Lex Rex [Law Is King, or The Law & The Prince] (1644)
What Power the King has in Relation to the Law and the People, and How a King and a Tyrant Differ
Mr Symmons says, (sect. 6, p. 19,) that authority is rooted rather in the prince than in the law; for as the king gives being to the inferior judge, so he does to the law itself, making it authorizable; for propter quod unum-quodqiie tale, id ipsum magis tale, and therefore the king is greater than the law: others say, that the king is the fountain of the law, and the sole and only lawgiver.
Assertion First. — 1. The law has a two-fold consideration, —
- (1.) Secundum esse pœnale, in relation to the punishment to be inflicted by man.1
(2.) Secundum esse legis, as it is a thing legally good in itself.
In the former notion it is this way true, — human laws take life and being, so as to be punished or rewarded by men, from the will of princes and law-givers; and so Symmons says true, because men cannot punish or reward laws but where they are made; and the will of rulers puts a sort of stamp on a law, that it brings the commonwealth under guiltiness if they break this law. But this makes not the king greater than the law, for therefore do rulers put the stamp of relation to punishment on the law, because there is intrinsical worth in the law prior to the act of the will of lawgivers for which it merits to be enacted; and, therefore, because it is authorizable as good and just, the king puts on it this stamp of a politic law. God forms being and moral aptitude to the end in all laws, to wit, the safety of the people, and the king’s will is neither the measure nor the cause of the goodness of kings.
2. If the king be he who makes the law good and just, because he is more such himself, then as the law cannot crook, and err, nor sin, neither can the king sin, nor break a law. This is blasphemy; every man is a liar: a law which deserves the name of a law cannot lie.
3. His ground is, that there is such majesty in kings, that their will must be done either in us or on us. A great untruth. Ahab’s will must neither be done of Elias, for he commands things unjust, nor yet on Elias, for Elias fled, and lawfully we may fly tyrants; and so Ahab’s will in killing Elias was not done on him.
Assertion Second. — 1. Nor can it be made good, that the king only has power of making laws, because his power were then absolute to inflict penalties on subjects, without any consent of theirs; and that were a dominion of masters, who command what they please, and under what pain they please. And the people consenting to be ruled by such a man, they tacitly consent to penalty of laws, because natural reason says, an ill-doer should be punished; (Florianus in l. inde. Vasquez, l. 2, c. 55, n. 3.) therefore they must have some power in making these laws.
2. Jer. 26, It is clear the princes judge with the people. A nomothetic power differs gradually only from a judicial power, both being collateral means to the end of government, the people’s safety. But parliaments judge, therefore they have a nomothetic power with the king.
3. The parliament gives all supremacy to the king, therefore to prevent tyranny, it must keep a co-ordinate power with the king in the highest acts.
4. If the kingly line be interrupted, if the king be a child or a captive, they make laws who make kings: therefore, this nomothetic power recurs into the states, as to the first subject.
- Obj. — The king is the fountain of the law, and subjects cannot make laws to themselves more than they can punish themselves. He is only the supreme.2
- Ans. — The people being the fountain of the king must rather be the fountain of laws. It is false that no man makes laws to himself. Those who teach others teach themselves also. (1 Tim. 2:12; 1 Cor. 14:34,) though teaching be an act of authority. But they agree to the penalty of the law secondarily only; and so does the king who, as a father, does not will evil of punishment to his children, but by a consequent will. The king is the only supreme in the power ministerial of executing laws; but this is a derived power, so as no one man is above him; but in the fountain-power of royalty the states are above him.
