Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or Not the Prince Have Properly a Fiduciary and Ministerial Power of a Tutor, Husband, Patron, Minister, Head, Father of a Family, Not of a Lord or Dominator
That the power of the king is fiduciary, that is, given to him immediately by God in trust, royalists deny not; but we hold that the trust is put upon the king by the people. We deny that the people give themselves to the king as a gift, for what is freely given cannot be taken again; but they gave themselves to the king as a pawn, and if the pawn be abused, or not used in that manner as it was conditioned to be used, the party in whose hand the pawn is entrusted, fails in his trust.
Assert. 1. The king is more properly a tutor than a father.
- 1st. Indigency is the original of tutors the parents die; what then shall become of the orphan and his inheritance? He cannot guide it himself, therefore nature devised a tutor to supply the place of a father, and to govern the tutor; but, with this consideration, the father is lord of the inheritance, and if he be distressed, may sell it, that it shall never come to the son, and the father, for the bad deserving of his son, may disinherit him; but the tutor, being but a borrowed father, cannot sell the inheritance of the pupil, nor can he, for the pupil’s bad deserving, by any dominion of justice over the pupil, take away the inheritance from him, and give it to his own son. So a community of itself, because of sin, is a naked society that can but destroy itself, and every one eat the flesh of his brother; therefore God has appointed a king or governor, who shall take care of that community, rule them in peace, and save all from reciprocation of mutual acts of violence, yet so as, because a trust is put on the ruler of a community which is not his heritage, he cannot dispose of it as he pleases, because he is not the proper owner of the inheritance.
- 2nd. The pupil, when he comes to age, may call his tutor to an account for his administration. I do not acknowledge that as a truth, which Arnisaeus says, (de authoritate prin. c. 3, n. 5,) “The commonwealth is always minor and under tutory, because it always has need of a curator and governor, and can never put away its governor; but the pupil may grow to age and wisdom, so as he may be without all tutors and can guide himself, and so may call in question on his tutor; and the pupil cannot be his judge, but must stand to the sentence of a superior judge, and so the people cannot judge or punish their prince God must be judge between them both.”
But this is begging the question; every comparison halts. There is no community but is major in this, that it can appoint its own tutors; and though it cannot be without all rulers, yet it may well be without this or that prince and ruler, and, therefore, may resume its power, which it gave conditionally to the ruler for its own safety and good; and in so far as this condition is violated, and power turned to the destruction of the commonwealth, it is to be esteemed as not given; and though the people be not a politic judge in their own cause, yet in case of manifest oppression, nature can teach them to oppose defensive violence against offensive. A community in its politic body is also above any ruler, and may judge what is manifestly destructive to itself.
Obj. The pupil has not power to appoint his own tutor, nor does he give power to him; so neither does the people give it to the king.
Ans. The pupil has not indeed a formal power to make a tutor, but he has virtually a legal power in his father, who appoints a tutor for his son; and the people has virtually all royal power in them, as in a sort of immortal and eternal fountain, and may create to themselves many kings.
Assert. 2. The king’s power is not properly and univocally a marital and husbandly power, but only analogically. 1. The wife by nature is the weaker vessel, and inferior to the man, but the kingdom, as shall be demonstrated, is superior to the king. 2. The wife is given as an help to the man, but by the contrary, the father here is given as an help and father to the commonwealth, which is presumed to be the wife. 3. Marital and husbandly power is natural, though it be not natural but from free election that Peter is Ana’s husband, and should have been, though man had never sinned; but royal power is a politic constitution, and the world might have subsisted though aristocracy or democracy had been the only and perpetual governments. So let the Prelate glory in his borrowed logic; he had it from Barclay. “It is not in the power of the wife to repudiate her husband, though never so wicked. She is tied to him for ever, and may not give to him a bill of divorcement, as by law the husband might give to her. If therefore the people swear loyalty to him, they keep it, though to their hurt.” Psal. 15.
