Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No Royal Dignity Have its Spring from Nature, and How That Is True, “Every Man Is Born Free,” and How Servitude Is Contrary to Nature
I conceive it to be evident that royal dignity is not immediately, and without the intervention of the people’s consent, given by God to any one person, and that conquest and violence is no just title to a crown. Now the question is, If royalty flow from nature, if royalty be not a thing merely natural, neither can subjection to royal power be merely natural; but the former is rather civil than natural: and the question of the same nature is, Whether subjection or servitude be natural.
I conceive that there be diverse subjections to these that are above us some way natural, and therefore I rank them in order, thus: —
1. There is a subjection in respect of natural being, as the effect to the cause; so, though Adam had never sinned, this morality of the fifth command should have stood in vigor, that the son by nature, without any positive law, should have been subject to the father, because from him he has his being, as from a second cause. But I doubt if the relation of a father, as a father, does necessarily infer a royal or kingly authority of the father over the son; or by nature’s law, that the father has a power of life and death over, or above, his children, and the reasons I give are,
- (1.) Because power of life and death is by a positive law, presupposing sin and the fall of man; and if Adam, standing in innocency, could lawfully kill his son, though the son should be a malefactor, without any positive law of God, I much doubt.
(2.) I judge that the power royal, and the fatherly power of a father over his children, shall be found to be different; and the one is founded on the law of nature, the other, to wit, royal power, on a mere positive law.
2. The degree or order of subjection natural is a subjection in respect of gifts or age. So Aristotle (1 polit. cap. 3) says, “that some are by nature servants,” His meaning is good, — that some gifts of nature, as wisdom natural, or aptitude to govern, has made some men of gold, fitter to command, and some of iron and clay, fitter to be servants and slaves. But I judge this title to make a king by birth, seeing Saul, whom God by supervenient gifts made a king, seems to owe small thanks to the womb, or nature, that he was a king, for his cruelty to the Lord’s priests speaks nothing but natural baseness. It is possible Plato had a good meaning, (dialog. 3, de legib.) who made six orders here. “(1.) That fathers command their sons; (2.) The noble the ignoble; (3.) The elder the younger; (4.) The masters the servants; (5.) The stronger the weaker; (6.) The wise the ignorant.”
Aquinas (22, q. 57, art. 3), Driedo (de libert. Christ. lib. 1, p. 8), following Aristotle, (polit. lib. 7, c. 14,) hold, though man had never sinned there should have been a sort of dominion of the more gifted and wiser above the less wise and weaker; not antecedent from nature properly, but consequent, for the utility and good of the weaker, in so far as it is good for the weaker to be guided by the stronger, which, cannot be denied to have some ground in nature. But there is no ground for kings by nature here.
1. Because even those who plead that the mother’s womb must be the best title for a crown, and make it equivalent to royal unction, are to be corrected in memory thus, — That it is merely accidental, and not natural, for such a son to be born a king, because the free consent of the people making choice of the first father of that line to be their king, and in him making choice of the firstborn of the family, is merely accidental to father and son, and so cannot be natural.
2. Because royal gifts to reign are not held by either us or our adversaries to be the specific essence of a king; for if the people crown a person their king, say we, — if the womb bring him forth to be a king, say the opponents, — he is essentially a king, and to be obeyed as the Lord’s anointed, though nature be very parce, sparing, and a niggard in bestowing royal gifts; yea, though he be an idiot, say some, if he be the first-born of a king, he is by just title a king, but must have curators and tutors to guide him in the exercise of that royal right that he has from the womb. But Buchanan says well,1 “He who cannot govern himself shall never govern others.”
Assert. 1. — As a man comes into the world a member of a politic society, he is, by consequence, born subject to the laws of that society; but this makes him not, from the womb and by nature, subject to a king, as by nature he is subject to his father who begat him, no more than by nature a lion is born subject to another king-lion; for it is by accident that he is born of parents under subjection to a monarch, or to either democratical or aristocratical governors, for Cain and Abel were born under none of these forms of government properly; and if he had been born in a new planted colony in a wilderness, where no government were yet established, he should be under no such government.
Assert. 2. — Slavery of servants to lords or masters, such as were of old amongst the Jews, is not natural, but against nature. (1.) Because slavery is malum naturae, a penal evil and contrary to nature, and a punishment of sin. (2.) Slavery should not have been in the world, if man had never sinned, no more than there could have been buying and selling of men, which is a miserable consequent of sin and a sort of death, when men are put to the toiling pains of the hireling, who longs for the shadow, and under iron harrows and saws, and to hew wood, and draw water continually. (3.) The original of servitude was, when men were taken in war, to eschew a greater evil, even death, the captives were willing to undergo a less evil, slavery, (S. Servitus, 1 de jure. Pers.) (4.) A man being created according to God’s image, he is res sacra, a sacred thing, and can no more, by nature’s law, be sold and bought, than a religious and sacred thing dedicated to God. S. 1. Instit. de inutil. scrupl. l. inter Stipulantem. S. Sacram. F. de verber. Obligat.
