Lex Rex [Law Is King, or The Law & The Prince] (1644)

Samuel Rutherford

Whether the Power of the King as King Be Absolute, or Dependent and Limited by God’s First Mold and Pattern of a King

Dr Ferne (sect. 3, p. 12) shows us it was never his purpose to plead for absoluteness of an arbitrary commandment, free from all moral restraint laid on the power by God’s law; but only he strives for a power in the king that cannot be resisted by the subject. But truly we never disputed with royalists of any absolute power in the king, free from moral subjection to God’s law.

    1st. Because any bond that God’s law imposes on the king, comes wholly from God, and the nature of a divine law, and not from any voluntary contract or covenant, either express or tacito, between the king and the people who made him king; for, if he fail against such a covenant, though he should exceed the cruelty of a king or a man, and become a lion, a Nero, and a mother-killer, he should in all his inhumanity and breach of covenant be accountable to God, not to any man on earth.
    2nd. To dispute with royalists if God’s law lay any moral restraint upon the king, were to dispute whether the king be a rational man or no, and whether he can sin against God, and shall cry in the day of God’s wrath, (if he be a wicked prince) Hills fall on us and cover us, as it is Rev. 6:15, 16; and whether Tophet be prepared for all workers of iniquity; and certainly I justify the schoolmen in that question: Whether or no God could have created a rational creature, such a one as by nature is impeccable, and not naturally capable of sin before God? If royalists dispute this question of their absolute monarch, they are wicked divines.

We plead not at this time, (says the Prelate, c. 14, p. 163, stealing from Grotius, Barclay, Arnisaeus, who spake it with more sinews of reason;) for a masterly or despotical, or rather for a slavish sovereignty, which is dominium herile, an absolute power, such as the great Turk this day exercises over his subjects, and the king of Spain has over and in his territories without Europe: we maintain only regnam potestatem, quos fundatur in paterna, such royal, fatherly sovereignty, as we live under, blessed be God, and our predecessors. This, (says he,) as it has its royal prerogative inherent to the crown naturally, and inseparable from it, so it trenches not upon the liberty of the person, or the property of the goods of the subject, but in and by the lawful and just acts of jurisdiction.

Ans. — 1. Here is another absolute power disclaimed to be in the king; he has not such a masterly and absolute liberty as the Turk has. Why? John P. P.. in such a tender and high point as concerns soul and body of subjects in three Christian kingdoms, you should have taught us. What bonds and fetters any covenant or pact between the king and people lays upon the king, — why he has not, as king, the power of the great Turk, I will tell you The great Turk may command any of his subjects to leap into a mountain of fire, and burn himself quick, in conscience of obedience to his law. And what if the subject disobey the great Turk? if the great Turk be a lawful prince, as you will not deny; — and if the king of Spain should command foreign conquered slaves to do the like. Be your doctrine, neither the one nor the other were obliged to resist by violence, but to pray, or fly; which both were to speak to stones, and were like the man who, in case of shipwreck, made his devotion of praying to the waves of the sea, not to enter the place of his bed and drown him. But a Christian king has not this power; why? and a Christian king (by royalist’s doctrine) has a greater power than the Turk (if greater can be): he has power to command his subjects to cast themselves into hell-fire; that is, to press on them a service wherein it is written, — Adore the work of men’s hands in the place of the living God; and this is worse than the Turk’s commandment of bodily burning quick. And what is left to the Christian subjects in this case is the very same, and no other than is left to the Turkish and foreign Spanish subject. Either fly, or make prayers. There is no more left to us.

2. Many royalists maintain that England is a conquered nation. Why, then, see what power, by law of conquest, the king of Spain has over his slaves; the same must the king of England have over his subjects. For, to royalists, a title by conquest to a crown is as lawful as a title by birth or election; for lawfulness, in relation to God’s law, is placed in an indivisible point, if we regard the essence of lawfulness; and therefore there is nothing left to England, but that all protestants who take the oath of a protestant king, to defend the true protestant religion, should, after prayers conveyed to the king through the tinkers of prelates and papists, leave the kingdom empty to papists, prelates, and atheists.

