Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether the King Be above the Law or No
We may consider the question of the law’s supremacy over the king, either in the supremacy of constitution of the king, or of direction, or of limitation, or of co-action and punishing. Those who maintain this, “The king is not subject to the law,” if their meaning be, “The king as king is not subject to the law’s direction,” they say nothing; for the king, as the king, is a living law; then they say, “The law is not subject to the law’s direction:” a very improper speech; or, the king, as king, is not subject to the co-action of the law: that is true; for he who is a living law, as such, cannot punish himself, as the law says.
Assert. 1. The law has a supremacy of constitution above the king:
- 1st. Because the king by nature is not king, as is proved; therefore, he must be king by a politic constitution and law; and so the law, in that consideration, is above the king, because it is from a civil law that there is a king rather than any other kind of governor.
- 2nd. It is by law, that amongst many hundred men, this man is king, not that man; and because, by the which a thing is constituted, by the same thing it is, or may be dissolved; therefore,
- 3rd. As a community, finding such and such qualifications as the law requires to be in a king, in this man, not in that man, therefore upon law-ground they make him a king, and, upon law-grounds and just demerit, they may unmake him again; for what men voluntary do upon condition, the condition being removed, they may undo again.
Assert. 2. It is denied by none but the king is under the directive power of the law, though many liberate the king from the co-active power of a civil law. But I see not what direction a civil law can give to the king if he be above all obedience, or disobedience, to a law, seeing all law-direction is in ordine ad obedientiam, in order to obey, except thus far, that the light that is in the civil law is a moral or natural guide to conduct a king in his walking; but this is the morality of the law which enlightens and informs, not any obligation that awes the king; and so the king is under God’s and nature’s law. This is nothing to the purpose.
Assert. 3. The king is under the law, in regard of some coercive limitation; because,
- 1st. There is no absolute power given to him to do what he lists, as a man. And because,
- 2nd. God, in making Saul a king, does not by any royal stamp give him a power to sin, or to play the tyrant; for which cause I expone these of the law, omnia sunt possibilia regi, imperator omnia potest. Baldus in sect. F. de no. for. fidel. in F. et in prima constitut. C. col. 2. Chassanaeus in catalog, glories mundi. par. 5. considerat. 24. et tanta est ejus celsitudo, ut non posset et imponi lex in regno suo. Curt. in consol. 65. col. 6. ad. F. Petrus Rebuff. Notab. 3. repet. l. unscae. C. de sentent. quae pro eo quod n. 17, p. 363. All these go no otherwise but thus, The king can do all things which by a law he can do, and that holds him, id vossumus quod jure possumus; and, therefore, the king cannot be above the covenant and law made between him and his people at his coronation-oath; for then the covenant and oath should bind him only by a natural obligation, as he is a man, not by a civil or politic obligation, as he is a king. So then,
- (1.) It were sufficient that the king should swear that oath in his cabinet-chamber, and it is but a mocking of an oath that he swear it to the peopled
(2.) That oath given by the representative-kingdom should also oblige the subjects naturally, in foro Dei, not politically, in foro humano, upon the same reason.
(3.) He may be resisted as a man.
Assert. 4. The fourth case is, if the king be under the obliging politic co-action of civil laws, for that he, in foro Dei, be under the morality of civil laws, so as he cannot contravene any law in that notion but he must sin against God, is granted on all hands. (Deut. 17:20; Josh. 1:3; 1 Sam. 12:15.) That the king bind himself to the same law that he does bind others, is decent, and obliges the king as he is a man; because,
- 1st. (Matt. 7:12,) It is said to be the law and the prophets, ” All things whatsoever ye would men should do unto you, do ye even so to them.”
- 2nd. It is the law, imperator l. 4. digna vox. C. de lege et tit. Quod quisque juris in alium statuit, eodem et ipse utatur. Julius Caesar commanded the youth who had deflowered the emperor’s daughter to be scourged above that which the law allowed. The youth said to the emperor, Dixisti legem Caesar, “You appointed the law, Caesar.” The emperor was so offended with himself that he had failed against the law, that for the whole day he refused to taste meat.1
Assert. 5. The king cannot but be subject to the co-active power of fundamental laws. Because,
- 1st. This is a fundamental law that the free estates lay upon the king, that all the power that they give to the king, as king, is for the good and safety of the people; and so what he does to the hurt of his subjects, he does it not as king.
