Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No the King Be Univocally, or Only Analogically, and by Proportion, a Father
It is true Aristotle (Polit. l. 3, c. 11) says, that the kingly power is a fatherly power; and Justin, (Novell 12, c. 2,) Paterquamvis legum contemptor, quamvis impius sit, tamen pater est. But I do not believe that, as royalists say, the kingly power is essentially and univocally that same with a paternal or fatherly power; or that Adam, as a father, was as a father and king; and that suppose Adam should live in Noah’s days, that by divine institution and without consent of the kingdoms and communities on earth, Adam hoc ipso, and for no other reason but because he was a father, should also be the universal king, and monarch of the whole world; or suppose Adam was living to this day, that all kings that has been since, and now are, held their crowns of him, and had no more kingly power than inferior judges in Scotland have, under our sovereign king Charles, for so all that has been, and now are, lawful kings, should be unjust usurpers; for if fatherly power be the first and native power of commanding, it is against nature that a monarch who is not my father by generation, should take that power from me, and be a king over me and my children.
1. But I assert, first, that though the Word warrant us to esteem kings fathers, Isa. 49:23; Jud. 5:7; Gen. 20:2, yet are not they essentially and formally fathers by generation; Num. 11:12, “Have I conceived all this people? have I begotten them?” and yet are they but fathers metaphorically — by office, because they should care for them as fathers do for children, and so come under the name of fathers in the fifth commandment, and therefore rigorous and cruel rulers are leopards, and lions, and wolves, Ezek. 20:27; Zeph. 3:3. If, then, tyrannous judges be not essentially and formally leopards and lions, but only metaphorically, neither can kings be formally fathers.
2. Not only kings but all judges are fathers, in defending their subjects from violence and the sword, and fighting the Lord’s battles for them, and counseling them. If, therefore, royalists argue rightly, a king is essentially a father, and fatherly power and royal power are of the same essence and nature. As, therefore, he who is once a father is ever a father, and his children cannot take up arms against him to resist him, for that is unnatural and repugnant to the fifth commandment; so he who is once a king is evermore a king, and it is repugnant to the fifth commandment to resist him with arms. It is answered, — that the argument presupposes that royal power and fatherly power is one and the same in nature, whereas they differ in nature, and are only one by analogy and proportion; for so pastors of the Word are called fathers, 1 Cor. 4:15, it will not follow, that once a pastor, evermore a pastor; and that if therefore pastors turn wolves, and by heretical doctrine corrupt the flock, they cannot be cast out of the church.
3. A father, as a father, has not power of life and death over his sons, because, Rom. 13, by divine institution the sword is given by God to kings and judges; and if Adam had had any such power to kill his son Cain for the killing of his brother Abel, it had been given to him by God as a power politic, different from a fatherly power; for a fatherly power is such as formally to preserve the life of the children, and not to take away the life; yea, and Adam, though he had never sinned, nor any of his posterity, Adam should have been a perfect father, as he is now indued with all fatherly power that any father now has; yea God should not have given the sword or power of punishing ill-doers, since that power should have been in vain, if there had been no violence, nor bloodshed, or sin on the earth; for the power of the sword and of lawful war, is given to men now in the state of sin.
4. Fatherly government and power is from the bosom and marrow of that fountain law of nature; but royal power is not from the law of nature, more than is aristocratical or democratical power. Dr. Fern says, (part 1, sec. 3, p. 8,) Monarchy is not jure divino, (I am not of his mind,) nor yet from the law of nature, but ductu natura, by the guidance of nature. Sure it is from a supervenient commandment of God, added to the first law of nature, establishing fatherly power.
5. Children having their life and first breathings of nature from their parents, must be in a more entire relation from their father than from their prince. Subjects have not their being natural, but their civil, politic and peaceable well-being from their prince.
6. A father is a father by generation, and giving the being of nature to children, and is a natural head and root, without the free consent and suffrages of his children, and is essentially a father to one child, as Adam was to one Cain; but a prince is a prince by the free suffrages of a community, and cannot be a king to one only, and he is the politic head of a civil corporation.
7. A father, so long as his children lives, can never leave off to be a father, though he were mad and furious — though he be the most wicked man on earth. Qui genuit filium non potest non genuisse filium, what is once past cannot, by any power, be not past; a father is a father for ever. But by confession of royalists, as Barclaius, Hugo Grotius, and Arnisaeus, and others, grant, If a king sell his subjects by sea or land to other nations, — if he turn a furious Nero, he may be dethroned; and the power that created the king under such express conditions, as if the king violate them by his own consent he shall be put from the throne–may cease to hold him king; and if a stronger king conquer a king and his subjects, royalists say the conqueror is a lawful king; and so the conquered king must also lawfully come down from his throne, and turn a lawful captive sitting in the dust.