5. The civil law is clear, that the laws of the emperor have force only from this fountain, because the people have transferred their power to the king. Lib. 1, digest. tit. 4. de constit. Princip. leg. 1, sic Ulpian. Quod principi placuit, (loquitur de principe formaliter, qua princeps est, non qua est homo,) legis habet vigorem, utpote cum legi regia, quae de imperio ejus lata est. populus ei, et in cum, omne suum imperium et potestatem conferat. Yea, the emperor himself may be convened before the prince elector. (Aurea Bulla Carol. 4, Imper. c. 5.) The king of France may be convened before the senate of Paris. The states may resist a tyrant, as Bossius says, (de principe, et privileg. ejus, n. 55. Paris de puteo, in tract, syno. tit. de excess, reg. c. 3.) Divines acknowledge that Elias rebuked the halting of Israel between God and Baal, that their princes permitted Baal’s priests to converse with the king. And is not this the sin of the land, that they suffer their king to worship idols? And, therefore, the land is punished for the sins of Manasseh, as Knox observes in his dispute with Lethington, where he proves that the states of Scotland should not permit the queen of Scotland to have her abominable mass. (Hist. of Scotland.) Surely the power, or sea prerogative, of a sleepy or mad pilot, to split the ship on a rock, as I conceive, is limited by the passengers. Suppose a father in a distemper would set his own house on fire, and burn himself and his ten sons, I conceive his fatherly prerogative, which neither God nor nature gave, should not be looked to in this, but they may bind him. Yea, Althusius (polit. c. 39), answering this, “That in democracy the people cannot both command and obey,” says, It is true, secundum idem, ad idem, et eodem tempore. But the people may (says he) choose magistrates by succession. Yea, I say, (1.) They may change rulers yearly to remove envy: a yearly king were more dangerous, the king being almost above envy. Men incline more to flatter than to envy kings. (2.) Aristotle says, (polit. l. 4, c. 4, l. 6, c. 2,) The people may give their judgment of the wisest.
Obj. 1. — Williams, bishop of Ossory, in Vindic. Reg. (a looking-glass for rebels,) says, “To say the king is better than any one, does not prove him to be better than two; and if his supremacy be no more, then any other may challenge as much, for the prince is singulis major. A lord is above all knights; a knight above all esquires; and so the people have placed a king under them, not above them.
Ans. — The reason is not alike: 1. For all the knights united cannot make one lord; and all the esquires united cannot make one knight; but all the people united made David king at Hebron. 2. The king is above the people, by eminence of derived authority as a watchman, and in actual supremacy; and he is inferior to them in fountain-power, as the effect to the cause.
Obj. 2. — The parliament (says Williams) “may not command the king; why, then, make they supplication to him, if their vote be a law?
Ans. — They supplicate, ex decentta, of decency and conveniency for his place, as a city supplicate a lord mayor; but they supplicate not ex debito, of obligation, as beggars seek alms, then should they be cyphers. When a subject oppressed supplicates his sovereign for justice, the king is obliged, by office, to give justice; and to hear the oppressed is not an act of grace and mercy, as to give alms, though it should proceed from mercy in the prince, (Psal. 72:13,) but an act of royal debt.
Obj. 3. — The P. Prelate (c. 9, pp. 103, 104) objects: The most you claim to parliament is a co-ordinate power, which, in law and reason, run in equal terms. In law, par in parem non habet imperium; an equal cannot judge an equal, much less may an inferior usurp to judge a superior. Our Lord knew, gratia. visionis, the woman taken in adultery to be guilty, but he would not sentence her; to teach us, not improbably, not to be both judge and witness. The parliament are judges, accusers, and witnesses against the king in their own cause, against the imperial laws.
Ans. 1. — The parliament is co-ordinate ordinarily with the king in the power of making laws; but the co-ordination on the king’s part is by derivation, on the parliament’s part, originaliter et fontaliter, as in the fountain. 2. In ordinary there is coordination; but if the king turn tyrant, the estates are to use their tountain-power. And that of the law, par in parem, etc. is no better from his pen, that steals all he has, than from Barclaius, Grotius, Arnisaeus, Blackwood, etc.: it is cold and sour. We hold the parliament that made the king at Hebron to be above their own creature, the king. Barclaius says more accurately, (1. 5, cont. Monarch, p. 129,). It is absurd that the people should both be subject to the king, and command the king also. —
Ans. 1. It is not absurd that a father natural, as a private man, should be subject to his son; even that Jesse, and his elder brother, the lord of all the rest, be subject to David their king. Royalists say, Our late queen, being supreme magistrate, might by law have put to death her own husband, for adultery or murder.
2. The parliament should not be both accuser, judge, and witness in their own cause. (1.) It is the cause of religion, of God, of protestants, and of the whole people. (2.) The oppressed accuse; there is no need of witnesses in raising arms against the subjects.
3. The P. Prelate could not object this, if against the imperial laws the king were both party and judge in his own cause; and in these acts of arbitrary power, which he has done through bad counsel, in wronging fundamental laws, raising arms against his subjects, bringing in foreign enemies into both his kingdoms, etc. Now this is properly the cause of the king, as he is a man, and his own cause, not the cause of God; and by no law of nature, reason, or imperial statutes, can he be both judge and party.
