Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No Inferior Judges Be Univocally and Essentially Judges, and the Immediate Vicars of God, No less than the King, or If They Be Only the Deputies and Vicars of the King
It is certain that, in one and the same kingdom, the power of the king is more in extension than the power of any inferior judge; but if these powers of the king and the inferior judges differ intensive and in spece, and nature is the question, though it be not all the question.
Assert. Inferior judges are no less essentially judges, and the immediate vicars of God, than the king. Those who judge in the room of God, and exercise the judgment of God, are essentially judges and deputies of God, as well as the king; but inferior judges are such, therefore the proposition is clear. The formal reason, why the king is univocally and essentially a judge, is, because the king’s throne is the Lord’s throne; 1 Chron. 29:23, “Then Solomon sat on the throne of the Lord, as king, instead of David his father.” 1 Kings 1:13, It is called David’s throne, because the king is the deputy of Jehovah; and the judgment is the Lord’s. I prove the assumption. Inferior judges appointed by king Jehoshaphat have this place, 2 Chron. 19:6, “The king said to the judges, Take heed what ye do, hwFhyla yk@i w%+p%;#O;t@i Mdf)fl; )Ol yk@i for ye judge not for man, but for the Lord.” Then, they were deputies in the place of the Lord, and not the king’s deputies in the formal and official acts of judging. Ver. 7, “Wherefore, now, let the fear at the Lord be upon you, take heed and do it; for there is no iniquity with the Lord our God, nor respect of persons, or taking of gifts.
Hence I argue, 1. If the Holy Ghost, in this good king; forbid inferior judges, wresting of judgment, respecting of persons, and taking of gifts, because the judgment is the Lord’s, and if the Lord himself were on the bench, he would not respect persons, nor take gifts, then he presumes, that inferior judges are in the stead and place of Jehovah, and that when these inferior judges should take gifts, they make, as it were, the Lord, whose place they represent, to take gifts, and to do iniquity, and to respect persons; but that the Holy Lord cannot do.
2. If the inferior judges, in the act of judging, were the vicars and deputies of king Jehoshaphat, he would have said, judge righteous judgment. Why? For the judgment is mine, and if I, the king, were on the bench, I would not respect persons, nor take gifts; and you judge for me, the Supreme Judge, as my deputies. But the king says, They judge not for man, but for the Lord.
3. If, by this, they were not God’s immediate vicars, but the vicars and deputies of the king, then, being mere servants, the king might command them to pronounce such a sentence, and not such a sentence as I may command my servant and deputy, in so far as he is a servant and deputy, to say this, and say not that; but the king cannot limit the conscience of the inferior judge, because the judgment is not the king’s, but the Lord’s.
4. The king cannot command any other to do that as king, for the doing whereof he has no power from God himself; but the king has no power from God to pronounce what sentence he pleases, because the judgment is not his own but God’s. And though inferior judges be sent of the king, and appointed by him to be judges, and so have their external call from God’s deputy the king, yet, because judging is an act of conscience, as one man’s conscience cannot properly be a deputy for another man’s conscience, so neither can an inferior judge, as a judge, be a deputy for a king. Therefore, the inferior judges have designation to their office from the king; but if they have from the king that they are judges, and be not God’s deputies, but the king’s, they could not be commanded to execute judgment for God, but for the king: (Deut. 1:17,) Moses appointed judges; but not as his deputies to judge and give sentence, as subordinate to him; for the judgment (says, he) is the Lord’s, not mine.
5. If all the inferior judges in Israel were but the deputies of the king, and not immediately subordinate to God as his deputies, then could neither inferior judges be admonished nor condemned in God’s word for unjust judgment, because their sentence should be neither righteous nor unrighteous, judgment, but in so far as the king should approve it or disapprove it; and, indeed, that royalist, Hugo Grotius1 says so, that an inferior judge can do nothing against the will of the supreme magistrate if it be so. Whenever God commands inferior judges to execute righteous judgment, it must have this sense, “Respect. not persons in judgment, except the king command you; crush not the poor, oppress not the fatherless, except the king command you.” I understand not such policy. Sure I am the Lord’s commandments, rebukes and threats, oblige, in conscience, the inferior judge as the superior, as is manifest in these scriptures, Jer. 5:1; Isa. 1:17, 21; 5:7; 10:2; 59:14; Jer. 22:3; Ezek. 18:8; Amos 5:7; Mic. 3:9; Hab. 1:4; Lev. 19:15; Deut. 17:11; 1:17; Exod. 23:2.
