Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No the King Be in Dignity and Power above the People
In this grave question, diverse considerations are to be pondered. 1. There is a dignity material in the people scattered they being many representations of God and his image, which, is in the king also, and formally more as king, he being endued with formal magistratical and public royal authority. In the former regard, this or that man is inferior to the king, because the king has that same remainder of the image of God that any private man has, and something more he has a politic resemblance of the King of heavens, being a little god, and so is above any one man.
2. All these of the people taken collectively having more of God, as being representations, are, according to this material dignity, more excellent than the king, because many are more excellent than one; and the king, according to the magistratical and royal authority he has, is more excellent than they are, because he partakes formally of royalty, which they have not formally.
3. A mean or medium, as it is such, is less than the end, though the thing materially that is a mean may be more excellent. Every mean, as a mean, under that reduplication, has all its goodness and excellency in relation to the end; yet an angel that is a mean (or medium) and a ministering spirit, ordained of God for an heir of life eternal, (Heb. 1:13,) considered materially, is more excellent than a man. (Psal. 8:5; Heb. 2:6-8.)
4. A king and leader, in a military consideration, and as a governor and conserver of the whole army, is more worth than ten thousand of the people, 2 Sam. 18:13.
5. But simply and absolutely the people is above, and more excellent, than the king, and the king in dignity inferior to the people; and that upon these reasons:
Arg. 1. Because he is the mean ordained for the people, as for the end, that he may save them, (2 Sam. 19:9;) a public shepherd to feed them, (Psal. 78:70-73;) the captain and leader of the Lord’s inheritance to defend them, (1 Sam. 10:1;) the minister of God for their good. (Rom. 13:4.)
Arg. 2. The pilot is less than the whole passengers; the general less than the whole army; the tutor less than all the children; the physician less than all the living men whose health he cares for; the master or teacher less than all the scholars, because the part is less than the whole; the king is but a part and member (though I grant a very eminent and noble member) of the kingdom.
Arg. 3. A Christian people, especially, is the portion of the Lord’s inheritance, (Deut. 32:9) the sheep of his pasture his redeemed ones for whom God gave his blood. Acts 20:28. And the killing of a man is to violate the image of God, (Gen. 9:6,) and therefore the death and destruction of a church, and of thousand thousands of men, is a sadder and a more heavy matter than the death of a king, who is but one man.
Arg. 4 A king as a king, or because a king, is not the inheritance of God, nor the chosen and called of God, nor the sheep or flock of the Lord’s pasture, nor the redeemed of Christ, for those excellencies agree not to kings because they are kings; for then all kings should be endued with those excellencies, and God should be an acceptor of persons, if he put those excellencies of grace upon men for external respects of highness and kingly power, and worldly glory and splendor; for many living images and representations of God, as he is holy, or more excellent than a politic representation of God’s greatness and majesty, such as the king is; because that which is the fruit of a love of God, which comes nearer to God’s most special love, is more excellent than that which is farther remote from his special love. Now, though royalty be a beam of the majesty of the greatness of the King of kings and Lord of lords, yet is it such a fruit and beam of God’s greatness, as may consist with the eternal reprobation of the party loved; so now God’s love, from whence he communicates his image representing his own holiness, comes nearer to his most special love of election of men to glory.
Arg. 5. If God give kings to be a ransom for his church, and if he slay great kings for their sake, as Pharaoh king of Egypt, (Isa. 43:3,) and Sihon king of the Amorites, and Og king of Bashan; (Psal. 136:18-20;) if he plead with princes and kings for destroying his people; (Isa. 3:12-14;) if he make Babylon and her king a threshing-floor, for the “violence done to the inhabitants of Zion,” (Jer. 51:33-35,) then his people, as his people, must be so much dearer and more precious in the Lord’s eyes than kings, because they are kings; by how much more his justice is active to destroy the one, and his mercy to save the other. Neither is the argument taken off by saying the king must, in this question, be compared with his own people; not a foreign king, with other foreign people, over whom he does not reign, for the argument proves that the people of God are of more worth than kings as kings; and Nebuchadnezzar and Pharaoh, for the time, were kings to the people of God, and foreign kings are no less essentially kings, than kings native are.
Arg. 6. Those who are given of God as gifts for the preservation of the people, to be nurse-fathers to them, those must be of less worth before God, than those to whom they are given, since the gift, as the gift, is less than the party on whom the gift is bestowed. But the king is a gift for the good and preservation of the people, as is clear, Isa. 1:28; and from this, that God gave his people a king in his wrath, we may conclude, that a ling of himself, except God be angry with his people, must be a gift.