8. Learned politicians, as Bartholomeus Romulus, (Defens. part 1, n. 153,) and Joannes de Anania (in c. fin. de his qui fil. occid.) teach that the father is not obliged to reveal the conspiracy of his son against his prince; nor is he more to accuse his son, than to accuse himself, because the father loves the son better than himself. (D. Listi quidem. Sect. Fin. quod. met. caus. et D. L. fin. c. de cura furiosi,) and certainly a father had rather die in his own peson, as choose to die in his son’s, in whom he affects a sort of immortality, in specie, quando non potest in individuo; but a king does not love his subjects with a natural or fatherly love thus; and if the affections differ, the power which seconds the affection, for the conservation either of being, or well-being, must also differ proportionally.
The P. Prelate (c. 7, p. 87,) objects against us thus, stealing word by word from Arnisaeus.1 1. When a king is elected sovereign to a multitude, he is surrogated in the place of a common father, Exod. 20:12, “Honor thy father.” Then, as a natural father receives not paternal right, power, or authority, from his sons, but has this from God and the ordinance of nature, nor can the king have his right from the community. 2. The maxim of the law is, Surrogatus gaudet privilegus ejus cui surrogatur, et qui succedit in locum, succedit in jus. The person surrogated has all the privileges that he has in whose place he succeeds; he who succeeds to the place succeeds to the rights; the adopted son, or the bastard who is legitimated and comes in the place of the lawful born son, comes also in the privileges of the lawful born son. A prince elected comes to the full possession of the majesty of a natural prince and father, for Modus acquirendi non tollit naturale jus possidendi (says Arnisaeus, more fully than the poor Plagiarius), the manner of acquiring any thing, takes not away the natural possession, for however things be acquired, if the title be just, possession is the law of nations. Then when the king is chosen in place of the father, as the father has a divine right by nature, (so must the king have that same;) and seeing the right proprietor (says the pamphleting Prelate) had his right by God, by nature, how can it be but howsoever the designation of the person is from the disordered community, yet the collation of the power is from God immediately, and from his sacred and inviolable ordinance? And what can be said against the way by which any one elected obtained his right, for seeing God does not now send Samuels or Elishas to anoint or declare kings, we are, in his ordinary providence, to conceive the designation of the person is the manifestation of God’s will, called voluntas signi, as the schools speak, just so as when the church designs one to sacred orders.
Ans. 1. — He that is surrogated in the place of another, due to him by a positive law of man, he has law to all the privileges that he has in whose place he is surrogated, that is true. He who is made assignee to an obligation for a sum of money, has all the rights that the principal party to whom the bond or obligation was made. He who comes in the place of a mayor of a city, of a captain in an army, of a pilot in a ship, or of a pope, has all the privileges and rights that his predecessors had by law. Jus succedit juri, persona jure predita personae jure preditae. So the law, so far as my reading can reach, — who profess myself a divine; — but that he who succeeds to the place of a father by nature, should enjoy all the natural rights and privileges of the person to whom he succeeds, I believe the law never dreamed it; for then the adopted son, coming in place of the natural son, has right to the natural affection of the father. If any should adopt Maxwell the prelate, should he love him as the persuivant of Crail (Maxwell’s father) loved him, I conceive not. has the adopted son his life, his being, the figure bodily, the manners of the son in whose place he is adopted; or does he naturally resemble the father as the natural son does? The Prelate did not read this law in any approved jurist, though he did steal the argument from Arnisaeus, and stole the citations of Homer and Aristotle out of him, with a little metathesis.
A natural son is not made a son by the consent of parents, but he is a son by generation: so must the adopted son be adopted without the free consent and grace of the father adopting: so here the king comes in the place of a natural father. But I conceive the law says not that the elected king is a king without consent of the subjects, as a natural father is a father without the consent of his sons. Nor is it a law true, as “once a father always a father,” so once an elected king always a king, though he sell his subjects, being induced thereunto by wicked counselors. If the king have no privileges but what the natural father has, in whose place he comes, then, as the natural father, in a free kingdom, has not power of life and death over his sons, neither has the king power of life and death over his subjects. This is no law. this maxim should prove good if the king were essentially a father by generation and natural propagation; but he is only a father metaphorically, and by a borrowed speech. A father non generando, sed politice alendo, tuendo, regendo, therefore an elected prince comes not in the full possession of all the natural power and rights of a natural father.
2. The P. Prelate speaks disgracefully of the church of God, calling it a disorderly community, as if he himself were born of kings, whereas God calls the king their shepherd, and the people, “God’s flock, inheritance and people;” and they are not a disorderly body by nature, but by sin; in which sense the Prelate may call king, priest and people, a company of heirs of God’s wrath, except he be an Arminian still, as once he was. If we are in ordinary providence now, because we have not Samuels and prophets to anoint kings, to hold the designation of a person to be king to be the manifestation of God’s will, called voluntas signi, is treason, for if Scotland and England should design Maxwell in the place of king Charles our native sovereign, (an odious comparison,) Maxwell should be lawful king; for what is done by God’s will, called by our divines (they have it not from schoolmen, as the Prelate ignorantly says) his signified will, which is our rule, is done lawfully. There can be no greater treason put in print than this.
1. Arnisaeus de potest princip. c. 3, n. 1, 2.