Ans. There is nothing here said, except Barclay and the Plagiary prove that the king’s power is properly a husband’s power, which they cannot prove but from a simile that crooks. But a king, elected upon conditions, that if he sell his people he shall lose his crown, is as essentially a king as Adam was Eve’s husband, and yet, by grant of parties, the people may never divorce from such a king, and dethrone him, if he sell his people; but a wife may divorce from her husband, as the argument says. And this poor argument the Prelate stole from Dr Ferne (part2, sect. 3, p. 10, 11). The keeping of covenant, though to our hurt, is a penal hurt, and loss of goods, not a moral hurt, and loss of religion.
Assert. 3. The king is more properly a sort of patron, to defend the people, (and therefore has no power given either by God or man to hurt the people,) and a minister, or public and honorable servant, (Rom. 13:4.) for he is the minister of God to thee for good. 1. He is the commonwealth’s servant objectively, because all the king’s service, as he is king, is for the good, safety, peace and salvation of the people, and in this he is a servant. 2. He is the servant of the people representatively, in that the people has impawned in his hand all their power to do royal service.
Obj. 1. He is the servant of God, therefore he is not the people’s servant, but their sovereign lord.
Ans. It follows not; because all the services the king, as king, performs to God, are acts of royalty, and acts of royal service, as terminated on the people, or acts of their sovereign lord; and this proves, that to be their sovereign is to be their servant and watchman.
Obj. 2. God makes a king only, and the kingly power is in him only, not in the people.
Ans. 1. The royal power is only from God immediately, immediatione simplicis constitutionis, et solum a Deo solitudine primae causae, by the immediation of simple constitution, none but God appointed there should be kings. But, 2. Royal power is not in God, nor only from God, immediatione applicationis regiae dignitatis ad personam, nec a Deo solum, solitudine causae applicantis dignitatem, huic, non illi, in respect of the applying of royal dignity to this person, not to that.
Obj. 3. Though royal power were given to the people, it is not given to the people as if it were the royal power of the people and not the royal power of God, neither is it any otherwise bestowed on the people but as on a beam, a channel, an instrument by which it is derived to others, and so the king is not the minister of servant of the people.
Ans. It is not in the people as in the principal cause; sure all royal power that way is only in god; but it is in the people as in the instrument, and when the people makes David their king at Hebron, in that same very act, God, by the people using their free suffrages and consent, makes David king at Hebron; so God only gives rain, and none of the vanities and supposed gods of the Gentiles can give rain, (Jer. 14:22,) and yet the clouds also give rain, as nature, as an organ and vessel out of which God pours down rain upon the dry earth; (Amos 9:6;) and every instrument under God that is properly an instrument, is a sort of vicarious cause in God’s room, and so the people as in God’s room applies royal power to David, not to any of Saul’s sons, and appoints David to be their royal servant to govern, and in that to serve God, and to do that which a community now in the state of sin cannot formally do themselves; and so I see not how it is a service to the people, not only objectively, because the king’s royal service tends to the good, and peace, and safety of the people, but also subjectively, in regard he has his power and royal authority which he exercises as king from the people under God, as God’s instruments; and, therefore, the king and parliament give out laws and statutes in the name of the whole people of the land; and they are but flatterers, and belie the Holy Ghost, who teach that the people do not make the king; for Israel made Saul king at Mizpah, and Israel made David king at Hebron.
Obj. 4. Israel made David king, that is, Israel designed David’s person to be king, and Isreal consented to God’s act of making David king, but they did not make David king.
Ans. I say not that Israel made the royal dignity of kings: God (Deut. 17.) instituted that himself; but the royalist must give us an act of God going before an act of the people’s making David or no king is made formally a king; and then another act of the people, approving only and consenting to that act of God, whereby David is made formally of no king to be a king. This royalists shall never instruct, for there be only two acts of God here; (1.) God’s act of anointing David by the hand of Samuel; and (2.) God’s act of making David king at Hebron; and a third they shall never give.
