Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No Sovereignty Is So from the People, That it remains in Them in Some Part, So as They May, in Case of Necessity, Reside It
The Prelate will have it Babylonish confusion, that we are divided in opinion. Jesuits (saith he) place all sovereignty in the community. Of the sectaries, some warrant any one subject to make away his king, and such a work is no less to be rewarded than when one kills a wolf. Some say this power is in the whole community; some will have it in the collective body, not convened, by warrant or writ of sovereignty; but when necessity (which is often landed) of reforming state and church, calls them together; some in the nobles and peers: some in the three estates assembled by the king’s writ; some in the inferior judges.
I answer, If the Prelate were not a Jesuit himself, he would not bid his brethren take the mote out of their eye; but there is nothing here said but what Barclaius1 said better before this plagiarius. To which I answer, We teach that any private man may kill a tyrant, void of all title; and that great Royalist says so also. And if he have not the consent of the people, he is an usurper, for we know no external lawful calling that kings have now, or their family, to the crown, but only the call of the people. All other calls to us are now invisible and unknown; and God would not command us to obey kings, and leave us in the dark, that we shall not know who is the king. The Prelate places his lawful calling to the crown, in such an immediate, invisible, and subtle act of omnipotency, as that whereby God confers remission of sins, by sprinkling with water in baptism, and that where-by God directed Samuel to anoint Saul and David, not Eliab, nor any other brother. It is the devil in the P. P., not any of us, who teach that any private man may kill a lawful king, though tyrannous in his government. For the subject of royal power, we affirm, the first, and ultimate, and native subject of all power, is the community, as reasonable men naturally inclining to a society; but the ethical and political subject, or the legal and positive receptacle of this power, is various, according to the various constitutions of the policy.
In Scotland and England, it is the three estates of parliament; in other nations, some other judges or peers of the land. The Prelate had no more common sense for him to object a confusion of opinion to us, for this, than to all the commonwealths on earth, because all have not parliaments, as Scotland has. All have not constables, and officials, and churchmen, and barons, lords of council, parliaments, etc., as England had: but the truth is, the community, orderly convened, as it includes, all the estates civil, have hand, and are to act in choosing their rulers. I see not what privilege nobles have, above commons, in a court of parliament, by God’s law; but as they are judges, all are equally judges, and all make up one congregation of God’s. But the question now is, If all power of governing (the Prelate, to make all the people kings, says, if all sovereignty) be so in the people that they retain power to guard themselves against tyranny; and if they retain some of it, habitu, in habit, and in their power.
I am not now unseasonably, according to the Prelate’s order, to dispute of the power of lawful defense against tyranny; but, I lay down this maxim of divinity: Tyranny being a work of Satan, is not from God, because sin, either habitual or actual, is not from God: the power that is, must be from God; the magistrate, as magistrate, is good in nature of office, and the intrinsic end of his office, (Rom. 13:4) for he is the minister of God for thy good; and, therefore, a power ethical, politic, or moral, to oppress, is not from God, and is not a power, but a licentious deviation of a power; and is no more from God, but from sinful nature and the old serpent, than a license to sin. God in Christ gives pardons of sin, but the Pope, not God, gives dispensations to sin. To this add, if for nature to defend itself be lawful, no community, without sin, has power to alienate and give away this power; for as no power given to man to murder his brother is of God, so no power to suffer his brother to be murdered is of God; and no power to suffer himself, a fortiori, far less can be from God. Here I speak not of physical power, for if free will be the creature of God, a physical power to acts which, in relation to God’s law, are sinful, must be from God.
But I now follow the P. Prelate (c. ix., p. 101, 102). — Some of the adversaries, as Buchanan, say that the parliament has no power to make a law, but only probou/leuma without the approbation of “the community. Others, as the Observator, say, that the right of the gentry and commonalty is entirely in the knights and burgesses of the House of Commons, and will have their orders irrevocable. If, then, the common people cannot resume their power and oppose the parliament, how can tables and parliaments resume their power and resist the king?
