Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No the People Make a Person Their King Conditionally, or Absolutely; and Whether There Be Such a Thing as a Covenant Tying the King No less than His Subjects
There is a covenant natural, and a covenant politic and civil. There is no politic or civil covenant between the king and his subjects, because there be no such equality (say royalists) between the king and his people, as that the king can be brought under any civil or legal obligation in man’s court, to either necessitate the king civilly to keep an oath to his people, or to tie him to any punishment, if he fail, yet (say they) he is under natural obligation in God’s court to keep his oath, but he is accountable only to God if he violate his oath.
Assert. 1 There is an oath between the king and his people, laying on, by reciprocation of bands, mutual civil obligation upon the king to the people, and the people to the king; 2 Sam. 5:3, “So all the elders of Israel came to the king to Hebron, and king David made a covenant with them in Hebron before the Lord, and they anointed David king over Israel.” 1 Chron. 11:3, “And David made a covenant with them before the Lord, and they anointed David king over Israel, according to the word of the Lord by Samuel.” 2 Chron. 23:2, 3, “And they went about in Judah, and gathered the Levites out of all the cities of Judah, and the chief of the fathers of Israel, and they came to Jerusalem. And all the congregation made a covenant with the king in the house of God.” 2 Kings 11:17, “Jehoiada made a covenant between the Lord and the king; and the people, that they should be the Lord’s people; between the king also and the people.” Eccl. 8:2, “I counsel thee to keep the king’s commandment, and that in regard of the oath of God.” Then it is evident there was a covenant between the king and the people. That was not a covenant that did tie the king; to God only, and not to the people,
- 1. Because the covenant between the king and the people is clearly differenced from the king’s covenant with the Lord, 2 Kings 11:17.
2. There was no necessity that this covenant should be made publicly before the people, if the king did not in the covenant tie and oblige himself to the people; nor needed it be made solemnly before the Lord in the house of God.
3. It is expressly a covenant that was between Joash the king and his people; and David made a covenant at his coronation with the princes and elders of Israel, therefore the people gave the crown to David covenant-wise, and upon condition that he should perform such and such duties to them.
And this is clear by all covenants in the word of God: even the covenant between God and man is in like manner mutual, “I will be your God, and ye shall be my people.” The covenant is so mutual, that if the people break the covenant, God is loosed from his part of the covenant, Zech. 11:10. The covenant gives to the believer a sort of action of law, and jus quoddam, to plead with God in respect of his fidelity to stand to that covenant that binds him by reason of his fidelity Isa. 43:26; 63:16; Dan. 9:4-5; and far more a covenant gives ground of a civil action and claim to a people and the free estates against a king, seduced by wicked counsel to make war against the land, whereas he did swear by the most high God, that he should be a father and protector of the church of God.
Assert. 2. All covenants and contracts between man and man, yea, all solemn promises, bring the covenanters under a law and a claim before men, if the oath of God be broken, as the covenant between Abraham and Abimelech, (Gen. 21:27,) Jonathan and David. (1 Sam. 18:3.) The spies profess to Rahab in the covenant that they made with her, (Josh. 2:20,) “And if thou utter this our business, we will be quit of thine oath which thou hast made us to swear.” There be no mutual contract made upon certain conditions, but if the conditions be not fulfilled, the party injured is loosed from the contract. Barclay says, “That this covenant obliges the king to God, but not the king to the people.”
Ans. It is a vain thing to say that the people and the king make a covenant, and that David made a covenant with the elders and princes of Israel; for if he be obliged to God only, and not to the people, by a covenant made with the people, it is not made with the people at all, nay, it is no more made with the people of Israel than with the Chaldeans, for it binds David no more to Israel than to Chaldea, as a covenant made with men. Arnisaeus says,1 “When two parties contract, if one perform the duty, the other is acquitted.” Sect. Oex hujus mod ubi vult just. de duob. reis, lib.
