several families had government, yet these associated families had no government; and yet so conceivable a politic body, as if Maxwell would have appeared amongst them, and called them a disorderly rout, or an unconceivable chimera, they should have made the Prelate know that chimeras can knock down prelates. Neither is a king the life of a politic body, as the soul is of the natural body. The body createth not the soul; but Israel created Saul king, and when he was dead, they made David king, and so, under God, many kings, as they succeeded, till the Messiah came. No natural body can make souls to itself by succession; nor can sees create new prelates always.
P. Prelate. — Jesuits and puritans differ infinitely: we are hopeful God shall cast down this Babel. The Jesuits, for ought I know, seat the superintendent power in the community. Some sectaries follow them, and warrant any individual person to make away a king in case of defects, and the work is to be rewarded as when one killeth a ravenous wolf. Some will have it in a collective body; but how? Not met together by warrant, or writ of sovereign authority, but when fancy of reforming church and state calleth them. Some will have the power in the nobles and peers; some in the three estates assembled by the king’s writ; some in the inferior judges. I know not where this power to curb sovereignty is, but in Almighty God.
Ans. 1. Jesuits and puritans differ infinitely; true. Jesuits deny the Pope to be antichrist, hold all Arminian doctrine, Christ’s local descension to hell, — all which the Prelate did preach. We deny all this.
2. We hope also the Lord shall destroy the Jesuits’ Babel; the suburbs whereof, and more, are the popish prelates in Scotland and England.
3. The Jesuits, for ought he knoweth, place all superintendent power in the community. The Prelate knoweth not all his brethren, the Jesuits’, ways; but it is ignorance, not want of good-will. For Bellarmine, Beucanus, Suarez, Gregor. de Valentia, and others, his dear fellows, say, that all superintendent power of policy, in ordine ad spiritualia is in the man, whose foot Maxwell would kiss for a cardinal’s hat.
4. If these be all the differences, it is not much. The community is the remote and last subject, the representative body the nearest subject, the nobles a partial subject; the judges, as judges sent by the king, are so in the game, that when an arbitrary prince at his pleasure setteth them up, and at command that they judge for men, and not for the Lord, and accordingly obey, they are by this power to be punished, and others put in their place.
5. A true cause of convening parliaments the Prelate maketh a fancy at this time: it is as if the thieves and robbers should say a justice-court were a fancy; but if the Prelate might compear before the parliament of Scotland, (to which he is an outlaw like his father, 2 Thess. ii. 4,) such a fancy, I conceive, should hang him, and that deservedly. P. Prelate (p. 147, 148). — The subject of this superintending power must be secured from error in judgment and practice, and the community and states then should be infallible.
Ans. — The consequence is nought. No more than the king, the absolute independent, is infallible. It is sure the people are in less hazard of tyranny and self-destruction than the king is to subvert laws and make himself absolute; and for that cause there must be a superintendent power above the king, and God Almighty also must be above all.
P. Prelate. — The parliament may err, then God hath left the state remediless, except the king remedy it.
Ans. — There is no consequence here, except the king be impeccable. Posterior parliaments may correct the former. A state is not remediless, because God’s remedies, in sinful men’s hands, may miscarry. But the question is now, Whether God hath given power to one man to destroy men, subvert laws and religion, without any power above him to coerce, restrain, or punish?
P. Prelate (c. 15, p. 148). — If, when the parliament erreth, the remedy is left to the wisdom of God, why not when the king erreth?
Ans. — Neither is antecedent true, nor the consequence valid, for the sounder part may resist; and it is easier to one to destroy many, having a power absolute, which God never gave mm, than for many to destroy themselves. Then, if the king Uzziah intrude himself and sacrifice, the priests do sin in remedying thereof.
P. Prelate. — Why might not the people of Israel, peers or sanhedrim, have convened before them, judged and punished David for his adultery and murder? Romanists and new statists acknowledge no case lawful, but heresy, apostacy, or tyranny; and tyranny, they say, must be universal, manifest as the sun, and with obstinacy, and invincible by prayers, as is recorded of Nero, whose wish was rather a transported passion, than a fixed resolution. This cannot fall in the attempts of any but a madman. Now this cannot be proved our king; but though we grant in the foresaid case, that the community may resume their power, and rectify what is amiss, which we cannot grant; but this will follow by their doctrine, in every case of male administration.[3]
Ans. — The Prelate draweth me to speak of the case of the king’s unjust murder, confessed (Psal. li.); to which I answer: He taketh it for confessed, that it had been treason in the sanhedrim or states of Israel to have taken on them to judge and punish David for his adultery and his murder; but he giveth no reason for this, nor any word of God; and truly, though I will not presume to go before others in this, God’s law (Gen. ix. 6, compared with Num. xxxv. 30, 31) seemeth to say against them.
6. Nor can I think that God’s law, or his deputy the judges, are to accept the persons of the great, because they are great; (Deut. i. 17; 2 Chron. xix. 6, 7;) and we say, we cannot distinguish where the law distinguisheth not. The Lord speaketh to under judges (Lev. xix. 15,) “Thou shalt not respect the person of the poor, nor honour the person of the mighty,” or of the prince, for we know what these names lwOdgF and )b@frF meaneth. I grant it is not God’s meaning that the king should draw the sword against himself, but yet it followeth not, that if we speak of the demerit of blood, that the law of God accepteth any judge, great or small; and if the estates be above the king, as I conceive they are, though it be a human politic constitution, that the king be free of all co-action of law, because it conduceth for the peace of the commonwealth; yet if we make a matter of conscience, for my part I see no exception that God maketh it; if men make, I crave leave to say, a facto ad jus non sequitur; and I easily yield that in every case the estates may coerce the king, if we make it a case of conscience. And for the place, (Ps. li. 4,) “Against thee, thee only, have I sinned,” yti)+fxf K1d@:bal; K1l;flatterers allege it to be a place proving that the king is above all earthly tribunals, and all laws, and that there was not on earth any who might punish king David; and so they cite Clemens Alexandrin. (Strom. l. 4.) Arnobi., Psal. 1., Dydimus, Hieronim.; but Calvin on the place, giveth the meaning that most of the fathers give, — Domine, etiam si me totus mundus absolvat, mihi tamen plusquum satis est, quod te solum judicem sentio. It is true, Beda, Euthymius, Ambrosius, (Apol. David, c. 4 and c. 10,) do all acknowledge from the place, de facto, there was none above David to judge him, and so doth Augustine, Basilius Theodoret, say, and Chrysostomus, and Cyrillus, and Hieronimus, (Epist. 22.) Ambrose (Sermon 16, in Psal. cxviii.) Gregorius, and Augustine (Joan 8,) saith, he meaneth no man durst judge or punish him, but God only. Lorinus, the Jesuit, observeth eleven interpretations of the fathers all to this sense: “Since (Lyra saith) he sinned only against God, because God only could pardon him;” Hugo Cardinalis, “Because God only could wash him,” which he asketh in the text. And Lorinus, “Solo Deo conscio peccavi.” But the simple meaning is, 1. Against thee only have I sinned, as my eye-witness and immediate beholder; and, therefore, he addeth — and have done this evil in thy sight. 2. Against thee only, as my judge, that thou mayest be justified when thou judged, as clear from all unrighteousness, when thou shalt send the sword on my house. 3. Against thee, O Lord only, who canst wash me, and pardon me (ver. 1, 2). And if this “thee only” exclude altogether Uriah, Bathsheba, and the law of the judges, as if he had sinned against none of these in their kind, then is the king, because a king, free, not only from a punishing law of man, but from the duties of the second table simply, and so a king cannot be under the best and largest half of the law, Thou shalt love thy neighbour as thyself. He shall not need to say, Forgive us our sins, as we forgive them that sin against us; for there is no reason, from the nature of sin, and the nature of the law of God, why we can say more the subjects and sons sin against the king and father, than to say the father and king sin against the sons and subjects. By this, the king killing his father Jesse, should sin against God, but not break the fifth command, nor sin against his father. God should in vain forbid fathers to provoke their children to wrath.
1. And kings to do injustice to their subjects, because by this the superior cannot sin against the inferior, forasmuch as kings can sin against none but those who have power to judge and punish them; but God only, and no inferiors, and no subjects, have power to punish the kings; therefore kings can sin against none of their subjects; and where there is no sin, how can there be a law? Neither major or minor can be denied by royalists.
2. We acknowledge tyranny must only unking a prince. The Prelate denieth it, but he is a green statist. Barclay, Grotius, Winzetus, as I have proved, granteth it.
3. He will excuse Nero, as of infirmity, wishing all Rome to have one neck, that he may cut it off. And is that charitable of kings, that they will not be so mad as to destroy their own kingdom? But when histories teach us there have been more tyrants than kings, the kings are more obliged to him for flattery than for state-wit, except we say that all kings who eat the people of God, as they do bread, owe him little for making them all mad and frantic.
4. But let them be Neroes, and mad, and worse, there is no coercing of them, but all must give their necks to the sword, if the poor Prelate be heard; and yet kings cannot be so mad as to destroy their subjects. Mary of England was that mad. The Romish princes who have given (Rev. xvii. 13) their power and strength to the beast, and do make war with the Lamb; and kings inspired with the spirit of the beast, and, drunk with the wine of the cup of Babel’s fornications, are so mad; and the ten emperors are so mad, who wasted their faithlulest subjects.
P. Prelate. — If there be such a power in the peers, resumable in the exigent of necessity, as the last necessary remedy for safety of church and state, God and nature not being deficient in things necessary, it must be proved out of the Scripture, and not taken on trust, for affirmanti incumbit probatio.
Ans. — Mr Bishop, what better is your affirmanti incumbit, &c., than mine? for you are the affirmer. 1. I can prove a power in the king, limited only to feed, govern, and save the people; and you affirm that God hath given to the king, not only a power official and royal to save, but also to destroy and cut off, so as no man may say, Why doest thou this? Shall we take this upon the word of an excommunicated prelate? Profer tabulas, John P. P., I believe you not, royal power is, Deut. xvii. 18; Rom. iii. 14. I am sure there is there a power given to the king to do good, and that from God. Let John P. P. prove a power to do ill, given of God to the king. 2. We shall quickly prove that the states may repress this power, and punish the tyrant — not the king, when he shall prove that a tyrannous power is an ordinance of God, and so may not be resisted; for the law of nature teacheth, — if I give my sword to my fellow to defend me from the murderer, if he shall fall to and murder me with my own sword, I may (if I have strength) take my sword from him.
P. Prelate. — 1. It is infidelity to think that God cannot help us, and impatience that we will not wait on God. When a king oppresseth us, it is against God’s wisdom that he hath not provided another mean for our safety than intrusion on God’s right. 2. It is against God’s power, — 3. His holiness, — 4. Christian religion, that we necessitate God to so weak a mean as to make use of sin, and we cast the aspersion of treason on religion, and deter kings to profess reformed catholic religion; — 6. We are not to jostle God out of his right.
Ans. 1. — I see nothing but what Dr Ferne, Grotius, Barclay, Blackwood, have said before, with some colour of proving the consequence. The P. Prolate giveth us other men’s arguments, but without bones. All were good, if the state’s coercing and curbing a power which God never gave to the king were a sin and an act of impatience and unbelief; and if it were proper to God only, by his immediate hand, to coerce tyranny. 2. He calleth it not protestant religion, either here or elsewhere, but cunningly giveth a name that will agree to the Roman catholic religion. For the Dominicans, Franciscans, and the Parisian doctors and schoolmen, following Occham, Gerson, Almain, and other papists, call themselves reformed catholics. He layeth this for a ground, in three or four pages, — where these same arguments are again and again repeated in terminus, as his second reason, (p. 149,) was handledad nauseam (p. 148); his third reason is repeated in his sixth reason, (p. 151.) He layeth down, I say, this ground, which is the begged conclusion, and maketh. the conclusion the assumption, in eight raw and often-repeated arguments, — to wit, That the parliament’s coercing and restraining of arbitrary power is rebellion, and resisting the ordinance of God. But he dare not look the place, Rom. xiii., on the face. Other royalists have done it with bad success. This I desire to be weighed, and I retort the Prelate’s argument. But it is indeed the trivial argument of all royalists, especially of Barclay, — obvious in his third book. If arbitrary and tyrannical power, above any law that the lawful magistrate commandeth under the pain of death, — Thou shalt not murder one man, Thou shalt not take away the vineyard of one Naboth violently — be lawful and warrantable by God’s word, then an arbitrary power, above all divine laws, is given to the keeping of the civil magistrate. And it is no less lawful arbitrary, or rather tyrannical power, for David to kill all his subjects, and to plunder all Jerusalem, (as I believe prelates and malignants and papists would serve the three kingdoms, if the king should command them,) than to kill one Uriah, or for Ahab to spoil one Naboth. The essence of sin must agree alike to all, though the degrees vary.
Of God’s remedy against arbitrary power hereafter, in the question of resistance; but the confused engine of the Prelate bringeth it in here, where there is no place for it.
7. His seventh argument is: — Before God would authorise rebellion, and give a bad precedent thereof for ever, he would rather work extraordinary and wonderful miracles; and therefore would not authorise the people to deliver themselves from under Pharaoh, but made Moses a prince, to bring them out of Egypt with a stretched-out arm. Nor did the Lord deliver his people by the wisdom of Moses, or strength of the people, or any act that way of theirs, but by his own immediate hand and power.
Ans. — I reduce the Prelate’s confused words to a few: for I speak not of his popish term of St. Steven, and others the like; because all that he hath said in a book of 149 pages might have been said in three sheets of paper. But, I pray you, what is this argument to the question in hand, which is, whether the king be so above all laws, as people and peers, in the case of arbitrary power, may resume their power and punish a tyrant? The P. Prelate draweth in the question of resistance by the hair. Israel’s not rising in arms against king Pharaoh proveth nothing against the power of a free kingdom against a tyrant.
1. Moses, who wrought miracles destructive to Pharaoh, might pray for vengeance against Pharaoh, God having revealed to Moses that Pharaoh was a reprobate; but may ministers and nobles pray so against king Charles? God forbid.
2. Pharaoh had not his crown from Israel.
3. Pharaoh had not sworn to defend Israel, nor became he their king upon condition he should maintain and profess the religion of the God of Israel; therefore Israel could not, as free estates, challenge him in their supreme court of parliament of breach of oath; and upon no terms could they unking Pharaoh: he held not his crown of them.
4. Pharaoh was never circumcised, nor within the covenant of the God of Israel in profession.
5. Israel had their lands by the more gift of the king. I hope the king of Britain standeth to Scotland and England in a fourfold contrary relation.