3. All power restrained that it cannot arise from ten degrees to fourteen, — from the kindly power of Saul (1 Sam. 8:9, 11) to the kingly power of the great Turk, to fourteen, — must either be restrained by God’s law, or by man’s law, or by the innate goodness and grace of the prince, or fay the providence of God. A restraint from God’s law is vain; for it is no question between us and royalists but God has laid a moral restraint on kings, and all men, that they have not moral power to sin against God. Is the restraint laid on by man’s law? What law of man? The royalist says, the king, as king, is above all law of man. Then (say I) no law of man can hinder the king’s power of ten, to arise to the Turkish power of fourteen. All law of man, as it is man’s law, is seconded either with ecclesiastical and spiritual co-action, such as excommunication, or with civil and temporal co-action, such as is the sword, if it be violated. But royalists deny that either the sword of the church in excommunication, or the civil sword, should be drawn against the king. This law of man should be produced by this profound jurist, the P. Prelate, who mocks at all the statists and lawyers of Scotland. It is not a covenant between the king and people at his coronation; for though there were any such covenant, yet the breach of it does bind before God, but not before man. Nor can I see, or any man else, how a law of man can lay a restraint on the king’s power of two degrees, to cancel it within a law, more than on a power of ten or fourteen degrees.

If the king of Spain, the lawful sovereign of those over-European people, (as royalists say,) have a power of fourteen decrees over those conquered subjects, as a king, I see not how he has not the like power over his own subjects of Spain, to wit, even of fourteen; for what agrees to a king, as a king, (and kingly power from God he has as king,) he has it in relation to all subjects, except it be taken from him in relation to some subjects, and given by some law of God, or in relation to some other subjects. Now no man can produce any such law. The nature of the goodness and grace of the prince cannot lay bonds on the king to cancel his power, that be should not usurp the power of the king of Spain toward his over-Europeans. 1. Royalists plead for a power due to the king, as king, and that from God, such as Saul had; (1 Sam. 8:9, 11; 10:25;) but this power should be a power of grace and goodness in the king as a good man; not in the king as a king, and due to him by law; and so the king should have his legal power from God to be a tyrant. But if he were not a tyrant, but should lay limits on his own power, through the goodness of his own nature, no thanks to royalists that he is not a tyrant; for, actu prima, and as he is a king, (as they say) he is a tyrant, having from God a tyrannous power of ten degrees, as Saul had; (1 Sam. 8;) and why not of fourteen degrees as well as the great Turk, or the king of Spain? If he use it not, it is his own personal goodness, not his official and royal power. The restraint of providence laid by God upon any power to do ill, hinders only the exercise of the power not to break forth in as tyrannous acts as ever the king of Spain or the great. Turk can exercise toward any. Yea, providence lays physical restraint, and possibly moral, sometimes, upon the exercise of that power that devils and the most wicked men of the world has. But royalists must show us that providence has laid bounds on the king’s power, and made it fatherly and not masterly; so that if it, the power, exceed bounds of fatherly power, and pass over to the despotical and masterly power, it may be resisted by the subjects; but that they will not say.

4. This paternal and fatherly power that God has given to kings, as royalists teach, trenches not upon the liberty of the subjects and the property of their goods, but in and by lawful and just acts of jurisdiction (says the P. Prelate). Well; then it may trench upon the liberty of soul and body of the subjects but in and by lawful and just acts of jurisdiction. But none are to judge of these acts of jurisdiction, whether they be just or not just, but the king, the only judge of supreme and absolute authority and power. And if the king command the idolatrous service in the obtruded service-book, it is a lawful and a just act of jurisdiction. For to royalists, who make the king’s power absolute, all acts are so just to the subject, though he command idolatry and Mahommedanism, that we are to suffer only, and not to resist.

5. The Prelate presumes that fatherly power is absolute; but so, if a father murder his child, he is not accountable to the magistrate therefor, but, being absolute over his children, only the Judge of the world, not any power on earth, can punish him.