Ans. — The ignorant man should have thanked Barclaius for this argument, and yet Barclaius need not thank him, for it has not the nerves that Barclaius gave it. But I answer,
1. If the parliament should have been corrupted by fair hopes (as in our age we have seen the like) tho people did well to resist the Prelate’s obtruding the Mass Book, when the lords of the council pressed it, against all law of God and man, upon the kingdom of Scotland; and, therefore, it is denied that the acts of parliament are irrevocable. The observator said they were irrevocable by the king, he being but one man; the P. Prelate wrongs him, for he said only, they have the power of a law, and the king is obliged to consent, by his royal office, to all good laws, and neither king nor people may oppose them. Buchanan said, Acts of parliament are not laws, obliging the people, till they be promulgated; and the people’s silence, when they are promulgated, is their approbation, and makes them obligatory laws to them; but if the people speak against unjust laws, they are not laws at all: and Buchanan knew the power of the Scottish parliament better than this ignorant statist.
2. There is not like reason to grant so much to the king, as to parliaments, because, certainly, parliaments who make kings under God, or above any one man, and they must have more authority and wisdom than any one king, except Solomon (as base flatterers say) should return to the thrones of the earth. And as the power to make just laws is all in the parliament, only the people have power to resist tyrannical laws. The power of all the parliament was never given to the king by God. The parliament are as essentially judges as the king, and, therefore, the king’s deed may well be revoked, because he acts nothing as king, but united with his great or lesser council, no more than the eye can see, being separated from the body. The peers and members of parliament have more than the king, because they have both their own power, being pacts and special members of the people, and, also, they have their high places in parliament, either from the people’s express or tacit consent.
3. We allow no arbitrary power to the parliament, because their just laws are irrevocable; for the irrevocable power of making just laws does argue a legal, not an irrevocable, arbitrary power; nor is there any arbitrary power in the people, or in any mortal man. But of the covenant between king and people hereafter.
P. Prelate (c. 10, p. 105). — If sovereign power be habitually in the community, so as they may resume it at their pleasure, then nothing is given to the king but an empty title; for, at the same instant, he receives empire and sovereignty, and lays down the power to rule or determine in matters which concern either private or public good, and so he is both a king and a subject.
Ans. — This naked consequence the Prelate says and proves not, and we deny it, and give this reason, The king receives royal power with the states to make good laws, and power by his royalty to execute those laws, and this power the community has devolved in the hands of the king and states of parliament; but the community keeps to themselves a power to resist tyranny, and to coerce it, and eatenus in so far is Saul subject, that David is not to compear before him, nor to lay down Goliah’s sword, nor disband his army of defense, though the king should command him so to do.
P. Prelate (c. xvi. pp. 105-107). — By all politicians, kings and inferior magistrates are differenced by their different specific entity, but by this they are not differenced; nay, a magistrate is in a better condition than a king, for the magistrate is to judge by a known statute and law, and cannot be censured and punished but by law. But the king is censurable, yea, disabled by the multitude; yea, the basest of subjects may cite and convent the king, before the underived majesty of the community, and he may be judged by the arbitrary law that is in the closet of their hearts, not only for real misdemeanor, but for fancied jealousies. It will ha said, good kings are in danger; the contrary appears this day, and ordinarily the best are in greatest danger. No government, except Plato’s republic, wants incommodities: subtle spirits may make them apprehend them. The poor people, bewitched, follow Absalom in his treason; they strike not at royalty at first, but labor to make the prince naked of the good council of great statesmen, etc.
Ans. — Whether the king and the under magistrate differ essentially, we shall see.
1. The P. Prelate says all politicians grant it, but he says untruth. He brings the power of Moses and the judges to prove the power of kings; and so either the judges of Israel and the kings differ not essentially, or then the Prelate must correct the spirit of God, terming one book of Scripture Mykilaam; Kings, and another My+ip;wO#O Judges, and make the book of Kings the book of Judges.
2. The magistrate’s condition is not better than the king’s, because the magistrate is to judge by a known statute and law, and the king not so. God molded the first king, (Deut. 17:18,) when he sits judging on his throne, to look to a written copy of the law of God, as his rule. Now, a power to follow God’s law is better than a power to follow man’s sinful will; so the Prelate puts the king in a worse condition than the magistrate, not we, who will have the king to judge according to just statutes and laws.