All divines know that Pharaoh, his princes, and the Egyptians, were his peers and people, and that Israel were not his native subjects, but a number of strangers, who, by the laws of the king and princes, by the means of Joseph, had gotten the land of Goshen for their dwelling, and liberty to serve the God of Abraham, to whom they prayed in their bondage, (Exod. ii. 23, 24,) and they were not to serve the gods of Egypt, nor were they of the king’s religion. And therefore, his argument is thus: A number of poor exiled strangers under king Pharaoh, who were not Pharaoh’s princes and peers, could not restrain the tyranny of king Pharaoh; therefore, the three estates in a free kingdom may not restrain the arbitrary power of a king.
1. The Prelate must prove that God gave a royal and kingly power to king Pharaoh, due to him by virtue of his kingly calling, (according as royalists explain 1 Sam. viii. 9, 11,) to kill all the male children of Israel, to make slaves of themselves, and compel them to work in brick and clay, while their lives were a burden to them; and that if a Roman catholic, Mary of England, should kill all the male children of protestants, by the hands of papists, at the queen’s commandment, and make bondslaves of all the peers, judges, and three estates, who made her a free princess; yet, notwithstanding that Mary had sworn to maintain the protestant religion, they were to suffer and not to defend themselves. But if God give Pharaoh a power to kill all Israel, so as they could not control it, then God giveth to a king a royal power by office to sin, only the royalist saveth God from being the author of sin in this, that God gave the power to sin; but yet with this limitation, that the subjects should not resist this power. 2. He must prove that Israel was to give their male children to Pharaoh’s butchers, — for to hide them was to resist a royal power; and to disobey a royal power given of God, is to disobey God. 3. The subjects may not resist the king’s butchers coming to kill them and their male children; for to resist the servant of the king in that wherein he is a servant, is to resist the king. (1 Sam. viii. 7; 1 Pet. ii. 14; Rom. xiii. 1.) 4. He must prove, that upon the supposition that Israel had been as strong as Pharaoh and his people; that without God’s special commandment, (they then wanting the written word,) they should have fought with Pharaoh; and that we now, for all wars, must have a word from heaven, as if we had not God’s perfect will in his word, as at that tune Israel behoved to have in all wars, Judg. xviii. 5; 1 Sam. xiv. 37; Isa. xxx. 2; Jer. xxxviii. 37; 1 Kings xxii. 5; 1 Sam. xxx. 5; Judg. xx. 27; 1 Sam. xxiii. 2; 2 Sam. xvi 23; 1 Chron. x. 14. But because God gave not them an answer to fight against Pharaoh, therefore we have no warrant now to fight against a foreign nation invading us; the consequence is null, and therefore this is a vain argument. The prophets never reprove the people for not performing the duty of defensive wars against tyrannous kings; therefore, there is no such duty enjoined by any law of God to us. For the prophets never rebuke the people for non-performing the duty of offensive wars against their enemies, but where God gave a special command and response from his own oracle, that they should fight. And if God was pleased never to command the people to rise against a tyrannous king, they did not sin where they had no commandment of God; but I hope we have now a more sure word of prophecy to inform us. 5. The Prelate conjectureth Moses’ miracles, and the deliverance of the people by dividing the Red Sea, was to forbid and condemn defensive wars of people against their king; but he hath neither Scripture nor reasons to do it. The end of these miracles was to seal to Pharaoh the truth of God’s calling of Moses and Aaron to deliver the people, as is clear, Exod. iv. 1-4, compared with vii. 3-10. And that the Lord might get to himself a name on all the earth, Rom. ix. 17; Exod. ix. 16; xiii. 13, 14. But of the Prelate’s conjectural end, the Scripture is silent, and we cannot take an excommunicated man’s word. What I said of Pharaoh, who had not his crown from Israel, that I say of Nebuchadnezzar and the kings of Persia, keeping the people of God captive.
P. Prelate (p. 153). — So in the book of Judges, when the people were delivered over to the hand of their enemies, because of their sins, he never warranted the ordinary judges or community to be their own deliverers; but when they repented, God raised up a judge. The people had no hand in their own deliverance out of Babylon; God effected it by Cyrus, immediately and totally. Is not this a real proof God will not have inferior judges to rectify what is amiss; but we must wait in patience till God provide lawful means, some sovereign power immediately sent by himself, in which course of his ordinary providence, he will not be deficient.
Ans. 1. — All this is beside the question, and proveth nothing less than that peers and community may not resume their power to curb an arbitrary power. For, in the first case, their is neither arbitrary nor lawful supreme judge. 2. If the first prove any thing, it proveth that it was rebellion in the inferior judges and community of Israel to fight against foreign kings, not set over them by God; and that offensive wars against any kings whatsoever, because they are kings, though strangers, are unlawful. Let Socinians and anabaptists consider if the P. Prelate help not them in this, and may prove all wars to be unlawful. 3. He is so malignant to all inferior judges, as if they were not powers sent of God, and to all governors that are not kings, and so upholders of prelates, and of himself as he conceiveth, that by his arguing he will have all deliverance of kings only, the only lawful means in ordinary providence; and so aristocracy and democracy, except in God’s extraordinary providence, and by some divine dispensation, must be extraordinary and ordinarily unlawful. 1. The acts of a state, when a king is dead and they choose another, shall be an anticipating of God’s providence. 2. If the king be a child, a captive, or distracted, and the kingdom oppressed with malignants, they are to wait, while God immediately from heaven create a king to them, as he did Saul long ago. But have we now kings immediately sent as Saul was? How is the spirit of prophecy and government infused in them, as in king Saul? or are they by prophetical inspiration, anointed as David was? I conceive their calling to the throne on God’s part differs as much from the calling of Saul and David, in some respect, as the calling of ordinary pastors, who must be gifted by industry and learning and called by the church, and the calling of apostles. 3. God would deliver his people from Babylon by moving the heart of Cyrus immediately, the people having no hand in it, not so much as supplicating Cyrus; therefore, the people and peers who made the king cannot curb his tyrannical power, if he make captives and slaves of them, as the kings of Chaldea made slaves of the people of Israel. What! Because God useth another mean, therefore, this mean is not lawful. It followeth in no sort. If we must use no means but what the captive people did under Cyrus, we may not lawfully fly, nor supplicate, for the people did neither. P. Prelate. — You read of no covenant in Scripture made without the king. (Exod. xxxiv.) Moses king of Jeshurun: neither tables nor parliament framed it. Joshua another, (Josh, xxiv.) and Asa, (2 Chron. xv.; 2 Chron. xxxiv.; Ezra x.) The covenant of Jehoiada in the nonage of Joash, was the high priest’s act, as the king’s governor. There is a covenant with hell, made without the king, and a false covenant. (Hos. x. 3, 4.)
Ans. — We argue this negatively. 1. This is neither commanded, nor practised, nor warranted by promise; therefore, it is not lawful. But this is not practised in Scripture; therefore, it is not lawful. It followeth it. Show me in Scripture the killing of a goring ox who killed a man; the not making battlements on a house; the putting to death of a man lying with a beast; the killing of seducing prophets, who tempted the people to go a whoring, and serve another God than Jehovah: I mean, a god made by the hand of the baker, such a one as the excommunicated Prelate is known to be, who hath preached this idolatry in three kingdoms. (Deut. xiii.) This is written, and all the former laws are divine precepts. Shall the precept make them all unlawful, because they are not practised by some in Scripture? By this? I ask, Where read ye that the people entered in a covenant with God, not to worship the golden image, and the king; and those who pretended they are the priests of Jehovah, the churchmen and prelates, refused to enter in covenant with God? By this argument, the king and prelates, in non-practising with us, wanting the precedent of a like practised in Scripture, are in the fault. 2. This is nothing to prove the conclusion in question. 3. All these places prove it is the king’s duty, when the people under him, and their fathers, have corrupted the worship of God, to renew a covenant with God, and to cause the people to do the like, as Moses, Asa, and Jehoshaphat did. 4. If the king refuse to do his duty, where is it written that the people ought also to omit their duty, and to love to have it so, because the rulers corrupt their ways? (Jer. v. 31.) To renew a covenant with God is a point of service due to God that the people are obliged unto, whether the king command it or no. What if the king command not his people to serve God; or, what if he forbid Daniel to pray to God? Shall the people in that case serve the King of kings, only at the nod and royal command of an earthly king? Clear this from Scripture. 5. Ezra (ch. v.) had no commandment in particular from Artaxerxes, king of Persia, or from Darius, but a general. (Ezra vii. 23.) “Whatsoever is commanded by the God of heaven, let it be diligently done for the house of the God of heaven.” But the tables in Scotland, and the two parliaments of England and Scotland, who renewed the covenant, and entered in covenant not against the king, (as the P. P. saith,) but to restore religion to its ancient purity, have this express law both from king James and king Charles, in many acts of parliament, that religion be kept pure. Now, as Artaxerxes knew nothing of the covenant, and was unwilling to subscribe it, and yet gave to Ezra and the princes a warrant, in general, to do all that the God of heaven required to be done, for the religion and house of the God of heaven, and so a general warrant for a covenant, without the king; and yet Ezra and the people, in swearing that covenant, failed in no duty against their king, to whom, by the fifth commandment, they were no less subject than we are to our king: just so we are, and so have not failed. But they say, the king hath committed to no lieutenant and deputy under him, to do what they please in religion, without his royal consent in particular, and the direction of his clergy, seeing he is of that same religion with his people; whereas Artaxerxes was of another religion than were the Jews and their governor. — Ans. Nor can our king take on himself to do what he pleaseth, and what the prelates (amongst whom those who ruled all are known, before the world and the sun, to be of another religion than we are) pleaseth, in particular. But see what religion and worship the Lord our God, and the law of the land (which is the king’s revealed will) alloweth to us, that we may swear, though the king should not swear it; otherwise, we are to be of no religion but of the king’s, and to swear no covenant but the king’s, which is to join with papists against protestants, 6. The strangers of Ephraim and Manasseh, and out of Simeon fell out of Israel in abundance to Asa, when they saw that the Lord his God was with him, (2 Chron. xv. 9, 10,) and aware that covenant without their own king’s consent, their own king being against it. If a people swear a religious covenant, without their king, who is averse thereunto, far more may the nobles, peers, and estates of parliament do it without their king; and here is an example of a practice, which the P. Prelate requireth. 7. That Jehoiada was governor and viceroy during the nonage of Joash, and that by this royal authority the covenant was sworn, is a dream, to the end he may make the Pope, and the archprelate, now viceroys and kings, when the throne varieth. The nobles were authors of the making of that covenant, no less than Jehoiada was; yea, and the people of the land, when the king was but a child, went unto the house of Baal, and brake down his images, &c. Here is a reformation, made without the king, by the people. 8. Grave expositors say, that the covenant with death and hell (Isa. xxviii.) was the king’s covenant with Egypt. 9. And the covenant (Hos. x.) is by none exponed of a covenant made without the king. I have heard said, this Prelate, preaching on this text before the king, exponed it so; but he spake words (as the text is) falsely. The P. Prelate, to the end of the chapter, giveth instance of the ill success of popular reformation, because the people caused Aaron to make a golden calf, and they revolted from Rehoboam to Jeroboam, and made two golden calves, and they conspired with Absalom against David. — Ans. If the first example make good any thing, neither the high priest, as was Aaron, nor the P. Prelate, who claimeth to be descended of Aaron’s house, should have any hand in reformation at all; for Aaron erred in that. And to argue from the people’s sins to deny their power, is no better than to prove Ahab, Jeroboam, and many kings in Israel and Judah, committed idolatry, therefore they had no royal power at all. In the rest of the chapter, for a whole page, he singeth over again his matins in a circle, and giveth us the same arguments we heard before; of which you have these three notes: — 1. They are stolen, and not his own. 2. Repeated again and again to fill the field. 3. All hang on a false supposition, and a begging of the question. That the people, without the king, have no power at all.
[1] Plutarch in Apotheg. lib. 4.
[2] Magistratus ipse est judex et executor contra scipcum, in propria causa, propter excellentiam sui officii, l. si pater familias, at l. et hoc. Tiberius Cæsar, F. de Hered. hoc. just.
[3] Stolen from Arnisæus, de authorit. prin. c. 4, n. 5, p. 73.
Question XXVII.
Whether or no the king be the sole, supreme and final interpreter of the law.
This question conduceth not a little to the clearing of the doubts concerning the king’s absolute power, and the supposed sole no-
mothetic power in the king. And I think it not unlike to the question, Whether the Pope and Romish church have a sole and peremptory power of exponing laws, and the word of God? We are to consider that there is a twofold exposition of laws; 1. One speculative in a school way, so exquisite jurists have a power to expone laws. 2. Practical, in so far as the sense of the law falleth under our practice; and this is twofold, — either private and common to all, or judicial and proper to judges; and of this last is the question.
For this public, the law hath one fundamental rule, solus populi, like the king of planets, the sun, which lendeth star-light to all laws, and by which they are exponed: whatever interpretation swerveth either from fundamental laws of policy, or from the law of nature, and the law of nations, and especially from the safety of the public, is to be rejected as a perverting of the law; and therefore, conscientia humani generis, the natural conscience of all men, to which the oppressed people may appeal unto when the king exponeth a law unjustly, at his own pleasure, is the lost rule on earth for exponing of laws. Nor ought laws to be made so obscure, as an ordinary wit cannot see their connexion with fundamental truths of policy, and the safety of the people; and therefore I see no inconvenience, to say, that the law itself is norma et regula juduicandi, the rule and directory to square the judge, and that the judge is tho public practical interpreter of the law.
Assert. 1. — The king is not the sole and final interpreter of the law.
1. Because then inferior judges should not be interpreters of the law; but inferior judges are no less essentially judges than the king, (Deut. i. 17; 2 Chron. xix. 6; 1 Pet. li. 14; Rom. xiii. 1, 2,) and so by office must interpret the law, else they cannot give sentence according to their conscience and equity. Now, exponing of the law judicially is an act of judging, and so a personal and incommunicable act; so as I can no more judge and expone the law according to another man’s conscience, than I can believe with another man’s soul, understand with another man’s understanding, or see with another man’s eye. The king’s pleasure, therefore, cannot be the rule of the inferior judge’s conscience, for he giveth an immediate account to God, the Judge of all, of a just or an unjust sentence. Suppose Cæsar shall expone the law to Pilate, that Christ deserveth to die the death, yet Pilate is not in conscience to expone the law so. If therefore inferior judges judge for the king, they judge only by power borrowed from the king, not by the pleasure, will, or command of the king thus and thus exponing the law, therefore the king cannot be the sole interpreter of the law.