- 2nd. The law says, Qui habet potestatem constituendi etiam et jus adimendi, l. nemo. 37. l. 21. de reg. jure. Those who have power to make have power to unmake kings.
- 3rd. Whatever the king does as king, that he does by a power borrowed from (or by a fiduciary power which is his by trust) the estates, who made him king. He must then be nothing but an eminent servant of the state, in the punishing of others. If, therefore, he be unpunishable, it is not so much because his royal power is above all law co-action, as because one and the same man cannot be both the punisher and the punished; and this is a physical incongruity rather than a moral absurdity.
So the law of God lays a duty on the inferior magistrate to use the sword against the murderer, and that by virtue of his office; but I much doubt, if for that he is to use the sword against himself in the case of murder, for this is a truth I purpose to make good, That suffering, as suffering, according to the substance and essence of passion, is not commanded by any law of God or nature to the sufferer, but only the manner of suffering. I doubt if it be not, by the law of nature, lawful even to the ill-doer, who has deserved death by God’s law, to fly from the sword of the lawful magistrate; only the manner of suffering with patience is commanded of God. I know the law says here, That the magistrate is both judge and the executor of the sentence against himself, in his own cause, for the excellency of his office.2
Therefore these are to be distinguished, whether the king, ratione demeriti et jure, by law be punishable, or if the king can actually be punished corporally by a law of man, he remaining king; and since he must be a punisher himself, and that by virtue of his office. In matters of goods, the king may be both judge and punisher of himself, as our law provides that any subject may plead his own heritage from the king before the inferior judges, and if the king be a violent possessor, and in mala fide for many years, by law he is obliged, upon a decree of the lords, to execute the sentence against himself, ex officio, and to restore the lands, and repay the damage to the just owner; and this the king is to do against himself, ex officio. I grant here the king, as king, punishes himself as an unjust man, but because bodily suffering is mere violence to nature, I doubt if the king, ex officio, is to do or inflict any bodily punishment on himself. Nemo potest a scipso cogi. l. ille a quo, sect. 13.
Assert. 6. There be some laws made in favor of the king, as king, as to pay tribute. The king must be above this law as king. True, but if a nobleman of a great rent be elected king, I know not if he can be free from paying to himself, as king, tribute, seeing this is not allowed to the king by a divine law, (Rom. 13:6,) as a reward of his work; and Christ expressly makes tribute a thing due to Caesar as a king. (Matt. 22:21.) There be some solemnities of the law from which the king may be free; Prickman (D. c. 3, n. 78) relates what they are; they are not laws, but some circumstances belonging to laws, and he answers to many places alleged out of the lawyers, to prove the king to be above the law. Malderus (in 12. Art. 4, 5, 9, 96,) will have the prince under that law, which concerns all the commonwealth equally in regard of the matter, and that by the law of nature; but he will not have him subject to these laws which concerns the subjects as subjects, as to pay tribute. He cites, Francisc. a Vict. Covarruvias, and Turrecremata. He also will have the prince under positive laws, such as not to transport victuals; not because the law binds him as a law, but because the making of the law binds him, tanquam conditio sine qua non, even “as he who teaches another that he should not steal, he should not steal himself,” (Rom. 2) But the truth is, this is but a branch of the law of nature, that I should not commit adultery, and theft, and sacrilege, and such sins as nature condemns, if I shall condemn them in others, and does not prove that the king is under the co-active power of civil laws. Ulpianus (L 31. F. de regibus) says, “The prince is loosed from laws.” Bodine (de Repub. l. 7, c. 8). “Nemo imperat sibi,” no man commands himself. Tholosanus says, (de Rep. l. 7, c. 20,) “Ipsius est dare, non accipere leges,” the prince gives laws, but receives none. Donellus (Lib. 1, Comment, c. 17) distinguishes between a law and a royal law proper to the king. Trentierus (vol. i. 79, 80) says, “The prince is freed from laws;” and that he obeys laws, de honestate, non de necessitate, upon honesty, not of necessity. Thomas P. (1. q. 96, art. 6,) and with him Soto Gregorius de Valentia, and other schoolmen, subject the
king to the directive power of the law, and liberate him of the co-active power of the law.