Arg. 7. That which is eternal, and cannot politically die, yea, which must continue as the days of heaven, because of God’s promise, is more excellent than that which is both accidental) temporary, and mortal. But the people are both eternal as people, because (Eccles. 1:4) “one generation passes away, and another generation comes,” and as a people in covenant with God, (Jer. 32:40, 41,) in respect that a people and church, though mortal in the individuals, yet the church, remaining the church, cannot die; but the king, as king, may and does die. It is true, where a kingdom goes by succession, the politicians say, the man who is king dies, but the king never dies, because some other, either by birth or free election, succeeds in his room. But I answer, People, by a sort of necessity of nature, succeeds to people, generation to generation, except God’s judgment, contrary to nature, intervene to make Babylon no people, and a land that shall never be inhabited (which I both believe and hope for, according to God’s word of prophesy). But a king, by a sort of contingency, succeeds to kings; for nature does not ascertain us there must be kings to the world’s end, because the essence of governors is kept safe in aristocracy and democracy, though there were no kings; and that kings should necessarily have been in the world, if man had never fallen in sin, I am not, by any cogent argument, induced to believe. I conceive there should have been no government but those of fathers and children, husband and wife, and (which is improperly government) some more gifted with supervenient additions to nature, as gifts and excellencies of engines. Now on this point Althusius (polit. c. 38. n. 114) says, the king, in respect of office, is worthier than the people, (but this is but an accidental respect,) out as the king is a man, he is inferior to the people.
Arg. 8. He who, by office, is obliged to expend himself, and to give his life for the safety of the people, must be inferior to the people. So Christ says, the life is more than raiment or food, because both these give themselves to corruption for man’s life; so the beasts are inferior to man, because they die for our life, that they may sustain oar life. And Caiaphas prophesied right, that it was better that one man die than the whole nation perish (John 11:50); and in nature, elements, against their particular inclination, defraud themselves of their private and particular ends, that the commonwealth of nature may stand; as heavy elements ascend, light descend, lest nature should parish by a vacuity. And the good Shepherd (John 10,) gives his life for his sheep; so both Saul and David were made kings to fight the Lord’s battles, and to expose their lives to hazard for the safety of the church and people of God. But the king, by office, is obliged to expend his life for the safety of the people of God; he is obliged to fight the Lord’s battles for them; to go between the flock and death, as Paul was willing to be spent for the church. It may be objected, Jesus Christ gave himself a ransom for his church, and his life for the life of the world, and was a gift given to the world, (John 3:16; 4:10,) and he was a mean to save us; and so, what arguments we have before produced to prove that the king must be inferior to the people, because he is a ransom, a mean, a gift, are not conclusive, I answer,
- 1st. Consider a mean reduplicatively, and formaliter, as a mean; and secondly, as a mean materially, that is, the thing which is a mean.
- 2nd. Consider that which is only a mean, and ransom, and gift, and no more; and that which, beside that it is a mean, is of a higher nature also. So Christ formally as a mean, giving his temporal life for a time, according to the flesh, for the eternal life of all the catholic church, to be glorified eternally (not his blessed god-head and glory, which, as God, he had with the Father from eternity) in that respect Christ has the relation of a servant, ransom, gift, and some inferiority in comparison of the church of God; and his Father’s glory, as a mean, is inferior to the end, but Christ materially, in concreto. Christ is not only a mean to save his church, but, as God (in which consideration he was the immortal Lord of life) he was more than a mean, even the Author, Efficient and Creator of heaven and earth; and so there is no ground to say that he is inferior to the church, but the absolute head, king, the chief of ten thousand; more in excellency and worth than ten thousand millions of possible worlds of men and angels.
But such a consideration cannot befall any mortal king; because, consider the king materially as a mortal man, he must be inferior to the whole church, for he is but one, and so of less worth than the whole church; as the thumb, though the strongest of the fingers, yet it is inferior to the hand, and far more to the whole body, as any part is inferior to the whole. Consider the king reduplicative and formally as king, and by the official relation he has, he is no more then but a royal servant, an official mean tending, ex officio, to this end, to preserve the people, to rule and govern them; and a gift of God, given by virtue of his office, to rule the people of God, and so any way inferior to the people.
Arg. 9. Those who are before the people, and may be a people without a king, must be of more worth than that which is posterior and cannot be a king without them. For thus, God’s self-sufficiency is proved, in that he might be, and eternally was, blessed for ever, without his creature; but his creature cannot subsist in being without him. Now, the people were a people many years before there was a government, (save domestic,) and are a people where there is no king, but only an aristocracy or a democracy; but the king can be no king without a people. It is vain that some say, the king and kingdoms are relatives, and not one is before another, for it is true in the naked relation; so are father and son, master and servant, Relata simul natura; but sure there is a priority of worth and independency, for all that, in the father above the son, and in the master above the servant, and so in the people above the king; take away the people, and Dionysius is but a poor schoolmaster.