2. If the Lord say not to the king only, but also to other inferior judges, “Be wise, understand, and the cause that you know not, search out,” then the king is not the only interpreter of the law. But the Lord saith not to the king only, but to other judges also, Be wise, understand, and the cause that you know not, search out; therefore the king is not the sole law-giver. The major is clear from Psal. ii. 10, “Be wise now therefore, O ye kings, be instructed, ye judges of the earth.” So are commands and rebukes for unjust judgment given to others than to kings. (Ps. lxxxii. 1-5; lviii. 1, 2; Isa. i. 17, 23, 25, 26; iii. 14; Job xxix. 12-15; xxxi. 21, 22.)
3. The king is either the sole interpreter of law, in respect he is to follow the law as his rule, and so he is a ministerial interpreter of the law, or he is an interpreter of the law according to that super-dominion of absolute power that he hath above the law. If the former be holden, then it is clear that the king is not the only interpreter, for all judges, as they are judges, have a ministerial power to expone the law by the law: but the second is the sense of royalists.
Assert. 2. — Hence our second assertion is, That the king’s power of exponing the law is a mere ministerial power, and he hath no dominion of any absolute royal power to expone the law as he will, and to put such a sense and meaning of the Law as he pleaseth.
1. Because Saul maketh a law, (1 Sam xiv. 24,) “Cursed be the man that tasteth any food till night, that the king may be avenged on his enemies,” the law, according to the letter, was bloody; but, according to the intent of the lawgiver and substance of the law, profitable, for the end was that the enemies should be pursued with all speed. But king Saul’s exponing the law after a tyrannical way, against the intent of the law, which is the diamond and pearl of all laws — the safety of the innocent people, was justly resisted by the innocent people, who violently hindered innocent Jonathan to be killed. Whence it is clear, that the people and princes put on the law its true sense and meaning; for Jonathan’s tasting of a little honey, though as it was against that sinful and precipitate circumstance, a rash oath, yet it was not against the substance and true intent of the law, which was the people’s speedy pursuit of the enemy. Whence it is clear, that the people, including the princes, hath a ministerial power to expone the law aright, and according to its genuine intent, and that the king, as king, hath no absolute power to expone the law as he pleaseth.
2. The king’s absolute pleasure can no more be the genuine sense of a just law than his absolute pleasure can be a law; because the genuine sense of the law is the Law itself, as the formal essence of a thing differeth not really, but in respect of reason, from the thing itself. The Pope and Romish church cannot put on the Scripture, ex plenitudine potentatis, whatever meaning they will, no more than they can, out of absolute power, make canonic scripture. Now so it is, that the king, by his absolute power, cannot make law no law. 1. Because he is king by, or according to, law, but he is not king of law. Rex est rex secundum legem, sed non est dominus et rex legis. 2. Because, although it have a good meaning, which Ulpian saith, “Quod principi placet legis vigorem habet” — the will of the prince is the law; yet the meaning is not that anything is a just law, because it is the prince’s will, for its rule formally; for it must be good and just before the prince can will it, — and then, he finding it so, he putteth the stamp of a human law on it.
3. This is the difference between God’s will and the will of the king, or any mortal creature. Things are just and good, because God willeth them, — especially things positively good, (though I conceive it hold in all things,) and God doth not will things, because they are good and just; but the creature, be he king or any never so eminent, do will things, because they are good and just, and the king’s wiling of a thing maketh it not good and just; for only God’s will — not the creature’s — can be the cause why things are good and just. If, therefore, it be so, it must undeniably hence follow, that the king’s will maketh not a just law to have an unjust and bloody sense; and he cannot, as king, by any absolute super-dominion over the law, put a just sense on a bloody and unjust law.
4. The advancing of any man to the throne and royal dignity putteth not the man above the number of rational men. No rational man can create, by any act of power never so transcendent or boundless, a sense to a law contrary to the law. Nay, give me leave to doubt if Omnipotence can make a just law to have an unjust and bloody sense, aut contra, because it involveth a contradiction; — the true meaning of a law being the essential form of the law. Hence judge what brutish, swinish flatterers they are who say, “That it is the true meaning of the law which the king, the only supreme and independent expositor of the law, saith is the true sense of the law.” There was once an animal — a fool of the first magnitude — who said he could demonstrate, by invincible reasons, that the king’s dung was more nourishing food than bread of the flour of the finest wheat. For my part I could wish it were the demonstrator’s only food for seven days, and that should be the best demonstration he could make for his proof.
5. It must follow that there can be no necessity of written laws to the subjects, against Scripture and natural reason, and the law of nations, in which all accord: that laws not promulgated and published cannot oblige as law; yea, Adam, in his innocency, was not obliged to obey a law not written in his heart by nature, except God had made known the law; as is clear, Gen. iii. 11, “Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat?” But if the king’s absolute will may put on the law what sense he pleaseth, out of his independent and irresistible supremacy, the laws promulgated and written to the subjects can declare nothing what is to be done by the subjects as just, and what is to be avoided as unjust; because the laws must signify to the subjects what is just and what is unjust, according to their genuine sense. Now, their genuine sense, according to royalists, is not only uncertain and impossible to be known, but also contradictory; for the king obligeth us, without gainsaying, to believe that the just law hath this unjust sense. Hence this of flattering royalists is more cruel to kings than ravens, (for these eat but dead men, while they devour living men,) When there is a controversy between the king and the estates of parliament, who shall expone the law and render its native meaning? Royalists say, Not the estates of parliament, for they are subjects, not judges, to the king, and only counsellors and advisers of the king. The king, therefore, must be the only judicial and final expositor. “As for lawyers, (said Strafford,) the law is not enclosed in a lawyer’s cap.” But I remember this was one of the articles laid to the charge of Richard II., that he said, “The law was in his head and breast.”[1] And, indeed, it must follow, if the king, by the plenitude of absolute power, be the only supreme uncontrollable expositor of the law, that is not law which is written in the acts of parliament, but that is the law which is in the king’s breast and head, which Josephus (lib. 19, Antiq. c. 2.) objected to Caius. And all justice and injustice should be finally and peremptorily resolved on the king’s will and absolute pleasure.
6. The king either is to expone the law by the law itself; or by his absolute power, loosed from all law, he exponeth it; or according to the advise of his great senate. If the first be said, he is nothing more than other judges. If the second be said, he must be omnipotent, and more. If the third be said, he is not absolute, if the senate be only advisers, and he yet the only judicial expositor. The king often professeth his ignorance of the laws; and he must then both be absolute above the law, and ignorant of the law, and the sole and final judicial exponer of the law. And by this, all parliaments, and their power of making laws, and of judging, are cried down.
Obj. 1. — Prov. xvi. 10, “A divine sentence is in the lips of the king; his mouth trangresseth not in judgment;” therefore he only can expone the law.
Ans. — Lavater saith, (and I see no reason on the contrary,) “By a king he meaneth all magistrates.” Aben Ezra and Isidorus read the words imperatively. The Tigurine version, — “They are oracles which proceed from his lips; let not therefore his mouth transgress in judgment.” Vatabulus, — “When he is in his prophecies, he lieth not.” Jansenius, — “Non facile errabit in judicando.” Mich. Jermine, — “If he pray.” Calvin, — “If he read in the book of the law, as God commandeth him,” Deut. xvii. But why stand we on the place? “He speaketh of good kings, (saith Cornel. à Lapide,) otherwise Jeroboam, Ahab, and Manasseh, erred in judgment.” “And except (as Mercerus exponeth it) we understand him to speak of kings according to their office, not their facts and practice, we make them popes, and men who cannot give out grievous and unjust sentences on the throne,” — against both the Word and experience.
Obj. 2. — Sometimes all is cast upon one man’s voice; why may not the king be this one man?
Ans. — The antecedent is false; the last voter in a senate is not the sole judge, else why should others give suffrages with him? This were to take away inferior judges, contrary to God’s word, Deut. i. 17; 2 Chron. xix. 6, 7; Rom. xiii. 1-3.
[1] Imperator se leges in scrinio [?] condere dicit. 1. omnium, C. de testam.
Question XXVIII.
Whether or no wars raised by the subjects and estates, for their own just defence against the king’s bloody emissaries, be lawful.
Arnisæus perverteth the question; he saith, “The question is, Whether or no the subjects may, according to their power, judge the king and dethrone him; that is, Whether or no it is lawful for the subjects in any case to take arms against their lawful prince, if he degenerate, and shall wickedly use his lawful power.”
1. The state of the question is much perverted, for these be different questions, Whether the kingdom may dethrone a wicked and tyrannous prince, and whether the kingdom may take up arms against the man who is the king, in their own innocent defence. For the former is an act offensive, and of punishing; the latter is an act of defence.
2. The present question is not of subjects only, but of the estates, and parliamentary lords of a kingdom. I utterly deny these, as they are judges, to be subjects to the king; for the question is, Whether is the king or the representative kingdom greatest, and which of them be subject one to another? I affirm, amongst judges, as judges, not one is the commander or superior, and the other the commanded or subject. Indeed, one higher judge may correct and punish a judge, not as a judge, but as an erring man.
3. The question is not so much concerning the authoritative act of war, as concerning the power of natural defence, upon supposition, that the king be not now turned an habitual tyrant; but that upon some acts of misinformation, he come in arms against his subjects.
Arnisæus maketh two sort of kings, — “Some kings integræ majestatis, of entire power and sovereignty; some kings by pactions, or voluntary agreement between king and people.” But I judge this a vain distinction; for the limited prince, so he be limited to a power only of doing just and right, by this is not a prince integræ majestatis, of entire royal majesty, whereby he may both do good and also play the tyrant; but a power to do ill being no ways essential, yea, repugnant to the absolute majesty of the King of kings, cannot be an essential part of the majesty of a lawful king; and therefore the prince, limited by voluntary and positive paction only to rule according to law and equity, is the good, lawful, and entire prince, only if he have not power to do every thing just and good in that regard, he is not an entire and complete prince. So the man will have it lawful to resist the limited prince; not the absolute prince; by the contrary, it is more lawful to me to resist the absolute prince than the limited, inasmuch as we may with safer consciences resist the tyrant and the lion, than the just prince and lamb. Nor can I assent to Cunnerius (de officio princip. Christia. c. 5 and 17,) who holdeth, “that these voluntary pactions betwixt king and people, in which the power of the prince is diminished, cannot stand, because their power is given to them by God’s word, which cannot be taken from them by any voluntary paction, lawfully;” and from the same ground, Winzetus (in velit. contr. Buchan. p. 3) “will have it unlawful to resist kings, because God hath made them irresistible.” I answer, — If God, by a divine institution, make kings absolute, and above all laws, (which is a blasphemous supposition — the holy Lord can give to no man a power to sin, for God hath not himself any such power.) then the covenant betwixt the king and people cannot lawfully remove and take away what God by institution has given; but because God (Deut. xvii.) hath limited the first lawful king, the mould of all the rest, the people ought also to limit him by a voluntary covenant; and because the lawful power of a king to do good is not by divine institution placed in an indivisible point. It is not a sin for the people to take some power, even of doing good, from the king, that he solely, and by himself, shall not have power to pardon an involuntary homicide, without advice and the judicial suffrages of the council of the kingdom, least he, instead of this, give pardons to robbers, to abominable murderers; and in so doing, the people robbeth not the king of the power that God gave him as king, nor ought the king to contend for a sole power in himself of ministering justice to all; for God layeth not upon kings burdens impossible; and God by institution hath denied to the king all power of doing all good; because it is his will that other judges be sharers with the king in that power, (Num. xiv. 16; Deut. i. 14-17; 1 Pet. ii. 14; Rom. xiii: 1-4;) and therefore the duke of Venice, to me, cometh nearest to the king moulded by God, (Deut. xvii.) in respect of power, de jure, of any king I know in Europe. And in point of conscience, the inferior judge discerning a murderer and bloody man to die, may in foro conscientiæ despise the king’s unjust pardon, and resist the King’s force by his co-active power that God hath given him, and put to death the bloody murderer; and he sinneth if he do not this; for to me it is clear, that the king cannot judge so justly and understandingly of a murderer in Scotland, as a judge to whom God hath committed the sword in Scotland. Nor hath the Lord laid that impossible burden on a king to judge so of a murder four hundred miles removed from the king, as the judge nearer to him, as is clear by Num. xiv. 16; 1 Sam. vii. 15-17. The king should go from place to place and judge; and whereas it is impossible to him to go through three kingdoms, he should appoint faithful judges, who may not be resisted, — no, not by the king.
1. The question is, If the king command A. B. to kill his father or his pastor, — the man neither being cited nor convicted of any fault, he may lawfully be resisted.
2. Queritur. — If, in that case in which the king is captived, imprisoned, and not sui juris, and awed or overawed by bloody papists, and so is forced to command a barbarous and unjust war; and if, being distracted physically or morally through wicked counsel, he command that which no father in his sober wits would command, even against law and conscience, — that the sons should yield obedience and subjection to him in maintaining, with lives and goods, a bloody religion and bloody papists: if in that case the king may not be resisted in his person, because the power lawful and the sinful person cannot be separated. We hold, that the king using, contrary to the oath of God and his royal office, violence in killing; against law and conscience, his subjects, by bloody emissaries, may be resisted by defensive wars, at the commandment of the estates of the kingdom.
But before I produce arguments to prove the lawfulness of resistance, a little of the case of resistance. 1. Dr Ferne (part 3, sect. 5, p. 39) granteth resistance by force to the king to be lawful, when the assault is sudden, without colour of a law or reason, and inevitable. But if Nero burn Rome, he hath a colour of law and reason; yea, though all Rome, and his mother, in whose womb he lay, were one neck. A man who will with reason go mad, hath colour of reason, and so of law, to invade and kill the innocent. 2. Arnisæus saith, (c. 2, n. 10,) “If the magistrate proceed extra-judicialiter, without order of law by violence, the laws giveth every private man power to resist, if the danger be irrecoverable; yea, though it be recoverable.” (L. prohibitum, C. de jur. fisc. l. que madmodum, sect. 39, magistratus ad l. aquil. l. nec. magistratibus, 32, de injur.) Because, while the magistrate doth against his office, he is not a magistrate; for law and right, not injury, should come from the magistrate. (L. meminerint. 6, C. unde vi.) Yea, if the magistrate proceed judicially, and the loss be irrecoverable, jurists say that a private man hath the same law to resist. (Marantius. dis. 1, n. 35). And in a recoverable loss they say, every man is holden to resist, si evidenter constet de iniquitate, if the iniquity be known to all. (D. D. Jason. n. 19, des. n. 26, ad l. ut vim de just. et jur.) 3. I would think it not fit easily to resist the king’s unjust exactors of custom or tribute. (1.) Because Christ paid tribute to Tiberius Cæsar, an unjust usurper, though he was free from that, by God’s law, lest he should offend. (2.) Because we have a greater dominion over goods than over our lives and bodies; and it is better to yield in a matter of goods than to come to arms, for of sinless evils we may choose the least. 4. A tyrant, without a title, may be resisted by any private man. Quia licet vim vi repellere, because we may repel violence by violence; yea, he may be killed. Ut l. et vim. F. de instit. et jure, ubi plene per omnes. Vasquez, l. 1, c. 3, n. 33; Barclaius, contra Monarch. l. 4, c. 10, p. 268.