Grotius says,2 “It is here as in a category: the middle specie is, in respect of the superior, a specie, in respect of the inferior, a genus; so inferior magistrates in relation to those who are inferior to them and under them, are magistrates or public persons; but in relation to superior magistrates, especially the king, they are private persons, and not magistrates.
Ans Jehoshaphat esteemed not judges, appointed by himself, private men, 2 Chron. 19:6-7, “Ye judge not for men, but for the Lord.” We shall prove that under-judges are powers ordained of God: in Scotland the king can take no man’s inheritance from him because he is the king; but if any man possess lands belonging to the crown, the king, by his advocate, must stand before the lord-judges of the session, and submit the matter to the laws of the land; and if the king, for property of goods, were not under a law, and were not to acknowledge judges as judges, I see not how the subjects in either kingdoms have any property. I judge it blasphemy to say, that a sentence of an inferior judge must be no sentence, though never so legal nor just, if it be contrary to the king’s will, as Grotius says.
He cites that of Augustine: “If the consul command one thing, and the emperor another thing, you contemn not the power, but you choose to obey the highest.” Peter says, He will have us one way to be subject to the king, as to the supreme, sine ulla exceptione, without any exception; but to those who are sent by the king, as having their power from the king.
Arg. 1. When the consul commands a thing lawful, and the king that same thing lawful, or a thing not unlawful, we are to obey the king rather than the consul. So I expone Augustine. We are not to obey the king and the consul the same way, that is, with the same degree of reverence and submission; for we owe more submission of spirit to the king than to the consul; but magis et minus non variant speciem, more or less varies not the nature of things. But if the meaning be that we are not to obey the inferior judge, commanding things lawful, if the king command the contrary, this is utterly denied. But says Grotius, “The inferior judge is but the deputy of the king, and has all his power from him; therefore we are to obey him for the king.”
Ans. The inferior judge may be called the deputy of the king, (where it is the king’s place to make judges,) because he has his external call from the king, and is judge in foro soli, in the name and authority of the king; but being once made a judge, in foro poli, before God, he is as essentially a judge, and in his official acts, no less immediately subjected to God than the king himself.
Arg. 2. These powers to whom we are to yield obedience, because they are ordained of God, these are as essentially judges as the supreme magistrate the king; but inferior judges are such, therefore inferior judges are as essentially judges as the supreme magistrate. The proposition is, Rom. 13:1, for that is the apostle’s arguments; whence we prove kings are to be obeyed, because they are powers from God. I prove the assumption: inferior magistrates are powers from God, Deut. 1:17; 19:6-7; Exod. 22:7; Jer. 5:1; and the apostle says, “The powers that be are ordained of God.”
Arg. 3. Christ testified that Pilate had power from God as a judge (say royalists) no less than Caesar the emperor. (John 19:11; 1 Pet. 2:12.) We are commanded to obey the king and those that are sent by him, and that for the Lord’s sake, and for conscience to God; and (Rom. 13:5) we must be subject to all powers that are of God, not only for wrath, but for conscience.
Arg. 4. Those who are rebuked because they execute not just judgment, as well as the king, are supposed to be essentially judges, as well as the king; but inferior judges are rebuked because of this, Jer. 22:15-17; Ezek. 45:9-12; Zeph. 3:3; Amos 5:6-7; Eccles. 3:16; Mic. 3:2-4; Jer. 5:1, 31.
Arg. 5. He is the minister of God for good, and has the sword not in vain, but to execute vengeance on the evil-doers, no less than the king. (Rom. 13:2-4.) He to whom agrees, by an ordinance of God, the specific acts of a magistrate, is essentially a magistrate.
Arg 6. The resisting of the inferior magistrate in his lawful commandments is the resisting of God’s ordinance, and a breach of the fifth commandment, as is disobedience to parents; and not to give him tribute, and fear, and honor, is the same transgression, Rom. 13:1-7.