Arg. 10. The people in power are superior to the king, because every efficient and constituent cause is more excellent than the effect. Every mean is inferior in power to the end; (So Jun. Brutus, q. 31. Bucher l. 1. c. 16. Author Lib. de offic. Magistr. q. 6. Henaenius disp. 2, n. 6. Joan Roffensis Epist. de potest. pap. l. 2, c. 5. Spalato de Repu. Ecclesiast. l. 6, c. 2, n. 3:) but the people is the efficient and constituent cause, the king is the effect; the people is the end; both intended of God to save the people, to be a healer and a physician to them (Isa. 3:7); and the people appoint and create the king out of their indigence, to preserve themselves from mutual violence. Many things are objected against this. That the efficient and constituent cause is God, and the people are only the instrumental cause; and Spalato says, that the people does indirectly only give kingly power, because God, at their act of election, ordinarily gives it.
Ans. 1. The Scripture says plainly, as we heard before, the people made kings; and if they do, as other second causes produce their effects, it is all one that God, as the principal cause, makes kings, else we should not argue from the cause to the effect amongst the creatures. 2. God, by that same action that the people creates a king, does also, by them, as by his instruments, create a king; and that God does not immediately, at the naked presence of the act of popular election, confer royal dignity on the man, without any action of the people, as they say, by the church’s act of conferring orders, God does immediately, without any act of the church, infuse from heaven supernatural liabilities on the man, without any active influence of the church, is evident by this.
- 1st. The royal power to make laws with the king, and so a power eminent in their states representative to govern themselves, is in the people; for if the most high acts of royality be in them, why not the power also? And so, what need to fetch a royal power from heaven to be immediately infused in him, seeing the people has such a power in themselves at hand?
- 2nd. The people can, and does, limit and bind royal power in elected kings, therefore they have in them royal power to give to the king. Those who limit power, can take away so many degrees of royal power; and those who can take away power, can give power; and it is inconceiveable to say that people can put restraint upon a power immediately coming from God. If Christ immediately infused an apostolic spirit into Paul, mortal men cannot take from him any degrees of that infused spirit; if Christ infuse a spirit of nine degrees, the church cannot limit it to six degrees only. But royalists consent that the people may choose a king upon such conditions to reign, as he has royal power of ten degrees, whereas his ancestor had by birth a power of fourteen decrees.
- 3rd. It is not intelligible that the Holy Ghost should give commandment unto the people to make this man king, (Deut. 17:15, 16,) and forbid them to make that man king, if the people had no active influence in making a king at all; but God, solely and immediately from heaven, did infuse royalty in the king without any action of the people, save a naked consent only; and that after God had made the king, they should approve only with an after-act of naked approbation.
- 4th. If the people by other governors, as by heads of families and other choice men, govern themselves and produce these same formal effects of peace, justice, religion, on themselves, which the king does produce, then is there a power of the same kind, and as excellent as the royal power, in the people; and there is no reason but this power should be held to come immediately from God, as the royal power; for it is every way of the same nature and kind, as I shall prove.
Kings and judges differ not in nature and specie, but it is experienced that people do. by aristocratical guides, govern themselves, etc.; so then, it God immediately infuse royalty when the people chooses a king, without any action of the people, then must God immediately infuse a beam of governing on a provost and bailie, when the people choose such, and that without any action of the people, because all powers are, in abstracto, from God. (Rom. 13:2.) And God as immediately makes inferior judges as superior, (Prov. 8:16;) and all promotion (even to be a provost or mayor) comes from God only, as to be a king; except royalists say, all promotion comes from the east and from the west, and not from God, except promotion to the royal throne; the contrary whereof is said, Psal. 75:6-7; 1 Sam. 2:7-8.
Not only kings, but all judges are gods, (Psal. 82:1-2,) and therefore all must be the same way created and molded of God, except by Scripture royalists can show us a difference. An English prelate1 gives reasons why people, who are said to make kings as efficients and authors, cannot unmake them: the one is, because God, as chief and sole supreme moderator, makes kings; but I say, Christ, as the chief moderator and head of the church, does immediately confer abilities upon a man to be a preacher; and though, by industry, the man acquire abilities, yet in regard the church does not so much as instrumentally confer those abilities, they may be said to come from God immediately, in relation to the church who calls the man to the ministry.
Yea, royalists, as our excommunicated Prelate learned from Spalato, say, that God, at the naked presence of the church’s call, does immediately infuse that from heaven by which the man is now in holy orders and a pastor, whereas he was not so before; and yet prelates cannot deny but they can unmake ministers, and have practiced this in their unhallowed courts; and, therefore, though God immediately, without any action of the people, make kings, this is a weak reason to prove they cannot unmake them. As for their indellible character, that prelates cannot take from a minister; it is nothing, if the church may unmake a minister, though his character go to prison with him. We seek no more but to annul the reason. God immediately makes kings and pastors, therefore no power on earth can unmake them. This consequence is as weak as water.
2. The other cause is, because God has erected no tribunal on earth higher than the king’s tribunal, therefore no power on earth can unmake a king. The antecedent and consequence is both denied, and is a begging of the question; for the tribunal that made the king is above the king. Though there be no tribunal formally regal and kingly above the king, yet is there a tribunal virtual eminently above him in the case of tyranny; for the states and princes have a tribunal above him.
