Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or Not a Kingdom May Lawfully Be Purchased by the Sole Title of Conquest
The Prelate avers confidently (c. 17, p. 58) that a title to a kingdom by conquest, without the consent of a people, is so just and evident by Scripture, that it cannot be denied; but the man brings no Scripture to prove it. Mr. Marshall says, (Let. p. 7,) a conquered kingdom is but continuata injuria, a continued robbery. A right of conquest is twofold. 1. When there is no just cause. 2. When there is just reason and ground of the war. In this latter case, if a prince subdue a whole land which justly deserves to die, yet, by his grace, who is so mild a conqueror, they may be all preserved alive; now, amongst those who have thus injured the conqueror, as they deserve death, we are to difference the persons offending, and the wives, children especially those not born and such as have not offended. The former sort may resign their personal liberty to the conqueror, that the sweet life may be saved. He cannot be their king properly; but I conceive that they are obliged to consent that he be their king, upon this condition, that the conqueror put not upon them violent and tyrannical conditions that are harder than death. Now, in reason, we cannot think that a tyrannous and unjust domineering can be God’s lawful mean of translating kingdoms; and, for the other part, the conqueror cannot domineer as king over the innocent, and especially the children not yet born.
Assert. 1. A people may be, by God’s special commandment, subject to a conquering Nebuchadnezzar and a Caesar, as to their king, as was Judah commanded by the prophet Jeremiah to submit unto the yoke of the king of Babylon, and to pray for him, and the people of the Jews were to give to Caesar the things of Caesar; and yet both those were unjust conquerors: for those tyrants had no command of God to oppress and reign over the Lord’s people, yet were they to obey those kings, so the passive subjection was just and commanded of God, and the active, unjust and tyrannous, and forbidden of God.
Assert. 2. This title by conquest, through the people’s after consent, may be turned into a just title, as in the case of the Jews in Caesar’s time, for which cause our Savior commanded to obey Caesar, and to pay tribute unto him, as Dr Ferne confesses, (sec. vii. p. 30). But two things are to be condemned in the Doctor. 1. That God manifests his will to us in this work of providence, whereby he translates kingdoms. 2. That this is an over-awed consent. Now to the former I reply, 1. If the act of conquering be violent and unjust, it is no manifestation of God’s regulating and approving will, and can no more prove a just title to a crown, because it is an act of divine providence, than Pilate and Herod’s crucifying of the Lord of glory, which was an act of divine providence, flowing from the will and decree of divine providence, (Acts 2:23; 4:28,) is a manifestation that it was God’s approving will, that they should kill Jesus Christ. 2. Though the consent be some way over-awed, yet is it a sort of contract and covenant of loyal subjection made to the conqueror, and therefore sufficient to make the title just; otherwise, if the people never give their consent, the conqueror, domineering over them by violence, has no just title to the crown.
Assert. 3. Mere conquest by the sword, without the consent of the people, is no just title to the crown.
Arg. 1. Because the lawful title that God’s word holds forth to us, beside the Lord’s choosing and calling of a man to the crown, is the people’s election, Deut. 17:15, all that had any lawful calling to the crown in God’s word, as Saul, David, Solomon, etc., were called by the people; and the first lawful calling is to us a rule and pattern to all lawful callings.
Arg. 2. A king, as a king, and by virtue of his royal office, is the father of the kingdom, a tutor, a defender, protector, a shield, a leader, a shepherd, a husband, a patron, a watchman, a keeper of the people over which he is king, and so the office essentially includes acts of fatherly affection, care, love and kindness, to those over whom he is set, so as he who is clothed with all these relations of love to the people, cannot exercise those official acts on a people against their will, and by mere violence. Can he be a father, a guide and a patron to us against our will, and by the sole power of the bloody sword? A benefit conferred on any against their will is no benefit. Will he by the awesome dominion of the sword be our father, and we unwilling to be his sons an head over such as will not be members? Will he guide me as a father, a husband, against my will? He cannot come by mere violence to be a patron, a shield, and a defender of me through violence.
Arg. 3. It is not to be thought that that is God’s just title to a crown which has nothing in it of the essence of a king, but a violent and bloody purchase, which is in its prevalency in an oppressing Nimrod, and the cruelest tyrant that is has nothing essential to that which constitutes a king; for it has nothing of heroic and royal wisdom and gifts to govern, and nothing of God’s approving and regulating will, which must be manifested to any who would be a king, but by the contrary, cruelty has rather baseness and witless fury, and a plain reluctancy with God’s revealed will, which forbids murder. God’s law should say, “Murder thou, and prosper and reign;” and by the act of violating the sixth commandment, God should declare his approving will, to wit, his lawful call to a throne.