3. Dr Ferne says, “Because every one of them are obliged fully (Sect. 1) Just. eod. to God, to whom tho oath is made (for that .is his meaning), and if either the people perform what is sworn to the Lord or the king, yet one of the parties remains still under obligation; and neither does the people’s obedience exempt the king from punishment, if he fail, nor the king’s obedience exempt the people, if they fail, but every one bears the punishment of his own sin; and there is no mutual power in the parties to compel one another to perform the promised duty, because that belongs to the pretor or magistrate, before whom the contract is made. The king has jurisdiction over the people, if they violate their oath; but the people has no power over the prince; and the ground that Arnisaeus lays down is this,
- 1. The king is not a party contracting with the people, as if there were mutual obligations between the king and the people, and a mutual co-active power on either side.
2. That the care of religion belongs not to the people, for that has no warrant in the Word (says he).
3. We read not that the people was to command and compel the priests and the king to reform religion and abolish idolatry, as it most follow, if the covenant be mutual.
4. Jehoiada (2 Kings 11) obliges himself, and the king, and the people, by a like law, to serve God; and here be not two parties but three the high priest, the king, and the people, if this example prove any thing.
5. Both king and people shall find the revenging hand of God against them, if they fail in the breach of their oath; every one, king and people, by the oath stand obliged to God, the king for himself, and the people for themselves, but with this difference, the king owes to God proper and due obedience as any of the subjects, and also to govern the people according to God’s true religion, (Deut. 17; 2 Chron. 29;) and in this the king’s obligation differs from the people’s obligation; the people, as they would be saved, must serve God and the king, for the same cause. (1 Sam. 12.) But, besides this, the king is obliged to rule and govern the people, and keep them in obedience to God; but the people is not obliged to govern the king, and keep him in obedience to God, for then the people should have as great power and jurisdiction over the king, as the king has over the people, which is against the word of God, and the examples of the kings of Judah; but this comes not from any promise or covenant that the king has made with the people, but from a peculiar obligation whereby he is obliged to God as a man, not as a king:
Arg. 1. This is the mystery of the business which I oppose in these assertions.
Assert. 1. As the king is obliged to God for the maintenance of true religion, so are the people and princes no less in their place obliged to maintain true religion; for the people are rebuked, because they burn incense in all high places, 2 Kings 17:11; 2 Chron. 33:17; Hos. 4:13. And the reason why the high places are not taken away, is given in 2 Chron. 20:33, for as yet the people “had not prepared their heart unto the God of their fathers;” but you will reply, elicit acts of maintenance of true religion are commanded to the people, and that the places prove; but the question is de actibus imperatis, of commanded acts of religion, sure none but the magistrate is to command others to worship God according to his word. I answer, in ordinary only, magistrates (not the king only but all the princes of the land) and judges are to maintain religion by their commandments, (Deut. 1:16; 2 Chron. 1:2; Deut. 16:19; Eccles. 5:8; Hab. 1:4; Mic. 3:9; Zech. 7:9; Hos. 5:10, 11,) and to take care of religion; but when the judges decline from God’s way and corrupt the law, we find the people punished and rebuked for it: Jer. 15:4, “And I will cause them to be removed to all kingdoms of the earth, because of Manasseh, the son of Hezekiah king of Judah, for that which he did in Jerusalem;” 1 Sam. 12:24, 25, “Only fear the Lord; but if ye shall still do wickedly, ye shall be consumed, both ye and your king.”