Assert. To this the constituent cause is of more power and dignity than the effect, and so the people are above the king. The P. Prelate borrowed an answer from Arnisaeus, and Barclay, and other royalists, and says, If we knew anything in law, or were ruled by reason, “every constituent, (says Arnisaeus2 and Barclay, more accurately than the P. Prelate had a bead to transcribe their words,) where the constituent has resigned all his power in the hand of the prince whom he constitutes, is of more worth and power than he in whose hand he resigns the power: so the proposition is false. The servant who has constituted his master lord of his liberty, is not more worthy than his master whom he has made his lord, and to whom he has given himself as a slave, (for after he has resigned his liberty he cannot repent, he must keep covenant though to his hurt,) yea, such a servant is not only not above his master, but he cannot move his foot without his master.” “The governor of Britain (says Arnisaeus) being despised by king Philip, resigned himself as vassal to king Edward of England; but did not for that make himself superior to king Edward. Indeed, he who constitutes another under him as a legate is superior; but the people do constitute a king above themselves, not a king under themselves; and, therefore, the people are not by this made the king’s superior, but his inferior.”
Ans. 1. It is false that the people does, or can by the law of nature, resign their whole liberty in the hand of a king.
- 1st. They cannot resign to others that which they have not in themselves, Nemo potest dare quod non habet; but the people has not an absolute power in themselves to destroy themselves, or to exercise those tyrannous acts spoken of, 1 Sam. 8:11-15, etc.; for neither God nor nature’s law has given any such power.
- 2nd. He who constitutes himself a slave is supposed to be compelled to that unnatural act of alienation of that liberty which he has from his Maker from the womb, by violence, constraint, or extreme necessity, and so is inferior to all free men; but the people does not make themselves slaves when they constitute a king over themselves; because God, giving to a people a king, the best and most excellent governor on earth, gives a blessing and special favor, (Isa. 1:26; Hos. 1:11; Isa. 3:6-7; Psal. 79:70-72;) but to lay upon his people the state of slavery, in which they renounce their whole liberty, is a curse of God. (Gen. 9:25; 27:29; Deut. 28:32, 36.)
But the people, having their liberty to make any of ten, or twenty, their king, and to advance one from a private state to an honorable throne, whereas it was in their liberty to advance another, and to give him royal power of ten degrees, whereas they might give him power of twelve degrees, of eight, or six, must be in excellency and worth above the man whom they constitute king, and invest with such honor; as honor in the fountain, and honos participans et originans, must be more excellent and pure than the derived honor in the king, which is honos participatus et originatus. If the servant give his liberty to his master, therefore he had that liberty in him, and in that act, liberty must be in a more excellent way in the servant, as in the fountain, than it is in the master; and so this liberty must be purer in the people than in the king; and therefore, in that both the servant is above the master, and the people worthier than the king.
And when the people give themselves conditionally and covenant-wise to the king, as to a public servant, and patron, and tutor, as the governor of Britain, out of his humor, gave himself to king Edward there is even here a note of superiority. Every giver of a benefit, as a giver, is superior to Him to whom the gift is given; though after the servant has given away his gift of liberty, by which he was superior, he cannot be a superior, because by his gift he has made himself inferior. The people constitutes a king above themselves, I distinguish supra se, above themselves; according to the fountain-power of royalty, that is false; for the fountain-power remains most eminently in the people,
- 1st. Because they give it to the king, ad modum recipientis, and with limitations; therefore it is unlimited in the people, and bounded and limited in the king, and so less in the king than in the people.
- 2nd. If the king turn distracted, and an ill spirit from the Lord come upon Saul, so as reason be taken from a Nebuchadnezzar, it is certain the people may put curators and tutors over him who has the royal power.
- 3rd. If the king be absent and taken captive, the people may give the royal power to one, or to some few, to exercise it as custodes regni. And,
- 4th. If he die, and the crown go by election, they may create another, with more or less power. All which evinces, that they never constituted over themselves a king, in regard of fountain-power; for if they give away the fountain, as a slave sells his liberty, they could not make use of it. Indeed they set a king above them, quoad potestatem legum executivam, in regard of a power of executing laws and actual government for their good and safety; but this proves only that the king is above the people, kata/ ti, in some respect.
But the most eminent and fountain-power of royalty remains in the people as in an immortal spring} which they communicate by succession to this or that mortal man, in the manner and measure that they think good. Ulpian3 and Bartolus,4 cited by our Prelate out of Barclaius, are only to be understood of the derived, secondary, and borrowed power of executing laws, and not of the fountain-power, which the people cannot give away, no more than they can give away their rational nature; for it is a power natural to conserve themselves, essentially adhering to every created being. For if the people give all their power away, what shall they reserve to make a new king, if this man die? What if the royal line should cease? there be no prophets immediately sent of God to make kings. What if he turn tyrant, and destroy his subjects with the sword? The royalists say, they may fly; but, when they made him king, they resigned all their power to him, even their power of flying; for they bound themselves by an oath (say royalists) to all passive and lawful active obedience; and, I suppose, to stand at his tribunal, if he summoned the three estates, upon treason, to come before him, is contained in the oath, that royalists say, binds all, and is contradictory to flying.