Assert. 3. — Every man by nature is a freeman born, that is, by nature no man comes out of the womb under any civil subjection to king, prince, or judge, to master, captain, conqueror, teacher, etc.
Arg. 1. — Because freedom is natural to all, except freedom from subjection to parents; and subjection politic is merely accidental, coming from some positive laws of men, as they are in a politic society; whereas they might have been born with all concomitants of nature, though born in a single family, the only natural and first society in the world.
Arg. 2. — Man is born by nature free from all subjection, except of that which is most kindly and natural, and that is fatherly or filial subjection, or matrimonial subjection of the wife to the husband; and especially he is free of subjection to a prince by nature; because to be under jurisdiction to a judge or king, has a sort of jurisdiction, (argument, L. Si quis sit fugitivus. F. de edil. edict. in S. penult. vel fin.) especially to be under penal laws now in the state of sin. The learned senator Ferdinandus Vasquez says, (lib. 2. c. 82. n. 15,) Every subject is to lay down his life for the prince. Now no man is born under subjection to penal laws or dying for his prince.
Arg. 3. — Man by nature is born free, and as free as beasts; but by nature no beast, no lion is born king of lions; no horse, no bullock, no eagle, king of horses, bullocks, or eagles. Nor is there any subjection here, except that the young lion is subject to the old, every foal to its dam; and by that same law of nature, no man is born king of men, nor any man subject to man in a civil subjection by nature, (I speak not of natural subjection of children to parents,) and therefore Ferdi. Vasquez (illustr. quest. lib. 2, c. 82, n 6,) said, that kingdoms and empires were brought in, not by nature’s law, but by the law of nations. He expounds himself elsewhere to speak of the law of nature secondary, otherwise the primary law of nations is indeed the law of nature, as appropriated to man. If any reply. That the freedom natural of beasts and birds, who never sinned, cannot be one with the natural freedom of man who is now under sin. and so under bondage for sin, my answer is, That the subjection of the misery of man by nature, because of sin, is more than the subjection of beasts, comparing species and kinds of beasts and birds with mankind, but comparing individuals of the same kind amongst themselves; as lion with lion, eagle with eagle, and so man with man; in which respect, because he who is supposed to be the man born free from subjection politic, even the king born a king, is under the same state of sin. and so by reason of sin, of which he has a share equally with all other men by nature, he must be, by nature, born under as great subjection penal for sin (except the king be born void of sin) as other men, therefore he is not born freer by nature than other men. except he come out of the womb with a king’s crown on his head.
Arg. 4. — To be a king is a free gift of God, which God bestows on some men above others, as is evident, (2 Sam. 12:7, 8; Psal. 75:6; Dan. 4:32;) and therefore all must be born kings, it any one man be by nature a king born, and another a born subject. But if some be by God’s grace made kings above others, they are not so by nature; for things which agree to man by nature, agree to all men equally but all men equally are not born kings, as is evident: and all men are not equally born by nature under politic subjection to kings, as the adversaries grant, because those who are by nature kings, cannot be also by nature subjects.
Arg. 5. — If men be not by nature free from politic subjection, then must some, by the law of relation, by nature be kings. But none are by nature kings, because none have by nature these things which essentially constitute kings, for they have neither by nature the calling of God, nor gifts for the throne; nor the free election of the people, nor conquest; and if there be none a king by nature, there can be none a subject by nature. And the law says, Omnes sumus natura liberi, nullius ditioni subjecti, lib. Manumiss. F. de just. et jur. S. jus antem gentium, Jus. de jur. nat. We are by nature free, and D. L. ex hoc jure cum simil.
Arg. 6. — Politicians agree to this as an undeniable truth, that as domestic society is natural, being grounded upon nature’s instinct, so politic society is voluntary, being grounded on the consent of men; and so politic society is natural, in radice, in the root, and voluntary and free, in modo, in the manner of their union; and the Scripture clears to us, that a king is made by the free consent of the people, (Deut 17:15,) and so not by nature.