3. Whether the king be censurable and deposable by the multitude, he cannot determine out of our writings.
4. The community’s law is the law of nature — not their arbitrary lust.
5. The Prelate’s treasonable railings I cannot follow. He says that we agree not ten of us to a positive faith, and that our faith is negative; but his faith is Privative, Popish, Socinian, Arminian, Pelagian, and worse, for he was one of that same faith that we are of. Our Confession of Faith is positive, as the confession of all the reformed churches; but I judge he thinks the Protestant faith of all the reformed churches but negative. The incommodities of government, before our reformation, were not fancied, but printed by authority. All the body of popery was printed and avowed as the doctrine of the Church of Scotland and England, as the learned author, and my much respected brother, evidences in his Ludensium, au0tokatakri/sij, the Canterburian Self-conviction. The parliament of England was never yet found guilty of treason. The good counselors of great statesmen, that parliaments of both kingdoms would take from the king’s majesty, are a faction of perjured Papists, Prelates, Jesuits, Irish cut-throats, Strafords, and Apostates; subverters of all laws, divine, human, of God, of church, of state.
P. Prelate (c. 15, pp. 147, 148). — In whomsoever this power of government be it is the only remedy to supply all detects, and to set light whatever is disjointed in church and state, and the subject of this superintending power must be free from all error in judgment and practice, and so we have a pope in temporalibus; and if the parliament err the people must take order with them, else God has left church and state remediless.
Ans. — 1. This is stolen from Barclaius also, who says,2 Si Rex regnum suum alienae ditioni manciparit, reyno cadit: “If the king shall sell his kingdom, or enslave it to a foreign power, he falls from all light to his kingdom,” But who shall execute any such law against him? — not the people, not the peers, not the parliament; for this mancipium ventris et aulae, this slave says, (p. 149,) “I know no power in any to punish or curb sovereignty but in Almighty God.”
2. We see no superintending power on earth, in king or people, which is infallible, nor is the last power of taking order with a prince who enslaves his kingdom to a foreign power, placed by us in the people because they cannot err. Court flatterers, who teach that the will of the prince is the measure of all right and wrong, of law and no law, and above all law, must hold that the king is a temporal pope, both in ecclesiastical and civil matters; but because they cannot so readily destroy themselves (the law of nature having given to them a contrary internal principle of self-preservation) as a tyrant who does care for himself and not for the people.
3. And because Extremis morbis extrema remedia, in an extraordinary exigent, when Ahab and Jezebel did undo the church of God, and tyrannise over both the bodies and consciences of priest, prophet and people, Elijah procured the convention of the states, and Elijah, with the people’s help, killed all Baal’s priests, the king looking on, without question, against his heart, in this case I think it is more than evident that the people resumed their power.
4. We teach not that people should supply all defects in government, nor that they should use their power when anything is done amiss by the king, no more than the king is to cut off the whole people of God when they refuse an idolatrous service, obtruded upon them against all law. The people are to suffer much before they resume their power; but this court slave will have the people to do what he did not himself; for when king and parliament summoned him, was he not obliged to appear? Non-compearance when lawful, royal, and parliamentary power summons, is no less resistance than taking of ports and castles.
P. Prelate. — Then this superintending power in people may call a king to account, and punish him for any misdemeanor or act of injustice. Why might not the people of Israel’s peers, or sanhedrim, have convented David before them, judged and punished him for his adultery with Bathsheba, and his murder of Uriah. But it is held by all that tyranny should be an intended universal, total, manifest destruction of the whole commonwealth, which cannot fall in the thoughts of any but a madman. What is recorded in the story of Nero’s wish in this kind, may be rather judged the expression of transported passion, than a fixed resolution.
Ans. — The P. Prelate, contrary to the scope of his book, which is all for the subject and seat of sovereign power, against all order, has plunged himself in the deep of defensive arms, and yet has no new thing.
1. Our law of Scotland will warrant any subject, if the king take from him his heritage, or invade his possession against law, to resist the invaders, and to summon the king’s intruders before the lords of session for that act of injustice. Is this against God’s word, or conscience?
2. The Sanhedrim did not punish David, therefore, it is not lawful to challenge a king for any one act of injustice: from the practice of the Sanhedrim to conclude a thing lawful or unlawful, is logic we may resist.