Arnisaeus, a more learned jurist and divine than the P. Prelate, answers the other maxim, “The end is worthier than the mean leading to the end, because it is ordained for the end. These means, (says he,) which refer their whole nature to the end, and have all their excellency from the end, and have excellency from no other thing but from the end, are less excellent than the end. That is true, such an end as medicine is for health.” And Hugo Grotius, (l. 1, c. 3, n. 8,) “Those means which are only for the end, and for the good of the end, and are not for their own good, also are of less excellency, and inferior to the end; but so the assumption is false. But these means which, beside their relation to the end, have an excellency of nature in themselves, are not always inferior to the end. The disciple, as he is instituted, is inferior to the master; but as he is the son of a prince, he is above the master. But by this reason the shepherd should be inferior to brute beasts, to sheep; and the master of the family is for the family, and refers all that he has for the entertaining of the family; but it follows not therefore the family is above him. The form is for the action, is therefore the action more excellent than the form, and an accident than the subject or substance?” And Grotius says, “Every government is not for the good of another, but some for its own good, as the government of a master over the servant, and the husband over the wife.
Ans. I take the answer thus: Those who are mere means, and only means referred to the end, they are inferior to the end; but the king, as king, has all his official and relative goodness in the world, as relative to the end. All that you can imagine to be in a king, as a king, is all relative to the safety and good of the people, (Rom. 13:4,) “He is a minister for thy good.” He should not, as king, make himself, or his own gain and honor, his end. I grant, the king, as a man, shall die as another man, and so he may secondarily intend his own good; and what excellency he has as a man, is the excellency of one mortal man, and cannot make him amount in dignity, and in the absolute consideration of the excellency of a man, to be above many men and a whole kingdom; for the more good things there be, the better they are, so the good things be multiplicable, as a hundred men are better than one; otherwise, if the good be such as cannot be multiplied, as one God, the multiplication makes them worse, as many gods are inferior to one God. Now if royalists can show us any more in the king than these two, we shall be obliged to them; and in both he is inferior to the whole.
The Prelate and his followers would have the maxim to lose credit; for then (say they) the shepherd should be inferior to the sheep; but in this the maxim fails indeed, because the shepherd is a reasonable man, and the sheep brute beasts, and so must be more excellent than all the flocks of the world. Now, as he is a reasonable man, he is not a shepherd, nor in that relation referred to the sheep and their preservation as a mean to the end; but he is a shepherd by accident, for the unruliness of the creatures, for man’s sin, withdrawing themselves from that natural dominion that man had over the creatures before the fall; in that relation of a mean to the end, and so by accident, is this official relation put on him; and according to that official relation, and by accident, man is put to be a servant to the brutish creature, and a mean to so base an end. But all this proves him, through man’s sin and by accident, to be under the official relation of a mean to baser creatures than himself, as to the end, but not a reasonable man. But the king, as king, is an official and royal mean to this end, that the people may lead a godly and peaceable life under him; and this official relation being an accident, is of less worth than the whole people, as they are to be governed. And I grant the king’s son, in relation to blood and birth, is more excellent than his teachers; but as he is taught, he is inferior to his teacher. But in both considerations the king is inferior to the people; or though he command the people, and so have an executive power of law above them, yet have they a fountain-power above him, because they made him king, and in God’s intention he is given as king for their good, according to this, “Thou shalt feed my people Israel,” and that, “I gave him for a leader of my people.”
The P. Prelate says: “The constituent cause is more excellent than the effect constituted, where the constitution is voluntary, and depends upon the free act of the will, as when the king makes a viceroy or a judge, durante beneplacito, during his free will, but not when a man makes over his right to another; for then there should be neither faith nor truth in covenants, if people might make over their power to their king, and retract and take back what they have once given.
Ans. This is a begging of the question; for it is denied that the people can absolutely make away their whole power to the king. It depends on the people that they be not destroyed. They give to the king a politic power for their own safety, and they keep a natural power to themselves which they must conserve, but cannot give away; and they do not break their covenant when they put in action that natural power to conserve themselves; for though the people should give away that power, and swear though the king should kill them all, they should not resist, nor defend their own lives, yet that being against the sixth commandment, which enjoins natural self-preservation, it should not oblige the conscience, for it should be intrinsically sinful; for it is all one to swear to non-sell-preservation as to swear to self-murder.
“If the people, (says the Prelate, begging the answer from Barclay,5) the constituent, be more excellent than the effect, and so the people above the king, because they constitute him king, then the counties and corporations may make void all the commissions given to the knights and burgesses of the House of Commons, and send others in their place, and repeal their orders; therefore Buchanan says, that orders and laws in parliament were but proboula/mata preparatory consultations, and had not the force of a law, till the people give their consent and have their influence authoritative, upon the statutes and acts of parliament; but the observator holds that the legislative power is whole and entire in the parliament. But when the Scots were preferring petitions and declarations they put all power in the collective body, and kept their distinct tables.