And this case, I rant, is extraordinary; yet so, as Junius Brutus proves well and strongly, that religion is not given only to the king, that he only should keep it, but to all the inferior judges and people also in their kind; but because the estates never gave the king power to corrupt religion, and press a false and idolatrous worship upon them, therefore when the king defends not true religion, but presses upon the people a false and idolatrous religion, in that they are not under the king, but are presumed to have no king, eatenus, so far, and are presumed to have the power in themselves, as if they had not appointed any king at all; as if we presume the body had given to the right hand a power to ward off strokes and to defend the body; if the right hand should by a palsy, or some other disease, become impotent, and be withered up, when ill is coming on the body, it is presumed that the power of defense is recurred to the left hand, and to the rest of the body to defend itself in this case as if the body had no right hand, and had never communicated any power to the right hand. So if an incorporation accused or treason, and in danger of the sentence, of death, shall appoint a lawyer to advocate their cause, and to give in their just defenses to the judge, if their advocate be stricken with dumbness, because they have lost their legal and representative tongue, none can say that this incorporation has lost the tongues that nature has given them, so as by nature’s law they may not plead in their own just and lawful defense, as if they had never appointed the foresaid lawyer to plead for them.
The king, as a man, is not more obliged to the public and regal defense of the true religion than any other man of the land; but he is made by God and the people king, for the church and people of God’s sake, that he may defend true religion for the behalf and salvation of all. If therefore he defend not religion for the salvation of the souls of all in his public and royal way, it is presumed as undeniable that the people of God, who by the law of nature are to care for their own souls, are to defend in their way true religion, which so nearly concerns them and their eternal happiness.
Assert. 2. When the covenant is between God, on the one part, and the king, priests and people, on the other; it is true, if the one perform for his part to God the whole duty, the other is acquitted: as if two men be indebted to one man ten thousand pounds, if the one pay the whole sum the other is acquitted. But the king and people are not so contracting parties in covenant with God as that they are both indebted to God for one and the same sum of complete obedience, so as if the king pay the whole sum of obedience to God, the people are acquitted; and if the people pay the whole sum, the king is acquitted: for every one stands obliged to God for himself; for the people must do all that is their part in acquitting the king from his royal duty, that they may free him and themselves both from punishment, if he disobey the King of kings; nor does the king’s obedience acquit the people from their duty.
Arnisaeus dreamed if he believed that we make king and people this way party-contractors in covenant with God. Nor can two copartners in covenant with God so mutually compel one another to do their duty; for we hold that the covenant is made between the king and the people, between mortal men; but they both bind themselves before God to each other. But says Arnisaeus, “It belongs to a pretor or ruler, who is above both king and people, to compel each of them, the king to perform his part of the covenant to the people, and the people to perform their part of the covenant to the king. Now there is no ruler but God, above both king and people.” But let me answer. The consequence is not needful, no more than when the king of Judah and the king of Israel make a covenant to perform mutual duties one to another, no more than it is necessary that there should be a king and superior ruler above the king of Israel and the king of Judah, who should compel each one to do a duty to his fellow-king; for the king and people are each of them above and below others in diverse respects: the people, because they create the man king, they are so above the king, and have a virtual power to compel him to do his duty; and the king, as king, has an authoritative power above the people, because royalty is formally in him, and originally and virtually only in the people, therefore may he compel them to their duty, as we shall hear anon; and therefore there is no need of an earthly ruler higher than both, to compel both.
Assert. 3. We shall hereafter prove the power of the people above the king, God willing; and so it is false that there is not mutual coactive power on each side.
Assert. 4. The obligation of the king in this covenant flows from the peculiar national obligation between the king and the estates, and it binds, the king as king, and not simply as he is a man.
- 1st. Because it is a covenant between the people and David, not as he is the son of Jesse, for then it should oblige Eliab, or any other of David’s brethren; yea, it should oblige any man if it oblige David as a man; but it obliges David as a king, or as he is to be their king, because it is the specific act of a king that he is obliged onto, to wit, to govern the people in righteousness and religion with his royal power. And so it is false that Arnisaeus says, that “the king, as a man, is obliged to God by this covenant, not as a king.”
