Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or Not Royal Birth Be Equivalent to Divine Unction
Symmons holds1 that birth is as good a title to the crown, as any given of God. How this question can be cleared, I see not, except we dispute that, Whether or not kingdoms be proper patrimonies derived from the father to the son. I take there is a large difference between a thing transmitable by birth from the father to the son, and a thing not transmitable. I conceive, as a person is chosen to be a king over a people, so a family or house may be chosen; and a kingdom at first choosing a person to be their king, may also tie themselves to choose the first-born of his body, but as they transfer their power to the father, for their own safety and peace, (not if he use the power they give aim to their destruction,) the same way they tie themselves to his first-born, as to their king. As they choose the father not as a man, but a man gifted with royal grace and a princely faculty for government, so they can but tie themselves to his first-born, as to one graced with a faculty of governing; and if his first-born shall be born an idiot and a fool, they are not obliged to make him king; for the obligation to the son can be no greater than the obligation to the father, which first obligation is the ground, measure, and cause, of all posterior obligations. If tutors be appointed to govern such an one, the tutors have the royal power, not the idiot; nor can he govern others who cannot govern himself. That kings go not as heritage from the father to the son, I prove,
1. God (Deut. 17) could not command them to choose such an one for the king, and such an one who, sitting on his throne, shall follow the direction of God, speaking in his word, if birth were that which gave him God’s title and right to the crown; for that were as much as such a man should be heir to his fathers inheritance, and the son not heir to his father’s crown, except he were such a man. But God, in all the law moral or judicial, never required the heir should be thus and thus qualified, else he should not be heir; but he requires that a man, and so that a family, should be thus and thus qualified, else they should not be kings. And I confirm it thus: The first king of divine institution must be the rule, pattern, and measure, of all the rest of the kings, as Christ makes the first marriage (Matt. 19:8,) a pattern to all others; and Paul reduces the right administration of the Supper to Christ’s first institution, 1 Cor. 11:23 Now, the first king (Deut. 17:14, 15 is not a man qualified by naked birth, for then the Lord, in describing the manner or the king and his due qualifications, should seek no other but this, You shall choose only the first-born, or the lawful son of the former king. But seeing the king of God’s first molding is a king by election, and what God did after, by promises and free grace, give to David and his seed, even a throne till the Messiah should come, and did promise to some kings, if they would walk in his commandments, that their sons, and sons’ sons, should sit upon the throne, in my judgment, is not an obliging law that sole birth should be as just a title, in foro Dei, (for now I dispute the question in point of conscience,) as royal unction.
2. If, by divine institution, God has impawned in the people’s hand a subordinate power to the Most High, who gives kingdoms to whom he will, to make and create kings, then is not sole birth a just title to the crown. But the former is true. By precept (Deut. 17:15) God expressly says, “Thou shalt choose him king, whom the Lord shall choose.” And if it had not been the people’s power to create their own kings, how does God, after he had designed Saul their king, yet expressly (1 Sam. 10) inspire Samuel to call the people before the Lord at Mizpah to make Saul king? And how does the Lord (ver. 22) expressly show to Samuel and the people, the man that they might make him king? And because all consented not that Saul should be king, God will have his coronation renewed. Ver. 14, “Then said Samuel to the people, come and let us go to Gilgal, and renew the kingdom there;” ver. 15, “And all the people went to Gilgal, and there they made Saul king before the Lord in Gilgal.” And how is it that David, anointed by God, is yet no king, but a private subject, while all Israel make him king at Hebron?
3. If royal birth be equivalent to royal unction and the best title; if birth speak and declare to us the Lord’s will and appointment, that the first-born of a king should be king, as M. Symmons and others say, then is all title by conquest, where the former king stands in title to the crown and has an heir, unlawful. But the latter is against all the nation of the royalists, for Arnisaeus, Barclay, Grotius, Jo. Rossensis Episco., the Bishop of Spalato, Dr Ferne, M. Symmons, the excommunicate Prelate, if his poor learning may bring him in the roll, teach that conquest is a lawful title to a crown. I prove the proposition,
- (1.) because if birth speak God’s revealed will, that the heir of a king is the lawful king, then conquest cannot speak contrary to the will of God, that he is no lawful king, but the conqueror is the lawful king. God’s revealed will should be contradictory to himself, and birth should speak, it is God’s will that the heir of the former king be king, and the conquest being also God’s revealed will, should also speak that that heir should not be king.