Arg. 7. These styles, of gods, of heads of the people, of fathers, of physicians and healers of the sons of the Most High, of such as reign and decree by the wisdom of God, etc., that are given to kings, for the which royalists make kings only judges, and all inferior judges but deputed, and judges by participation, and at the second hand, or given to inferior judges. (Exod, 22:8-9; John 10:35.) Those who are appointed judges under Moses (Deut. 1:16) are called, in Hebrew or Chaldee, (1 Kings 8:1-2; 5:2; Mic. 3:1; Josh. 23:2; Num. 1:16,) y#’O)rF rasce, y#O’yrI fathers, (Acts 7:2; Josh. 14:1; 19:15; 1 Chron. 8:28,) healers, (Isa. 3:7,) gods, and sons of the Most High. (Psal. 82:1-2, 6-7; Prov. 8:16-17.) I much doubt if kings can infuse godheads in their subjects. I conceive they have, from the God of gods, these gifts whereby they are enabled to be judges; and that kings may appoint them judges, but can do no more: they are no less essentially judges than themselves.
Arg. 8. If inferior judges be deputies of the king, not of God, and have all their authority from the king, then may the king limit the practice of these inferior judges. Say that an inferior judge has condemned to death a paricide, and he be conveying him to the place of execution, the king comes with a force to rescue him out of his hand; if this inferior magistrate bear God’s sword for the terror of ill-doers, and to execute God’s vengeance on murderers, he cannot but resist the king in this, which I judge to be his office; for the inferior judge is to take vengeance on ill-doers, and to use the co-active force of the sword, by virtue of his office, to take away this paricide. Now, if he be the deputy of the king, he is not to break the jaws of the wicked (Job 29:17); not to take vengeance on evil-doers (Rom. 13:4); nor to execute judgment on the wicked, Psal. 149:9); nor to execute judgment for the fatherless (Deut. 10:18); except a mortal man’s creator, the king, say Amen. Now, truly then, God, in all Israel, was to rebuke no inferior judge for perverting judgment, as he does, Exod. 23:26; Mic. 3:2-4; Zech. 3:3; Num. 25:5; Deut. 1:16; for the king only is lord of the conscience of the inferior judge who is to give sentence, and execute sentence righteously, upon condition that the king, the only univocal and proper iudge, first decree the same, as royalists teach.
Hear our Prelate (c. 4, p. 46). How is it imaginable that kings can be said to judge in God’s place, and not receive the power from God? But kings judge in God’s place. (Deut. 1:17; 2 Chron. 19:6.) Let no man stumble (this is his prolepsis) at this, that Moses in the one place, and Jehoshaphat in the other, spake to subordinate judges under them. This weakens nowise our argument; for it is a ruled case in law, Quod quis facit per alium, facit per se, all judgments of inferior judges are in the name, authority, and by the power of the supreme, and are but communicatively and derivatively from the sovereign power.
Ans. How is it possible that inferior judges (Deut. 1:17; 2 Chron. 19:8) can be said to judge in God’s place, and not receive the power from God immediately, without any consent or covenant of men? So says the P. Prelate. But inferior judges judge in the place of God, as both the P. Prelate and Scripture teach. (Deut. 1:17; 2 Chron. 19:6.) Let the Prelate see to the stumbling conclusion, for so he fears it proves to his bad cause. He says the places, Deut. 1:17; 2 Chron. 19:6, prove that the king judges in the room of God, because his deputies judge in the place of God. The Prelate may know we would deny this stumbling and lame consequence; for
- 1st. Moses and Jehoshaphat are not speaking to themselves, but to other inferior judges, and does publicly exhort them. Moses and Jehoshaphat are persuading the regulation of the personal actions of other men who might pervert judgment.
- 2nd. The Prelate is much upon his law, after he had foresworn the gospel and religion of the church where he was baptized. “What the king does by another, that he does by himself.” But were Moses and Jehoshaphat afraid that they should pervert judgment in the unjust sentence pronounced by under judges, of which sentence they could not know any thing? And do inferior judges so judge in the name, authority, and power of the King, as not in the name, authority, and power of: the Lord of lords and King of kings? or is the judgment the king’s? So; the Spirit of God says no such matter. The judgment executed by those inferior judges is the Lord’s, not a mortal king’s; therefore, a mortal king may not hinder them to execute judgment.