Arg. 4. There be none under a law of God who may resist a lawful call to a lawful office, but men may resist any impulsion of God stirring them up to murder the most numerous and strongest, and chief men of a kingdom, that they may reign over the fewest, the weakest, and the young, and lowest of the people, against their will; therefore this call by the sword is not lawful. If it be said that the divine impulsion, stirring up a man to make a bloody conquest, that the ire and just indignation of God in justice may be declared on a wicked nation, is an extraordinary impulsion of God, who is above a law, and therefore no man may resist it; then all bloody conquerors must have some extraordinary revelation from heaven to warrant their yielding of obedience to such an extraordinary impulsion. And if it be so, they must show a lawful and immediate extraordinary impulsion now, but, it is certain, the sins of the people conquered, and their most equal and just demerit before God, cannot be a just plea to legitimate the conquest; for though the people of God deserved devastation and captivity by the heathen, in regard of their sins, before the throne of divine justice, yet the heathen grievously sinned in conquering them, Zech. 1:15, “And I am very sore displeased with the heathen that are at ease; for I was but a little displeased, and they helped forward the affliction.” So though Judah deserved to be made captives, and a conquered people, because of their idolatry and other sins, as Jeremiah had prophesied, yet God was highly displeased at Babylon for their unjust and bloody conquest, Jer. 1. 17, 18, 33, 34; 51:35, “the violence done to me and to my flesh be upon Babylon, shall the inhabitants of Zion say; and my blood upon the inhabitants of Chaldea, shall Jerusalem say.” And chat any other extraordinary impulsion to be as lawful a call to the throne as the people’s free election, we know not from God’s word; and we have but the naked word of our adversaries, that William the Conqueror, without the people’s consent, made himself, by blood, the lawful king of England, and also of all their posterity; and that king Fergus conquered Scotland.
Arg. 5. A king is a special gift from God, given to feed and defend the people of God, that they may lead a godly and peaceable life under him, (Psal. 78:71, 72; 1 Tim. 2:2;) as it is a judgment of God that Israel is without a king many days, (Hos. 3:4,) and that there is no judge, no king, to put evil-doers to shame. (Judg. 19:1.) But if a king be given of God as a king, by the acts of a bloody conquest, to be avenged on the sinful land over which he is made a king, he cannot be given, actu primo, as a special gift and blessing of God to feed, but to murder and to destroy; for the genuine end of a conqueror, as a conqueror, is not peace, but fire and sword. If God change his heart, to be of a bloody devastator, a father, prince, and feeder of the people, ex officio, now he is not a violent conqueror, and he came to that meekness by contraries, which is the proper work of the omnipotent God, and not proper to man, who, as he cannot work miracles, so neither can he lawfully work by contraries. And so if conquest be a lawful title to a crown, and as ordinary calling, as the opponents presume, every bloody conqueror must be changed into a loving father, prince and feeder; and if God call him, none should oppose him, but the whole land should dethrone their own native sovereign (whom they are obliged before the Lord to defend) and submit to the bloody invasion of a strange lord, presumed to be a just conqueror, as if he were lawfully called to the throne both by birth and the voices of the people. And truly they deserve no wages who thus defend the king’s prerogative royal; for if the sword be a lawful title to the crown, suppose the two generals of both kingdoms should conquer the most and the chiefest of the kingdom now, when they have so many forces in the field, by this wicked reason the one should have a lawful call of God to be king of England, and the other to be king of Scotland; which is absurd.
Arg. 6. Either conquest, as conquest, is a just title to the crown, or as a just conquest. If as a conquest, then all conquests are just titles to a crown; then the Ammonites, Zidonians, Canaanites, Edomites, etc., subduing God’s people for a time, have just title to reign over them; and if Absalom had been stronger than David, he had then had the just title to be the Lord’s anointed and king of Israel, not David; and so strength actually prevailing should be God’s lawful call to a crown. But strength, as strength victorious, is not law nor reason: it were then reason that Herod behead John Baptist, and the Roman Emperors kill the witnesses of Christ Jesus. If conquest, as just, be the title and lawful claim before God’s court to a crown, then, certainly, a stronger .king, for pregnant national injuries, may lawfully subdue and reign over an innocent posterity not yet born. But what word of God can warrant a posterity not born, and so accessory to no offense against the conqueror, (but only sin original,) to be under a conqueror against their will, and who has no right to reign over them but the bloody sword? For so conquest, as conquest, not as just, makes him king over the posterity, If it be said, The fathers may engage the posterity by an oath to surrender themselves as loyal subjects to the man who justly and deservedly made the fathers vassals by the title of the sword of justice; I answer, The fathers may indeed dispose of the inheritance of their children, because that inheritance belongs to the father as well at to the son; but because the liberty of the son being born with the son, (all men being born free from all civil subjection,) the father has no more power to resign the liberty of his children than their lives; and the father, as a father, has not power of the life of his child; as a magistrate he may have power, and, as something more than a father, he may have power of life and death. I hear not what Grotius says,1 “Those who are not born have no accidents, and so no rights, Non entia nulla sunt accidentia; then children not born have neither right nor liberty.” And so no injury (may some say) can be done to children not born, though the fathers should give away their liberty to the conquerors,
those who are not capable of law are not capable of injury contrary to law.