Ans. 1. There is no consequence here: the counties and incorporations that send commissioners to parliament, may make void their commissions and annul their acts, because they constitute them commissioners. If they be unjust acts, they may disobey them, and so disannul them; but, it is presumed, God has given no moral power to do ill, nor can the counties and corporations give any such power to evil, for they have not any such from God. If they be just acts, they are to obey them, and cannot retract commissions to make just orders. Illud tantum possumus quod jure possumus, and therefore, as power to govern justly is irrevocably committed by the three estates who made the king to the king, so is that same power committed by the shires and corporations to their commissioners, to decree in parliament what is just and good irrevocably; and to take any just power from the king which is his due, is a great sin. But when he abuses his power to the destruction of his subjects, it is lawful to throw a sword out of a madman’s hand, though it be his own proper sword, and though he have due right to it, and a just power to use it for good; for all fiduciary power abused may be repealed. And if the knights and burgesses of the House of Commons abuse their fiduciary power to the destruction of these shires and corporations who put the trust on them, the observator did never say that parliamentary power was so entire and irrevocably in them, as that the people may not resist them, annul their commissions and rescind their acts, and denude them of fiduciary power, even as the king may be denuded of that same power by the three estates; for particular corporations are no more to be denuded of that fountain-power of making commissioners, and of the self-preservation, than the three estates are.
2. The P. Prelate comes not home to the mind of Buchanan, who knew the fundamental laws of Scotland, and the power of parliaments; for his meaning was not to deny a legislative power in the parliament; but when he calls their parliamentary declarations proboula/mata his meaning is only that which lawyers and schoolmen both say, Leges non promulgatae non habent vim legis actu completo obligatoriae, “Laws not promulgated do not oblige the subject while they be promulgated;” but he fulfills Buchanan, when he says, “Parliamentary laws must have the authoritative influence of the people, before they can be formal laws, or any more than proboula/mata or preparatory notions. And it was no wonder when the king denied a parliament, and the supreme senate of the secret council was corrupted, that the people did then set up tables, and extraordinary judicatures of the three estates, seeing there could not be any other government for the time.
Barclay6 answers to this: “The mean is inferior to the end, it holds not; the tutor and curator is for the minor, as for the end, and given for his good; but it follows not that, therefore, the tutor, in the administration of the minor or pupil’s inheritance, is not superior to the minor.”
Ans. It follows well that the minor virtually, and in the intention of the law, is more excellent than the tutor, though the tutor can exercise more excellent acts than the pupil, by accident, for defect of age in the minor, yet he does exercise those acts with subordination to the minor, and with correction, because he is to render an account of his doings to the pupil coming to age; so the tutor is only more excellent and superior in some respect, kata/ ti but not simply, and so is the king in some respect above the people.
The P. Prelate begs from the royalists another of our arguments, Quod efficit tale, est magis tale,7 “That which makes another such, is far more such itself.” If the people give royal power to the king, then far more is the royal power in the people. By this (says the Prelate) it shall follow, if the observator give all his goods to me, to make me rich, the observator is more rich: if the people give most part of their goods to foment the rebellion, then the people are more rich, having given all they have upon the public faith.
Ans. 1. This greedy Prelate was made richer than ten poor pursuivants, by a bishopric; it will follow well, therefore, the bishopric is richer than the bishop, whose goods the curse of God blasts.
2. It holds in efficient causes, so working in other things as the virtue of the effect remains in the cause, even after the production of the effect. As the sun makes all things light, the fire all things hot, therefore the sun is more light, the fire more hot; but where the cause does alienate and make over, in a corporal manner, that which it has to another, as the hungry Prelate would have the observator’s goods, it holds not; for the effect may exhaust the virtue of the cause, but the people does, as the fountain, derive a stream of royalty to Saul, and make him king, and yet so as they keep fountain-power of making kings in themselves; yea, when Saul is dead to make David king at Hebron, and when he is dead to make Solomon king, and after him to make Rehoboam king; and, therefore, in the people there is more fountain-power of making kings than in David, in Saul, in any king of the world. As for the Prelate’s scoff about the people’s giving of their goods to the good cause, I hope it shall, by the blessing of God, enrich them more; whereas prelates, by the rebellion in Ireland, (to which they assent, when they council his Majesty to sell the blood of some hundred thousands of innocents killed in Ireland,) are brought, from thousands a year, to beg a morsel of bread.