- 2nd. He says, by covenant the king is bound to God as a man, not as a king. But so the man will have the king, as king, under no law of God; and so he must either be above God, as king, or co-equal with God; which are manifest blasphemies. For I thought ever the royalists had not denied that the king, as king, had been obliged to keep his oath to his subjects, in relation to God, and in regard of natural obligation, so as, he sins before God if he break his covenant with his people, though they deny that he is obliged to keep his covenant in relation to his subjects, and in regard of politic or civil obligation to men. Sure I am this the royalists constantly teach.
- 3rd. He would have this covenant so made with men as it obliges not the king to men, but to God. But the contrary is true. Besides the king and the people’s covenant with the Lord, king Joash made another covenant with the people, and Jehoiada the priest was only a witness, or one who, in God’s name, performed the rite of anointing; otherwise he was a subject on the people’s side, obliged to keep allegiance to Joash, as to his sovereign and master. But, certainly, whoever makes a covenant with the people, promising to govern them according to God’s word, and upon that condition and these terms receives a throne and crown from the people, he is obliged to what he promises to the people, Omnis promittens, facit alteri, cui promissio facta est, jus in promittentem. Whoever makes a promise to another, gives to that other a sort of right or jurisdiction to challenge the promise. The covenant between David and Israel were a shadow, if it tie the people to allegiance to David as their king, and if it tie not David as king to govern them in righteousness; but leave David loose to the people, and only tie him to God, then it is a covenant between David and God only: but the text says, it is a covenant between the king and the people, 2 Kings 11:17; 2 Sam. 5:3.
Arg. 2. Hence our second argument. He who is made a minister of God, not simply, but for the good of the subject, and so he take heed to God’s law as a king, and govern according to God’s will, he is in so far only made king by God as he fulfills the condition; and in so far as he is a minister for evil to the subject, and rules not according to that which the book of the law commands him as king, in so far he is not by God appointed king and ruler, and so must be made a king by God conditionally: but so has God made kings and rulers, Rom. 13:4; 2 Chron. 6:16; Psal. 89:30-31; 2 Sam. 7:12; 1 Chron. 28:7 9. This argument is not brought to prove that Jeroboam or Saul leave off to be kings when they fail in some part of the condition; or as if they were not God’s vicegerents, to be obeyed in things lawful, after they have gone on in wicked courses; for the people consenting to make Saul king, they give him the crown, pro hac vice, at his entry absolutely. There is no condition required in him before they make him king, but only that he covenant with them to rule according to God’s law. The conditions to be performed are consequent, and posterior to his actual coronation and his sitting on the throne.
But the argument presupposes that which the Lord’s word teaches, to wit, that the Lord and the people gives a crown by one and the same action; for God formally makes David a king by the princes and elders of Israel choosing of him to be their king at Hebron; and, therefore, seeing the people makes him a king covenantwise and conditionally, so he rule according to God’s law, and the people resigning their power to him for their safety, and for a peaceable and godly life under him, and not to destroy them, and tyrannise over them. It. is certain God gives a king that same way by that very same act of the people; and if the king tyrannise, I cannot say it is beside the intention of God making a king, nor yet beside his intention as a just punisher of their transgressions; for to me, as I conceive, nothing either good or evil falls out beside the intention of Him who “doerh all things according to the pleasure of his will.” If, then, the people make a king, as a king, conditionally, for their safety, and not for their destruction, (for as a king he saves, as a man he destroys, and not as a king and father,) and if God, by the people’s free election, make a king. God makes him a king conditionally, and so by covenant; and, therefore, when God promises (2 Sam. 7:12; 1 Chron. 28:7-9) to David’s seed, and to Solomon, a throne, he promises not a throne to them immediately, as he raised up prophets and apostles without any mediate action and consent of the people, but he promises a throne to them by the mediate consent, election, and covenant of the people; which condition and covenant he expresses in the very words of the people’s covenant with the king; “So they walk as kings in the law of the Lord, and take heed to God’s commandment and statutes to do them.”
