Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No a Despotical and Masterly Dominion of Men and Things Agree to the King Because He Is King
I may here dispute whether the king be lord, having a masterly dominion both over men and things. But I first discuss shortly his dominion over his subjects.
It is agreed on by divines that servitude is a penal fruit of sin, and against nature. Institutt. de jure personarum, Sect. 1, and F. de statu hominum. l. libertas; because all men are born by nature of equal condition.
Assert. 1. — The king has no proper, masterly, or lordly dominion over his subjects; his dominion is rather fiduciary and ministerial, than masterly.
1. Because royal empire is essentially to feed, rule, defend, and to govern in peace and godliness, (1 Tim. 2:2,) as the father does his children; Psal. 78:71, “He brought him to feed Jacob his people, and Israel his inheritance;” Isa. 55:4, “I gave him for a leader and commander to the people;” 2 Sam. 5:2, “Thou shalt feed my people Israel;” 2 Sam. 5:2; 1 Chron. 11:2; 1 Chron 17:6.) And so it is for the good of the people, and to bring those over whom he is a feeder and ruler, to such a happy end; and, as says Althusius, (polit. c. 1, n. 13,) and Marius Salomonius, (de princ. c. 2,) it is to take care of the good of those over whom the ruler is set, and, conservare est, rem illaesam servare, to keep a thing safe. But to be a master, and to have a masterly and lordly power over slaves and servants, is to make use of servants for the owner’s benefit, not for the good of the slave, (l, w, de leg, l, Servus de servit. expert. Danoelig; polit. l. 1, Tolossan. de Rep. l. 1, c. 1, n. 15, 16,) therefore are servants bought and sold as goods, (jure belli. F. de statu hominum l. et servorum.)
2. Not to be under governors and magistrates is a judgment of God, (Isa. 3:6-7; 3:1; Hos. 3:4; Judg. 19:1-2,) but not to be under a master as slaves are, is a blessing, seeing freedom is a blessing of God, (John 8:33; Exod. 21:2, 26, 27; Deut. 15:12;) so he that kills Goliath, (1 Sam. 17:25,) his father’s house shall be free in Israel. (Jer. 34:9; Acts 22:28; 1 Cor. 9:19; Gal. 4:26, 31.) Therefore the power of a king cannot be a lordly and masterly power; for then to be under a kingly power should both be a blessing and a curse, and just punishment of sin.
3. Subjects are called the servants of the king, (1 Sam. 15:2; 2 Chron. 13:7; 1 Kings 12:7; Exod. 10:1-2; Exod. 9:20,) but they are not slaves, because (Deut. 17:20) they are his brethren: “That the king’s heart be not lifted up against his brethren;” and his sons; (Isa. 49:23;) and the Lord gave his people a king as a blessing, (1 Kings 10:9; Hos. 1:11; Isa. 1:26; Jer. 17:25,) and “brought them out of the house of bondage,” (Exod. 20:2,) as out of a place of misery. And therefore to be the king’s servants in the place cited, is some other thing than to be the king’s slaves.
4. The master might in some cases sell the servant for money, yea for his own gain he might do it, (Nehem. 5:8; Eccles. 2:7; 1 Kings 2:32; Gen. 9:25; Gen. 26:14; 2 Kings 4:1; Gen. 20:14, and might give away his servants; and the servants were the proper goods and riches of the master; (Eccles. 2:7; Gen. 30:43; Gen. 20:14; Job 1:3, 15); but the king may not sell his kingdom or subjects, or give them away for money, or any other way; for royalists grant that king to be a tyrant, and worthy to be dethroned, who shall sell his people; for the king may not dilapidate the rents of the crown and give them away to the hurt and prejudice of his successors, (l. ult. Sect. sed nostr. c. Comment. de lege, l. peto, 69, Sect. fratrem de lege, 2, l. 32, ultimo, D. T.) and far less can he lawfully sell men, and give away a whole kingdom to the hurt of his successors, for that were to make merchandise of the living temples of the Holy Ghost; and Arnisaeus, (de authorit. princip. c. 3, n. 7,) says, servitude is praeter naturam, beside nature; he might have said, contrary to nature (l. 5, de stat. homin. Sect. 2, Inst. de jur. perso. c. 3, et Novel. 89); but the subjection of subjects is so consonant to nature, that it is seen in bees and cranes. Therefore a dominion is defined, a faculty of using of things to what uses you will.