Assert. 7. If a king turn a parricide, a lion, and a waster and destroyer of the people, as a man he is subject to the co-active power of the laws of the land. If any law should hinder that a tyrant should not be punished by law, it must be because he has not a superior but God, for royalists build all upon this; but this ground is false:
Arg. 1. Because the estates of the kingdom, who gave him the crown, are above him, and they may take away what they gave him; as the law of nature and God says, If they had known he would turn tyrant, they would never have given him the sword; and so, how much ignorance is in the contract they made with the king, as little of will is in it; and so it is not every way willing, but, being conditional, is supposed to be against their will. They gave the power to him only for their good, and that they may make the king, is clear. (2 Chron. 23:11; 1 Sam. 10:17, 24; Deut. 17:14-17; 2 Kings 11:12; 1 Kings 16:21; 2 Kings 10:5; Judg. 9:8.) Fourscore valiant men of the priests withstood Uzziah with corporal violence, and thrust him out, and cut him off from the house of the Lord. (2 Chron. 26:18.)
Arg. 2. If the prince’s place do not put him above the laws of church discipline, (Matt. 18, for Christ excepts none, and how can men except?) and if the rod of Christ’s “lips smite the earth, and slay the wicked,” (Isa. 11:4.) and the prophets Elias, Nathan, Jeremiah, Isaiah, etc., and John Baptist, Jesus Christ, and his Apostles, have used this rod of censure and rebuke, as servants under God, against kings, this is a sort of spiritual co-action of laws put in execution by men; and by due proportion corporal co-action being the same ordinance of God, though of another nature, must have the like power over all, whom the law of God has not excepted; but God’s law excepts none at all.
Arg. 3. It is presumed that God has not provided better for the safety of the part than of the whole, especially when he makes the part a mean for the safety of the whole. But if God have provided that the king, who is a part of the commonwealth, shall be free of all punishment, though he be a habitual destroyer of the whole kingdom, seeing God has given him to be a father, tutor, Savior, defender thereof, and destined him as a mean for their safety, then must God have worse, not better, provided for the safety of the whole than of the part. The proposition, is dear, in that God (Rom. 13:4; 1 Tim. 2:2) has ordained the ruler, and given to him the sword to defend the whole kingdom and city; but we read nowhere that the Lord has given the sword to the whole kingdom, to defend one man, a king, though a ruler, going on in a tyrannical way of destroying all his subjects. The assumption is evident: for then the king, turning tyrant, might set an army of Turks, Jews, or cruel Papists to destroy the church of God, without all fear of law or punishment. Yea, this is contrary to the doctrine of royalists: for Winzetus (adversus Buchananum, p. 275) says of Nero, that he, seeking to destroy the senate and people of Rome, and seeking to make new laws for himself, excidit jure regni) lost right to the kingdom. And Barclaius (Monarch. l. 3, c. ult. p. 213,) says, a tyrant, such as Caligula, spoliare se jure regni, spoils himself of the right to the crown. And in that same place, regem, si regnum suum alienae ditioni manciparit, regno cadere, if the king sell his kingdom, he loses the title to the crown. Grotius, (de jure belli et pacis, l. i. c. 4, n. 7,) Si rex hostili animo in totius populi exitium feratur, amittit regnum, if he turn enemy to the kingdom, for their destruction, he loses his kingdom, because (says he) voluntas imperandi, et voluntas perdendi, simul consistere non possunt, a will or mind to govern and to destroy cannot consist together in one.
Now, if this be true, that a king, turning tyrant, loses title to the crown, this is either a falling from his royal title only in God’s court, or it is a losing of it before men, and in the court of his subjects. If the former be said,
- 1st. He is no king, having before God lost his royal title; and yet the people is to obey him as “the minister of God,” and a power from God, when as he is no such thing.