Obj. 1. But then Solomon, falling in love with many outlandish women, and so not walking according to God’s law, loses all royal dignity and kingly power, and the people is not to acknowledge him as king, since the kingly power was conferred upon him rather than Adonijah, upon such a condition, which condition not being performed by him, it is presumed that neither God, nor the people under God, as God’s instruments in making king, conferred any royal power on him.
Ans. It does not follow that Solomon, falling in love with strange women, does lose royal dignity, either in the court of heaven or before men; because the conditions of the covenant upon which God, by the people, made him king must be exponed by the law, Deut. 17. Now that cannot bear that any one act, contrary to the royal office; yea, that any one or two acts of tyranny does denude a man of the royal dignity that God and the people gave him; for so David, committing two acts of tyranny: one of taking his own faithful subject’s wife from, and another in killing himself, should denude himself of all the kingly power that he had; and that, therefore, the people, after his adultery and murder, were not to acknowledge David as their king, which is most absurd; for as one single act of unchastity is indeed against the matrimonial covenant, and yet does not make the woman no wife at all, so it must be such a breach of the royal covenant as makes the king no king, that annuls the royal covenant, and denudes the prince of his royal authority and power, that must be interpreted a breach of the oath of God, because it must be such a breach upon supposition whereof the people would not have given the crown, but upon supposition of his destructiveness to the commonwealth, they would never have given to him the crown.
Obj. 2. Yet at least it will follow that Saul, after he is rejected of God for disobedience in not destroying the Amalekites, as Samuel speaks to him, (1 Sam. 15) is no longer to be acknowledged king by the people, at least after he commits such acts of tyranny, as are 1 Sam. 18:12-15, etc.; and after he had killed the priests of the Lord and persecuted innocent David, without cause, he was no longer, either in the court of heaven or the court of men, to be acknowledged as king, seeing he had manifestly violated the royal covenant made with the people; (1 Sam. 11:14, 15,) and yet, after those breaches, David acknowledges him to be his prince and the Lord’s anointed.
Ans. 1. The prophet Samuel’s threatening, (1 Sam. 17) is not exponed of actual unkinging and rejecting of Saul at the present; for after that, Samuel both honored him as king before the people and prayed for him, and mourned to God on his behalf as king, (1 Sam. 16:1, 2,) but the threatening was to have effect in God’s time, when he should bring David to the throne, as was prophesied, upon occasion of less sin, even his sacrificing and not waiting the tune appointed, as God had commanded, 1 Sam. 13:13, 14.
2. The people and David’s acknowledgment of Saul to be the Lord’s anointed and a king, after he had committed such acts of tyranny as seem destructive of the royal covenant, and inconsistent therewith, cannot prove that Saul was not made king by the Lord and the people conditionally, and that for the people’s good and safety, and not for their destruction; and it does well prove,
- (1.) That those acts of blood and tyranny committed by Saul, were not done by him as king, or from the principle of royal power given to him by God and the people.
(2.) That in these acts they were not to acknowledge him as king.
(3.) That these acts of blood were contrary to the covenant that Saul did swear at his inaugeration, and contrary to the conditions that Saul, in the covenant, took on him to perform at the making, of the royal covenant.
(4.) They prove not but the states who made Saul king might lawfully dethrone him, and anoint David their king. But David had reason to hold him for his prince and the Lord’s anointed, so long as the people recalled not their grant of royal dignity, as David, or any man, is obliged to honor him as king whom the people makes king, though he were a bloodier and more tyrannous man than Saul. Any tyrant stands in titulo, so long as the people and estates who made him king have not recalled their grant; so as neither David, nor any single man, though six hundred with him, may unking him or detract obedience from him as king; so many acts of disloyalty and breaches of laws in the subjects, though they be contrary to this covenant that the states make with their prince, does not make them to be no subjects and the covenant mutual stands thus.