For the lawfulness of resistance in the matter of the king’s unjust invasion of life and religion, we offer these arguments.
Arg. 1. — That power which is obliged to command and rule justly and religiously for the good of the subjects, and is only set over the people on these conditions, and not absolutely, cannot tie the people to subjection without resistance, when the power is abused to the destruction of laws, religion, and the subjects. But all power of the law is thus obliged, (Rom. xiii. 4; Deut. xvii. 18-20; 2 Chron. xix. 6; Ps. cxxxii. 11, 12; lxxxix. 30, 31; 2 Sam. vii. 12; Jer. xvii. 24, 25,) and hath, and may be, abused by kings, to the destruction of laws, religion, and subjects. The proposition is clear. 1. For the powers that tie us to subjection only are of God. 2. Because to resist them, is to resist the ordinance of God. 3. Because they are not a terror to good works, but to evil. 4. Because they are God’s ministers for our good, but abused powers are not of God, but of men, or not ordinances of God; they are a terror to good works, not to evil; they are not God’s ministers for our good.
Arg. 2. — That power which is contrary to law, and is evil and tyrannical, can tie none to subjection, but is a mere tyrannical power and unlawful; and if it tie not to subjection, it may lawfuly be resisted. But the power of the king, abused to the destruction of laws, religion, and subjects, is a power contrary to law, evil, and tyrannical, and tyeth no man to subjection: wickedness by no imaginable reason can oblige any man. Obligation to suffer of wicked men falleth under no commandment of God, except in our Saviour. A passion, as such, is not formally commanded, I mean a physical passion, such as to be killed. God hath not said to me in any moral law, Be thou killed, tortured, beheaded; but only, Be thou patient, if God deliver thee to wicked men’s hands, to suffer these things.
Arg. 3. — There is not a stricter obligation moral betwixt king and people than betwixt parents and children, master and servant, patron and clients, husband and wife, the lord and the vassal, between the pilot of a ship and the passengers, the physician and the sick, the doctor and the scholars, but the law granteth, (L Minime 35, de Relig. et sumpt. funer, if these betray their trust committed to them, they may be resisted: if the father turn distracted, and arise to kill his sons, his sons may violently apprehend him, and bind his hands, and spoil him of his weapons; for in that he is not a father. Vasquez, (Lib. 1, Illustr. quest. c. 8, n. 18,) — Si dominus subditum enormiter et atrociter oneraret, princeps superior vassullum posset ex toto eximare a sua jurisdictione, et etiam tacente subdito et nihil petente. Quid papa in suis decis. parliam. grat, decis. 62. Si quis Baro. abutentes dominio privari possunt. The servant may resist the master if he attempts unjustly to kill him, so may the wife do to the husband; if the pilot should wilfully run the ship on a rock to destroy himself and his passengers, they might violently thrust him from the helm. Every tyrant is a furious man, and is morally distracted, as Althusius saith, Polit. c. 28, n. 30, and seq.
Arg. 4. — That which is given as a blessing, and a favour, and a screen, between the people’s liberty and their bondage, cannot be given of God as a bondage and slavery to the people. But the power of a king is given as a blessing and favour of God to defend the poor and needy, to preserve both tables of the law, and to keep the people in their liberties from oppressing and treading one upon another. But so it is, that if such a power be given of God to a king, by which, actu primo, he is invested of God to do acts of tyranny, and so to do them, that to resist him in the most innocent way, which is self-defence, must be a resisting of God, and rebellion against the king, his deputy; then hath God given a royal power as uncontrollable by mortal men, by any violence, as if God himself were immediately and personally resisted, when the king is resisted, and so this power shall be a power to waste and destroy irresistibly, and so in itself a plague and a curse; for it cannot be ordained both according to the intention and genuine formal effect and intrinsical operation of the power, to preserve the tables of the law, religion and liberty, subjects and laws, and also to destroy the same. But it is taught by royalists that this power is for tyranny, as well as for peaceable government; because to resist this royal power put forth in acts either ways, either in acts of tyranny or just government, is to resist the ordinance of God, as royalists say, from Rom. xiii. 1-3, And we know, to resist God’s ordinances and God’s deputy, formaliter, as his deputy, is to resist God himself, (1 Sam. viii. 7; Matt. x. 40,) as if God were doing personally these acts that the king is doing; and it importeth as much as the King of kings doth these acts in and through the tyrant. Now, it is blasphemy to think or say, that when a king is drinking the blood of innocents, and wasting the church of God, that God, if he were personally present, would commit these same acts of tyranny, (God avert such blasphemy!) and that God in and through the King, as his lawful deputy and vicegerent in these acts of tyranny, is wasting the poor church of God. If it be said, in these sinful acts of tyranny, he is not God’s formal vicegerent, but only in good and lawful acts of government, yet he is not to be resisted in these acts, not because the acts are just and good, but because of the dignity of his royal person. Yet this must prove that those who resist the king in these acts of tyranny, must resist no ordinance of God, but only resist him who is the Lord’s deputy, though not as the Lord’s deputy. What absurdity is there in that more than to disobey him, refusing active obedience to him who is the Lord’s deputy, not as the Lord’s deputy, but as a man commanding besides his masters warrant?
Arg. 5. — That which is inconsistent with the care and providence of God in giving a king to his church is not to be taught. Now God’s end in giving a king to his church, is the feeding, safety, preservation, and the peaceable and quiet life of his church. (1 Tim. ii. 2; Isa. xlix. 23; Psal. lxxix. 71). But God should cross his own end in the same act of giving a king, if he should provide a king, who, by office, were to suppress robbers, murderers, and all oppressors and wasters in his holy mount, and yet should give an irresistible power to one crowned lion, a king, who may kill ten hundred thousand protestants for their religion, in an ordinary providence; and they are by an ordinary law of God to give their throats to his emissaries and bloody executioners. If any say the king will not be so cruel, — I believe it; because, actu secundo, it is not possibly in his power to be so cruel. We owe thanks to his good will that he killeth not so many, but no thanks to the nature and genuine intrinsical end of a king, who hath power from God to kill all these, and that without resistance made by any mortal man. Yea, no thanks (God avert blasphemy!) to God’s ordinary providence, which (if royalists may be believed) putteth no bar upon the unlimited power of a man inclined to sin, and abuse his power to so much cruelty. Some may say, the same absurdity doth follow if the king should turn papist, and the parliament all were papists. In that case there might be so many martyrs for the truth put to death, and God should put no bar of providence upon this power, then more than now; and yet, in that case, the king and parliament should be judges given of God, actu primo, and by virtue of their office obliged to preserve the people in peace and godliness. But I answer, If God gave a lawful official power to king and parliament to work the same cruelty upon millions of martyrs, and it should be unlawful for them by arms to defend themselves, I should then think that king and parliament were both ex officio, by virtue of their office, and actu primo, judges and fathers, and also by that same office, murderers and butchers, — which were a grievous aspersion to the unspotted providence of God.
Arg. 6. — If the estates of a kingdom give the power to a king, it is their own power in the fountain; and if they give it for their own good, they have power to judge when it is used against themselves, and for their evil, and so power to limit and resist the power that they gave. Now, that they may take away this power, is clear in Athaliah’s case. It is true she was a tyrant without a title, and had not the right of heaven to the crown, yet she had, in men’s court, a title. For supposing all the royal seed to be killed, and the people consent, we cannot say that, for these six years or thereabout, she was no magistrate: that there were none on the throne of David at this time: that she was not to be obeyed as God’s deputy. But grant that she was no magistrate; yet when Jehoash is brought forth to be crowned, it was a controversy to the states to whom the crown should belong. 1. Athaliah was in possession. 2. Jehoash himself being but seven years old, could not be judge. 3. It might be doubted if Joash was the true son of Ahaziah, and if he was not killed with the rest of the blood royal.
Two great adversaries say with us; Hugo Grotius (de jur. belli et pacis, l. 1, c. 4, n. 7,) saith he dare not condemn this, if the lesser part of the people, and every one of them indifferently, should defend themselves against a tyrant, ultimo necessitatis præsidio. The case of Scotland, when we were blocked up by sea and land with armies: the case of England, when the king, induced by prelates, first attempted to bring an army to cut off the parliament, and then gathered an army, and fortified York, and invaded Hull, to make the militia his own, sure is considerable. Barclay saith, the people hathjus se tuendi adversus immanem sævitiem, (advers. Monarch. l. 3, c. 8,) a power to defend themselves against prodigious cruelty. The case of England and Ireland, now invaded by the bloody rebels of Ireland, is also worthy of consideration. I could cite hosts more.
Question XXIX.
Whether, in the case of defensive war, the distinction of the person of the king, as a man, who can commit acts of hostile tyranny against his subjects, and of the office and royal power that he hath from God and the people, as a king, can have place.
Before I can proceed to other Scripture proofs for the lawfulness of resistance, this distinction, rejected by royalists, must be cleared. This is an evident and sensible distinction: — The king in concreto, the man who is king, and the king in abstracto, the royal office of the king. The ground of this distinction we desire to be considered from Rom. liii. We affirm with Buchanan, that Paul here speaketh of the office and duty of good magistrates, and that the text speaketh nothing of an absolute king, nothing of a tyrant; and the royalists distinguish where the law distinguished not, against the law, (l. pret. 10, gl. Bart. de pub. in Rem.); and therefore we move the question here, Whether or no to resist the illegal and tyrannical will of the man who is king, be to resist the king and the ordinance of God; we say no. Nor do we deny the king, abusing his power in unjust acts, to remain king, and the minister of God, whose person for his royal office, and his royal office, are both to be honoured, reverenced, and obeyed. God forbid that we should do so as the sons of Belial, imputing to us the doctrine of anabaptists, and the doctrine falsely imputed to Wicliffe, — that dominion is founded upon supernatural grace, and that a magistrate being in the state of mortal sin, cannot be a lawful magistrate, — we teach no such thing. The P. Prelate showeth us his sympathy with papists, and that he buildeth the monuments and sepulchres of the slain and murdered prophets, when he, refusing to open his mouth in the gates for the righteous, professeth he will not purge the witnesses of Christ, the Waldenses, and Wiciiffe, and Huss, of these notes of disloyalty, but that these acts proceeding from this root of bitterness, the abused power of a king, should be acknowledged with obedience active or passive, in these unjust acts, we deny.
Assert. 1. — It is evident from Rom. xiii. that all subjection and obedience to higher powers commanded there, is subjection to the power and office of the magistrate in abstracto, or, which is all one, to the person using the power lawfully, and that no subjection is due by that text, or any word of God, to the abused and tyrannical power of the king, which I evince from the text, and from other Scriptures.
1. Because the text saith, “Let every soul be subject to the higher powers.” But no powers commanding things unlawful, and killing the innocent people of God, can be e0cousi/ai u9perexou/sai higher powers, but in that lower powers. He that commandeth not what God commandeth, and punisheth and killeth where God, if personally and immediately present, would neither command nor punish, is not in these acts to be subjected unto, and obeyed as a superior power, though in habit he may remain a superior power; for all habitual, all actual superiority is a formal participation of the power of the Most High. Arnisæus well saith, (c. 4, p. 96,) “That of Aristotle must be true, It is against nature, better and worthier men should be in subjection to unworthier and more wicked men;” but when magistrates command wickedness, and kill the innocent, the non-obeyers, in so far, are worthier than the commanders (whatever they be in habit and in office) actually, or in these wicked acts are unworthier and inferior, and the non-obeyers are in that worthier, as being zealous adherents to God’s command and not to man’s will. I desire not to be mistaken; if we speak of habitual excellency, godly and holy men, as the witnesses of Christ in things lawful, are to obey wicked and infidel kings and emperors, but in that these wicked kings have an excellency in respect of office above them; but when they command things unlawful, and kill the innocent, they do it not by virtue of any office, and so in that they are not higher powers, but lower and weak ones. Laertius doth explain Aristotle well, who defineth a tyrant by this, “That he commandeth his subjects by violence;” and Arnisæus condemneth Laertius for this, “Because one tyrannical action doth no more constitute a tyrant, than one “unjust action doth constitute an unjust man.” But he may condemn, as he doth indeed, (Covarruvias pract. quest. c. 1, and Vasquez Illustr. quest. l. 1, c. 47, n. 1, 12,) for this is essential to a tyrant, to command and rule by violence. If a lawful prince do one or more acts of a tyrant, he is not a tyrant for that, yet his action in that is tyrannical, and he doth not that as a king, but in that act as a sinful man, having something of tyranny in him.
2. The powers (Rom. xiii. 1) that be, are ordained of God, as their author and efficient; but kings commanding unjust things, and killing the innocent, in these acts, are but men, and sinful men; and the power by which they do these acts, a sinful and an usurped power, and so far they are not powers ordained of God, according to his revealed will, which must rule us. Now the authority and official power, in abstracto, is ordained of God, as the text saith, and other Scriptures do evidence. And this politicians do clear, while they distinguish betwixt jus personæ, and jus coronæ, the power of the person, and the power of the crown and royal office. They must then be two different things.
3. He that resisteth the power, that is, the official power, and the king, as king, and commanding in the Lord, resisteth the ordinance of God, and God’s lawful constitution. But he who resisteth the man, who is the king, commanding that which is against God, and killing the innocent, resisteth no ordinance of God, but an ordinance of sin and Satan; for a man commanding unjustly, and ruling tyrannically, hath, in that, no power from God.
4. They that resist the power and royal office of the king in things just and right, shall receive to themselves damnation, but they that resist, that is, refuse, for conscience, to obey the man who is the king, and choose to obey God rather than man, as all the martyrs did, shall receive to themselves salvation. And the eighty valiant men, the priests, who used bodily violence against king Uzziah’s person, “and thrust him out of the house of the Lord,” from offering incense to the Lord, which belonged to the priest only, received not damnation to themselves, but salvation in doing God’s will, and in resisting the king’s wicked will.