- 2nd. In vain do these authors provide remedies to save the people from a tyrannous waster of the people, if they speak of a tyrant who is no king in God’s court only, and yet remains a king to the people in regard of the law: for the places speak of remedies that God has provided against tyrants cum titulo, such as are lawful kings, but turn tyrants. Now by this they provide no remedy at all, if only in God’s court, and not in man’s court also, a tyrant lose his title.
As for tyrants sine titulo, such as usurp the throne, and have no just claim to it, Barclaius (adver. Monarch, l. iv. c. 10. p. 268) says, “Any private man may kill him as a public enemy of the state:” but if he lose his title to the crown in the court of men, then is there a court on earth to judge the king, and so he is under the co-active power of a law; then a king may be resisted, and yet those who resist him do not incur damnation; the contrary whereof royalists endeavor to prove from Rom. 13; then the people may unking one who was a king. But I would know who takes that qei~on ti from him, whereby he is a king, that beam of divine majesty? Not the people; because royalists say, they neither can give nor take away royal dignity, and so they cannot unking him.
Arg. 4. The more will be in the consent, (says Ferd. Vasquez, l. i. c. 41,) the obligation is the stricter. So doubled words (says the law, l. 1, sect. 13, n. 13) oblige more strictly. And all laws of kings, who are rational fathers, and so lead us by laws, as by rational means to peace and external happiness, are contracts of king and people. Omnis lex sponsio et contractus Reip. sect. 1, Inst. de ver. relig. Now the king, at his coronation-covenant with the people, gives a most intense consent, an oath, to be a keeper and preserver of all good laws: and so hardly he can be freed from the strictest obligation that law can impose. And if he keep laws by office, he is a mean to preserve laws; and no mean can be superior and above the end, but inferior thereunto.
Arg. 5. Bodine proves, (de Rep. l. 2, c. 5, p. 221,) that emperors at first were but princes of the commonwealth, and that sovereignty remained still in the senate and people. Marius Salomonius, a learned Roman civilian, wrote six books do principatu. to refute the supremacy of emperors above the state. Ferd. Vasq. (illust. quest. part. 1. l. 1, n. 21) proves, that the prince, by royal dignity, leaves not off to be a citizen, a member of the politic body, and not a king, but a keeper of laws.
Arg. 6. Hence, the prince remains, even being a prince, a social creature, a man as well as a king; one who must buy, sell. promise, contract, dispose: therefore, he is not regula regulans, but under rule of law; for it is impossible, if the king can, in a political way, live as a member of a society, and do and perform acts of policy, and so perform them, as he may, by his office, buy and not pay; promise, and vow, and swear to men, and not perform, nor be obliged to men to render a reckoning of his oath, and kill and destroy, and yet in curia politicae societatis, in the court of human policy, be free: and that he may give inheritances, as just rewards of virtue and well-doing, and take them away again. Yea, seeing, these sins that are not punishable before men, are not sins before men, if all the sins and oppressions of a prince be so above the punishment that men can inflict, they are not sins before men; by which means the king is loosed from all guiltiness of the sins against the second table: for the ratio formalis, the formal reason, why the judge, by warrant from God, condemns, in the court of men, the guilty man, is, that he has sinned against human society through the scandal of blasphemy, or chat through some other heinous sin he has defiled the land. Now this is incident to the king as well as to some other sinful man.
To these, and the like, hear what the excommunicated Prelate has to say, (c. 15, p. 146, 147,) “They say (he means the Jesuits) every society of men is a perfect republic, and so must have within itself a power to preserve itself from ruin, and by that to punish a tyrant.” He answers, “A society without a head, is a disorderly rout, not a politic body; and so cannot have this power.
Ans. 1. The Pope gives to every society politic power to make away a tyrant, or heretical king, and to unking him, by his brethren, the Jesuits’, way. And observe how papists (of which number I could easily prove the P. Prelate to be, by the popish doctrine that he delivered, while the iniquity of time, and dominion of prelates in Scotland, advanced him, against all worth of true learning and holiness, to be a preacher in Edinburgh) and Jesuits agree, as the builders of Babylon. It is the purpose of God to destroy Babylon.