(2.) If birth speak and reveal God’s will that the heir be king, it is unlawful for a conquered people to give their consent that a conqueror be their king; for their consent being contrary to God’s revealed will, (which is, that birth is the just title,) must be an unlawful consent. If royalists say, God, the King of kings, who immediately makes kings, may and does transfer kingdoms to whom he will; and when he puts the sword in Nebuchadnezzar’s hand to conquer the king and kingdom of Judah, then Zedekiah or his son is not king of Judah, but Nebuchadnezzar is king, and God, being above his law, speaks in that case his wiu by conquests, as before he spake his will by birth. This is all can be said.
Ans. They answer black treason in saying so, for if Jeremiah, from the Lord, had not commanded expressly, that both the king and kingdom of Judah should submit to the king of Babylon, and serve him, and pray for him, as their lawful king, it had been as lawful for them to rebel against that tyrant, as it was for them to fight against the Philistines and the king of Ammon; but if birth be the just and lawful title, in foro Dei, in God’s court, and the only thing that evidences God’s will, without any election of the people, that the first-born of such a king is their lawful king, then conquests cannot now speak a contradictory will of God; for the question is not, whether or not God. gives power to tyrants to conquer kingdoms from the just heirs of kings, which did reign lawfully before their sword made an empty throne, but whether conquest now, when Jeremiahs are not sent immediately from God to command, for example, Britain to submit to a violent intruder, who has expelled the lawful heirs of the royal line of the king of Britain, whether, I say, does conquest, in a such a violent way, speak that it is God’s revealed will, called Voluntas signi, the will that is to rule us in all our moral duties, to cast off the just heirs of the blood royal, and to swear homage to a conqueror, and so as that conqueror now has as just right as the king of Britain had by birth. This cannot be taken off by the wit of any who maintain that conquest is a lawful title to a crown, and that royal birth, without the people’s election, speaks God’s regulating will in his word, that the first-born of a king is a lawful king by birth, for God now-a-days does not say the contrary of what he revealed in his word. If birth be God’s regulating will, that the heir of the king is in God’s court a king, no act of the conqueror can annul that word of God to us, and the people may not lawfully, though they were ten times subdued, swear homage and allegiance to a conqueror against the due right of birth, which by royalists’ doctrine reveals to us the plain contradictory will of God. It is, I grant, often God’s decree revealed by the event, that a conqueror be on the throne, but this will is not our rule, and the people are to swear no oath of allegiance contrary to God’s Voluntas signi, which is his revealed will in his word regulating us.
4. Things transferable and communicable by birth from father to son, are only, in law, those which heathens call bona fortunae riches, as lands, houses, monies and heritages; and so says the law also. These things which essentially include gifts of the mind, and honor properly so called I mean honor founded on virtue as Aristotle, with good reason, makes honor praeminum virtutis, cannot be communicated by birth from the father to the son; for royal dignity includes these three constituent parts essentially, of which none can be communicable by birth.
- (1.) The royal faculty of governing, which is a special gift of God above nature, is from God. Solomon asked it from God, and had it not by generation from his father David.
(2.) The royal honor to be set above the people because of this royal virtue is not from the womb, for then God’s Spirit would not have said, “Blessed art thou, O land, when thy king is the son of nobles,” Eccl. 10:17; this honor, springing from virtue, is not born with any man, nor is any man born with either the gift or honor to be a judge. God makes high and low, not birth. Nobles are bora to great estates. If judging be heritage to any, it is a municipal positive law. I now speak in point of conscience.