5. The lawful ruler, as a ruler, and in respect of his office, is not to be resisted, because he is not a terror to good works, but to evil; and no man who doth good is to be afraid of the office or the power, but to expect praise and a reward of the same. But the man who is a king may command an idolatrous and superstitious worship — send an army of cut-throats against them, because they refuse that worship, and may reward papists, prelates, and other corrupt men, and may advance them to places of state and honour because they kneel to a tree altar, — pray to the east, — adore the letters and sound of the word Jesus — teach and write Arminianism, and may imprison, deprive, confine, cut the ears, and slit the noses, and burn the faces of those who speak and preach and write the truth of God; and may send armies of cut-throats, Irish rebels, and other papists and malignant atheists, to destroy and murder the judges of the land, and innocent defenders of the reformed religion, &c., — the man, I say, in these acts is a terror to good works, — an encouragement to evil; and those that do good are to be afraid of the king, and to expect no praise, but punishment and vexation from him; therefore, this reason in the text will prove that the man who is the king, in so far as he doth those things that are against his office, may be resisted; and that in these we are not to be subject, but only we are to be subject to his power and royal authority, in abstracto, in so far as, according to his office, he is not a terror to good works, but to evil.
6. The lawful ruler is the minister of God, or the servant of God, for good to the commonwealth; and to resist the servant in that wherein he is a servant, and using the power that he hath from his master, is to resist the Lord his master. But the man who is the king, commanding unjust things, and killing the innocent, in these acts is not the minister of God for the good of the commonwealth; — he serveth himself and papists, and prelates, for the destruction of religion, laws, and commonwealth: therefore the man may be resisted; by this text, when the office and power cannot be resisted.
7. The ruler, as the ruler, and the nature and intrinsical end of the office is, that he bear God’s sword as an avenger to execute wrath on him that doth evil, — and so cannot be resisted without sin. But the man who is the ruler, and commandeth things unlawful, and killeth the innocent, carrieth the papist’s and prelate’s sword to execute, not the righteous judgment of the Lord upon the ill-doer, but his own private revenue upon him that doth well; therefore, the man may be resisted, the office may not be resisted; and they must be two different things.
8. We must needs be subject to the royal office for conscience, by reason of the fifth commandment; but we must not needs be subject to the man who is king, if he command things unlawful; for Dr Ferne warranteth us to resist, if the ruler invade us suddenly, without colour of law or reason, and unavoidably; and Winzetus, Barclay, and Grotius, as before I cited, give us leave to resist a king turning a cruel tyrant; but Paul (Rom. xiii.) forbiddeth us to resist the power, in abstracto; therefore, it must be the man, in concreto, that we must resist.
9. Those we may not resist to whom we owe tribute, as a reward of the onerous work on which they, as ministers of God, do attend continually. But we owe not tribute to the king as a man, — for then should we be indebted tribute to all men, — but as a king, to whom the wages of tribute is due, as to a princely workman, — a king as a king; — therefore, the man and the king are different.
10. We owe fear and honour as due to be rendered to the man who is king, because he is a king, not because he is a man; for it is the highest fear and honour duo to any mortal man, which is due to the king, as king.
11. The man and the inferior judge are different; and we cannot, by this text, resist the inferior judge, as a judge, but we resist the ordinance of God, as the text proveth. But cavaliers resist the inferior judges as men, and have killed divers members of both houses of parliament; but hey will not say that they killed them as judges, but as rebels. If therefore, to be a rebel, as a wicked man, and to be a judge, are differenced thus, then, to be a man, and commit some acts of tyranny, and to be the supreme judge and king, are two different things.
12. The congregation, in a letter to the nobility, (Knox, Hist. of Scotland, l. 2.) say, “There is great difference betwixt the authority, which is God’s ordinance, and the persons of those who are placed in authority, The authority and God’s ordinance can never do wrong, for it commandeth that vice and wicked men be punished, and virtue, with virtuous men and just, be maintained; but the corrupt person placed in this authority may offend, and most commonly do contrary to this authority. And is then the corruption of man to be followed, by reason that it is clothed with the name of authority?” And they give instance in Pharaoh and Saul, who were lawful kings and yet corrupt men. And certainly the man and the divine authority differ, as the subject and the accident, — as that which is under a law and can offend God, and that which is neither capable of law nor sin.
13. The king, as king, is a just creature, and by office a living and breathing law. Has will, as he is king, is nothing but a just law; but the king, as a sinful man, is not a just creature, but one who can sin and play the tyrant; and his will, as a private sinful man, is a private will, and may be resisted. So the law saith, “The king, as king, can do no wrong,” but the king, as a man, may do a wrong. While as, then, the parliaments of both kingdoms resist the king’s private will, as a man, and fight against his illegal cutthroats, sent out by him to destroy his native subjects, they fight for him as a king, and obey his public legal will, which is his royal will, de jure; and while he is absent from his parliaments as a man, he is legally and in his law-power present, and so the parliaments are as legal as if he were personally present with them.
Let me answer royalists. — The P. Prelate saith it is Solomon’s word, “By me kings reign;” — kings, in concreto, with their sovereignty. He saith not, by me royalty or sovereignty reigneth. And elsewhere he saith that Barclay saith, “Paul, writing to the Romans, keepeth the usual Roman diction in this, — who express by powers, in abstracto, the persons authorised by power, — and it is the Scripture’s dialect: by him were created “thrones, dominions, principalities,” that is, angels; to say angels, in abstracto, were created, (2 Pet. ii. 10,) They “speak evil of dignities,” Jude viii., “despise dominion,” that is, they speak ill of Cajus, Caligula, Nero. Our Levites rail against the Lord’s anointed, — the best of kings in the world. Nero, (Rom. xii. 4,) in concreto, beareth not the sword in vain. Arnisæus saith it better than the Prelate,[1] (he is a witless thief,) Rom. xiii. 4, “The royal power, in abstracto, doth not bear the sword, but the person; not the power, but the prince himself beareth the sword.” And the Prelate, poor man, following Dr Ferne, saith, “It is absurd to pursue the king’s person with a cannon bullet at Edgehill, and preserve his authority at London, or elsewhere.” So saith Ferne, (sect. 10, p. 64,) “The concrete powers here are purposed as objects of our obedience, which cannot be directed but upon power in some person; for it is said, ai# ou!sai e0cousi/ai . The powers that be are of God.” Now power cannot be ou!sa existent but in some person; and, saith Ferne, “Can power in the abstract have praise? Or is tribute paid to the power in the abstract? Yea, the power is the reason why we yield obedience to the person,” &c. The Prelate hath as much learning as to copy out of Ferne, Barclay, Arnisæus, and others, these words and the like, but hath not wit to add the sinews of these authors’ reason; and with all this he can in his preface call it his own, and “provoke any to answer him if they dare;” whereas, while I answer this excommunicated pamphleteer, I answer these learned authors, from which he stealeth all he hath; and yet he must persuade the king he is the only man who can defend his Majesty’s cause, and “the importunity (forsooth) of friends extorted this piece,” as if it were a fault that this delphic oracle (giving out railings and lies for responses) should be silent. 1. Not we only, but the Holy Ghost, in terminis, hath this distinction, Acts iv. 19; v. 29, “We ought to obey God rather than men.” Then rulers (for of rulers sitting in judgment is that speech uttered) commanding and tyrannising over the apostles, are men contradistinguished from God; and as they command and punish unjustly, they are but men, otherwise commanding for God, they are gods, and more than men. 2. From Theophylact also, or from Chrysostom on Rom. xiii. we have this, — The apostle speaketh not (say they) peri\ tw~n kaq e0tason a0rxo/ntwn a0lla\ peri\ au0tou~ tou~ pra/gmatoj.[5] 3. Sovereignty or royalty doth not properly reign or bear the sword, or receive praise, and this accident doth not bear a sword; nor do we think (or Paul speak, Rom. xiii,) of the abstracted due of power and royalty, subsisting out of its subject; nor dream we that the naked accident of royal authority is to be feared and honoured as the Lord’s anointed; the person or man who is the king, and beareth the crown on his head, and holdeth the sceptre in his hand, is to be obeyed. Accidents are not persons; but they speak nonsense, and are like brute beasts who deny that all the kingly honour due to the king must be due to him as a king, and because of the royal dignity that God hath given to him, and not because he is a man; for a pursuivant’s son is a man; and if a pursuivant’s son would usurp the throne, and take the crown on his head, and the sceptre in his hand, and command that all souls be subject to such a superior power, because he is a man, the laws of Scotland would hang a man for a less fault, we know; and the P. Prelate was wont to edify women, and converted souls to Christ, with such a distinction as objectum quod and objectum quo, in the pulpits of Edinburgh, and it hath good use here; we never took abstract royalty to be the king. The kings of Scotland of old were not second notions, and we exclude not the person of the king; yet we distinguish, with leave of the P. Prelate, betwixt the person in linea physica (we must take physica largly here) and in linea morali, obedience, tear, tribute, honour is due to the person of the king, and to the man who is king, not because of his person, or because he is a man, (the P. Prelate may know in what notion we take the name person,) but because God, by the people’s election, hath exalted him to royal dignity; and for this cause ill-doers are to subject their throats and necks to the sword of the Lord’s anointed’s executioner or hangman, with patience, and willingly; because, in taking away the head of ill-doers, for ill-doing, he is acting the office of the Lord, by whom he reigneth; but if he take away their heads, and send out the long-tusked vultures and boars of Babylon, the Irish rebels, to execute his wrath, as he is in that act a misinformed man, and wanteth the authority of God’s law and man’s law, he may be resisted with arms. For, 1. If royalists say against this, then, if a king turn an habitual tyrant, and induce an hundred thousand Turks to destroy his subjects upon mere desire of revenge, they are not to resist, but to be subject, and suffer for conscience. I am sure Grotius saith,[2] “If a king sell his subjects, he loseth all title to the crown, and so may be resisted;” and Winzetus saith,[3] “A tyrant may be resisted;” and Barclay,[4] “It is lawful for the people, in case of tyranny, to defend themselves, adversus immanem sævetiam, against extreme cruelty.” And I desire the Prelate to answer how people are subject in suffering such cruelty of the higher power, because he is God’s ordinance, and a power from God, except he say, as he selleth his people, and barbarously destroyeth by the cut-throat Irishmen, his whole subjects refusing to worship idols, he is a man and a sinful man, eatenus, and an inferior power inspired by wicked counsel, not a king, eatenus, not a higher power; and that in resisting him thus, the subjects resist not the ordinance of God. Also suppose king David defend his kingdom and people against Jesse, his natural father, who we suppose cometh in against his son and prince, king David, with a huge army of the Philistines to destroy him and his kingdom, if he shall kill his own native father in that war, at some Edgehill, how shall he preserve at Jerusalem that honour and love that he oweth to his father, by virtue of the fifth commandment, “Honour thy father and thy mother, &c.,” let them answer this; except king David consider Jesse in one relation, in abstracto, as his father, whom he is to obey, and as he is a wicked man, and a perfidious subject, in another relation; and except king David say, he is to subject himself to his father, as a father, according to the fifth commandment, and that in the act of his father’s violent invasion, he is not to subject himself to him, as he is a violent invader, and as a man. Let the royalist see how he can answer the argument, and how Levi is not to know his father and mother, as they are sinful men, (Deut. xxxiii. 9,) and yet to know and honour them as parents; and how an Israelite is not to pity the wife that lieth in his bosom, when she enticeth him “to go a whoring after strange gods,” but is to kill her, (Deut. xiii. 6-8,) and yet the husband is to “love the wife, as Christ loved his church,” Eph. v. 25. If the husband take away his wife’s life in some mountain in the Holy Land, as God’s law commandeth, let the royalists answer as, where is then the marital love he owes to her, and that respect due to her as she is a wife and a helper? 2. But let not the royalist infer that I am from these examples pleading for the killing of kings; for lawful resistance is one thing, and killing of kings is another, — the one defensive and lawful, the other offensive and unlawful, so long as he remaineth a king, and the Lord’s anointed; but if he be a murderer of his father, who doth counsel his father to come to a place of danger where he may be killed, and where the king ought not to be; as Abner was worthy of death, who watched not carefully king Saul, but slept when David came to his bedside, and had opportunity to kill the king; they are traitors and murderers of the king, who dither counselled his Majesty to come to Edgehill, where the danger was so great, or did not violently restrain him from coming thither, seeing kings’ safety and lives are as much, yea, more, in the disposing of the people than in their own private will (2 Sam. xviii. 2, 3); for certainly the people might have violently restrained King Saul from killing himself; and the king is guilty of his own death, and sinneth against his office and subjects, who cometh out in person to any such battles where he may be killed, and the contrary party free of his blood. And here our Prelate is blind, if he see not the clear difference between the king’s person and his office as king, and between his private will and his public and royal will. 3. The angels may be named thrones and dominions in abstracto, and yet created in concreto, and we may say the angel and his power are both created at once; but David was not both born the son of Jesse and a king at once; and the P. Prelate by this may prove it is not lawful to resist the devil, (for he is of the number of these created angels, Col. i.,) as he is a devil; because in resisting the devil as a devil, we must resist an angel of God and a principality. 4. To speak evil of dignities, (2 Pet. ii.; Jude viii.,) Piscator insinuated, is, to speak evil of the very office of rulers, as well as of their manners; and Theodat. saith, on 2 Pet. ii., that “these railers speak evil of the place of governors and masters, as unbeseeming believers.” All our interpreters, as Beza, Calvin, Luther, Bucer, Marloratus, from the place, saith it is a special reproof of anabaptists and libertines, who in that time maintained that we are all free men in Christ, and that there should not be kings, masters, nor any magistrates. However the abstract is put for the concrete, it is true, and it saith we are not to rail upon Nero; but to say Nero was a persecutor of Christians, and yet obey him commanding what is just, are very consistent. 5. “The persons are proposed (Rom. xiii.) to be the object of our obedience,” saith Dr Ferne. This is very true: but he is ignorant of our mind in exponing the word person. We never meant that fear, honour, royalty, tribute, must be due to the abstracted accident of kingly authority, and not to the man who is king; nor is it our meaning that royalty, in abstracto, is crowned king, and is anointed, but that the person is crowned and anointed. But, again, by a person, we mean nothing less than the man Nero wasting Rome, burning, crucifying Paul, and torturing Christians; and that we owe subjection to Nero, and to his person in concreto, as to God’s ordinance, God’s minister, God’s sword-bearer, in that notion of a person, is that only that we deny. Nay, in that Nero, in concreto, to us is no power ordained of God, no minister of God, but a minister of the devil, and Satan’s armour-bearer, and therefore we owe not fear, honour, subjection, or tribute to the person of Nero. But the person thus far is the object of our obedience, that fear, honour, subjection and tribute must be due to the man in concreto, to his person who is prince, but not because he is a man, or a person simply, or a sword-bearer of papists, but for his office, — for that eminent place of royal dignity that God hath conferred on his person. We know the light of the sun, the heat of fire, in abstracto, do not properly give light and heat, but the sun and fire in concreto; yet the principium quo, ratio qua, the principles of these operations in sun and fire be light and heat; and we ascribe illuminating of dark bodies, heating of cold bodies, to sun and fire in concreto, yet not to the subjects simply, but to them as affected with such accidents; so here we honour and submit to the man who is king, not because he is a man, that were treason; not because he useth his sword against the church, that were impiety; but because of his royal dignity, and because he useth it for the Lord. It is true, Arnisæus, Barclay, and Ferne, say, “That kings leave not off to be kings when they use their power and sword against the church and religion. And also it is considerable, that when the worst of emperors, bloody Nero, did reign, the apostle presseth the duty of subjection to him, as to a Dower appointed of God, and condemneth the resisting of Nero, as the resisting of an ordinance of God. And certainly, if the cause and reason, in point of duty moral, and of conscience before God remain in kings, to wit, that while they are enemies and persecutors, as Nero was, their royal dignity, given them of God remaineth, then subjection upon that ground is lawful, and resistance unlawful.” — Ans. It is true, so long as kings remain kings, subjection is due to them because kings; but that is not the question. The question is, if subjection be due to them, when they use their power unlawfully and tyrannically. Whatever David did, though he was a king, he did it not as king; he deflowered not Bathsheba as king, and Bathsheba might with bodily resistance and violence lawfully have resisted king David, though kingly power remained in aim, while he should thus attempt to commit adultery; else David might have said to Bathsheba, “Because I am the Lord’s anointed, it is rebellion in thee, a subject, to oppose any bodily violence to my act of forcing of thee; it is unlawful to thee to cry for help, for if any shall offer violently to rescue thee from me, he resisteth the ordinance of God.” Subjection is due to Nero as an emperor, but not any subjection is due to him in the burning of Rome, and torturing of Christians, except you say that Nero’s power abused in these acts of cruelty was, 1. A power from God. 2. An ordidance of God. 3. That in these he was the minister of God for the good of the commonwealth. Because some believed Christians were free from the yoke of magistracy, and that the dignity itself was unlawful; and because (c. 12) he had set down the lawful church rulers, and in this and the following chapter; the duties of brotherly love of one toward another; so here (c. 13) he teacheth that all magistrates, suppose heathen, are to be obeyed and submitted unto in all things, so far as they are minion of God. Arnisæus objecteth to Buchanan If we are by this place to subject ourself to every power, in abstracto, then also to a power contrary to the truth, and to a power of a king exceeding the limits of a king; for such a power is a power, and we are not to distinguish where the law distinguisheth.