2. This answer shall infer, that the aristocratical governors of any free state, and that the Duke of Venice, and the senate there, is above all law, and cannot be resisted, because without their heads they are a disorderly rout.
3. A political society, as by nature’s instinct they may appoint a head, or heads, to themselves, so also if their head, or heads, become ravenous wolves, the God of nature has not left a perfect society remediless; but they may both resist, and punish the head, or heads, to whom they gave all the power that they have, for their good, not for their destruction.
4. They are as orderly a body politic, to unmake a tyrannous commander, as they were to make a just governor. The Prelate says, “It is alike to conceive a politic body without a governor, as to conceive the natural body without a head.” He means, none of them can be conceivable. I am not of his mind. When Saul was dead, Israel was a perfect politic body; and the Prelate, if he be not very obtuse in his head, (as this hungry piece, stolen from others, shows him to be,) may conceive a visible political society performing a political action, (2 Sam. 5:1-3,) making David king at a visible and conceivable place, at Hebron, and making a covenant with him. And that they wanted not all governors, is nothing to make them chimeras inconceivable. For when so many families, before Nimrod, were governed only by fathers of families, and they agreed to make either a king, or other governors, a head, or heads, over themselves, though the several families had government, yet these associated families had no government; and yet so conceivable a politic body, as if Maxwell would have appeared amongst them, and called them a disorderly rout, or an unconceivable chimera, they should have made the Prelate know that chimeras can knock down prelates. Neither is a king the life of a politic body, as the soul is of the natural body. The body creates not the soul; but Israel created Saul king, and when he was dead, they made David king, and so, under God, many kings, as they succeeded, till the Messiah came. No natural body can make souls to itself by succession; nor can sees create new prelates always.
P. Prelate. Jesuits and puritans differ infinitely: we are hopeful God shall cast down this Babel. The Jesuits, for ought I know, seat the superintendent power in the community. Some sectaries follow them, and warrant any individual person to make away a king in case of defects, and the work is to be rewarded as when one kills a ravenous wolf. Some will have it in a collective body; but how? Not met together by warrant, or writ of sovereign authority, but when fancy of reforming church and state calls them. Some will have the power in the nobles and peers; some in the three estates assembled by the king’s writ; some in the inferior judges. I know not where this power to curb sovereignty is, but in Almighty God.
Ans. 1. Jesuits and puritans differ infinitely; true. Jesuits deny the Pope to be antiChrist, hold all Arminian doctrine, Christ’s local descension to hell, all which the Prelate did preach. We deny all this.
2. We hope also the Lord shall destroy the Jesuits’ Babel; the suburbs whereof, and more, are the popish prelates in Scotland and England.
3. The Jesuits, for ought he knows, place all superintendent power in the community. The Prelate knows not all his brethren, the Jesuits’, ways; but it is ignorance, not want of good-will. For Bellarmine, Beucanus, Suarez, Gregor. de Valentia, and others, his dear fellows, say, that all superintendent power of policy, in ordine ad spiritualia is in the man, whose foot Maxwell would kiss for a cardinal’s hat.
4. If these be all the differences, it is not much. The community is the remote and last subject, the representative body the nearest subject, the nobles a partial subject; the judges, as judges sent by the king, are so in the game, that when an arbitrary prince at his pleasure sets them up, and at command that they judge for men, and not for the Lord, and accordingly obey, they are by this power to be punished, and others put in their place.
5. A true cause of convening parliaments the Prelate makes a fancy at this time: it is as if the thieves and robbers should say a justice-court were a fancy; but if the Prelate might compear before the parliament of Scotland, (to which he is an outlaw like his father, 2 Thess. 2:4,) such a fancy, I conceive, should hang him, and that deservedly. P. Prelate (p. 147, 148). The subject of this superintending power must be secured from error in judgment and practice, and the community and states then should be infallible.
- Ans. The consequence is nought. No more than the king, the absolute independent, is infallible. It is sure the people are in less hazard of tyranny and self-destruction than the king is to subvert laws and make himself absolute; and for that cause there must be a superintendent power above the king, and God Almighty also must be above all.