Arg. 3. 1. If the people, as God’s instruments, bestow the benefit of a crown on their king, upon condition that he will rule them according to God’s word, then is the king made king by the people conditionally; but the former is true, therefore so is the latter. The assumption is proved thus: Because to be a king, is to be an adopted father, tutor, a politic servant and royal watchman of the state; and the royal honor and royal maintenance given to him, is a reward of his labors and a kingly hire. And this is the apostle’s argument, Rom. 13:6, “For this cause pay you tribute also, for they are God’s ministers, attending continually upon this very thing.” There is the work. Qui non implet conditionem a se promissam, cadit beneficio. It is confirmed thus: The people either makes the man their prince conditionally;
- (1.) that he rule according to law or absolutely;
(2.) so that he rule according to will or lust; or,
(3.) without any vocal transactions at all, but only brevi manu, say, “Reign thou over us, and, God save the king; and so there be no conditions spoken on either side; or,
(4.) the king is obliged to God for the condition which he promises by oath to perform toward the people; but he is to make no reckoning to the people, whether he perform his promise or no; for the people being inferior to him, and he, solo Deo minor, only next and immediate to God, the people can have no jus, no law over him by virtue of any covenant.
But the first standing, we have what we seek; the second is contrary to Scripture. He is not (Deut. 17:15, 16) made absolutely a a king to rule according to his will and lust; for “reign thou over us,” should have this meaning “Come thou and play the tyrant over us, and let thy lust and will be a law to us,” which is against natural sense; nor can the sense and meaning be according to the third. That the people, without any express, vocal, and positive covenant, give a throne to their king to rule as he pleases; because it is a vain thing for the Prelate and other Mancipia Aulae, court-bellies, to say Scotland and England must produce a written authentic covenant between the first king and their people, because, say they, it is the law’s word, Do non apparentibus et non existentibus eadem lex, that covenant which appears not, it is not; for in positive covenants that is true, and in such contracts as are made according to the civil or municipal laws, or the secondary law of nature. But the general covenant of nature is presupposed in making a king, where there is no vocal or written covenant.
If there be no conditions between a Christian king and his people, then those things which are just and right according to the law of God, and the rule of God in molding the first king, are understood to rule both king and people, as if they had been written; and here we produce our written covenant, Deut. 17:15; Josh. 1:8, 9; 2 Chron. 31:32. Because this is as much against the king as the people, and more; for if the first king cannot bring forth his written and authentic tables to prove that the crown was given to him and his heirs, and his successors, absolutely and without any conditions, so as his will shall be a law, cadit causa, he loses his cause (say they). The king is in possession of the royal power absolutely, without any condition, and you must put him from his possession by a law. I answer, This is most false.
- (1.) Though he were in mala fide, and in unjust possession, the law of nature will warrant the people to repeal their right and plead for it, in a matter which concerns their heads, Eves, and souls.
(2.) The parliaments of both kingdoms standing in possession of a nomothetic power to make Laws, proves clearly that the king; is in no possession of any royal dignity conferred absolutely, and without any condition, upon him; and, therefore, it is the king’s part by law to put the estates out of possession; and though there were no written covenant, the standing law and practice of many hundred acts of parliament, is equivalent to a written covenant.
2. When the people appointed any to be their king, the voice of nature expones their deed, though there be no vocal or written covenant; for that fact of making a king is a moral lawful act warranted by the word of God (Deut. 17:15, 16; Rom. 13:1, 2) and the law of nature; and, therefore, they having made such a man their king, they have given him power to be their father, feeder, healer, and protector; and so must only have made him king conditionally, so he be a father, a feeder, and tutor. Now, if this deed of making a king must be exponed to be an investing with an absolute, and not a conditional power, this fact shall be contrary to Scripture and to the law of nature; for if they have given him royal power absolutely, and without any condition, they must have given to him power to be a father, protector, tutor, and to be a tyrant, a murderer, a bloody lion, to waste and destroy the people of God.