Ans. 1. — The law clearly distinguisheth we are to obey parents in the Lord, and if Nero command idolatry, this is an excessive power. Are we obliged to obey, because the law distinguished not? 2. The text saith we are to obey every power from God that is God’s ordinance, by which the man is a minister of God for good; but an unjust and excessive power is none of these three. 3. The text in words distinguisheth not obedience active in things wicked and lawful, yet we are to distinguish.
Symmons. — Is authority subjected solely in the king’s law, and no whit in his person, though put upon him both by God and man? Or, is authority only the subject, and the person exercising the authority, a bare accident to that, being in it only more separably, as pride and folly are in a man. Then, if one in authority command out of his own will, and not by law, — if I neither actively nor passively obey, I do not so much as resist abused authority; and then must the prince, by his disorderly will, have quite lost his authority and become like another man; and yet his authority has not fled from him.
Ans. 1. — If we speak accurately, neither the man solely, nor his power only, is resisted; but the man clothed with lawful habitual power, is resisted in such and such acts flowing from an abused power. 2. It is an ignorant speech to ask, Is authority subjected solely in the king’s law, and no whit in his person, for the authority hath all its power by law, not from the man’s person? The authority hath nothing from the person but a naked inheritance in the person, as in the subject; and the person is to be honoured for the authority, not the authority for the person. 3. Authority is not so separable from the person, as that for every act of lawless will the king loseth his royal authority and ceaseth to be king. No, but every act of a king, in so tar, can claim subjection of the inferior, as the act of commanding and ruling hath law for it; and in so far as it is lawless, the person in that act repugnant to law loseth all due claim of actual subjection in that act, and in that act power actual is lost, as is dear, Acts iv. 19; v. 29. The apostles say to rulers, It is safer to obey God than man. What! Were not these rulers lawful magistrates armed with power from God? I answer, habitually they were rulers and more than men, and to obey them in things lawful is to obey God. But, actually, in these unlawful commandments, especially being commanded to speak no more in the name of Jesus, the apostles do acknowledge them to be no more out men; and so their actual authority is as separable from the person, as pride and folly from men.
Symmons. — The distinction holdeth good of inferior magistrates, that they may be considered as magistrates and as men, because their authority is only sacred, and addeth veneration to their persons, and is separable from the person. The man may live when his authority is extinguished, but it holdeth not in kings. King Saul’s person is venerable as his authority, and his authority cometh by inheritance, and dieth, and liveth, inseparably with his person; and authority and person add honour, each one to another.
Ans. 1. — If this be true, Manasseh, a king, did not shed innocent blood and use sorcery. He did not these great wickednesses as a man, but as a king. Solomon played the apostate as a king, not as a man, if so, the man must make the king more infallible than the Pope; for the Pope, as a man, can err; — as a pope he cannot err, say papists. But prophets, in their persons, were anointed of God as Saul and David were, then must we say, Nathan and Samuel erred not as men, because their persons were sacred and anointed, and sure they erred not as prophets, therefore they erred not all. A king, as a king, is an holy ordinance of God, and so cannot do injustice, therefore they must do acts of justice as men. 1. The inferior judge is a power from God. 2. To resist him is to resist an ordinance of God. 3. He is not a terror to good works, but to evil. 4. He is a minister of God for good. 5. He is God’s sword-bearer. His official power to rule may by as good right come by birth as the crown; and the king’s person is sacred only for his office, and is anointed only for his office. For then the Chaldeans dishonoured not inferior judges (Lam. v. 12,) when they “hanged the prince, and honoured not the faces of elders.” It is in question, if the king’s actual authority be not as separable from him, as the actual authority of the judge.
Symmons (p. 24). — The king himself may use this distinction. As a Christian he may forgive any that offendeth against his person, but as a judge, he must punish, in regard of his office.
Ans. — Well, then, flatterers will grant the distinction, when the king doth good and pardoneth the blood of protestants, shed by bloody rebels; but when the king doth acts of injustice, he is neither man nor king, but some independent absolute god.
Symmons (p. 27). — God’s word tyeth me to every one of his personal commandments, as well as his legal commandments. Nor do I obey the king’s law, because it is established, or because of its known penalty, nor yet the king himself, because he ruleth according to law, but I obey the king’s law, because I obey the king; and I obey the king, because I obey God; I obey the king and his law, because I obey God and his law. Better obey the command for a reverent regard to the prince than for a penalty.
Ans. — It is hard to answer a sick man. It is blasphemy to seek this distinction of person and office in the King of kings, because by person in a mortal King, we understand a man that can sin. 1. I am not obliged to obey his personal commandment, except I were his domestic; nor his unlawful personal commandments, because they are sinful. 2. It is false that you obey the king’s law, because you obey the king; for then you say but this, I obey the king because I obey the king. The truth is, obedience is not formally terminated on the person of the king. Obedience is relative to a precept, and it is men-service to obey a law, not because it is good and just, but upon this formal motive, because it is the will of a mortal man to command it. And reverence, love, fear, being acts of the affection, are not terminated on a law, but properly on the person of the judge; and they are modifications, or laudable qualifications of acts of obedience, not motives, not the formal reason why I obey, but the manner how I obey. And the apostle maketh expressly (Rom. xiii. 4) fear of punishment a motive of obedience, while he saith, “He beareth not the sword in rain,” therefore be subject to the king; and this hindereth not personal resistance to unjust commandments.
Symmons (p. 27-29). — “You say, ‘To obey the prince’s personal commandment against his legal will, is to obey himself against himself.’ So say I, ‘To obey his legal will against his personal will, is to obey himself against himself, for I take his person to be himself.’ ”
Ans. — 1. To obey the king’s personal will, when it is sinful, (as we now suppose,) against his legal will, is a sin, and a disobedience to God and the king also, seeing the law is the king’s will as king; but to obey his legal will, against his sinful personal will, (as it must be sinful if contrary to a just law,) is obedience to the king as king, and so obedience to God. 2. You take the king’s person to be himself, but you take quid pro quo; for his person here you must not take physically, for his suppost of soul and body, but morally: it is the king, as a sinful man doing his worst will against the law, which is his just and best will, and the rule of the subjects. And the king’s personal will is so far just, and to regulate the subjects, in so far as it agreeth with his legal will or his law, and this will can sin, and therefore may be crossed without breach of the fifth commandment; but his legal will cannot be crossed without disobedience both to God and the king.
Symmons (p. 28). — The king’s personal will doth not always presuppose passion; and if it be attended with passion, yet we must bear it for conscience sake. — Ans. We are to obey the king’s personal will, when the thing commanded is not sin; but his subjects, as subjects, have little to do with his personal will in that notion. It concerneth his domestic servant, and is the king’s will as he is the master of servants, not as he is king in relation to subjects; but we speak of the king’s personal will as repugnant to law, and contrary to the king’s will as king, and so contrary to the filth commandment; and this is attended often not only with passion, but also with prejudice; and we owe no subjection to prejudice and passions, or to actions commanded by these disordered powers, because they are not from God, nor his ordinances, but from men and the flesh, and we owe no subjection to the flesh.
Dr Ferne (sect. 9, p. 58). — The distinction of personal and legal will hath place in evil actions, but not in resistance, where we cannot sever the person and the dignity or authority, because we cannot resist the power but we must resist the person who hath the power. Saul had lawfully the command of arms, but that power he useth unjustly against innocent David. I ask, When these emperors took away lives and goods at their pleasure, was that a power ordained of God? No, but an illegal will, a tyranny — but they might not resist; nay, but they cannot resist; for that power and sovereignty employed to compass these illegal commandments was ordained and settled in them. When Pilate condemned our Saviour, it was an illegal will, yet our Saviour acknowledgeth in it, that Pilate’s power was given him from above.
Ans. — 1. Here we have the distinction denied by royalists, granted by Dr Ferne. But if, when the king commands us to do wickedness, we may resist that personal will, and when he commandeth us to suffer unjustly we cannot resist his will but we must resist also his royal person; what! is it not still the king, and his person sacred, as his power is sacred, when he commandeth the subjects to do unjustly, as when he commandeth them to suffer unjustly? It were tearful to say, when kings command any one act of idolatry, they are no longer kings. If, for conscience, I am to suffer unjustly, when Nero commandeth unjust punishment, because Nero commanding so, remaineth God’s minister, why, but when Nero commandeth me to worship an heathen god, I am upon the same ground to obey that unjust will in doing ill; for Nero, in commanding idolatry, remaineth the Lord’s minister, his person is sacred in the one commandment of doing ill, as in inflicting ill of punishment. And do I not resist his person in the one as in the other? His power and his person are as inseparably conjoined by God in the one as in the other. 2. In bodily thrusting out of Uzziah from the temple, these fourscore valiant men did resist the king’s person by bodily violence, as well as his power. 3. If the power of killing the martyrs in Nero was no power ordained of God, then the resisting of Nero, in his taking away the lives of the martyrs, was but the resisting of tyranny; and certainly, if that power in Nero” was tetagme/nh a power ordained of God, and not to be resisted, as the place (Rom. xiii.) is alleged by royalists, then it must be a lawful power, and no tyranny; and if it cannot be resisted, because it was a power ordained and settled in him, it is either settled by God, and so not tyranny, (except God be the author of tyranny,) or then settled by the devil, and so may well be resisted. But the text speaketh of no power but of that which is of God. 4. We are not to be subject to all powers in concreto, by the text; for we are not to be subject to powers lawful, yet commanding active obedience to things unlawful. Now subjection includeth active obedience of honour, love, fear, paying tribute, and therefore of need force, some powers must be excepted. 5. Pilate’s power is merely a power by divine permission, not a power ordained of God, as are the powers spoken of, Rom. xiii. Gregorius (mor. l. 3, c. 11) expressly saith, — “This was Satan’s power given to Pilate against Christ. Manibus Satanæ pro nostra redemptione se tradidit.” Lyra, “A principibus Romanorum et ulterius permissum a deo, qui est potestas, superior.” Calvin, Beza and Diodatus, saith the same; and that he cannot mean of legal power from God’s regulating will is evident, 1. Because Christ is answering Pilate, (John xix. 10,) “Knowest though not that I have power to crucify thee?” This was an untruth. Pilate had a command to worship him, and believe in him; and whereas Ferne saith, (sect. 9, p. 59,) “Pilate had power to judge any accused before him;” it is true; but he being obliged to believe in Christ, he was obliged to believe in Christ’s innocency, and so neither to judge nor receive accusation against him; and the power he saith he had to crucify, was a law-power in Pilate’s meaning, but not in very deed any law power; because a law-power is from God’s regulating will in the fifth commandment, but no creature hath a lawful or a law-power to crucify Christ. 2. A law-power is for good. (Rom. xiii. 4,) a power to crucify Christ is for ill. 3. A law-power is a terror to ill works, and a praise to good; Pilate’s power to crucify Christ was the contrary. 4. A law-power is to execute wrath on ill-doing, a power to crucify Christ is no such. 5. A law-power conciliateth honour, fear, and veneration, to the person of the judge, a power to crucify Christ conciliateth no such thing, but a disgrace to Pilate. 6. The genuine acts of a lawful power are lawful acts; for such as is the fountain-power, such are the acts flowing therefrom. Good acts flow not from bad powers, neither hath God given a power to sin, except by way of permission.
[1] Arnisæus de potest. princip. c. 2, 11, 17.
[2] Grot. de jur. et pacis, l. 1, c. 4, n. 7.
[3] Winzetus Velitat. adver. Buchanan.
[4] Barcl. adv. Monarchom. lib. 3. c. 8.
Question XXX.
Whether or no passive obedience be a mean to which we are subjected in conscience, by virtue of a divine commandment; and what a mean resistance is. That flying is resistance.