- P. Prelate. The parliament may err, then God has left the state remediless, except the king remedy it.
- Ans. There is no consequence here, except the king be impeccable. Posterior parliaments may correct the former. A state is not remediless, because God’s remedies, in sinful men’s hands, may miscarry. But the question is now, Whether God has given power to one man to destroy men, subvert laws and religion, without any power above him to coerce, restrain, or punish?
- P. Prelate (c. 15, p. 148). If, when the parliament errs, the remedy is left to the wisdom of God, why not when the king errs?
- Ans. Neither is antecedent true, nor the consequence valid, for the sounder part may resist; and it is easier to one to destroy many, having a power absolute, which God never gave mm, than for many to destroy themselves. Then, if the king Uzziah intrude himself and sacrifice, the priests do sin in remedying thereof.
- P. Prelate. Why might not the people of Israel, peers or sanhedrim, have convened before them, judged and punished David for his adultery and murder? Romanists and new statists acknowledge no case lawful, but heresy, apostasy, or tyranny; and tyranny, they say, must be universal, manifest as the sun, and with obstinacy, and invincible by prayers, as is recorded of Nero, whose wish was rather a transported passion, than a fixed resolution. This cannot fall in the attempts of any but a madman. Now this cannot be proved our king; but though we grant in the foresaid case, that the community may resume their power, and rectify what is amiss, which we cannot grant; but this will follow by their doctrine, in every case of male administration.3
- Ans. The Prelate draws me to speak of the case of the king’s unjust murder, confessed (Psal.51); to which I answer: He takes it for confessed, that it had been treason in the sanhedrim or states of Israel to have taken on them to judge and punish David for his adultery and his murder; but he gives no reason for this, nor any word of God; and truly, though I will not presume to go before others in this, God’s law (Gen. 9:6, compared with Num. 35:30, 31) seems to say against them.
6. Nor can I think that God’s law, or his deputy the judges, are to accept the persons of the great, because they are great; (Deut. 1:17; 2 Chron. 19:6-7;) and we say, we cannot distinguish where the law distinguishes not. The Lord speaks to under judges (Lev. 19:15,) “Thou shalt not respect the person of the poor, nor honor the person of the mighty,” or of the prince, for we know what these names lwOdgF and )b@frF means. I grant it is not God’s meaning that the king should draw the sword against himself, but yet it follows not, that if we speak of the demerit of blood, that the law of God accepts any judge, great or small; and if the estates be above the king, as I conceive they are, though it be a human politic constitution, that the king be free of all co-action of law, because it conduces for the peace of the commonwealth; yet if we make a matter of conscience, for my part I see no exception that God makes it; if men make, I crave leave to say, a facto ad jus non sequitur; and I easily yield that in every case the estates may coerce the king, if we make it a case of conscience. And for the place, (Ps. 51:4,) “Against thee, thee only, have I sinned,” yti)+fxf K1d@:bal; K1l; flatterers allege it to be a place proving that the king is above all earthly tribunals, and all laws, and that there was not on earth any who might punish king David; and so they cite Clemens Alexandrin. (Strom. l. 4.) Arnobi., Psal. 1., Dydimus, Hieronim.; but Calvin on the place, gives the meaning that most of the fathers give, Domine, etiam si me totus mundus absolvat, mihi tamen plusquum satis est, quod te solum judicem sentio. It is true, Beda, Euthymius, Ambrosius, (Apol. David, c. 4 and c. 10,) do all acknowledge from the place, de facto, there was none above David to judge him, and so does Augustine, Basilius Theodoret, say, and Chrysostomus, and Cyrillus, and Hieronimus, (Epist. 22.) Ambrose (Sermon 16, in Psal. 118.) Gregorius, and Augustine (Joan 8,) says, he means no man dared judge or punish him, but God only. Lorinus, the Jesuit, observes eleven interpretations of the fathers all to this sense: “Since (Lyra says) he sinned only against God, because God only could pardon him;” Hugo Cardinalis, “Because God only could wash him,” which he asks in the text. And Lorinus, “Solo Deo conscio peccavi.” But the simple meaning is,
- 1st. Against thee only have I sinned, as my eye-witness and immediate beholder; and, therefore, he adds and have done this evil in thy sight.