3. The law permits the bestower of a benefit to interpret his own mind in the bestowing of a benefit, even as a king and state must expone their own commission given to their ambassador, so must the estates expone whether they bestowed the crown upon the first king conditionally or absolutely.
4. If it stand, then must the people give to their first elected king a power to waste and destroy themselves, so as they may never control it, but only leave it to God and the king to reckon together, but so the condition is a chimera. “We give you a throne, upon condition you swear by Him who made heaven and earth, that you will govern us according to God’s law; and you shall be answerable to God only, not to us, whether you keep the covenant you make with us, or violate it.” But how a covenant can be made with the people, and the king obliged to God, not to the people, I conceive not. This presupposes that the king, as king, cannot do any sin, or commit any act of tyranny against the people, but against God only; because if he be obliged to God only as a king, by virtue of his covenant, how can he fail against an obligation where there is no obligation? But, as a king, he owes no obligation of duty to the people: and indeed so do our good men expound Psal.51, “Against thee, thee only have I sinned,” not against Uriah; for if he sinned not as king against Uriah, whose life he was obliged to preserve as a king, he was not obliged as a king by any royal duty to preserve his life. Where there is no sin, there is no obligation not to sin; and where there is no obligation not to sin, there is no sin. By this the king, as king, is loosed from all duties of the second table, being once made a king, he is above all obligation to love his neighbor as himself; for he is above all his neighbors, and above all mankind, and only less than God.
Arg. 4. If the people be so given to the king, that they are committed to him as a pledge, oppignerated in his hand as a pupil to a tutor, as a distressed man to a patron, as a flock to a shepherd; and so they remain the Lord’s church, his people, his flock, his portion, his inheritance, his vineyard, his redeemed ones, then they cannot be given to the king as oxen and sheep, that are freely gifted to a man; or as a gift or sum of gold or silver that the man to whom they are given may use, so that he cannot commit a fault against the oxen, sheep, gold, or money that is given to him, however he shall dispose of them. But the people are given to the king to be tutored and protected of him, so as they remain the people of God, and in covenant with him; and if the people were the goods of fortune (as heathens say), he could no more sin against the people than a man can sin against his gold; now, though a man by adoring gold, or by lavish profusion and wasting of gold, may sin against God, yet not against gold; nor can he be in any covenant with gold, or under any obligation of either duty or sin to gold, or to lifeless and reasonless creatures properly, therefore he may sin in the use of them, and yet not sin against them, but against God. Hence, of necessity, the king must be under obligation to the Lord’s people in another manner than that he should only answer to God for the loss of men, as if men were worldly goods under his hand, and as if being a king he were now by this royal authority privileged from the best half of the law of nature, to wit, from acts of merry and truth, and covenant-keeping with his brethren.
Arg. 5. If a king, because a king, were privileged from all covenant obligation to his subjects, then could no law of men lawfully reach him for any contract violated by him; then he could not be a debtor to his subjects if he borrowed money from them; and it were utterly unlawful either to crave him money, or to sue him at law for debts; yet our civil laws of Scotland ties the king to pay his debts, as any other man: yea, and king Solomon trafficing, and buying, and selling between him and his own subjects, would seem unlawful; for how can a king buy and sell with his subjects, if he be under no covenant obligation to men, but to God only. Yes, then, a king could not marry a wife, for he could not come under a covenant to keep his body to her only, nor if he committed adultery, could he sin against his wife, because being immediate onto God, and above all obligation to men, he could sin against no covenant made with men, but only against God.
Arg. 6. If that was a lawful covenant made by Asa, and the states of Judah, 2 Chron. 15, 13, “That whosoever would not seek the Lord God of their fathers, should be put to death, whether small or great, whether man or woman,” this obliges the king, for ought I see, and the princes, and the people, but it was a lawful covenant; therefore the king is under a covenant to the princes and judges, as they are to him; it is replied by Barclaius: “If a master of a school should make a law, Whosoever shall go out at the school doors without liberty obtained of the master, shall be whipped, it will not oblige the schoolmaster that he shall be whipped if he go cut at the school doors without liberty; so neither does this law oblige the king, the supreme lawgiver.”