Much is built, to commend patient suffering of ill, and to condemn all resistance of superiors, by royalists, on the place, 1 Pet. ii. 18, where we are commanded, being servants, to suffer buffets not only for ill-doing of good masters, but also undeservedly; and when we do well, we are to suffer of those masters that are evil; and so much more are we patiently without resistance to suffer of kings. But it is clear, the place is nothing against resistance, as in these assertions I clear: —
Assert. 1. — Patient suffering of wicked men, and violent resisting are not incompatible, but they may well stand together; so this consequence is the basis of the argument, and it is just nothing: to wit, servants are to suffer unjustly wounds and buffering of their wicked masters, and they are to bear it patiently; therefore, servants are in conscience obliged to non-resistance. Now, Scripture maketh this clear, — 1. The church of God is to bear with all patience the indignation of the Lord, because she hath sinned, and to suffer of wicked enemies which were to be trodden as mire in the streets (Micah vii. 9-12); but withal, they were not obliged to non-resistance and not to fight against these enemies, yea, they were obliged to fight against them also. If these were Babylon, Judah might have resisted and fought if God had not given a special commandment of a positive law, that they should not fight; if these were the Assyrians and other enemies, or rather both, the people were to resist by fighting, and yet to endure patiently the indignation of the Lord. David did bear most patiently the wrong that his own son Absalom, and Ahitophel, and the people inflicted on him, in pursuing him to take his life and the kingdom from him, as is clear by his gracious expressions (2 Sam. xv. 25, 26; xvi. 10-12; Psal. iii. 1-3); yea, he prayeth for a blessing on the people chat conspired against him (Psal. iii. 3); yet did he lawfully resist Absalom and the conspirators, and sent out Joab and a huge army in open battle against them, (2 Sam. xviii 1-4, &c.,) and fought against them. And were not the people of God patient to endure the violence done to them in the wilderness by Og, king of Bashan; Sihon, king of Heshbon; by the Amorites, Moabites, &c.? I think God’s law tyeth all men, especially his people, to as patient a suffering in wars. (Deut. viii. 16.) God then trying and humbling his people, as the servant is to endure patiently, unjustly inflicted buffets (1 Pet. ii. 18); and yet God’s people at God’s command did resist these kings and people, and did fight and kill them, and possess their land, as the history is clear. See the like Josh. xi. 18, 19. 2. One act of grace and virtue is not contrary to another; resistance is in the children of God an innocent act of self-preservation, as is patient suffering, and therefore they may well subsist in one. And so saith Amasa by the Spirit of the Lord, 1 Chron. xii. 18, “Peace, peace be unto thee, and peace to thy helpers, for God helpeth thee.” Now, in that, David and all his helpers were resisters of king Saul. 3. The scope of the place (1 Pet. ii.) is not to forbid all violent resisting, as is clear he speaketh nothing of violent resisting either one way or other, but only he forbiddeth revengeful resisting of repaying one wrong with another, from the example of Christ, who, “when he was reviled, reviled not again; when he suffered, he threatened not;” therefore, the argument is a falacy, [2] ab eo quod docitur kata/ ti, ad illud quod dicitur a9plw~j. Though therefore the master should attempt to kill an innocent servant, and invade him with a weapon of death suddenly, without all reason or cause, or unavoidably, Dr Ferne, (p. 3, sect. 2, p. 10,) in that case, doth free a subject from guiltiness if he violently resist his prince; therefore, the servant who should violently resist his master in the aforesaid case should, and might patiently suffer and violently resist, notwithstanding anything that royalists can conclude on the contrary. 4. No prince hath a masterly or lordly dominion over his subjects, but only a free, ingenuous, paternal and tutorly oversight for the good of the people. (Rom. xiii. 4.) The master, especially in the apostle Peter’s time, had a dominion over servants as over their proper goods.
Assert. 2. — Neither suffering formally as suffering; and so neither can non-resisting passive fall under any moral law of God, except in two conditions: 1. In the point of Christ’s passive obedience, he being the eternal God as well as man, and so lord of his own blood and life, by virtue of a special commandment imposed on him by his Father, was commanded to lay down his life, yea, and to be an agent as well as a patient in dying (Job. x. 18); yea, and actively he was to contribute something for his own death, and offer himself willingly to death (Matt xxviii. 20); and, knowing the hour that he was to depart out of this world unto the Father, (John xiii. 1,) would not only not fly — which is to royalists lawful, to us a special point of resistance (John xiv. 31; xviii. 4-7) — but upbraided Peter as the agent of Satan, who would dissuade him to die, (Matt xvi. 22, 23,) and would fight for him. And he doth not fetch any argument against Peter’s drawing of his sword from the unlawfulness of self-defence and innocent resistance, (which he should have done if royalists plead with any colour of reason from his example, against the lawfulness of resistance and self-defence,) but from the absolute power of God. 2. From God’s positive will, who commanded him to die. (Matt, xxvi 53, 54.) If therefore royalists prove anything against the lawfulness of resisting kings, when they offer (most unjustly) violence to the life of God’s servants, from this one merely extraordinary and rare example of Christ, the like whereof was never in the world, they may, from the same example, prove it unlawful to fly, for Christ would not fly. (Psal. xl. 6, 7; Heb. x. 6-9; John xiv. 31; xviii. 4-7.) 1. They may prove that people sought by a tyrant to be crucified for the cause of God, are to reveal and discover themselves to an array of men who come to seek them. (John xiii. 1, 2; xviii. 4-7). 2. That martyrs are of purpose to go to the place where they know they shall be apprehended and put to death, for this Christ did, and are willingly to offer themselves to the enemy’s army, for so did Christ (John xiv. 3; Mark iv. 41, 42; Matt xxvi. 46, 47); and so by his example, all the parliament, all the innocents of the city of London, and assembly of divines, are obliged to lay down arms and to go to their own death to prince Rupert, and the bloody Irish rebels. 3. By this example it is unlawful to resist the cut-throats of a king, for Cæsar in His own royal person — the high priest in person, came not out against Christ; yea, it is not lawful for the parliament to resist a Judas, who hath fled as a traitorous apostate from the truth and the temple of Christ. 4. It is not lawful for innocents to defend themselves by any violence against the invasion of superiors, in Dr Ferne’s three cases in which he alloweth resistance: (1.) When the invasion is sudden. (2.) Unavoidable. (3.) Without all colour of law and reason. In the two last cases, royalists defend the lawfulness of self-defence. 5. If the example be pressed, — Christ did not this and that, he resisted not with violence, to save his own life, therefore, we are to abstain from resistance and such and such means of self-preservation; then, because Christ appealed not from inferior judges to the emperor Cæsar; who, no doubt, would have shown him more favour than the scribes and pharisees did, and because Christ conveyed not a humble supplication to his sovereign and father Cæsar, — then because he proffered not a humble petition to prince Pilate for his life, he being an innocent man, and his cause just, — because he neither procured an orator to plead his own just cause, nor did he so plead for himself, and give in word and writ, all lawful and possible defences for his own safety, but answered many things with silence, to the admiration of the judge, (Mark xv. 3-5,) and was thrice pronounced by the judge to be innocent (Luke xxii. 23); because, I say, Christ did not all these for his own life, therefore it is unlawful for Scotland and England to appeal to the king, to supplicate, to give in apologies, &c. I think royalists dare not say so. But if they say he would not resist, and yet might have done all these lawfully, because these be lawful means, and resistance with the sword unlawful, — because “He that taketh the sword, shall perish by the sword,” — let me answer then, 1. They leave the argument from Christ’s example, who was thus far subject to higher powers, that he would not resist, and plead from the unlawfulness of resistance; this is petitio principii. 2. He that taketh the sword without God’s warrant, which Peter had not, but the contrary, he was himself a Satan to Christ, who would but counsel him not to die: but there is no shadow of a word to prove that violent resisting is unlawful, when the king and his Irish cut-throats pursue as unjustly; only Christ saith, when God may deliver extraordinarily by his angels, except it be his absolute will that his Son should drink the cup of death, then to take the sword, when God hath declared his will on the contrary, is unlawful; and that is all; though I do not question but Christ’s asking for swords, and his arresting all his enemies to the ground (John xviii. 6) backward, is a justifying of self-defence. But hitherto it is clear, by Christ’s example, that he only was commanded to suffer. Now the second case in which suffering falleth under a commandment, is indirectly and comparatively, when it cometh to the election of the witness of Jesus, that it is referred to them, either to deny the truth of Christ and his name, or then to suffer death. The choice is apparently evident; and this choice that persecutors refer us unto, is to us a commandment of God, that we must choose suffering for Christ, and refuse sinning against Christ. But the supposition must stand, that this alternative is unavoidable, that is not in our power to decline either suffering for Christ, or denying of Christ before men; otherwise no man is to expect the reward of a witness of Jesus, who having a lawful possible means of eschewing suffering, doth yet cast himself into suffering needlessly. But I prove that suffering by men of this world falleth not formally and directly under any divine positive law; for the law of nature, — whatever Arminians in their declaration, or this Arminian excommunicate think with them, (for they teach that God gave a commandment to Adam, to abstain from such and such fruit, with pain and trouble to sinless nature,) — doth not command suffering, or anything contrary to nature, as nature is sinless: I prove it thus: —
1. Whatever falleth under a positive commandment of God, I may say here, under any commandment of God, is not a thing under the free will and power of others, from whom we are not descended necessarily by natural generation, but that men of the world kill me, even these from whom I am not descended by natural generation (which I speak to exclude Adam, who killed all his posterity) is not in my free will, either as if they had my common nature in that act, or as if I were accessory by counsel, consent, or approbation to that act, for this is under the free will and power of others, not under my own free will; therefore, that I suffer by others is not under my free will, and cannot fall under a commandment of God; and certainly it is an irrational law (glorified be his name) that God should command Antipas either formally to suffer, or formally not to suffer death by these of the synagogue of Satan, (Rev. ii. 13,) because if they be pleased not to kill him, it is not in his free will to be killed by them; and if they shall have him in their power (except God extraordinarily deliver) it is not in his power, in an ordinary providence, not to be killed.
2. All these places of God’s word, that recommendeth suffering to the followers of Christ, do not command formally that we suffer; therefore, suffering falleth not formally under any commandment of God. I prove the antecedent, because if they be considered, they prove only that comparatively we are to choose rather to suffer than to deny Christ before men, (Mat. x. 28, 32; Rev. ii. 13; Mat. x. 37; xvi. 24; xix. 29,) or then they command not suffering according to the substance of the passion, but according to the manner that we suffer, willingly, cheerfully, and patiently. Hence Christ’s word to take up his cross, which is not a mere passion, but commendeth an act of the virtue of patience. Now no Christian virtue consisteth in a mere passion, but in laudable habits, and good and gracious acts, and the text we are now on (1 Pet. ii: 18, 19) doth not recommend suffering from the example of Christ, but patient suffering; and so the word u(potasso/menon, not simply enjoined, but e9n panti\ fo/bw| in all fear, [3] (ver. 18,) and the words u9pofe/rwn and u9pomenei~v, to suffer with patience, as 2 Tim. iii. 11; 1 Cor. x. 13, and u9pomenei~n; is to suffer patiently, I Cor. xiii.7, love pa/nta u9pome/nei suffereth all things; Heb. xii. 17, if you suffer correction; 1 Tim. v. 5, she continueth patiently in prayers; Heb. xii. 2, Christ endureth the cross patiently (Rom. xv. 5; viii. 25; Luke viii. 15; xxi. 29). The derivations hence signify patience; so do all our interpreters, Beza, Calvin, Marloratus, and popish expositors, as Lorinus, Estius, Carthusian, Lyra, Hugo Cardinalis, expound it of patient suffering; and the text is clear, it is suffering like Christ, without rendering evil for evil, and reviling for reviling.
3. Suffering simply, according to substance of the passion, (I cannot say action,) is common to good and ill, and to the wicked, yea to the damned in hell, who suffer against their will, and that cannot be joined according to its substance as an act of formal obedience and subjection to higher powers, kings, fathers, masters, by force of the fifth commandment, and of the place, Rom. xiii. 1 2 Which, according to its substance, wicked men suffer, and the damned in hell also against their will.
4. Passive obedience to wicked emperors can but be enjoined (Rom. xiii.) but only in the manner, and upon supposition, that we must be subject to them, and must suffer against our wills all the ill of punishment that they can inflict; we must suffer patiently, and because it is God’s permissive will that they punish us unjustly; for it is not God’s ruling and approving will (called voluntas signi) that they should, against the law of God and man, kill us, and persecute us; and therefore neither Rom. xiii., nor 1 Pet. ii., nor any other place in God’s word, any common divine, natural, national or any municipal law, commandeth formally obedience passive, or subjection passive, or non-resistance under the notion of passive obedience; yea, to me, obedience passive (if we speak of obedience, properly called, as relative essentially to a law) is a chimera, a dream, and repugnantia in adjecto; and therefore I utterly deny that resistance passive, or subjection passive, doth formally fall under either commandment of God affirmative or negative; only the unlawful manner of resistance by way of revenge, or for defence of popery and false religion, and out of impatient toleration of monarchy or any tyranny, is forbidden in God’s word; and certainly all the words used Rom. xiii., as they fall under a formal commandment of God, are words of action, not of any chimerical passive obedience, as we are not to resist actively God’s ordinance, as his ordinance, (ver. 1, 2,) that is, to resist God actively. We are to do good works, not evil, if we would have the ruler no terror to us (ver. 3). We must not do ill if we would be free of vengeance’s sword (ver. 7); we are to pay tribute and to give fear and honour to the ruler, all which are evidently actions, not passive subjection; and if any passive subjection be commanded, it is not here, nor in the first commandment, commanded, but in the first commandment under the hand of patience and submission under God’s hand in suffering, or in the third commandment under the hand of rather dying for Christ than denying his truth before men. Hence I argue here (Rom. xiii; 1 Pet. ii.; Tit. iii.) is nothing else but an exposition of the fifth commandment; but in the fifth commandment only active obedience is formally commanded, and the subordination of inferiors to superiors is ordained, and passive obedience is nowhere commanded, but only modus rei, the manner of suffering, and the occasion of the commandment, here it is thought that the Jews converted under this pretext, that they were God’s people, believed that they should not be subject to the Romans. A certain Galilean made the Galileans believe that they should not pay tribute to strangers, and that they should call none lord, out the God of heaven; as Josephus saith, (Antiq. Judaic. l. 20, c. 2, and de bell. Judaic. i 7, c. 29,) yea and Hieron. (Com. in Tit.,) saith, At this time the sect of the Galileans were on foot. It is like the Jews were thought to be Galileans, and that their liberty, purchased in Christ, could not consist with the order of master and servant, king and subject. And to remove this, Paul established magistracy, and commandeth obedience in the Lord; and he is more to prove the office of the magistrate to be of God than any other thing, and to show what is his due, than to establish absoluteness in Nero to be of God; yea, to me, every word in the text speaketh limitedness of princes, and crieth down absoluteness: — (1.) No power of God, (2.) no ordinance of God, who is a terror to evil, but a praise to good works, (3.) no minister of God for good, &c. can be a power to which we submit ourselves on earth, as next unto God, without controlment. That passive obedience falleth formally under no commandment of God, I prove thus: All obedience liable to a divine commandment, doth commend morally the performer of obedience, as having a will conformed to God’s moral law, and deformity betwixt the will of him who performeth not obedience, involveth the non-obedient in wrath and guiltiness. But non-passive subjection to the sword of the judge doth not morally commend him that suffereth not punishment; for no man is formally a sinner against a moral law because he suffereth not the ill of punishment, nor is he morally good, or to be commended, because he suffereth ill of punishment, but because he doth the ill of sin. And all evil of punishment unjustly inflicted hath God’s voluntas beneplaciti, the instrumental and hidden decree of God, which ordereth both good and ill, (Ephes. i. 11.) for its rule and cause, and hath not God’s will or approbation called, voluntas signi, for its rule, both is contrary to that will. I am sure Epiphanius, (l. 1, tom. 3, heres. 40,) Basilius (in Psal. xxxii.), Nazianzen Orat. (ad subd. et imperat.), Hilar. (li. ad Constant.), and Augustine, all citeth these words, and saith the same. If, then, passive subjection be not commanded, non-subjection passive cannot be forbidden, and this text, Rom. xiii., and 1 Pet. ii. cannot a whit help the bad cause of royalists. All then must be reduced to some action of resisting; arguments for passive subjection, though there were shipfuls of them, they cannot help us.