(3.) The external lawful title, before men come to a crown, must be God’s will, revealed by such an external sign as, by God’s appointment and warrant, is to regulate our will; but according to Scripture, nothing regulates our will, and leads the people now that they cannot err following God’s rule in making a king, but the free suffrages of the states choosing a man whom they conceive God has endued with these royal girts required in the king whom God holds forth to them in his word. (Deut. 17.)
Now there be but these to regulate the people, or to be a rule to any man to ascend lawfully, in foro Dei, in God’s court to the throne.
- (1.) God’s immediate designation of a man by prophetical and divinely-inspired unction, as Samuel anointed Saul and David; this we are not to expect now, nor can royalists say it.
- (2.) Conquest, seeing it is an act of violence, and God’s revenging justice for the sins of a people, cannot give in God’s court such a just tide to the throne as the people are to submit their consciences unto, except God reveal his regulating will by some immediate voice from heaven, as he commanded Judah to submit to Nebuchadnezzar as to their king by the mouth of Jeremiah. Now this is not a rule to us; for then, if the Spanish king should invade this land, and, as Nebuchadnezzar did, deface the temple, and instruments and means of God’s worship, and abolish the true worship of God, it should be unlawful to resist him, after he had once conquered the land: neither God’s word, nor the law of nature could permit this. I suppose, even by grant of adversaries, now no act of violence dona to a people, though in God’s court they have deserved it, can be a testimony to us of God’s regulating will; except it have some warrant from the law and testimony, it is no rule to our conscience to acknowledge him a lawful magistrate, whose sole law to the throne is an act of the bloody instrument of divine wrath, I mean the sword. That, therefore, Judah was to submit, according to God’s word, to Nebuchadnezzar, whose conscience and best warranted calling to the kingdom of Judah was his bloody sword, even if we suppose Jeremiah had not commanded them to submit to the king of Babylon, I think cannot be said.
- (3) Naked birth cannot be this external signification of God’s regulating will to warrant the conscience of any to ascend to the throne, for the authors of this opinion make royal birth equivalent to divine unction; for David anointed by Samuel, and so anointed by God, is not king, Saul remained the Lord’s anointed many years, not David, although anointed by God; the people’s making him king at Hebron, founded upon divine unction, was not the only external lawful calling that we read of that David had to the throne; then royal birth, because it is but equivalent only to divine unction, not superior to divine unction, it cannot have more force to make a king than divine unction. And if birth was equivalent to divine unction, what needed Joash, who had royal birth, be made king by the people? and what needed Saul and David, who bad more than royal birth, even divine unction, be made kings by the people? and Saul, having the vocal and infallible testimony of a prophet, needed not the people’s election the one at Mizpah and Gilgal, and the other at Hebron.
5. If royal birth be as just a title to the crown as divine unction, and so as the people’s election is no title at all, then is it unlawful that there should be a king by election in the world now; but the latter is absurd, so is the former. I prove the proposition, because where conquerors are wanting, and there is no king for the present, but the people governing, and so much confusion abounds, they cannot lawfully appoint a king, for his lawful title before God must either be conquest which to me is no title (and here, and in this case, there is no conquest) or the title must be a prophetical word immediately inspired of God. but this is now ceased; or the title must be royal birth, but here there is no royal birth, because the government is popular; except you imagine that the society is obliged in conscience to go and seek the son of a foreign king to be their king. But I hope that such a royal birth should not be a just title before God to make him king of that society to which he had no relation at all, but is a mere stranger. Hence in this case no title could be given to any man to make him king, but only the people’s election, which, is that which we say. And it is most unreasonable that a people under popular government cannot lawfully choose a king to themselves, seeing a king is a lawful magistrate, and warranted by God’s word, because they have not a king of royal birth to sit upon the throne.
Mr Symmons says2 that birth is the best title to the crown, because after the first of the family had been anointed unction was no more used in that family, (unless there arose a strife about the kingdom, as between Solomon and Adonijah, Joash and Athaliah) the eldest son of the predecessor was afterward the chosen of the Lord, his birthright spake the Lord’s appointment as plainly as his father’s unction.