Ans. 1. Suppose that the scholars have no less hand and authority magisterial in making the law than the schoolmaster, as the princes of Judah had a collateral power with king Asa about that law, it would follow, that the schoolmaster is under the same law. 2. Suppose going out at school doors, were that way a moral neglect of studying in the master, as it is in the scholars, as the not seeking of God is as heinous a sin in king Asa, and no less deserving death, than it is in the people, then should the law oblige schoolmaster and scholar both without exception. 3. The schoolmaster is clearly above all laws of discipline which he imposes on his scholars; but none can say that king Asa was clearly above that law of seeking of the Lord God of his fathers. Diodorus Siculus (l. 17), says, the kings of Persia were under an oath, and that they might not change the laws; and so were the kings of Egypt and Ethiopia. The kings of Sparta, which Aristotle calls just kings, renew their oath every month. Romulus so covenanted with the senate and people. Carolus V. Austriacus swears he shall not change the laws without the consent of the electors, nor make new laws, nor dispose or pledge any thing that belongs to the empire. So read we Spec. Saxon, lib. 3, act. 54, and Xenophon (Cyroped. lib. 3,) says there was a covenant between Cyrus and the Persians. The nobles are crowned when they crown their king, and exact a special oath of the king. So does England, Poland, Spain, Arragonia, etc. Alber. Gentilis,2 and Grotius,3 prove that kings are really bound to perform oaths and contracts to their people; but “notwithstanding there be such a covenant, it follows not from this, (says Arnisaeus)4 that if the prince break his covenant and rule tyrannically, the people shall be free, and the contract or covenant nothing.”
Ans. The covenant may be materially broken, while the king remains king, and the subjects remain subjects; but when it is both materially and formally declared by the states to be broken, the people must be free from their allegiance; but of this more hereafter.
Arg. 7. If a master bind himself by an oath to his servant, he shall not receive such a benefit of such a point of service; if he violate the oath, his oath must give his servant law and right both to challenge his master, and to be free from that point of service; an army appoints such a one their leader and captain, but they refuse to do it except he swear he shall not betray them to the enemy. If he does betray them, then must the soldiers be loosed from that contract. If one be appointed pilate of a ship, and not but by an oath, if he sell the passengers to the Turks, they may challenge the pilate of his oath; and it is clear that
- (1.) the estates should refuse the crown to him who would refuse to govern them according to God’s law, but should profess that he would make his own will a law, therefore the intention of the oath is clearly conditional.
(2.) When the king swears the oath, he is but king in fieri, and so not as king above the states of kingdoms. Now his being king does not put him in a case above all civil obligation of a king to his subjects, because the matter of the oath is, that he shall be under them so far in regard of the oath of God.
Arg. 8. If the oath of God made to the people do not bind him to the people to govern according to law, and not according to his will and lust, it should be unlawful for any to swear such an oath, for if a power above law agree essentially to a king as a king, as royalists hold, he who swears such an oath should both swear to be a king to such a people, and should swear to be no king, in respect by his oath, he should renounce that which is essential to a king.
Arnisaeus objects: Ex particularibus non potest colligi conclusio universalis, some few of the kings, as David and Joash, made a covenant with the people; it follows not that this was an universal law.
Ans. Yea, the covenant is (Deut. 17.) and most be a rule to all; if so just a man as David was limited by a covenant, then all the rest also.
1. Arnis. de authorit. prin. c. l. n. 6, 7.
2. Alber. Gentilis in disput. Regal. lib. 2, c. 12, lib. 3, c. 14-16.
3. Hugo Grotius de jure belli et pac. lib. 2.
4. Arnisaeus de authoritate princip. c. 1, n. 7, 8, 10.