3. By the P. Prelate’s doctrine, the law might not put Bathsheba to death, nor yet Joab, the nearest agent of the murdering of innocent Uriah, because Bathsheba’s adultery was the king’s adultery — she did it in obedience to king David; Joab’s murder was royal murder, as the murder of all the cavaliers, for he had the king’s handwriting for it. Murder is murder, and the murderer is to die, though the king by a secret let-alone, a private and illegal warrant, command it; therefore the Sanhedrim might have taken Bathsheba’s life and Joab’s head also; and, consequently, the parliament of England, if they be judges, (as I conceive God and the law of that ancient and renowned kingdom makes them,) may take the head of many Joabs and Jermines for murder; for the command of a king cannot legitimate murder.
4. David himself, as king, speaks more for us than for the Prelate, — 2 Sam, 12:7, “And David’s anger was greatly kindled against the man, (the man was himself, ver. 7, ‘Thou art the man,’) and he said to Nathan, as the Lord lives, the man that has done this thing shall surely die,”
5. Every act of injustice does not unking a prince before God, as every act of uncleanness does not make a wife no wife before God.
6. The Prelate excuses Nero, and would not have him resisted, if “all Rome were one neck that he might cut it off with one stroke (I read it of Caligula; if the Prelate see more in history than I do, I yield}.
7. He says, the thoughts of total eversion of a kingdom must only fall on a madman. The king of Britain was not mad when he declared the Scots traitors (because they resisted the service of the mass) and raised an army of prelatical cut-throats to destroy them, if all the kingdom should resist idolatry (as all are obliged). The king slept upon this prelatical resolution many months: passions in fervour have not a day’s reign upon a man; and this was not so clear as the sun, but it was as clear as written, printed proclamations, and the pressing of soldiers, and the visible marching of cut-throats, and the blocking up of Scotland by sea and land, could be visible to men having five senses.
Covarruvias, a great lawyer, says,3 that all civil power is penes remp. in the hands of the commonwealth; because nature has given to man to be a social creature, and impossible he can preserve himself in a society except he, being in community) transform his power to an head. He says: Hujus vero civilis societatis et resp. rector ab alio quam ab ipsamet repub. constitui non potest juste et absq. tyrannide. Siquidem ab ipso Deo constitatus non est, nec electus cuilibet civili societati immediate Rex aut Princeps. Arist. (polit 3, c. 10) says, “It is better that kings be got by election than by birth; because kingdoms by succession are vere regia, truly kingly: these by birth are more tyrannical, masterly, and proper to barbarous nations. And Covarruv. (tom. 2, pract. quest, de jurisd. Castellan. Reip. c. 1, n. 4,) says, “Hereditary kings are also made hereditary by the tacit consent of the people, and so by law and consuetude.”
Spalato says,4 “Let us grant that a society shall refuse to have a governor over them, shall they be for that free? In no sort. But there be many ways by which a people may be compelled to admit a governor; for then no man might rule over a community against their will. But nature has otherwise disposed, ut quod singuli nollent, universi vellent, that which every one will not have, a community naturally desires.”
And the Prelate says, “God is no less the author of order than he is the author of being; for the Lord who creates all conserves all; and without government all human societies should be dissolved and go to ruin: then government must be natural, and not depend upon a voluntary and arbitrary constitution of men. In nature the creatures inferior give a tacit consent and silent obedience to their superior, and the superior has a powertul influence on the inferior. In the subordination of creatures we ascend from one superior to another, till at last we come to one supreme, which, by the way, pleads for the excellency of monarchy. Amongst angels there is an order; how can it then be supposed that God has left it to the simple consent of man to establish a heraldry of sub et supra, of one above another, which neither nature nor the gospel does warrant? To leave it thus arbitrary, that upon this supposed principle mankind may be without government at all, is vain; which paradox cannot to maintained. In nature God has established a superiority inherent in superior creatures, which is no ways derived from the inferior by communication in what proportion it will, and resumeable upon such exigents as the inferior lists; therefore neither has God left to the multitude, the community, the collective, the representative or virtual body, to derive from itself and communicate sovereignty, whether in one or few, or more, in what measure and proportion pleases them, which they resume at pleasure.”