- 1st. It is a conjecture that unction was not used in the family, after the first unction, except the contest was between two brethren: that is said, not proved; for 2 Kings 23:30, when good Josiah was killed, and there was no contest concerning the throne of that beloved prince, the people of the land took Jehoahaz his son, and anointed him, and made him king in his father’s stead; and the priests were anointed, (Lev. 6:22,) yea, all the priests were anointed, (Numb. 3:3,) yet read we not in the history, where this or that man was anointed.
- 2nd. In that Adonijah. Solomon’s elder brother, was not king, it is clear that God’s anointing and the people’s electing made the right to the crown. and not birth.
- 3rd. Birth de facto did design the man, because of God’s special promises to David’s house: but how does a typical descent made to David, and some others by God’s promise, prove, that birth is the birthright and lawful call of God to a crown in all after ages? For as gifts to reign goes not by birth, so neither does God’s title to a crown go.
M. Symmons. A prince once possessed of a kingdom coming to him by inheritance, can never, by any, upon any occasion be dispossessed thereof, without horrible impiety and injustice. Royal unction was an indelible character of old: Saul remained, the Lord’s anointed till the last gasp. David dared not take the right of government actually unto him, although he had it in reversion, being already anointed thereunto, and had received the spirit thereof.
- (1.) This is the question, If a prince, once a prince by inheritance, cannot be dispossessed thereof without injustice: for if a kingdom be his by birth, as an inheritance transmitted from the father to the son, I see not but any man upon necessary occasions may sell his inheritance; but if a prince sell his kingdom, a very Barclay and a Grotius with reason will say, he may be dispossessed and dethroned, and take up his indelible character then.
(2.) A kingdom is not the prince’s own, so as it is injustice to take it from him, as to take a man’s purse from him; the Lord’s church, in a Christian kingdom, is God’s heritage, and the king only a shepherd, and the sheep, in the court of conscience, are not his.
(3.) Royal unction is not an indelible character; for neither Saul nor David were all their days kings thereby, but lived many days private men after divine unction, while the people anointed them kings, except you say that there were two kings at once in Israel; and that Saul, killing David, should have killed his own lord, and his anointed.
(4.) If David dared not take the right of government actually on him, then divine unction made him not king, but only designed him to be king: the people’s election must make the king.
M. Symmons adds,3 “He that is born a king and a prince can never be unborn, Semel Augustus semper Augustus; yea, I believe the eldest son of such a king is, in respect of birth, the Lord’s anointed in his father’s life-time, even as David was before Saul’s death, and to deprive him of his right of reversion is as true injustice as to dispossess him of it.”
Ans. It is proper only to Jesus Christ to be born a king. Sure I am no man brings out of the womb with him a scepter, and a crown on his head. Divine unction gives a right infallibly to a crown, but birth does not so; for one may be born heir to a crown, as was hopeful prince Henry, and yet never live to be king. The eldest son of a king, if he attempt to kill his father, as Absalom did, and raise forces against the lawful prince, I conceive he may be killed in battle without any injustice. If in his father’s time he be the Lord’s anointed, there be two kings; and the heir may have a son, and so there shall be three kings, possibly four, all kings by divine right.
The Prelate of Rochester says,4 “The people and nobles give no right to him who is born a king, they only declare his right.”
Ans. This is said, not proved. A man born for an inheritance is by birth an heir, because he is not born for these lands as a mean for the end, but by the contrary, these lands are for the heir as the mean for the end; but the king is for his kingdom as a mean for the end, as the watchman for the city, the living law for peace and safety to God’s people; and, therefore, is not heres hominum, an heir of men, but men are rather heredes regis, heirs of the king.
Arnisaeus says,5 “Many kingdoms are purchased by just war, and transmitted by the law of heritage from the father to the son, beside the consent of the people, because the son receives right to the crown not from the people, but from his parents; nor does he possess the kingdom as the patrimony of the people, keeping only to himself the burden of protecting and governing the people, but as a propriety given to him lege regni, by his parents, which he is obliged to defend and rule, as a father looks to the good and welfare of the family, yet so also as he may look to his own good.