Ans. There is a virtual alienation of rights and lives of children not born unlawful, because the children are not born. To say that children not born are not capable of law and injuries virtual, which become real in time, might say, Adam did not any injury to his posterity by his first sin, which is contrary to God’s word: so those who vowed yearly to give seven innocent children to the Minotaur to be devoured, and to kill their children not born to bloody Molech, did no acts of bloody injury to their children; nor can any say, then, that fathers cannot tie themselves and their posterity to a king by succession. But I say, to be tied to a lawful king is no making away of liberty, but a resigning of a power to be justly governed, protected and awed from active and passive violence.
Arg. 7. So lawful king may be dethroned, nor lawful kingdom dissolved; but law and reason both says. Quod ui partum est imperium, vi dissolvi potest. Every conquest made by violence may be dissolved by violence: Censetur enim ipsa natura jus dare ad id omne, sine quo obtineri non potest quod ipsa imperat.
Obj. It is objected, that the people of God, by their sword, conquered seven nations of the Canaanites; David conquered the Ammonites for the disgrace done to his ambassadors; so God gave Egypt to Nebuchadnezzar for his hire in his service done against Judah. Had David no right over the Ammonites and Moabites but by expecting their consent? Ye will say, A right to their lands, goods and lives, but not to challenge their moral subjection. Well, we doubt not but such conquerors will challenge and obtain their moral consent. But if the people refuse their consent, is there no way, for providence gives no right? So Dr Ferne,2 so Arnisaeus.3
Ans. A facto ad jus non vales consequentia. God, to whom belongs the world and the fulness thereof, disponed to Abraham and his seed the land of Canaan for their inheritance, and ordained that they should use their bow and their sword, for the actual possession thereof; and the like divine right had David to the Edomites and Ammonites, though the occasion of David’s taking possession of these kingdoms by his sword, did arise from particular and occasional exigencies and injuries; but it follows in no sort that, therefore, kings now wanting any word of promise, and so of divine right to any lands, may ascend to the thrones of other kingdoms than their own, by no other title than the bloody sword. That God’s will was the chief patent here is clear, in that God forbade his people to conquer Edom, or Esau’s possession, when as he gave them command to conquer the Amorites. I doubt not to say, if Joshua and David had no better tide than their bloody sword, though provoked by injuries, they could have had no right to any kingly power over these kingdoms; and if only success by the sword be a right of providence, it is no right of precept. God’s providence, as providence without precept or promise, can conclude a thing is done, or may be done, but cannot conclude a thing is lawfully and warrantably done, else you might say the selling of Joseph, the crucifying of Christ, the spoiling of Job, were lawfully done.
Though conquerors extort consent and oath of loyalty, yet that makes not over a royal right to the conqueror to be king over their posterity without their consent. Though the children of Ammon did a high injury to David, yet no injury can be recompensed in justice with the pressure of the constrained subjection of loyalty to a violent lord. If David had not had an higher warrant from God than an injury done to his messengers, he could not have conquered them. But the Ammonites were the declared enemies of the church of God, and raised forces against David when they themselves were the injurers and offenders. And if David’s conquest will prove a lawful title by the sword to all conquerors, then may all conquerors lawfully do to the conquered people as David did; that is, they may “put them under saws, and under harrows of iron, and under axes of iron, and cause them pass through the brick-kiln.”
But, I beseech you, will royalists say, that conquerors, who make themselves kings by their sword, and so make themselves fathers, heads, defenders, and feeders of the people, may use the most extreme tyranny in the world, such as David used against the children of Ammon, which he could not have done by the naked title of sword-conquest, if God had not laid a commandment of an higher nature on him to serve God’s enemies so? I shall then say, if a conquering king be a lawful king, because a conqueror, then has God made such a lawful king both a father, because a king, and a tyrant, and cruel and lion-hearted oppressor of those whom he has conquered; for God has given him royal power by this example, (2 Sam. 12:30, 31,) to put these, to whom he is a father and defender by office, to torment, and also to be a torturer of them by office, by bringing their backs under such instrument of cruelty as “saws, and harrows of iron, and axes of iron.”
1. Hugo Grotius de jure belli et pacis, lib. 2, c. 4, n. 10.
2. Dr Ferne part 3, sect. 3, p. 20.
3. Arnisaeus de authoritat princip. c. 1, n. 12.