4. If the king be sole supreme judge without any fellow sharers in power, (1.) He is not obliged by law to follow counsel or hold parliaments; for counsel is not command. (2.) It is impossible to limit him even in the exercises of his power, which yet Dr Ferne says cannot be said; for if any of his power be retrenched, God is robbed, says Maxwell. (3.) He may by law play the tyrant gratis. Ferne objects, (sect. 7, p. 26,) — The king is a fundamental with the estates; now foundations are not to be stirred or removed.
Ans. — The king, as king, inspired with law, is a fundamental, and his power is not to be stirred; but as a man wasting his people, he is a destruction to the house and community, and not a fundamental in that notion.
Some object: The three estates, as men, and looking to their own ends, not to law and the public good, are not fundamentals, and are to be judged by the king.
Ans. — By the people, and the conscience of the people, they are to be judged.
Obj. — But the people also do judge as corrupt men, and not as the people, and a politic body providing for their own safety.
Ans. — I grant all; when God will bring a vengeance on Jerusalem, prince and people both are hardened to their own destruction. Now, God has made all the three. In every government where there is democracy, there is some chosen ones resembling an aristocracy, and some one for order, presiding in democratical courts, resembling a king. In aristocracy, as in Holland, there is somewhat of democracy, — the people have their commissioners, and one duke or general, as the prince of Orange is some umbrage of royalty: and in monarchy there are the three estates of parliament, and these contain the three estates, and so somewhat of the three forms of government; and there is no one government just that has not some of all three. Power and absolute monarchy is tyranny; unmixed democracy is contusion; untempered aristocracy is factious dominion; and a limited monarchy has from democracy respect to public good, without confusion. From aristocracy safety in multitude of counsels without factious emulation, and so a bar laid on tyranny by the joint powers of many; and from sovereignty union of many children in one father; and all the three thus contempered have their own sweet fruits through God’s blessing, and their own diseases by accident, and through men’s corruption; and neither reason nor Scripture shall warrant any one in its rigid purity without mixture. And God having chosen the best government to bring men fallen in sin to happiness, must warrant in any one a mixture of all three, as in mixed bodies the four elements are reduced to a fit temper resulting of all the four, where the acrimony of all the four first qualities is broken, and the good of all combined in one.
- 1. The king, as the king, is an unerring and living law, and by grant of Barclay,3 of old, was one of excellent parts, and noble through virtue and goodness; and the goodness of a father as a father, of a tutor as a tutor, of a head as a head, of a husband as a husband, do agree to the king as a king; so, as king, he is the law itself, commanding, governing, saving.
- 2. His will as king, or his royal will, is reason, conscience, law.
- 3. This will is politicly present (when his person is absent) in all parliaments, courts, and inferior judicatures.
- 4. The king, as king, cannot do wrong or violence to any.
- 5. Amongst the Romans the name king and tyrant were common to one thing. (1.) Because, de facto, some of their kings were tyrants, in respect of their dominion, rather than kings. (2.) Because he who was a tyrant, de facto, should have been, and was a king too, de jure.
- 6. It is not lawful either to disobey or resist a king as a king, no more than it is lawful to disobey a good law.
- 7. What violence, what injustice and excess of passion the king mixes in with his acts of government, are merely accidental to a king as king; for, because men by their own innate goodness will not, yea, morally cannot do that which is lawful and just one to another, and do naturally, since the fall of man, violence one to another; therefore, if there had not been sin, there should not have been need of a king, more than there should have been need of a tutor to defend the child whose father is not dead, or of a physician to cure sickness where there is health.; for, remove sin, and there is neither death nor sickness; but because sin is entered into the world, God devised, as a remedy of violence and injustice, a living, rational, breathing law, called a king, a judge, a father. Now the aberrations, violence, and oppression of this thing which is the living, rational, breathing law, is no medium, no mean intended by God and nature to remove violence. How shall violence remove violence? Therefore an unjust king, as unjust, is not that genuine ordinance of God, appointed to remove injustice, but accidental to a king. So we may resist the injustice of the king, and not resist the king.
- 8. If, then, any cast off the nature of a king, and become habitually a tyrant, in so far he is not from God, nor any ordinance which God does own. If the office of a tyrant (to speak so) be contrary to a king’s offices, it is not from God, and so neither is the power from God.
- 9. Yea, laws, (which are no less from God than the king’s are.) when they begin to be hurtful, cessant materialiter, they leave off to be laws; because they oblige non secundum vim verborum, sed in vim sensus, not according to the force of words, but according to sense, — l. non figura literarum F. de actione et obligatione, l. ita stipulatus. But who (says the royalists) shall be judge between the king and the people, when the people allege that the king is a tyrant.