Ans. We read in the word of God that the people made Solomon king, not that David, or any king, can leave in his testament a kingdom to his son. He says, the son has not the right of reigning as the patrimony of the people, but as a propriety, given by the law of the kingdom by his parents. Now this is all one as if he said the son has not the right of the kingdom as the patrimony of the people, but as the patrimony of the people which is good nonsense; for the propriety of reigning given from father to son by the law of the kingdom, is nothing but a right to reign given by the law of the people, and the very gift and patrimony of the people; for lex regni, this law of the kingdom is the law of the people, tying the crown to such a royal family;. and this law of the people is prior and more ancient than the king, or the right of reigning in the king, or which the king is supposed to have from his royal father, because it made the first father the first king of the royal line. For I demand, how does the son succeed to his father’s crown and throne? Not by any promise of a divine covenant that the Lord makes to the father, as he promised that David’s seed should sit on his throne till the Messiah should come. This, as I conceive, is vanished with the commonwealth of the Jews; nor can we now find any immediate divine constitution, tying the crown now to such a race, nor can we say this comes from the will of the father-king making his son king. For,
- 1st. There is no Scripture can warrant us to say the king makes a king, but the Scripture holds forth that the people made Saul and David kings.
- 2nd. This may prove that the father is some way a cause why this son succeeds king; but he is not the cause of the royalty conferred upon the whole line, because the question is, Who made the first father a king? Not himself; nor does God now immediately by prophets anoint men to be kings, then must the people choose the first man, then must the people’s election of a king be prior and more ancient than the birth-law to a crown; and election must be a better right than birth. The question is, Whence comes it that not only the first father should be chosen king; but also whence is it, that whereas it is in the people’s free will to make the succession of kings go by free election, as it is in Denmark and Poland, yet the people does freely choose, not only the first man to be king, but also the whole race of the first-born of this man’s family to be kings. All here must be resolved in the free will of the community. Now, since we have no immediate and prophetical enthroning of men, it is evident that the lineal deduction of the crown from father to son, through the whole line, is from the people, not from the parent.
6. Hence, I add this as my sixth argument, That which takes away that natural aptitude and nature’s birthright in a community, given to them by God and nature, to provide the most efficacious and prevalent mean for their own preservation and peace in the fittest government, that is not to be holden; but to make birth the best title to the crown, and better than free election, takes away and impedes that natural aptitude and nature’s birthright of choosing, not simply a governor, but the best, the justest, the more righteous, and ties and fetters their choice to one of a house, whether he be a wise man, and just, or a fool and an unjust man; therefore to make birth the best title to the crown, is not to be holden. It is objected, That parents may bind their after generations to choose one of such a line, but by this argument, their natural birthright of a free choice to elect the best and fittest, is abridged and clipped, and so the posterity shall not be tied to a king of the royal line to which the ancestors did swear. See for this the learned author of “Scripture and Reasons pleaded for Defensive Arms.”
Ans. Frequent elections of a king, at the death of every prince, may have, by accident, and through; the corruption of our nature, bloody and tragical sequels; and to eschew these, people may tie and oblige their children to choose one of the first-born, male or female, as in Scotland and England, of such a line; but I have spoken6 of the excellency of the title by election above that of birth, as comparing things according to their own nature together, but give me leave to say, that the posterity are tied to that line, 1. Conditionally: so the firstborn, ceteris paribus, be qualified, and have an head to sit at the helm. 2. Elections of governors would be performed as in the sight of God, and; in my weak apprehension, the person coming nearest to God’s judge, fearing God, hating covetousness; and to Moses’ king, (Deut. 17,) one who shall read in the book of the law; and it would seem now that gracious morals are to us instead of God’s immediate designation. 3. The genuine and intrinsical end of making kings is not simply governing, but governing the best way, in peace, honesty, and godliness, (1 Tim. 2) therefore, these are to be made kings who may most expeditely procure this end. Neither is it my purpose to make him no king who is not a gracious man. only here I compare title with title.