Arg. 7. — What is from the womb, and so natural, is eternal, and agrees to all societies of men; but a monarchy agrees not to all societies of men; for many hundred years; de facto, there was not a king till Nimrod’s time, the world being governed by families, and till Moses’ time we find no institution for kings, (Gen. 7) and the numerous multiplication of mankind did occasion monarchies, otherwise, fatherly government being the first and measure of the rest, must be the best; for it is better that my father govern me, than that a stranger govern me, and, therefore, the Lord forbade his people to set a stranger over themselves to be their king. The P. Prelate contends for the contrary, (c. 12, p. 125,) “Every man (says he) is born subject to his father, of whom immediately he has his existence in nature; and if his father be the subject of another, he is born the subject of his father’s superior.” —
Ans. But the consequence is weak. Every man is born under natural subjection to his father, therefore he is born naturally tinder civil subjection to his father’s superior or king, It follows not. Yea, because his father was born only by nature subject to his own father, therefore he was subject to a prince or king only by accident, and by the free constitution of men, who freely choose politic government, whereas there is no government natural, but fatherly or marital, and therefore the contradictory consequence is true.
P. Prelate. — Every man by nature has immunity and liberty from despotical and hierarchial empire, and so may dispose of his own at will, and cannot enslave himself without his own free will; but God has laid a necessity: on all men to be under government, and nature also laid this necessity on him, therefore this sovereignty cannot protect us in righteousness and honesty, except it be entirely endowed with sovereign power to preserve itself, and protect us.
Ans. — 1. The Prelate here deserts his own consequence, which is strong against himself, for if a man be naturally subject to his father’s superior, as he said before, why is not the son of a slave naturally subject to his father’s superior and master? 2. As a man may not make away his liberty without his own consent, so can he not, without his own consent, give his liberty to be subject to penal laws under a prince, without his own consent, either in his father’s or in the representative society in which he lives. 3. God and nature has laid a necessity on all men to be under government, a natural necessity from the womb to be under some government, to wit, a paternal government, that is true; but under this government politic, and namely under sovereignty, it is false; and that is but said: for why is he naturally under sovereignty rather than aristocracy? I believe any of the three forms are freely chosen by any society. 4. It is false that one cannot defend the people, except he have entire power, that is to say, he cannot do good except he have a vast power to do both good and ill.
P. Prelate. — It is accidental to any to render himself a slave, being occasioned by force or extreme indigence, but to submit to government congruous to the condition of man, and is necessary for his happy being, and natural, and necessary, by the inviolable ordinance of God and nature.
Ans. (1.) — If the father be a slave, it is natural and not accidental, by the Prelate’s logic, to be a slave. (2.) It is also accidental to be under sovereignty, and sure not natural; for then aristocracy and democracy must be unnatural, and so unlawful governments. (3.) If to be congruous to the condition of man be all one with natural man, (which he must say if he speak sense) to believe in God, to be an excellent mathematician, to swim in deep waters, being congruous to the nature of man, must be natural. (4.) Man by nature is under government paternal, not politic properly, but by the free consent of his will.
P. Prelate (p. 126). — Luke 11:5, Christ himself was u9potasso/menoj subject to his parents, (the word which is used, Rom. 13) therefore none are exempted from subjection to lawful government.
Ans. — We never said that any were exempted from lawful government. The Prelate and his fellow Jesuits teach that the clergy are exempted from the laws of the civil magistrate, not we, but because Christ was subject to his parents, and the same word is used, Luke 11, which is in Rom. 13, it will not follow, therefore, men are by nature subject to kings, because they are by nature subject to parents.
P. Prelate. — The father had power over the children, by the law of God and nature, to redeem himself from debt, or any distressed condition, by enslaving his children begotten of his own body; if this power was not by the right of nature and by the warrant of God, I can see no other, for it could not be by mutual and voluntary contract of children and fathers.
Ans. — (1.) Show a law of nature, that the father might enslave his children; by a divine positive law. presupposing sin, the father might do that, and yet I think that may be questioned, whether it was not a permission rather than a law, as was the bill of divorce, but a law of nature it was not. (2.) The P. Prelate can see no law but the law of nature here; but it is because he is blind or will not see. His reason is, It was not by mutual and voluntary contract of children and fathers, therefore it was by the law of nature; so he that cursed his father was to die by God’s law. This law was not made by mutual consent between the father and the son, therefore it was a law of nature: the Prelate will see no better. Nature will teach a man to enslave himself to redeem himself from death, but that it is a dictate of nature that a man should enslave his son, I conceive not. (3.) What can this prove, but that it the son may, by the law of nature, be enslaved for the father, but that the son of a slave is by nature under subjection to slavery, and that by nature’s law, the contrary whereof he spake in the page preceding, and in this same page.
As for the argument of the Prelate to answer Suarez, who labors to prove monarchy not to be natural, but of free consent, because it is various in sundry nations, it is the Jesuits’ argument, not ours. I own it not. Let Jesuits plead for Jesuits.
1. Buchan. de jure Regni apud Scotos.