Obj. He cannot suggest an unjust sentence, and command an inferior judge to give out a sentence absolvatory on cut-throats, but he may hinder the execution of any sentence against Irish cut-throats.
Ans. It is all one to hinder the execution of a just sentence, and to suggest or command the inferior judge to pronounce an unjust one; for inferior judges, by conscience of their office, are both to judge righteously, and by force and power of the sword given to them of God (Rom. 13:1-4) to execute the sentence; and so God has commanded inferior judges to execute judgment, and has forbidden them to wrest judgment, to take gifts, except the king command them so to do.
The king is by the grace of God, the inferior judge is judge by the grace of the king; even as the man is the image of God, and the woman the man’s image.3
Ans. 1. This distinction is neither true in law nor conscience. Not in law, for it distinguishes not between ministros regis, et ministros regni. The servants of the king are his domestics, the judges are ministri regni, non regis; the ministers and judges of the kingdom, not of the king. The king does not show grace, as he is a man, in making such a man a judge; but justice as a king, by a royal power received from the people, and by an act of justice, he makes judges of deserving men; he should neither for favor nor bribes make any one judge in the land. 2. It is by the grace of God that men are to be advanced from a private condition to be inferior judges, as royal dignity is a free gift of God; 1 Sam. 2:7, “The Lord brings low and lifts up;” Psal. 75:7, “God puts down one and sets up another.” Court flatterers take from God and give to kings; but to be a judge inferior is no less an immediate favor of God than to be king, though the one be a greater favor than the other. Magis honos and Majoc honos are to be considered.
Arg. 9. Those powers which differ gradually, and per magis et minus, by more and less only, differ not in nature and species, and constitute not kings and inferior judges different univocally. But the power of kings and inferior judges are such; therefore kings and inferior judges differ not univocally. That the powers are the same in nature, I prove,
- 1st. by the specific acts and formal object of the power of both; for both are powers ordained of God. (Rom. 13:1.) To resist either, is to resist the ordinance of God.
- 2nd. Both are by office a terror to evil workers, ver. 3.
- 3rd. Both are the ministers of God for good. Though the king send and give a call to the inferior judge, that does no more make the inferior judge’s powers in nature and specie different than ministers of the Word, called by ministers of the Word, have offices different in nature. Timothy’s office to be preacher of the Word differs not in specie from the office of the presbytery which laid hands on him, though their office by extension be more than Timothy’s office. The people’s power is put forth in those same acts, when they choose one to be their king and supreme governor, and when they set up an aristocratical government, and choose many, or more than one, to be their governors; for the formal object of one or many governors is justice and religion, as they are to be advanced. The form and manner of their operation is, brachio seculari, by a co-active power, and by the sword. The formal acts of king and many judges in aristocracy are these same, the defending of the poor and needy from violence, the conservation of a community in a peaceable and a godly life. (1 Tim. 2:2; Job 29:12, 13; Isa. 1:17.) These same laws of God that regulates the king in all his acts of royal government, and ties and obliges his conscience, as the Lord’s deputy, to execute judgment for God, and not in the stead of men, in God’s court of heaven, does in like manner tie, and oblige the conscience of aristocratical judges, and all inferior judges, as is clear and evident by these places, 1 Tim. 2:2, not only kings, but all in authority pa/ntev oi3 e0n u9peroxh|~ o!ntev are obliged to procure that their subjects lead a quiet and peaceable life, in all godliness and honesty. All in conscience are obliged (Deut. 1:16) to judge righteously between every man and his brother, and the stranger that is with them. Neither are they to respect persons in judgment, but are to hear the small as well as the great, nor to be afraid of the face of men, the judgment administered by all, is God’s. (2 Chron. 19:6.) All are obliged to fear God, (Deut. 17:19, 20,) to keep the words of the law; not to be lifted up in heart above their brethren. (Isa. 1:17; Jer. 13:2-3,) Let any man show me a difference, according to God’s word, but in the extension, that what the king is to do as a king, in all the kingdom and whole dominions, (if God give to him many, as he gave to David, and Solomon, and Joshua,) that the inferior judges are to do in such and such circuits, and limited places, and I quit the cause; so as the inferior judges are little kings, and the king a great and delated judge, as a compressed hand or fist, and the hand stretched out in fingers and thumb, are one hand; so here.