6. We have proved that the king’s power is paternal or fatherly only by analogy, and improperly.

7. What is this prerogative royal, we shall hear by and by.

8. There is no restraint on earth laid upon this fatherly power of the king but God’s law, which is a moral restraint. If then, the king challenge as great a power as the Turk has, he only sins against God, but no mortal man on earth may control him, as royalists teach. And who can know what power it is that royalists plead for, whether a despotical power of lordly power, or a fatherly power? If it be a power above law, such as none on earth may resist it, it is no matter whether it be above law of two degrees, or of twenty, even to the great Turk’s power.

These go for oracles at court: Tacitus, — Principi summum rerum arbitrium Dii dederunt, subditis obsequii gloria relicta est; Seneca, — Indigna digna habenda sunt, Rex qua facit; Salust, — Impune quidvis facere, id est, Regem esse. As if to be a king and to be a god who cannot err were all one. But certainly these authors are taxing the license of kings, and not commanding their power.

But that God has given no absolute and unlimited power to a king above the law, is evident by this: —

Arg. 1. — He who, in his first institution, is appointed of God by office, even when he sits on the throne, to take heed to read on a written copy of God’s law, that he may “learn to fear the Lord his God, and keep all the words of this law,” etc., he is not of absolute power above law. But (Deut. 17:18, 19) the king as king, while he sits on the throne, is to do this; therefore the assumption is clear, for this is the law of the king as king, and not of a man as a man. But as he sits on the throne, he is to read on the book of the law; and (ver. 20) because he is king, “his heart is not to be lifted up above his brethren;” and as king, (ver. 16,) “he is not to multiply horses,” etc. So politicians make this argument good: — they say, Rex est lex viva, animata, et loquens lex, the king as king, is a living, breathing, and speaking law. And there be three reasons of this, —

    1st. If all were innocent persons, and could do no violence one to another, the law would rule all, and all men would put the law in execution, agenda sponte, by doing right of their own accord; and there should be no need of a king to compel men to do right. But now, because men are by nature averse to good laws, therefore there was need of a ruler, who, by office, should reduce the law into practice; and so is the king the law reduced in practice.
    2nd. The law is ratio sive mens, the reason or mind, free from all perturbations of anger, lust, hatred, and cannot be tempted to ill; and the king, as a man, may be tempted by his own passions, and therefore, as king, he comes by office out of himself to reason and law; and so much as he has of law, so much of a king; and in his remotest distance from law and reason he is a tyrant.
    3rd. Abstracta concretis sunt puriora et perfectiora. Justice is more perfect than a just man, whiteness more perfect than the white wall; so the nearer the king comes to a law, for the which he is a king, the nearer to a king, Propter quod unumquodque tale, id ipsum magis tale. Therefore, kings throwing laws to themselves as men, whereas they should have conformed themselves to the law, have erred. Cambyses, the son of Cyrus, because he loved his own sister, would have “the marriage of the brother with the sister lawful.” Anaxarchus said to Alexander, (grieved in mind that he had killed Clytus,) Regi ac Jovi themin atque institiam assidere: — Judgment and righteousness did always accompany God and the king in all they do; but some, to this purpose, say better: — The law, rather than the king, has power of life and death.

Arg. 2. — The power that the king has (I speak not of his gifts) he has it from the people who makes him king, as I proved before; but the people have neither formally nor virtually any power absolute to give the king. All the power they have is a legal and natural power to guide themselves in peace and godliness, and save themselves from unjust violence by the benefit of rulers. Now, an absolute power above a law is a power to do ill and to destroy the people, and this the people have not themselves, it being repugnant to nature that any should have a natural power in themselves to destroy themselves, or to inflict upon themselves an evil of punishment to destruction. Though therefore it were given, which yet is not granted, that the people had resigned all power that they have into their king, yet if he use a tyrannical power against the people for their hurt and destruction, he uses a power that the people never gave him, and against the intention of nature; for they invested a man with power to be their father and defender for their good; and he fails against the people’s intention in usurping an over-power to himself, which they never gave, never had, never could give, for they cannot give what they never had, and power to destroy themselves they never had.