The P. Prelate (p. 131) answers that maxim, Quod efficit tale, id ipsum est magis tale, “That which makes another such, it is itself more such.” It is true, de principio formali effectivo, (as I learned in the university,) of such an agent as is formally such in itself as is the effect produced. Next, it is such as is effective and productive of itself, as when fire heats cold water, so the quality must be formally inherent in the agent; as wine makes drink, it follows not, wine is more drunk, because drunkenness is not inherent in the wine, nor is it capable of drunkenness; and, therefore, Aristotle qualifies the maxim with this, Quod efficit tale est magis tale, modo utrique insit, “and it holds not in agents, who operate by donation, if the right of the king be transferred from the people to the king.” The donation divests the people totally of it, except the king have it by way of loan, which, to my thinking, never yet any spoke. Sovereignty never was, never can be, in the community. Sovereignty has power of life and death, which none has over himself, and the community conceived without government, all as equal, endowed with nature’s and native liberty, of that community no one can have power over the life of another. And so the argument may be turned home, if the people be not tales, such by nature, (as has formally royal power, he should say,) they cannot give the ting royal power; also, none has power of life and death, either more eminently or formally, the people, either singly or collectively, have not power over their own life, much less over their neighbors’.
Ans. 1. The Prelate would make the maxim true of a formal cause, and this he learned in the University of St. Andrews. He wrongs the university; he rather learned it while he kept the calves of Crail. The wall is white from whiteness; therefore, whiteness is more white by the Prelate’s learning. Never such thing was taught in that learned university.
2. Principium formale effectivum is as good logic as principium effectivum materiale, formale, finale. The Prelate is in his accuracy of logic now. He yet makes the causality of the formal cause all one with the causality of the efficient; but he is weak in his logic.
3. He confounds a cause equivocal and a cause univocal, and in that case the maxiim holds not. Nor is it necessary to make true the maxim, that the quality be inherent in the cause the same way; for a city makes a mayor, but to be a mayor is one way in the city, and another way in him who is created mayor. The Prelate’s maxim would help him, if we reasoned thus: The people makes the king, therefore the people is more a king, and more formally a sovereign than the king. But that is no more our argument than the simile that Maxwell used, as near heart and mouth both. Wine makes drunk the Prelate, therefore wine is more drunk. But we reason thus: The fountain-power of making six kings is in the people, therefore there is more fountain-power of royalty in the people than in any one king. For we read that Israel made Saul king, and made David king, and made Abimelech king; but never that king Saul made another king, or that an earthly king made another absolute king.
4. The Prelate will have the maxim false, where the agent works by donation, which yet holds true by his own grant (c. 9, p. 98). The king gives power to a deputy, therefore there is more power in the king.
5. He supposes that which is the basis and foundation of all the question, that people divests themselves totally of their fountain-power, which is most false.
6. Either they must divest themselves totally (says he) of their power, or the king has power from the people, by way of loan, which, to my thinking, never any yet spake. But the P. Prelate’s thinking is short, and no rule to divines and lawyers; for, to the thinking of the learned jurists, this power of the king is but fiduciary, and that is (whether the Prelate think it or think it not) a sort of power by trust, pawn or loan. Rex director Regni, non proprietarius, (Molinae. in consuet. Parisi. Tit. 1, 9; 1 Gloss. 7, n. 9,} “The king is a life-renter, not a lord, or proprietor of his kingdom.” So Novel. 85, in princip, et c. 18, Quod magistratus sit nudus dispensator et defensor jurium regni, non proprietarius, constat, ex eo quod non posset alienare imperium, oppida, urbes, regiones ve, vel res subditorum, bonave regni. So Gregory, l. 3, c. 8, de Repub. per c. 1, Sect. praeterea, de propo. feud. Hottoman, quest, illust. 1; Ferdinan. Vasquez, l. 1, c. 4; Bossius, de princip. et privileg. illius, n. 290, “The king is only a steward, and a defender of the laws of the kingdom, not a proprietor, because he has not power to make away the empire, cities, towns, countries, and goods of the subjects;” and, bona commissa magistratus, sunt subjecta restitutioni, et in prejudicium successorum alienari non possunt, (per l. ult. Sect. sed nost. C. Comment. de leg. l. peto 69, fratrem de leg. 2, l. 32, ult. d. t.) “All the goods committed to any magistrate are under restitution; for he has not power to make them away, to the prejudice of his successors.” The Prelate’s thoughts reach not the secrets of jurists, and therefore he speaks with a warrant; he will say no more than his short-traveled thoughts can reach, and that is but at the door.
7. Sovereignty is not in the community, (says the P. Prelate). Truly it neither is, nor can be, more than ten, or a thousand, or a thousand thousands, or a whole kingdom, can be one man; for sovereignty is the abstract, the sovereign is the concrete. Many cannot be one king or one soverign: a sovereign must be essentially one; and a multitude cannot be one. But what then? May not the sovereign power be eminently, fontaliter, originally and radically in the people? I think it may, and must be. A king is not an under judge: he is not a lord of council and session formally, because he is more. The people are not king formally, because the people are eminently more than the king; for they make David king, and Saul king; and the power to make a lord of council and session; is in the king (say royalists).
8. A community has not power of life and death; a king has power of life and death (says the Prelate). What then? Therefore a community is not king. I grant all. The power of making a king, who has power of life and death, is not in the people. Poor man! It is like prelates’ logic. Samuel is not a king, therefore he cannot make David a king. It follows not by the Prelate’s ground. So the king is not an inferior judge. What! Therefore he cannot make an inferior judge?