Arg. 7. Where God has not bound the conscience, men may not bind themselves, or the consciences of the posterity. But God has not bound any nation irrevocably and unalterably to a royal line, or to one kind of government; therefore, no nation can bind their conscience, and the conscience of the posterity, either to one royal line, or irrevocably and unalterably to monarchy. The proposition is clear.
- 1st. No nation is tied, jure divino, by the tie of a divine law, to a monarchy, rather than to another government. The Parisian doctors prove, that the precept of having a pope is affirmative, and so ties not the church, ad semper, for ever; and so the church is the body of Christ, without the Pope: and all oaths to things of their nature indifferent, and to things the contrary whereof is lawful and may be expedient and necessary, lay on a tie only conditionally, in so far as they conduce to the end. If the Gibeonites had risen in Joshua’s days to cut off the people of God, I think no wise man can think that Joshua and the people were tied, by the oath of God, not to cut off the Gibeonites in that case; for to preserve them alive, as enemies, was against the intent of the oath, which was to preserve them alive, as friends demanding and supplicating peace, and submitting.
- 2nd. The assumption is clear. If a nation sees that aristocratical government is better than monarchy, hic et nunc, that the sequels of such a monarchy is bloody, destructive, tyrannous; that the monarchy compels the free subjects to Mahomedanism, to gross idolatry, they cannot, by the divine bond of any oath, captive their natural freedom, which is to choose a government and governors for their safety, and for a peaceable and godly life; or fetter and chain the wisdom of the posterity unalterably to a government or a royal line, which, hic et nunc, contrary to the intention of their oath, proves destructive and bloody. And in this case, even the king, though tied by an oath to govern, is obliged to the practices of the Emperor Otho; and as Speed says of Richard the second,7 to resign the crown for the eschewing of the effusion of blood. And who doubts but the second wits of the experienced posterity may correct the first wits of their fathers; nor shall I ever believe that the fathers can leave in legacy by oath, any chains of the best gold to fetter the after wits of posterity, to a choice destructive to peace and true godliness.
Arg. 8. An heritor may defraud his first-born of his heritage, because of his dominion he has over his heritage: a king cannot defraud his first-born of the crown. An heritor may divide his heritage equally amongst his twelve sons: a king cannot divide his royal dominions in twelve parts, and give a part to every son; for so he might turn a monarchy into an aristocracy, and put twelve men in the place of one king. Any heritor taken captive may lawfully oppignerate, yea, and give all his inheritance as a ransom for his liberty; for a man is better than his inheritance: but no king may give his subjects as a price or ransom.
Yet I shall not be against the succession of kings by birth with good limitations; and shall agree, that through the corruption of man’s nature, it may be in so far profitable, as it is peaceable, and prevents bloody tumults, which are the bane of human societies. Consider farther for this, aegid. Romanus, lib. 3. de reg. princi. cap. 5, Turrecremat. and Joan. de terrae Reubeae, I tract, contr. Rebelles, ar. 1, con. 4. Yet Aristotle, the flower of nature’s wit, (lib. 3. polit. c. 10,) prefers election to succession. He prefers Carthage to Sparta, though their kings came of Hercules. Plutarch in Scylla, says, he would have kings as dogs, that is, best hunters, not those who are born of best dogs. Tacitus, lib. 1, Naci et generari a Principibus, fortuitum, nec ultra aestimantur.
1. Edward Symmons, in his Loyal Subjects Beleefe, sect. 3, p. 16.
2. Symmons’ Loyal Subjects Beleefs, sect. 3, p. 16.
3. Symmons, sect. 3, p. 7.
4. Joan. Episco. Roffens. de potest. Papae. lib. 2, c. 5.
5. Arnisaeus de authorit. princip. c. 1, n. 13.
6. Sect. 4, p. 39.
7. Speed, Hist. p, 757.