Assert. 3. — By the place, 1 Pet. 31, the servant unjustly buffeted is not to buffet his master again, but to bear patiently as Christ did, who, when he was reviled, did not revile again. Not because the place condemneth resistance for self-defence, but because buffeting again is formally re-offending — not defending: defending is properly a warding off a blow or stroke. If my neighbour come to kill me, and I can by no means save my life by flight, I may defend myself; and all divines say I may rather kill ere I be killed, because I am nearer, by the law of nature, and dearer to myself and my own life than to my brother; — but if I kill him, out of malice or hatred, the act of defending, by the unlawful manner of doing, becometh an act of offending and murder; whence the mind of the blood-shedder will vary the nature of the action from whence this corollary doth naturally issue, that the physical action of taking away the life maketh not murder nor homicide, and so the physical action of offending my neighbour is not murder. 1. Abraham may kill his son, — he for whom the cities of refuge were ordained, and did kill his brother, yet, not hating him, he was not, by God’s law, judged a murderer; and, 2. It necessarily hence followeth, that an act which is physically an act of offending my brother, yea even to the taking away of his life, is often morally and legally an act of lawful self-defence: an offending of another, necessitated from the sole invention of self-defence, is no more but an act of innocent self-defence. If David, with his men, had killed any of Saul’s men in a set battle, David and his men only intending self-defence, the war on David’s part was mere defensive; for physical actions of killing, indifferent of themselves, yet imperated by a principle of natural self-defence, and clothed with this formal end of self-defence, or according to the substance of the action, the act is of self-defence. If, therefore, one shall wound me deadly, and I know it is my death, after that, to kill the killer of myself, I being only a private man, must be no act of sell-defence, but of homicide; because it cannot be imperated by a sinless dictate of a natural conscience, for this end of self-defence, after I know I am killed. Any mean not used for preventing death must be an act of revenge, not of self-defence, for it is physically unsuitable for the intended end of self-defence. And so, for a servant buffeted to buffet again, is of the same nature, — the second buffet not being a conducible mean to ward the first buffet, but a mean to procure heavier strokes, and, possibly, killing, it cannot be an act of self-defence; for an act of self-detence must be an act destinated ex natura rei, only for defence; and if it be known to be an act of sole offending, without any known necessary relation of a mean to self-defence as the end, it cannot be properly an act of self-defence.
Assert. 4. — When the matter is lighter, as in paying tribute, or suffering a buffet of a rough master, though unjustly, we are not to use any act of re-offending. For, though I be not absolute lord of my own goods, and so may not at my sole pleasure give tribute and expend monies to the hurting of my children, where I am not, by God’s law or man’s law, obliged to pay tribute; and though I be not an absolute lord of my members, to expose face, and cheeks, and back, to stripes and whips at my own mere will, yet have we a comparative dominion given to us of God in matters of goods, and disposing of our members, (I think I may except the case of mutilation, which is a little death,) for buffets, because Christ, no doubt to teach us the like, would rather give of his goods, and pay tribute where it was not due, than that this scandal be in the way of Christ, that Christ was no loyal subject to lawful emperors and kings. And (1 Cor. ix.) Paul would rather not take stipend, though it was due to him, than hinder the course of the gospel. And the like is 1 Cor. vi., where the Corinthians were rather to suffer loss in their goods than to go to law before infidel judges, and by the like to prevent greater inconveniences, and mutilation, and death. The Christian servant hath that dominion over his members, rather to suffer buffets than to ward off buffets with violent resis- tance. But it is no consequence, that innocent subjects should suffer death of tyrants, and servants be killed by masters, and yet that they shall not be allowed, by the law of nature, to defend themselves, by re-offending, when only self-defence is intended, because we have not that dominion over life and death. And therefore, as a man is his brother’s murderer, who, with froward Cain, will not be his brother’s keeper, and may preserve his brother’s life, without loss of his own life, when his brother is unjustly preserved; so, when he may preserve his own life, and doth not that which nature’s law alloweth him to do, (rather to kill ere he be killed,) he is guilty of self-murder, because he is deficient in the duty of lawful self-defence. But I grant, to offend or kill is not of the nature of defensive war, but accidental thereunto; and yet killing of cutthroats, sent forth by the illegal commandment of the king, may be intended as a mean, and a lawful mean, of self-defence. Of two ills of punishment, we have a comparative dominion over ourselves, — a man may cast his goods into the sea to redeem his life; so, for to redeem peace, we may suffer buffets, but because death is the greatest ill of punishment, God hath not made it eligible to us when lawful seif-defence is at hand. But, in defending our own life against tyrannical power, though we do it by offending and killing, we resist no ordinance of God, only I judge killing of the king in self-defence not lawful, because self-defence must be national on just causes.
Let here the reader judge Barclay, (1. 3, c. 8, p. 159, con. Monar.) “If the king (saith he) shall vex the commonwealth, or one part thereof, with great and intolerable cruelty, what shall the people do? They have (saith he) in that case a power to resist and defend themselves from injury; but only to defend themselves, nor to invade the prince, nor to resist the injury, or to recede from reverence due to the prince.”[1]
I answer, 1. Let Barclay or the Prelate, (if he may carry Barclay’s books) or any, difference these two, — the people may resist a tyrant, but they may not resist the injuries inflicted by a tyrant’s officers and cutthroats. I cannot imagine how to conciliate these two; for to resist the cruelty of a king is but to hold off the injury by resistance. 2. If this Nero waste the commonwealth insufferably with his cruelty, and remain a lawful king, to be honoured as a king, who may resist him, according to the royalists’ way? But, from Rom. xiii, they resist the ordinance of God. Resisting is not a mere suffering, nor is it a moral resisting by alleging laws to be broken by him. We had never a question with royalists about such resisting. Nor is this resisting non-obedience to unjust commandments; that resisting was never yet in question by any except the papists, who in good earnest, by consequent, say, It is better to obey men than God. 3. It is then resisting by bodily violence. But if the king have such an absolute power given him by God, as royalists fancy, from Rom. xiii. 1,2; 1 Sam. viii. 9-11, I know not how subjects have any power given them of God to resist the power from God, and God’s ordinance. And if this resisting extend not itself to defensive wars, how shall the people defend themselves from injuries, and the greatest injuries imaginable, — from an army of cut-throats and idolaters, in war coming to destroy religion, set up idolatry, and root out the name of God’s people, and lay waste the mountain of the Lord’s house? And if they may defend themselves by defensive wars, how can wars be without offending? 4. The law of nature teacheth to repel violence with violence, when one man is oppressed, no less than when the commonwealth is oppressed. Barclay should have given either Scripture or the law of nature for his warrant here. 5. Let us suppose a king can be perjured, how are the estates of the kingdom, who are his subjects, by Barclay’s way, not to challenge such a tyrant of his perjury? He did swear he should be meek and clement, and he is now become a furious lion. Shall the flock of God be committed to the keeping of a furious lion?
Dr Ferne (p. 3, sect. 2, p. 9,) addeth, “Personal defence is lawful against sudden and illegal invasion, such as Elisha practised, even if it were against the prince, to ward blows, and to hold the prince’s hand, but not to return blows; but general resistance by arms cannot be without many unjust violences, and doth immediately strike at the order, which is the life of the commonwealth.
Ans. — 1. If it be natural to one man to defend himself against the personal invasion of a prince, then is it natural and warrantable to ten thousand, and to a whole kingdom; and what reason to defraud a kingdom of the benefit of self-defence more than one man? 2. Neither grace nor policy destroyeth nature; and how shall ten or twenty thousand be defended against cannons and muskets, that killeth afar off, except they keep towns against the king, (which Dr Ferne and others say had been treason in David, if he had kept Keilah against king Saul,) except they be armed to offend, with weapons of the like nature to kill rather than be killed, as the law of nature teacheth. 3. To hold the hands of the prince is no less resisting violence than to cut the skirt of his garment, which royalists think unlawful, and is an opposing of external force to the king’s person. 4. It is true, wars merely defensive cannot be but they must be offensive; but they are offensive by accident, and intended for mere defence, and they cannot be without wars sinfully offensive, nor can any wars be in rerum natura now, (I except the wars commanded by God, who only must have been sinful in the manner of doing,) but some innocent must be killed; but wars cannot for that be condemned. 5. Neither are offensive wars against those who are no powers and no ordinances of God, such as are cut-throat Irish, condemned prelates and papists now in arms, more destructive to the order established by God than acts of lawful war are, or the punishing of robbers. And by all this, protestants in Scotland and England should remain in their houses unarmed, while the papists and Irish come on them armed, and cut their throats, and spoil, and plunder at will.
Nor can we think that resistance to a king, in holding his hands, can be natural; if he be stronger, it is not a natural mean of self-preservation. Nature hath appointed innocent and offending violence, against unjust violence, as a means of self-preservation. Goliath’s sword is no natural means to hold Saul’s hands, for a sword hath no fingers; and if king Saul suddenly, without colour of law or reason, or inevitably, should make personal invasion on David to kill him, Dr Ferne saith he may resist; but resisting is essentially a re-action of violence. Show us Scripture or reason for violent holding a king’s hands in an unjust personal invasion, without any other re-action of offence. Walter Torrils killed king W. Rufus as he was shooting at a deer; the Earl of Suffolk killed Henry VIII. at tilting: there is no treasonable intention here, and so no homicide. Defensive wars are offensive, ex eventu et effectu, not ex causa, or ex intentione.
But it may be asked, if no passive subjection at all be commanded as due to superiors. — Ans. None properly so called, that is, purely passive, only we are, for fear of the sword, to do our duty. We are to suffer ill of punishment of tyrants, ex hypothesi, that they inflict that ill on us some other way, and in some other notion than we are to suffer ill of equals; for we are to suffer of equals not for any paternal authority that they have over us, as certainly we are to suffer ill inflicted by superiors. I demand of royalists, If tyrants inflicting evil of punishment upon subjects unjustly be powers ordained of God: if to resist a power in tyrannical acts be to resist God. Since we are not to yield active obedience to all the commandments of superiors, whether they be good or ill, by virtue of this place, Rom. xiii. how is it that we may not deny passive subjection to all the acts of violence exercised, whether of injustice, whether in these acts of violence wherein the prince in actu exercito and formally, punisheth not in God’s stead, or in these wherein he punisheth tyrannically, in no formal or actual subordination to God, we owe passive subjection? I desire an answer to these.
Assert. 5. — Flying from the tyranny of abused authority, is a plain resisting of rulers in their unlawful oppression and perverting of judgment.
All royalists grant it lawful, and ground it upon the law of nature, that those that are persecuted by tyrannous princes may flee, and it is evident from Christ’s commandment, “If they persecute you in one city, flee to another,” Matt. x. 23, and by Matt. xxiii. 34. Christ fled from the fury of the Jews till his hour was come; Elias, Uriah, (Jer. xxvi. 20,) and Joseph and Mary fled; the martyrs did hide themselves in caves and dens of the earth (Heb. xi. 37, 38); Paul was let down through a window in a basket at Damascus. This certainly is resistance; for look, what legal power God hath given to a tyrannous ruler, remaining a power ordained of God, to summon legally, and set before his tribunal the servants of God, that he may kill them, and murder them unjustly, that same legal power he hath to murder them; for it it be a legal power to kill the innocent, and such a power as they are obliged in conscience to submit unto, they are obliged in conscience to submit to the legal power of citing; for it is one and the same power. 1 Now if resistance to the one power be unlawful, resistance to the other must be unlawful also; and if the law of self-defence, or command of Chnst, warrant me to disobey a tyrannous power commanding me to compear to receive the sentence of death, that same law far more shall warrant me to resist and deny passive subjection in submitting to the unjust sentence of death. 2. When a murderer, self-convicted, fleeth from the just power of a judge lawfully citing him, he resisteth the just power ordained of God (Rom. iii.); therefore, by the same reason, if we flee from a tyrannous power, we resist that tyrannous power, and so, by royalists’ around, we resist the ordinance of God by flying Now, to be disobedient to a just power summoning a malefactor, is to hinder that lawful power to be put forth in lawful acts; for the judge cannot purge the land of blood if the murderer flee. 3. When the king of Israel sendeth a captain and fifty lictors to fetch Elisha, these come instructed with legal power from the king; if I may lay fetters on their power by flight, upon the ground of self-preservation, the same warrant shall allow me to oppose harmless violence for my own safety. 4. Royalists hold it unlawful to keep a stronghold against the king, though the fort be not the king’s house, and though that David should not have offended if he had kept Keilah against Saul: Dr Ferne and royalists say it had been unlawful resistance. What more resistance is made to royal power by walls interposed than by seas and miles of earth interposed? Both are physical resistance, and violent in their kind.
[1] Populo quidem hoc casu resitendi ac tuendi se ab injuria potestas competit. sed tuendi se tantum, non autem principem invadendi, et resistendi injuriæ illatæ, non recedendi a debita reverentia — non vim præteritam ulciscendi jus habet.
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[3] Rutherford has e9n panti\ tw fo/bw| but the third word tw is not in the Septuaginta and is here considered spurious.