9. The power of life and death is eminently and virtually in the people, collectively taken, though not formally. And though no man can take away his own life, or has power over his own life formally, yet a man, and a body of men, has power over their own lives, radically and virtually, in respect they may render themselves to a magistrate, and to laws which, if they violate, they most be in hazard of their lives; and so they virtually have power of their own lives, by putting them under the power of good laws, for the peace and safety of the whole.
10. This is a weak consequence. None has power of his own life, therefore, far less of his neighhour’s (says the Prelate). I shall deny the consequence, The king has not power of his own life, that is, according to the Prelate’s mind, he can neither, by the law of nature, nor by any civil law, kill himself; therefore, the king has far less power to kill another; it follows not: for the judge has more power over his neighbor’s life than over his own.
11. But, says the P. Prelate, the community conceived without government, all as equal, endowed with nature’s and native liberty, has no power of life and death, because all are born free; and so none is born with dominion and power over his neighbor’s life. Yea, but so, Mr. P. Prelate, a king considered without government, and as born a free man, has not power of any man’s life more than a community has; for king and beggar are born both alike free. But a community, in this consideration, as they come from the womb, have no politic consideration at all. If you consider them as without all policy, you cannot consider them as invested with policy; yea, if you consider them so as they are by nature, void of all policy, they cannot so much as add their after-consent and approbation to such a man to be their king, whom God immediately from heaven makes a king; for to add such an after-consent, is an act of government. Now, as they are conceived to want all government, they cannot perform any act of government. And this is as much against himself as against us.
2. The power of a part and the power of the-whole is not alike. Royalty never advances the king above the place of a member; and lawyers say, the king is above the subjects, in sensu diviso, in a divisive sense, he is above this or that subject; but he is inferior to all the subjects collectively taken, because he is for the whole kingdom, as a mean for the end.
Obj. If this be a good reason, that he is a mean for the whole kingdom as for the end; that he is therefore inferior to the whole kingdom, then is he also inferior to any one subject; for he is a mean for the safety of every subject, as for the whole kingdom.
Ans. Every mean is inferior to its complete, adequate, and whole end; and such an end is the whole kingdom in relation to the king; but every mean is not always inferior to its incomplete, inadequate, and partial end. This or that subject is not adequate, but the inadequate and incomplete end in relation to the king.
The Prelate says, Kings are Dii Elohim, gods; and the manner of their propagation is by filiation, by adoption, sons of the Most High, and God’s first-born. Now, the first-born is not above every brother severally; but if there were thousands, millions, numberless numbers, he is above all in precedency and power.
Ans. Not only kings but all inferior judges are gods. Psal. 82, God stands in the congregation of the gods, that is not a congregation of kings. So (Exod. 22:8) the master of the house shall be brought MyhiOl)vhf d(a to the gods, or to the judges. And that there were more judges than one, is clear by ver. 9; and if they shall condemn N(uy#Oir:yA jarshignur, condemnarint, (John 10:35,) ei]pen qeou\j. He called them gods; Exod. 4:16, “Thou shalt be to Aaron MyhiOl)l’ as a god.” They are gods analogically only. God is infinite, not so the king. God’s will is a law, not so the king’s. God is an end to himself, not so the king. The judge is but God by office, and representation, and conservation of the people. It is denied that the firstborn is in power before all his brethren, though there were millions. That is but said, one, as one, is inferior to a multitude. As the first-born was a politic ruler to his brethren, he was inferior to them politically.
Obj. The collective university of a kingdom are subjects, sons, and the king their father, no less than this or that subject is the king’s subject. For the university of subjects are either the king, or the king’s subjects; for all the kingdom must be one of these two; but they are not the king, therefore they are his subjects.
Ans. All the kingdom, in any consideration, is not either king or subjects. I give a third: The kingdom collective is neither properly king nor subject; but the kingdom embodied in a state, having collateral, is a co-ordinate power with the king.
Obj. The university is ruled by laws, therefore they are inferior to the king who rules all by law.
Ans. The university, properly, is no otherwise ruled by-laws than the king is ruled by laws. The university, formally, is the complete politic body, endued with a nomothetic faculty, which cannot use violence against itself, and so is not properly under a law.
1. Joan. Roffens. de potest. pap. 1. 2, c. 5.
2. Arnisaeus de authorit. princip. c. 1. n. 1.
3. Ulpian l.1, ad Sc. Tubil. Populus omne suum imperium et potestatem confert in Regem.
4. Bartolus ad l. hostes 24, f. de capt. et host.
5. Sac Sanc. Maj. c. 9, p., 129, stolen from Barcla., lib. 6, c. 12.
6. Barcla., lib. 4, cont. Monarcho., c. 11, p. 27.
7. Sacr. Sanc. Mai., c. 13, p. 100. stolen out of Arnisaeus de jure Majest. c. 3, n. 1, p. 34.