Arg. 3. — All royal power, whereby a king is a king and differenced from a private man, armed with no power of the sword, is from God. But absolute power to tyrannise over the people and to destroy them is not a power from God; therefore there is not any such royal power absolute.

The proposition is evident, because that God who makes kings and disposes of crowns, (Prov. 8:15, 16; 2 Sam. 12:7; Dan. 4:32,) must also create and give that royal and official power by which a king is a king. 1. Because God created man, he must be the author of his reasonable soul. If God be the author of things, he must be the author of their forms by which they are that which they are. 2. All power is God’s, (1 Chron. 29:11; Matt. 6:13; Psal. 62:11; 68:35; Dan. 2:37,) and that absolute power to tyrannise, is not from God. 1. Because, if this moral power to sin be from God, it being formally wickedness, God must be the author of sin. 2. Whatever moral power is from God, the exercises of that power, and the acts thereof, must be from God, and so these acts must be morally good and just; for if the moral power be of God, as the author, so must the acts be. Now, the acts of a tyrannical power are acts of sinful injustice and oppression, and cannot be from God. 3. Politicians say, there is no power in rulers to do ill, but to help and defend the people, — as the power of a physician to destroy, of a pilot to cast away the ship on the rock, the power of a tutor to waste the inheritance of the orphan, and the power of father and mother to kill their children, and of the mighty to defraud and oppress, are not powers from God. So Ferdinand. Vasquez illustr. quest. l. 1, c. 26, c. 45; Prickman d. c. 3, sect. Soluta potestas; Althus. pol. cap. 9, n. 25, Barclaius,1 Grotius, Dr Ferne, (The P. Prelate’s wit could come up to it,) say, “That absolute power to do ill, so as no mortal man can lawfully resist it, is from God; and the king has this way power from God as no subject can resist it, but he must resist the ordinance of God, and yet the power of tyranny is not simply from God.”

Ans. — The law says, Illud possumus quod jure possumus, Papinus F. filius, D. de cond. Just. It is no power which is not lawful power. The royalists say, power of tyranny, in so far as it may be resisted, and is punishable by men, is not from God. But what is the other part of the distinction? It must be, that tyrannical power is simpliciter from God, or in itself it is from God; but as it is punishable or restrainable by subjects, it is not from God. Now, to be punishable by subjects is but an accident, and tyrannical power is the subject; yea, and it is a separable accident; for many tyrants are never punished, and their power is never restrained: such a tyrant was Saul, and many persecuting emperors. Now, if the tyrannical power itself was from God, the argument is yet valid, and remains unanswered. And shall not this fall to the ground as false, which Arnisaeus says, (de autho. princ. c. 2, n. 10,) Dum contra officium facit, magistratus non est magistratus, quippe a quo non injuria, sed jus nasci debeat, l. meminerint. 6. C. unde vi. din. in C. quod quis, 24, n. 4, 5. — Et de hoc neminem dubitare aut dissentire scribit, Marant. disp. 1, num. 14. When the magistrate does anything by violence, and without law, in so far doing against his office, he is not a magistrate. Then, say I, that power by which he does, is not of God. None does, then, resist the ordinance of God who resist the king in tyrannous acts. If the power, as it cannot be punished by the subject nor restrained, be from God, therefore the tyrannical power itself, and without this accident — that it can be punished by men — it must be from God also. But the conclusion is absurd, and denied by royalists.