- 4th. God owns inferior judges as a congregation of gods; (Psal. 82:1-2;) for that God sits in a congregation or senate of kings or monarchs, I shall not believe till I see royalists show to me a commonwealth of monarchs convening in one judicature. All are equally called gods, (John 10:35; Exod. 22:8,) if for any cause, but because all judges, even inferior, are the immediate deputies of the King of kings, and their sentence in judgment as the sentence of the Judge of all the earth, I shall be informed by the P. Prelate, when he shall answer my reasons, if his interdicted lordship may cast an eye to a poor presbyter below; and as wisdom is that by which kings reign, (Prov. 8:15, so also ver. 16,) by which princes rule, and nobles, even all the judges of the earth; all that is said against this is, that the king has a prerogative royal, by which he is differenced from all judges in Israel, called jus regis +p%a#;Omi for, (says Barclay,4) the king, as king, essentially has a domination and power above all, so as none can censure him, or punish him, but God, because there be no thrones above his but the throne of God. The judges of Israel, as Samuel, Gideon, etc. had no domination, the dominion was in God’s hand. “We may resist an inferior judge, (says Arnisaeus,5) otherwise there were no appeal from him, and the wrong we suffer were irreparable” as says Marantius.6 “And all the judges of the earth (says Edward Symmons7) are from God more remotely; namely, mediante rege, by the mediation of the Supreme, even as the lesser stars have their light from God by the mediation of the sun.
To the first I answer: There was a difference between the kings of Israel and their judges, no question; but if it be an essential difference, it is a question. For,
- 1st. The judges were raised up in an extraordinary manner, out of any tribe, to defend the people, and vindicate their liberty, God remaining their king: the king, by the Lord’s appointment, was tied, after Saul, to the royal tribe of Judah, till the Messiah’s coming. God took his own blessed liberty to set up a succession in the ten tribes.
- 2nd. The judges were not by succession from father to son: the kings were, as I conceive, for the typical eternity of the Messiah’s throne, presignified to stand from generation to generation.
- 3rd. Whether the judges were appointed by the election of the people, or no, some doubt; because Jephthah was so made judge: but I think it was not a law in Israel that it should be so. But the first mold of a king (Deut. 17) is by election. But that God gave power of domineering, that is, of tyrannising, to a king, so as he cannot be resisted, which he gave not to a judge, I think no scripture can make good.
For by what scripture can royalists warrant to us that the people might rise in arms to defend themselves against Moses, Gideon, Eli, Samuel, and other judges, if they should have tyrannised over the people; and that it is unlawful to resist the most tyrannous king in Israel and Judah? Yet Barclay and others must say this, if they be true to that principle of tyranny, that the jus regis, the law or manner of the king (1 Sam. 8:9, 11; and 1 Sam. 10:25) does essentially differ between the kings of Israel and the judges of Israel. But we think God gave never any power of tyranny to either judge or king of Israel; and domination in that sense was by God given to none of them. Arnisaeus has as little for him, to say the inferior magistrate may be resisted, because we may appeal from him; but the king cannot be resisted, quia sanctitas majestatis id non permittit, the sanctity of royal majesty will not permit us to resist the king.