Ans. — To answer Spalato: No society has liberty to be without all government, for “God has given to every society,” says Covarruvias, “a faculty of preserving themselves, and warding off violence and injuries; and this they could not do except they gave their power to one or many rulers.”5 But all that the Prelate builds on this false supposition, which is his fiction and calumny, not our doctrine, to wit, “that it is voluntary to man to be without all government, because it is voluntary to them to give away their power to one or more rulers,” is a mere non-consequence.
1. We teach that government is natural, not voluntary; but the way and manner of government is voluntary. All societies should be quickly ruined if there were no government; but it follows not, therefore, God has made some kings, and that immediately, without the intervening consent of the people, and, therefore, it is not arbitrary to the people to choose one supreme ruler, and to erect a monarchy, or to choose more rulers, and to erect an aristocracy. It follows no way. It is natural to men to express their mind by human voices. Is not speaking of this or that language, Greek rather than Latin, (as Aristotle says,) kata/ sunqh/khn by human institution? It is natural for men to eat, therefore election of this or that meat is not in their choice. What reason is in this consequence? And so it is a poor consequence also, Power of sovereignty is in the people naturally, therefore it is not in their power to give it out in that measure that pleases them, and to resume it at pleasure. It follows no way. Because the inherency of sovereignty is natural and not arbitrary, therefore, the alienation and giving out of the power to one, not to three, thus much, not thus much, conditionally, not absolutely and irrevocably, must be also arbitrary. It is as if you should say, a father having six children, naturally loves them all, therefore he has not freedom of will in expressing his affection, to give so much of his goods to this son, and that conditionally, if he use these goods well; and not more or less of his goods at his pleasure.
2. There is a natural subordination in nature in creatures superior and inferior, without any freedom of election. The earth made not the heavens more excellent than the earth, and the earth by no freedom of will made the heavens superior in excellency to itself. Man gave no superiority of excellency to angels above himself. The Creator of all beings did both immediately, without freedom of election in the creature, create the being of all the creatures, and their essential degrees of superiority and inferiority, but God created not Saul by nature king over Israel; nor is David by the act of creation by which he is made a man, created also king over Israel; for then David should from the womb and by nature be a king, and not by God’s free gift. Here both the free gift of God, and the free consent of the people intervene. Indeed God made the office and royalty of a king above the dignity of the people, but he, by the intervening consent of the people, makes David a king, not Eliab; and the people makes a covenant at David’s inauguration, that David shall have so much power, to wit, power to be a father, not power to be a tyrant, — power to fight for the people, not power to waste and destroy them. The inferior creatures in nature give no power to the superior, and therefore they cannot give in such a proportion power. The denial of the positive degree is a denial of the comparative and superlative, and so they cannot resume any power; but the designing of these men or those men to be kings or rulers is a rational, voluntary action, not an action of nature, — such as is God’s act of creating an angel a nobler creature than man, and the creating of man a more excellent creature than a beast; and, for this cause, the argument is vain and foolish; for inferior creatures are inferior to the more noble and superior by nature, not by voluntary designation, or, as royalists say, by naked approbation, which yet must be an arbitrary and voluntary action.
3. The P. Prelate commends order while we come to the most supreme; hence he commends monarchy above all governments because it is God ‘s government. I am not against it, that monarchy well-tempered is the best government, though the question to me is most problematic; but because God is a monarch who cannot err or deny himself, therefore that sinful man be a monarch is miserable logic; and he must argue solidly, forsooth, by this, because there is order, as he says, amongst angels, will he make a monarch and a king-angel? His argument, if it have any weight at all in it, drives at that, even that there be crowned kings amongst the angels.
1. Barclaius contr. Monarch. lib. 4. c. 10, p. 268, ut hostes publicos non solum ab universo populo. sed a singulis etiam impeti oaedique jure optimo posse tota Antiquitas censuit.
2. Barclaius contra Monarchom. lib. 5, c. 12, idem. lib. 3, c. ult. p. 2, 3.
3. Covarruvias. tom. 2. pract. quest, c. 1, n. 2-4.
4. Spalato de rep. eccles. lib. 6, c. 2, a. 32.
5. Covarr. tom. 4, pract. quest. c. 1, a. 2.