Ans. — There is a court of necessity no less than a court of justice; and the fundamental laws must then speak, and it is with the people, in this extremity, as if they had no ruler.
Obj. 1. — But if the law be doubtful, as all human, all civil, all municipal laws may endure great dispute, — the peremptory person exponing the law must be the supreme judge. This cannot be the people, therefore it must be the king.
Ans. 1. — As the Scriptures in all fundamentals are clear, and expone themselves, and actu primo condemn heresies, so all laws of men in their fundamentals, which are the law of nature and of nations, are clear; and, 2. Tyranny is more visible and intelligible than heresy, and is soon decerned. If a king bring in upon his native subjects twenty thousand Turks armed, and the king lead them, it is evident they come not to make a friendly visit to salute the kingdom, and depart in peace. The people have a natural throne of policy in their conscience to give warning, and materially sentence against the king as a tyrant, and so by nature are to defend themselves. Where tyranny is more obscure, and the thread small, that it escape the dye of men, the king keeps possession; but I deny that tyranny can be obscure long.
Obj. 2. — Dr Ferne (p. 3, sect. 5, p. 39). — A king may not, or cannot easily alter the frame of fundamental laws, he may make some actual invasion in some transient and I unfixed acts; and it is safer to bear these, than to raise a civil war of the body against the head.
Ans. 1. — If the king, as king, may alter any one wholesome law, by that same reason he may alter all. 2. You give short wings to an arbitrary prince, if he cannot ovenly all laws to the subversion of the fundamentals of a state, if you make him, as you do,
- (1.) One who has the sole legislative power, who allenarly by himself makes laws, and his parliament and council are only to give him advice, which by law he may as easily reject as they can speak words to him, he may in one transient act (and it is but one) cancel all laws made against idolatry and popery, and command, through bad counsel, in all his dominions, the Pope to be acknowledged as Christ’s vicar, and all his doctrine to be established as the catholic true religion. It is but one transient act to seal a pardon to the shedding of the blood of two hundred thousand killed by papists.
(2.) If you make him a king, who may not be resisted in any case, and though he subvert all fundamental laws, he is accountable to God only: his people have no remedy, but prayers or flight.
Obj. 3. — Ferne (p. 3. sect. 5, p. 39). — Limitations and mixtures in monarchies do not imply a forcible restraining power in subjects, for the preventing of the dissolution of the state, but only a legal restraining power; and if such a restraining power be in the subjects by reservation, then it must be expressed in the constitution of the government, and in the covenant between the monarch and his people. But such a condition is unlawful, which will not have the sovereign power secured, — is unprofitable for king and people, — a seminary for seditions and jealousies.
Ans. 1. — I understand not a difference between forcible restraining and legal restraining: for he must mean by “legal,” man’s law, because he says it is a law in the covenant between the monarch and his people. Now, if this be not forcible and physical, it is only moral in the conscience of the king, and a cypher and a mere vanity; for God, not the people, puts a restraint of conscience on the king, that he may not oppress his poor subjects; but he shall sin against God — that is a poor restraint: the goodness of the king, a sinful man, inclined from the womb to all sin, and so to tyranny, is no restraint.
2. There is no necessity that the reserve be expressed in the covenant between king and people, more than in contract of marriage between a husband and a wife; beside her jointure, you should set down this clause in the contract, that if the husband attempt to kill the wife, or the wife the husband, in that case it shall be lawful to either of them to part company. For Dr Ferne says,4 “That personal defense is lawful in the people, if the king’s assault be sudden, without color of law, or inevitable.” Yet the reserve of this power of defense is not necessarily to be expressed in the contract between king and people. Exigencies of the law of nature cannot be set down in positive covenants, they are presupposed.
3. He says, “A reservation of power whereby sovereignty is not secured, is unlawful,” Lend me this argument: the giving away of a power of defense, and a making the king absolute, is unlawful, because by it the people is not secured; but one man has thereby the sword of God put in his hand, whereby ex officio he may, as king, cut the throats of thousands, and be accountable to none therefor, but to God only. Now, if the non-securing of the king make a condition unlawful, the non-securing of a kingdom and church, yea, of the true religion, (which are infinitely in worth above one single man,) may far more make the condition unlawful. 4. A legal restraint on a king is no more unprofitable, and a seminary of jealousies between king and people, than a legal restraint upon people; for the king, out of a non-restraint, as out of seed, may more easily educe tyranny and subversion of religion. If outlandish women tempt even a Solomon to idolatry, as people may educe sedition out of a legal restraint laid upon a king, to say nothing that tyranny is a more dangerous sin than sedition, by how much more the lives of many, and true religion, are to be preferred to the safety of one, and a false peace.