Ans. That is not Paul’s argument to prove it unlawful to resist kings, as kings, and doing their office, because of the sanctity of their majesty; that is, as the man intends, because of the supreme, absolute, and unlimited power that God has given him. But this is a begging of the question, and all one as to say, the king may not be resisted, because he may not be resisted; for sanctity of majesty, if we believe royalists, includes essentially an absolute supremacy of power, whereby they are above the reach of all thrones, laws, powers, or resistance on earth. But the argument is, resist not, because the power is of God. But the inferior magistrate’s power is of God. Resist not, because you resist God’s ordinance in resisting the judge; but the inferior judge is God’s ordinance. (Rom. 13:1; Deut. 1:17; 2 Chron. 19:6.) Mr. Symmons says, “All judges on earth are from the king, as stars have their light from the sun.” I answer,
- 1st. Then aristocracy were unlawful, for it has not its power from monarchy. Had the lords of the Philistines have the states of Holland, no power but from a monarchy? Name the monarch. Have the Venetians any power from a king? Indeed, our Prelate says from Augustine, (Confess. lib. 3, cap. 8,) Generale pactum at societatis humanae, obedire Regibus suis, it is an universal covenant of human society, and a dictate of nature, that men obey their kings. “I beg the favor of sectaries (says he) to show as much for aristocracy and democracy.” Now all other governments, to those born at court, are the inventions of men. But I can show that same warrant for the one as for the other; because it is as well the dictate of nature that people obey their judges and rulers as it is that they obey their kings. And Augustine speaks of all judges in that place, though he name kings; for kingly government is no more of the law of nature than aristocracy or democracy; nor are any born judges or subjects at all. There is a natural aptitude in all to either of these, for the conservation of nature, and that is all. Let us see that men, naturally inclining to government, incline rather to royal government than to any other. That the P. Prelate shall not be able to show; for fatherly government, being in two, is not kingly, but nearer to aristocracy; and when many families were on earth, every one independent within themselves, if a common enemy should invade a tract of land governed by families, I conceive, by nature’s light, they should incline to defend themselves, and to join in one politic body for their own safety, as is most natural. But, in that case they, having no king, and there were no reason of many fathers all alike loving their own families and sell-preservation, why one should be king over all, rather than another, except by voluntary compact. So it is clear that nature is nearer to aristocracy before this contract than a monarchy. And let him show us in multitudes of families dwelling together, before there was a king, as clear a warrant for monarchy as here is for aristocracy; though to me both be laudable and lawful ordinances of God, and the difference merely accidental, being one and the same power from the Lord, (Rom. 13:1,) which is in diverse subjects; in one as a monarchy, in many as in aristocracy; and the one is as natural as the other, and the subjects are accidental to the nature of the power.
- 2nd. The stars have no light at all but in actual aspect toward the sun; and they are not lightsome bodies by the free will of the sun, and have no immediate light from God formally, but from the sun; so as if there were no sun, there should be no stars.
- 3rd. For actual shining and sending out of beams of light actu secundo, they depend upon the presence of the sun; but for inferior judges, though they have their call from the king, yet have they gifts to govern from no king on earth, but only from the King of kings.
- 4th. When the king is dead, the judges are judges, and they depend not on the king for their second acts of judging; and for the actual emission and putting forth their beams and rays of justice upon the poor and needy, they depend on no voluntary aspect, information or commandment of the king, but on that immediate subjection of their conscience to the King of kings. And their judgment which they execute is the Lord’s immediately, and not the king’s; and so the comparison halts.
Arg. 10. If the king divine, the judges inferior remain powers from God, the deputies of the Lord of Hosts, having their power from God, then are they essentially judges; yea, and if the estates, in their prime representators and leaders, have power in the death of the king to choose and make another king, then are they not judges and rulers by derivation and participation, or improperly; but the king is rather the ruler by derivation and participation than those who are called inferior judges. Now, if these judges depend in their sentences upon the immediate will of him who is supposed to be the only judge, when this only judge dies, they should cease to be judges: for Expirante mandatore exspirat mandatum; because the fountain-judge drying up, the streams must dry up. Now, when Saul died, the princes of the tribes remain by God’s institution princes, and they by God’s law and warrant (Deut. 17) choose David their king.
Arg. 11. If the king, through absolute power, do not send inferior judges, and constitute them, but only by a power from the people; and if the Lord have no less immediate influence in making inferior judges than in making kings, then there is no ground that the king should be sole judge, and the inferior judge only judge by derivation from him, and essentially his deputy, and not the immediate deputy of God. If the former is true, therefore, so is the latter. And,
- 1st. That the king’s absolute will makes not inferior judges, is clear, from Deut. 1:15. Moses might not follow his own will in making inferior judges whom he pleased: God tied him to a law, (ver. 13,) that he should take wise men, known amongst the people, and fearing God, and hating covetousness. And these qualifications were not from Moses, but from God; and no less immediately from God than the inward qualification of a king (Deut. 17); and therefore, it is not God’s law that the king may make inferior judges only, Durante beneplacito, during his absolute will; for if these divine qualifications remain in the seventy elders, Moses, at his will, could not remove them from their places.