Now a man has not this way an absolute dominion over his beasts, to dispose of them at his will; for a good man has mercy on the life of his beast, (Prov. 12:10,) nor has he dominion over his goods to use them as he will, because he may not use them to the dishonor of God; and so God and the magistrate has laid some bound on his dominion. And because the king being made a king leaves not off to be a reasonable creature, he must be under a law, and so his will and lust cannot be the rule of his power and dominion, but law and reason must regulate him. Now if God had given to the king a dominion over men as reasonable creatures, his power and dominion which by royalists is conceived to be above law, should be a rule to man as reasonable men, which would make men under kings no better than brute beasts, for then should subjects exercise acts of reason, not because good and honest, but because their prince commands them so to do; and if this cannot be said, none can be at the disposing of kings in politic acts liable to royal government, that way that the slave is in his actions under the dominion of his master.
Obj. 1. — The Prelate objects out of Salato, Arnisaeus, and Hugo Grotius, (for in his book there is not one line which is his own, except his railings;) All government and superiority in rulers is not primely and only for the subjects’ good; for some are by God and nature appointed for the mutual and inseparable good of the superior and inferior, as in the government of husband and wife, or father and son; and in herili dominio, in the government of a lord and his servant,the good and benefit of the servant is but secondary and consecutively intended, it is not the principal end, but the external and adventitious, as the gain that comes to a physician is not the proper and internal end of his art, but follows only from his practice of medicine.
Ans. — 1. The Prelate’s logic tends to this; some government tends to the mutual good of the superior and inferior, but royal government is some government, therefore, nothing follows from a major proposition, Ex particulari affirmante, in prima figura; or of two particular propositions. 2. If it be thus formed, every marital government, and every government of the lord and servant is for the mutual good of the superior and inferior; but royal government is such, therefore the assumption is false, and cannot be proved, as I shall anon clear.
Obj. 2. — Solomon disposed of Cabul and gave it to Hiram, therefore a conquered kingdom is for the good of the conqueror especially.
Ans.— Solomon’s special giving away some titles to the king of Tyre, being a special act of a prophet as well as a king, cannot warrant the king of England to sell England to a foreign prince, because William made England his own by conquest, which also is a most false supposition; and this he stole from Hugo Grotius, who condemns selling of kingdoms.
Obj. 3. — A man may render himself totally under the power of a master without any conditions; and why may not the body of a people do the like? even to have peace and safety, surrender themselves fully to the power of a king? A lord of great manors may admit no man to live in his lands but upon a condition of a full surrender of him and his posterity to that lord. Tacitus shows us it was so anciently amongst the Germans: those engaged in the campaigns surrendered themselves fully to the Romans.
Ans.— What compelled people may do to redeem their lives, with loss of liberty, is nothing to the point; such a violent conqueror who will be a father and a husband to a people, against their will, is not their lawful king; and that they may sell the liberty of their posterity, not yet born, is utterly denied as unlawful; yea, a volentated father to me is a father, and not a father, and the posterity may vindicate their own liberty given away unjustly, before they were born, Qua omne regnum vi partum potest vi dissolvi.
Obj. 4. — But (says Dr Ferne) these which are ours, and given away to another, in which there redounds to God by donation a special interest, as in things devoted to holy uses, though after they be abused, yet we cannot recall them; therefore, if the people be once forced to give away their liberty, they cannot recall it, far less if they willingly resign it to their prince.
Ans.— 1. This is not true, when the power is given for the conservation of the kingdom, and is abused for the destruction thereof; for a power to destruction was never given, nor can it, by rational nature, be given. Mortifications given to religious uses by a positive law, may be recalled by a more divine and stronger law of nature, such as this, — “I will have mercy and not sacrifice.” Suppose David, of his own proper heritage, had given the show-bread to the priests; yet, when David and his men are famishing, he may take it back from them against their will. Suppose Christ had bought the ears of corn, and dedicated them to the altar, yet might he and his disciples eat them in their hunger. The vessels of silver, dedicated to the church, may be taken and bestowed on wounded soldiers.
2. A people free may not, and ought not, totally surrender their liberty to a prince, confiding on his goodness.
- 1st. Because liberty is a condition of nature that all men are born with, and they are not to give it away — no, not to a king, except in part and for the better, that they may have peace and justice for it, which is better for them, hic et nunc.