I prove the connection: If the king have such a power above all restraint, the power itself, to wit, king David’s power to kill innocent Uriah, and deflower Bathsheba, without the accident of being restrained or punished by men, it is either from God or not from God. If it be from God, it must be a power against the sixth and seventh commandments, which God gave to David, and not to any subject; and so David lied when he confessed this sin, and this sin cannot be pardoned because it was no sin: and kings, because kings, are under no tie of duties of mercy, and truth, and justice to their subjects, contrary to that which God’s law requires of all judges (Deut. 1:15-17; 17:15-20; 2 Chron. 19:6-7; Rom. 13:3-4): if this power be from God, as it is unrestrainable and unpunishable by the subject, it is not from God at all; for how can God give a power to do ill, that is unpunishable by men, and not give that power to do ill? It is inconceivable; for in this very thing that God gives to David — a power to murder the innocent — with this respect, that it shall be punishable by God only, and not by men, God must give it as a sinful power to do ill, which must be a power of dispensation, to sin, and so not to be punished by either God or man, which is contrary to his revealed will in his word.

If such a power at not restrainable by man be from God by way of permission, as a power to sin in devils and men is, then it is no royal power, nor any ordinance of God; and to resist this power, is not to resist the ordinance of God.

Arg. 4. — That power which makes the benefit of a king to be no benefit, but a judgment of God, as a making all the people slaves, such as were slaves amongst the Romans and Jews, is not to be asserted by any Christian; but an absolute power to do ill, and to tyrannise, which is supposed to be an essential and constitutive of kings, to difference them from all judges, makes the benefit of a king no benefit, but a judgment of God, as making all the people slaves. That the major may be clear, it is evident,

1. To have a king is a blessing of God, because to have no king is a judgment; Judg. 17:6, “Every man does what seems good in his own eyes.” (Judg, 18:1; 19:1; 21:25.)

2. So it is. a part of God’s good providence to provide a king for his people. (1 Sam. 16:1; so 2 Sam. 5:12.) And David perceived that the Lord had established him king over Israel, and that he had exalted his kingdom for his people Israel’s sake, 2 Sam. 15:2-3, 6; 18:3; Rom. 13:2-4. If the king be a thing good in itself, then can he not, actu primo, be a curse and a judgment, and essentially a bondage and slavery to the people; also the genuine and intrinsical end of a king is the good, (Rom. 13:4,) and the good of a quiet and peaceable life in all godliness and honesty (1. Tim. 2:2); and he is by office, custos utriusque tabulae, whose genuine end is to preserve the law from violence, and to defend the subject; — he is the people’s debtor for all happiness possible to be procured by God’s sword, either in peace or war, at home or abroad. For the assumption is evident. An absolute and arbitrary power is a king-law, such as royalists say God gave to Saul (1 Sam. 8:9, 11; 10:25) to play the tyrant; and this power, arbitrary and unlimited, above all laws, is that which,

    (1.) Is given to God;
    (2.) distinguishes essentially the kings of Israel from the judge, says Barclay, Grotius, Arnisaeus;
    (3.) A constitutive form of a king, therefore it must be actu primo, a benefit, and a blessing of God; but if God has given any such power absolute to a king: as,
      1st. His will must be a law, either to do or suffer all the tyranny and cruelty of a tiger, a leopard, a Nero, or a Julian; then has God given, actu primo, a power to a king, as king, to enslave the people and flock of God, redeemed by the blood of God, as the slaves among the Romans and Jews, who were so under their masters, as their bondage was a plague of God, and the lives of the people of God under Pharaoh, who compelled them to work in brick and clay.
      2nd. Though he cut the throats of the people of God, as the lioness Queen Mary did, and command an army of soldiers to come and burn the cities of the land, and kill man, wife, and children; yet in so doing, he does the part of a king, so as you cannot resist him as a man, and obey him as a king, but must give your necks to him, upon this ground, because this absolute power of his is ordained of God; and there is no power even to kill and destroy the innocent, but it is of God. So says Paul, Rom. 13, if we believe court-prophets, or rather lying-spirits, who persuade the king of Britain to make war against his three dominions.