Obj. 4. — An absolute monarch is free from all forcible restraint, and so far as he is absolute from all legal restraints of positive laws. Now, in a limited monarch, there is only sought a legal restraint; and limitation cannot infer a forcible restraint, for an absolute monarch is limited also, not by civil compact, but by the law of nature and nations, which he cannot justly transgress. If therefore an absolute monarch, being exorbitant, may not be resisted because he transgresses the law of nature, how shall we dunk a limited monarch may be resisted for transgressing the bounds set by civil agreement.
Ans. 1. — A legal restraint on the people is a forcible restraint; for if law be not backed with force, it is only a law of rewarding well-doing, which is no restraint, but an encouragement to do evil. If, then, there be a legal restraint upon the king, without any force, it is no restraint, but only such a request as this: be a just prince, and we will give your majesty two subsidies in one year.
2. I utterly deny that God ever ordained such an irrational creature as an absolute monarch. If a people unjustly, and against nature’s dictates, make away irrevocably their own liberty, and the liberty of their posterity, which is not their’s to dispose off, and set over themselves as base slaves, a sinning creature, with absolute power, he is their king, but not as he is absolute, and that he may not be forcibly resisted, notwithstanding the subjects did swear to his absolute power, (which oath in the point of absoluteness is unlawful, and so not obligatory,) I utterly deny.
3. An absolute monarch (says he) is limited, but by law of nature. That is, Master Doctor, he is not limited as a monarch, not as an absolute monarch, but as a son of Adam; he is under the limits of the law of nature, which he should have been under though he had never been a king all his days, but a slave. But what then? Therefore, he cannot be resisted. Yes, Doctor, by your own grant he can be resisted: if he invade an innocent subject (say you) suddenly, without color of law, or inevitably; and that because he transgresses the law of nature. You say a limited monarch can less be resisted for transgressing the bounds set by civil agreement. But what if the thus limited monarch transgress the law of nature, and subvert fundamental laws? He is then, you seem to say, to be resisted. It is not for simple transgression of a civil agreement that he is to be resisted. The limited monarch is as essentially the Lord’s anointed, and the power ordained of God, as the absolute monarch. Now resistance by all your grounds is unlawful, because of God’s power and place conferred upon him, not because of men’s positive covenant made with him.
To find out the essential difference between a king and a tyrant, we are to observe, that it is one thing to sin against a man, another thing against a state. David, killing Uriah, committed an act of murder. But upon this supposition, that David is not punished for that murder, he did not so sin against the state, and catholic good of the state, that he turns tyrant and ceases to be a lawful king. A tyrant is he who habitually sins against the catholic good of the subjects and state, and subverts law. Such a one should not be, as Jason, of whom it is said by aeneas Silvius, Graviter ferebat, si non regnaret, quasi nesciret esse privatus. When such as are monstrous tyrants are not taken away by the estates, God pursues them in wrath. Domitian was killed by his own family, his wife knowing of it; Aurelianus was killed with a thunderbolt; Darius was drowned in a river; Dioclesian, fearing death, poisoned himself; Salerius died eaten with worms, — the end also of Herod and Antiochus; Maxentras was swallowed up in a standing river; Julian died, being stricken through with a dart thrown at him by a man or an angel, it is not known; Valens, the Arian, was burnt with fire in a litttle village by the Gothes; Anastasius, the Eutychian emperor, was stricken by God with thunder; Gundericus Vandalus, when he rose against the church of God, being apprehended by the devil, died. Sometime the state have taken order with tyrants: the empire was taken from Viteilius, Heliogabalus, Maximinus, Didius, Julianus; so was the two Childerici of France served; so were also Sigebertus, Dagabertus, and Luodovic II of France: Christiernus of Denmark, Mary of Scotland, who killed her husband and raised forces against the kingdom; so was Henricus Valesius of Poland, for flying the kingdom; Sigismundus of Poland, for violating his faith to the states.
1. Barclaius, lib. 4, c. 23, p. 325.
2. Symmons’ Loyal Subject, sect. 5, p. 8.
3. Barcl. ad versus Monarcho. lib. 1, p. 24.
4. Dr Ferne, p. 3, sect. 5, p. 40.