But the former is not that by which David was essentially and formally changed from the state of a private subject and no king, into the state of a public judge and supreme lord and king; for (as I have proved) after this act of anointing of David king, he was designed only and set apart to be king in the Lord’s fit time; and after this anointing, he was no more formally a king than Doeg or Nabal were kings, but a subject who called Saul the Lord’s anointed and king, and obeyed him as another subject does his king; but it is certain God by no other act made David king at Hebron, than by Israel’s act of free electing him to be king and leader of the Lord’s people, as God by no other act sends down rain on the earth, but by his melting the clouds, and causing rain to fall on the earth; and therefore to say Israel made David king at Hebron, that is, Israel approved only and consented to a prior act of God’s making David king, is just to say Saul prophesied, that is, Saul consented to a prior act of the Spirit of God who prophesied; and Peter preached, (Acts 2.) that is, Peter approved and consented to the Holy Ghost’s act of preaching, which to say, is childish.
Assert. 4. The king is an head of the commonwealth only metaphorically, by a borrowed speech in a politic sense, because he rules, commands, directs the whole politic body in all their operations and functions. But he is not univocally and essentially the head of the commonwealth.
- 1st. The very same life in number that is in the head, is in the members; there be diverse distinct souls and lives in the king and in his subjects.
- 2nd. The head natural is not made an head by the free election and consent of arms, shoulders, legs, toes, fingers, etc. The king is made king only by the free election of his people.
- 3rd. The natural head, so long as the person lives, is ever the head, and cannot cease to be a head while it is seated on the shoulders; the king, if he sell his people’s persons and souls, may leave off to be a king and head.
- 4th. The head and members live together and die together, the king and the people are not so; the king may die and the people live.
- 5th. The natural head cannot destroy the members and preserve itself; but king Nero may waste and destroy his people. Dr Ferne, M. Symmons, the P. Prelate, when they draw arguments from the head, do but dream, as the members should not resist the head. Natural members should not or cannot resist the head, though the hand may pull a tooth out of the head, which is no small violence to the head; but the members of a politic body may resist the politic head. This or that king is not the adequate and total politic head of the commonwealth; and therefore though you cut off a politic head, there is nothing done against nature. If you cut off all kings of the royal line, and all governors aristocratical, both king and parliament, this were against nature; and a commonwealth which would cut off all governors and all heads, should go against nature and run to ruin quickly. I conceive a society of reasonable men cannot want governors.
- 6th. The natural head communicates life, sense, and motion to the members, and is the seat of external and internal senses; the king is not so.
Assert. 5. Hence the king is not properly the head of a family, for as Tholossa says well, (de Rep. l. 5, c. 5,) Nature has one intention in making the thumb, another intention in making the whole hand, another in forming the body; so there is one intention of the God of nature in governing of one man, another in governing a family, another in governing a city: nor is the thumb king of all the members; so domestic government is not monarchical properly.
- 1st. The mother has a parental power as the father has, (Prov. 4:5; 10:3; 31:17,) so the fifth commandment says, “Honor thy father and thy mother.”
- 2nd. Domestic government is natural, monarchical politic.
- 3rd. Domestic is necessary, monarchical is not necessary; other government may be as well as it.
- 4th. Domestic is universal, monarchical not so.
- 5th. Domestic has its rise from natural instinct without any farther instruction; a monarchical government is not but from election, choosing one government, not another. Hence that is a fiduciary power, or a power of trust, wherein the thing put in trust is not either his own proper heritage or gift, so as he may dispose of it as he pleases, as men dispose of their goods or heritage. But the king may not dispose of men as men, as he pleases; nor of laws as he pleases; nor of governing men, killing or keeping alive, punishing and rewarding, as he pleases.
My life and religion, and so my soul, in some cases, are committed to the king as to a public watchman, even as a flock to the feeder, the city to the watchmen; and he may betray it to the enemy. Therefore, he has the trust of life and religion, and has both tables of the law in his custody, ex officio, to see that other men than himself keep the law. But the law is not the king’s own, but given to him in trust. He who receives a kingdom conditionally, and may be dethroned if he sell it or put it away to any other, is a fiduciary patron, and has it only in trust. So Hottoman, (quest. ill. 1;) Ferdinand. Vasquez, (illust. quest. l. 1, c. 4.) Althusius, (polit. c. 24, n. 35,) so says the law of every factor or deputy, (l. 40, l. 63, procur. l. 16, C. dict. 1.) Antigonus dixit regnum esse nobilem servitutem. Tyberius Caelig;sar called the senate, dominum suum, his lord. (Suetonius in vita Tiberii, c. 29.)