Now, it is clear that the distinction of bound and free continued in Israel even under the most tyrannous kings; (2 Kings 4:1;) yea, even when the Jews were captives under Ahasuerus. (Esth. 7:4.) And what difference should there be between the people of God under their own kings, and when they were captives under tyrants, serving wood and stone, and false gods, as was threatened as a curse in the law? (Deut. 28:25, 36, 64, 68.) If their own kings, by God’s appointment, have the same absolute power over them, and if he be a tyrant, actu primo, that is, if he be indued with absolute power, and so have power to play the tyrant, then must the people of God be actu primo, slaves, and under absolute subjection; for they are relatives, as lord and servant, conqueror and captive. It is true, they say, kings by office are fathers, they cannot put forth in action their power to destroy.

I answer, it is their goodness of nature that they put not forth in action all their absolute power to destroy, which God has given them as kings, and therefore, thanks are due to their goodness, for that they do not, actu secundo, play the tyrant; for royalists teach, that by virtue of their office God has given to them a royal power to destroy; therefore, the Lord’s people are slaves under them, though they deal not with them as slaves, but that hinders not but the people by condition are slaves. So many conquerors of old did deal kindly with their slaves whom they took in war, and dealt with them as sons; but as conquerors they had power to sell them, to kill them, to pat them to work in brick and clay. So say I here, royal power and a king cannot be a blessing, and actu primo a favor of God to the people, for the which they are to pray when they want a king that they may have one, or to praise God when they have one. But a king must be a curse and a judgment, if he be such a creature as essentially, and in the intention and nature of the thing itself, has by office a royal power to destroy, and that from God; for then the people praying — “Lord give us a king,” should pray, “Make us slaves, Lord; take our liberty and power from us, and give a power unlimited and absolute to one man, by which he may, if he please, waste and destroy us, as all the bloody emperors did the people of God.” Surely, I see not but they should pray for a temptation, and to be led into temptation when they pray God to give them a king; and, therefore, such a power is a vain thing.

Arg. 5. — A power contrary to justice, to peace and the good of the people, that looks to no law as a rule, and so is unreasonable, and forbidden by the law of God and the civil law, (L. 15. filius de condit. Instit.,) cannot be lawful power, and cannot constitute a lawful judge; but an absolute and unlimited power is such. How can the judge be the minister of God for good to the people (Rom. 13:4) if he have such a power as a king, given him of God, to destroy and waste the people?

Arg. 6. An absolute power is contrary to nature, and so unlawful; for it makes the people give away the natural power of defending their life against illegal and cruel violence, and makes a man who has need to be ruled and lawed by nature above all rule and law, and one who, by nature, can sin against his brethren such a one as cannot sin against any but God only, and makes him a lion and an unsocial man. What a man is Nero, whose life is poetry and painting! Domitian, only an archer; Valentinian, only a painter; Charles IX of France, only a hunter; Alphonsus Dux Ferrariensis, only an astronomer; Philip of Macedonia, a musician; and all because they are kings. This our king denies, when he says, (art. 13,) “There is power legally placed in the parliament more than sufficient to prevent and restrain the power of tyranny.” But if they had not power to play the lions, it is not much that kings are musicians, hunters, etc.

Arg. 7. — God, in making a king to preserve his people, should give liberty without all politic restrain, for one man to destroy many, which is contrary to God’s end in the fifth commandment, if one have absolute power to destroy souls and bodies of many thousands.

Arg. 8. — If the kings of Israel and Judah were under censures and rebukes of the prophets, and sinned against God and the people in rejecting these rebukes, and in persecuting the prophets, and were under this law not to take their neighbor’s wife, or his vineyard from him against his will; and the inferior judges were to accept the persons of none in judgment, small or great; and if the king yet remain a brother, notwithstanding he be a king, then is his power not above any law, nor absolute. For what reason? — 1. He should be under one law of God to be executed by men, and not under another law? Royalists are to show a difference from God’s word. 2. His neighbors, brother, or subjects, may by violence keep back their vineyards, and chastity from the king. Naboth may by force keep his own vineyard from Achab. By the laws of Scotland, if a subject obtain a decree of the king, of violent possession of the heritages of a subject, he has by law power to cast out, force, apprehend, and deliver to prison those who are tenants, brooking these lands by the king’s personal commandment. If a king should force a damsel, she may violently resist, and by violence, and bodily opposing of violence to violence, defend her own chastity. Now, that the prophets have rebuked kings is evident: Samuel rebuked Saul, Nathan, David, Elias, king Achab; Jeremiah is commanded to prophecy against the kings of Judah, (Jer. 1:18,) and the prophets practiced it. (Jer. 19:3; 21:2; 22:13-15; Hos. 5:1.) Kings are guilty before God because they submitted not their royal power and greatness to the rebukes of the prophets, but persecuted them.