- 2nd. That the king can make heritable judges more than he can communicate faculties and parts of judging, I doubt. Riches are of fathers, but not promotion, which is from God, and neither from the east nor the west: that our nobles are born lords of parliament, and judges by blood, is a positive law.
- 3rd. It seems to me, from Isa. 3:1-4, that the inferior judge is made by consent of the people; nor can it be called a wronging of the king, that all cities and burghs of Scotland and England have power to choose their own provosts, rulers, and mayors.
- 4th. If it be warranted by God, that the lawful call of God to the throne be the election of the people, the call of inferior judges must also be from the people, mediately or immediately. So I see no ground to say, that the inferior judge is the king’s vicegerent, or that he is in respect of the king, or in relation to supreme authority, only a private man.
Arg. 12. These judges cannot but be univocally and essentially judges no less than the king, without which in a kingdom justice is physically impossible; and anarchy, and violence, and confusion, must follow, if they be wanting in the kingdom. But without inferior judges, though there be a king, justice is physically impossible; and anarchy and confusion, etc. must follow. Now this argument is more considerable, that without inferior judges, though there be a king in a kingdom, justice and safety are impossible; and if there be inferior judges, though there be no king, as in aristocracy, and when the king is dead, and another not crowned, or the king is minor, or absent, or a captive in the enemy’s land, vet justice is possible, and the kingdom preserved; the medium of the argument is grounded upon God’s word, Num. 11:14, 15, when Moses is unable alone to judge the people, seventy elders are joined with him (ver. 16, 17); so were the elders adjoined to help him (Exod. 24:1; Deut. 5:23; 22:16; Josh. 13:2; Judg. 8:14; 11:5, 11; 1 Sam. 11:3; 1 Kings 20:7; 2 Kings 6:32; 2 Chron. 34:29; Ruth 4:4; Deut. 19:12; Ezek. 8:1; Lam. 1:19); then were the elders of Moab thought to have a king.
The natural end of judges has been indigence and weakness, because men could not in a society defend themselves from violence; therefore, by the light of nature they gave their power to one or more, and made a judge or judges to obtain the end of self-preservation. But nature uses the most efficacious means to obtain its end; but in a great society and kingdom, the end is more easily attained by many governors than by one only; for where there is but one, he cannot minister justice to all; and the farther that the children are removed from their father and tutor, they are the nearer to violence and injustice. Justice should be at as easy a rate to the poor at a draft of water. Samuel went yearly through the land to Bethel, Gilgal, Mizpah, (1 Sam. 7:16,) and brought justice to the doors of the poor. So were our kings of Scotland obliged to do of old; but now justice is as dear as gold. It is not a good argument to prove inferior judges to be only vicars and deputies of the king, because the king may censure and punish them when they pervert judgment.
- 1st. Because the king, in that punishes them not as judges, but as men.
- 2nd. That might prove all the subjects to be vicars and deputies of the king, because he can punish them all, in the case of their breach of laws.
1. Grotius de jure belli et pac. lib. 1, c. 4, Nam omnis facultas gubernandi in magistratibus, summa potestati ita. subjicitur ut quioquid contra voluntatem summi imperantis faciant, id defectum ait ea facultate, ac proinde de pro actu privato habendum.
2. Grotius ib. species intermedia, si genus respicias, est species, srepeciem infra positam, est genus; ita magistratus illi, inferiorum quidem ratione habita sunt publicae, personae, ac superiorea si considerentur, sunt privati.
3. Symmon’s Loyal Subjects’ Belief, sect. 1, p. 3.
4. Inferiores Judices sunt improprie Vicarii Regis, quod missionem externam ad officium, sed immediati Dei vicarii. quoad officium in quod misai sunt. Barclaius contr. Monarch. l. 2, p. 56, 57.
5. Arnisaeus de authoritate princip. c. 3, n. 9.
6. Marant. disp. l.. Zoan. tract. 3, de defens. Mynsing. obs, 18, cent. 5.
7. Symmons, sect. 1, p. 2.