- 2nd. If a people, trusting in the goodness of their prince, enslave themselves to him, and he shall after turn tyrant, a rash and temerarious surrender obliges not, Et ignorantia facit factum quasi involuntarium. Ignorance makes the fact some way involuntary; for if the people had believed that a meek king would have turned a roaring lion, they should not have resigned their liberty into his hand; and, therefore, the surrender was tacitly conditional to the king as meek, or whom they believed to be meek, and not to a tyrannous lord; and, therefore, when the contract is made for the utility of the one party, the law says, their place is for after wits, that men may change their mind and resume their liberty, though, if they had given away their liberty for money, they cannot recall it; and if violence made the surrender of liberty, here is slavery; and slaves taken in war, so soon as they can escape and return to their own, they are free. (D. Sect. item. ea justit. de rerum divin. l. nihil. F. de capt. l. 3.) So the learned Ferdin. Vasquez (illust. l. 2, c. 82, n. 15.) says, “The bird that was taken, and has escaped is free.” Nature in a forced people, so soon as they can escape from a violent conqueror, makes them a free people; and si solo tempore (says Ferd. Vasquez, l. 2, c. 82, n. 6,) justificatur subjectio, solo tempore facilius justificabitur liberatio.
Assert. 2. — All the goods of the subjects belongs not to the king. I presuppose that the division of goods does not necessarily flow from the law of nature, for God made man, beore the fall, lord of the creatures indefinitely; but what goods be Peter’s, and not Paul’s, we know not. But supposing man’s sin, thought the light of the sun and air be common to all, and religious places be proper to none, yet it is morally impossible that there should not be a distinction of meum et tuum, mine and thine; and the decalogue forbidding theft, and coveting the wife of another man, (yet is she the wife of Peter, not of Thomas, by free election, not by an act of nature’s law,) does evidence to us, that the division of things is so far forth (men now being in the state of sin) of the law of nature, that it has evident ground in the law of nations; and thus far natural, that the heat that I have from my own coat and cloak, and the nourishment from my own meat, are physically incommunicable to any.1
But I hasten to prove the proposition: — If,
1. I have leave to permit that, in time of necessity, all things are common by God’s law— a man travelling might eat grapes in his neighbor’s vineyard, though he was not licensed to carry any way. I doubt if David, wanting money, was necessitated to pay money for the show-bread, or for Goliath’s sword, supposing these to be the very goods of private men, and ordinarily to be bought and sold. Nature’s law in extremity, for self-preservation, has rather a prerogative royal above all laws of nations and all civil laws, than any mortal king; and, therefore, by the civil law, all are the king’s, in case of extreme necessity. In this meaning, any one man is obliged to give all he has for the good of the commonwealth, and so far the good of the king, in as far as he is head and father of the commonwealth.2
2. All things are the king’s in regard of his public power to defend all men and their goods from unjust violence.
3. All are the king’s, in regard of his act of conservation of goods, for the use of the just owner.
4. All are the king’s in regard of a legal limitation, in case of a damage offered to the commonwealth. Justice requires confiscation of goods for a fault; but confiscated goods are to help the interested commonwealth, and the king, not as a man (to bestow them on his children) but as a king. To this we may refer these called bona caduca et inventa, things lost by shipwreck or any other providence, Ulpian, tit. 19, t. c. de bonis vacantibus. C. de Thesauro.
Arg. 1. — And the reasons why private men are just lotds and proprietors of their own goods, are, — 1. Because, by order of nature, division of goods comes nearer to nature’s law and necessity than any king or magistrate in the world; and because it is agreeable to nature that every man be warmed by his own fleece— nourished by his own meat, therefore, to conserve every man’s goods to the just owner, and to preserve a community from the violence of rapine and theft, a magistrate and king was devised. So it is clear, men are just owners of their own goods, by all good order, both of nature and time, before there be any such thing as a king or magistrate. Now, if it be good that every man enjoy his own goods, as just proprietor thereof, for his own use, before there be a king, who can be proprietor of his goods? And a king being given of God for a blessing, not for any man’s hurt and loww, the king comes in to preserve a man’s goods, but not to be lord and owner thereof himself, nor to take from any man God’s right to his own goods.