Deut. 17:20, The king on the throne remains a brother; Psal. 22:22, and so the judges or three estates are not to accept of the person of the king for his greatness in judgment; Deut. 1:16, 17, and the judge is to give out such a sentence in judgment as the Lord, with whom there is no iniquity, would give out if the Lord himself: were sitting in judgment; because the judge is in the very stead of God, as his lieutenant; (2 Chron. 19:6-7; Psal. 82:1-2. Deut. 1:17;) and with God there is no respect of persons. (2 Chron. 19:7; 1 Pet. 1:17; Acts 10:34.) I do not intend that any inferior judge sent by the king is to judge the king; but those who gave him the throne, and made him king, are truly above him, and to judge him without respect of persons, as God himself would judge if he were sitting on the bench.

God is the author of civil laws and government, and his intention is therein the external peace, and quiet life, and godliness of his church and people, and that all judges, according to their places, be nurse-fathers to the church. (Isa. 49:23.) Now God must have appointed sufficient means for this end; but there is no sufficient means at all, but a mere anarchy and confusion, if to one man an absolute and unlimited power be given of God, whereby, at his pleasure, he may obstruct the fountains of justice, and command lawyers and laws to speak not God’s mind, that is justice, righteousness, safety, true religion, but the sole lust and pleasure of one man. And this one having absolute and irresistible influence on all the inferior instruments of justice, may, by this power, turn all into anarchy, and put the people in a worse condition than it there were no judge at all in the land. For that of politicians, that tyranny is better than anarchy, is to be taken cum grano salis; but I shall never believe that absolute power of one man, which is actu primo tyranny, is God’s sufficient way of peaceable government. Therefore, Barclaius2 says nothing for the contrary, when he says, “The Athenians made Draco and Solon absolute law-givers, for, a facto ad jus non valet consequentia.” What if a roving people, trusting Draco and Solon to be kings above mortal men, and to be gods, gave them power to make laws, written not with ink, but with blood, shall other kings have from God the like tyrannical and bloody power from that to make bloody laws? Chytreus (lib. 2) and Sleidan cites it, (l. 1;) Sueron, Sub pœna periurii non tenentur fidem sevare regi degeneri.

Arg. 9. — He who is regulated by law, and swears to the three estates to be regulated by law, and accepts the crown covenant-wise, and so as the estates would refuse to make him their king, if either he should refuse to swear, or it they did believe certainly that he would break his oath, has no unlimited and absolute power from God or the people; for, fœdus conditionatum, aut promissio conditionalis mutua, facit jus alteri in alterum, a mutual conditional covenant gives law and power over one to another. But, from that which has been said, the king swears to the three estates to be regulated by law — he accepts the crown upon the tenor of a mutual covenant, etc.; for if he should, as king, swear to be king, that is, one who has absolute power above a law, and also to be regulated by a law, he should swear things contradictory, that is, that he should be their king, having absolute power over them, and according to that power to rule them; and he should swear not to be their king, and to rule them, not according to absolute power, but according to law. If, therefore, this absolute power be essential to a king, as a king, no king can lawfully take the oath to govern according to law, for then he should swear not to reign as king, and not be their king; for how could he be their king, wanting that which God has made essential to a king as a king?


     1.    Barclaius, contra Monarcho. lib. 2. p. 62.
     2.    Barclaius contra Monarch. lib. 2, p. 76, 77.