Arg. 2. — When God created man at the beginning, he made all the creatures for man, and made them by the law of nature the proper possession of man, but then there was not any king formally as king’ for certainly Adam was a father before he was a king, and no man being either born or created a king over another man, no more than the first lion and the first eagle that God created, were by the birthright and first start of creation, by nature the king of all lions and all eagles to be after created, — no man can, by nature’s law, be the owner of all goods of particular men. And because the law of nations, founded upon the law of nature has brought in meum et tuum, mine and thine, as proper to every particular man, and the introduction of kings cannot overturn nature’s foundation; neither civility nor grace destroys but perfects nature; and if a man be not born a king, because he is a man, he cannot be born the possessor of my goods.
Arg. 3. — What is a character and note of a tyrant, and an oppressing king as a tyrant, is not the just due of a king as a king; but to take the proper goods of subjects, and use them as his own, is a proper character and note of a tyrant and oppressor; therefore the proposition is evident: A king and a tyrant are, by way of contradiction, contrary one to another. The assumption is proved thus:— Ezek. 45:9-10, “Thus says the Lord, Let it suffice you, O princes of Israel: remove violence and spoil, and execute judgment and justice; take away your exactions from my people, says the Lord. Ye shall have just balances, and a just ephah, and a just bath.” If all be the king’s, he is not capable of extortion and rapine. God complains of the violence of kings, Micah 3:1, 3, “Is it not for you to know judgment? who also eat the flesh of my people, and flay their skins from off them; and they break their bones and chop them in pieces, as for the pot, and as flesh within the chaldron.” (Isa 3:14; Zeph. 3:3.) Was it a just fault that Hybreas objected to Antonius, exacting two tributes in one year, that he said, “If thou must have two tributes in one year, then make for us two summers and two harvests in one year?” This cannot be just. If all be the king’s, the king takes but his own.
Arg. 4. — Subjects under a monarch could not give alms, nor exercise works of charity;3 for charity must be my own, Isa. 58:7, “Is it not to deal thy bread to the hungry,” etc.; Eccles. 11:1, “Cast thy bread upon the waters;” and the law says, “It is theft to give of another man’s to the poor;” yea the distinction of poor and rich should have no place under a monarchy, he only should be rich.
Arg. 5. — When Paul commands us to pay tribute to princes (Rom. 13:6) because they are the ministers of God, he lays this ground, that the king has not all, but that the subjects are to give to him of their goods.
Arg. 6. — It is the king’s place, by justice, to preserve every man in his own right and under his own fig-tree; therefore, it is not the king’s house.
Arg. 7. — Even Pharaoh could not make all the victual of the land his own, while he had bought it with money; and every thing is presumed to be free (allodialis, free land,) except the king prove that it is bought or purchased. L. actius, C. de servit, et aqua. et Joan. And. m. C. F. de ind. et hosti. in C. minus de jur.
Arg. 8. — If the subjects had no propriety in their own goods, but all were the prince’s due, then the subject should not be able to make any contract of buying and selling without the king, and every subject were in the case of a slave. Now the law says, (L. 2. F. de Noxali. act. l. 2. F. ad legem aquil.) When he makes any covenant, he is not obliged civilly to keep it, because the condition of a servant, he not being sui juris, is compared to the state of a beast, though he be obliged by a natural obligation, being a rational creature, in regard of the law of nature, L. naturaliter, L. si id quod, L. interdum, F. de cond. indebit. cum aliis. The subject could not, by Solomon, be forbidden to be surety for his friend, as king Solomon does counsel, (Prov. 6:1-3;) he could not be condemned to bring on himself poverty by sluggishness, (as Prov. 6:6-10;) nor were he to honor the Lord with his riches, (as Prov. 3:9;) nor to keep his covenant, though to his loss, (Psal. 15:14;) nor could he be merciful and lend, (Psal. 37:26;) nor had he power to borrow; nor could he be guilty in not paying all again. (Psal. 37:21.) For subjects, under a monarchy, can neither perform a duty, nor fail in a duty, in the matter of goods. If all be the kings, what power or dominion has the subject in disposing of his prince’s goods? See more in Petr. Rebuffus, tract. congruae portionis, n. 225, p. 109, 110. Sed quoad dominium rerum, etc.
1. Quod jure gentium dicitur. F. de justitia et jure, l. ex hoc. Quod partim jure civili. Justi. de rerum divisio. sect. singulorum.
2. L. item si verberatum. F. de rei vindicat. Jas. plene. m. lib. Barbarius. F. de offici. praetor.
3. Species enim furti est de alieno largiri, et beneficii debitorein sibi acquirere, L. si pignore, sect. de furt.