- 2nd. Against thee only, as my judge, that thou mayest be justified when thou judged, as clear from all unrighteousness, when thou shalt send the sword on my house.
- 3rd. Against thee, O Lord only, who canst wash me, and pardon me (ver. 1-2). And if this “thee only” exclude altogether Uriah, Bathsheba, and the law of the judges, as if he had sinned against none of these in their kind, then is the king, because a king, free, not only from a punishing law of man, but from the duties of the second table simply, and so a king cannot be under the best and largest half of the law, Thou shalt love thy neighbor as thyself. He shall not need to say, Forgive us our sins, as we forgive them that sin against us; for there is no reason, from the nature of sin, and the nature of the law of God, why we can say more the subjects and sons sin against the king and father, than to say the father and king sin against the sons and subjects. By this, the king killing his father Jesse, should sin against God, but not break the fifth command, nor sin against his father. God should in vain forbid fathers to provoke their children to wrath.
1. And kings to do injustice to their subjects, because by this the superior cannot sin against the inferior, forasmuch as kings can sin against none but those who have power to judge and punish them; but God only, and no inferiors, and no subjects, have power to punish the kings; therefore kings can sin against none of their subjects; and where there is no sin, how can there be a law? Neither major or minor can be denied by royalists.
2. We acknowledge tyranny must only unking a prince. The Prelate denies it, but he is a green statist. Barclay, Grotius, Winzetus, as I have proved, grants it.
3. He will excuse Nero, as of infirmity, wishing all Rome to have one neck, that he may cut it off. And is that charitable of kings, that they will not be so mad as to destroy their own kingdom? But when histories teach us there have been more tyrants than kings, the kings are more obliged to him for flattery than for state-wit, except we say that all kings who eat the people of God, as they do bread, owe him little for making them all mad and frantic.
4. But let them be Neroes, and mad, and worse, there is no coercing of them, but all must give their necks to the sword, if the poor Prelate be heard; and yet kings cannot be so mad as to destroy their subjects. Mary of England was that mad. The Romish princes who have given (Rev. 17:13) their power and strength to the beast, and do make war with the Lamb; and kings inspired with the spirit of the beast, and, drunk with the wine of the cup of Babel’s fornications, are so mad; and the ten emperors are so mad, who wasted their faithfulest subjects.
P. Prelate. If there be such a power in the peers, resumable in the exigent of necessity, as the last necessary remedy for safety of church and state, God and nature not being deficient in things necessary, it must be proved out of the Scripture, and not taken on trust, for affirmanti incumbit probatio.
Ans. Mr. Bishop, what better is your affirmanti incumbit, etc., than mine? for you are the affirmer.
- 1st. I can prove a power in the king, limited only to feed, govern, and save the people; and you affirm that God has given to the king, not only a power official and royal to save, but also to destroy and cut off, so as no man may say, Why doest thou this? Shall we take this upon the word of an excommunicated prelate? Profer tabulas, John P. P., I believe you not, royal power is, Deut. 17:18; Rom. 3:14. I am sure there is there a power given to the king to do good, and that from God. Let John P. P. prove a power to do ill, given of God to the king.
- 2nd. We shall quickly prove that the states may repress this power, and punish the tyrant not the king, when he shall prove that a tyrannous power is an ordinance of God, and so may not be resisted; for the law of nature teaches, if I give my sword to my fellow to defend me from the murderer, if he shall fall to and murder me with my own sword, I may (if I have strength) take my sword from him.
P. Prelate. 1. It is infidelity to think that God cannot help us, and impatience that we will not wait on God. When a king oppresses us, it is against God’s wisdom that he has not provided another mean for our safety than intrusion on God’s right. 2. It is against God’s power, 3. His holiness, 4. Christian religion, that we necessitate God to so weak a mean as to make use of sin, and we cast the aspersion of treason on religion, and deter kings to profess reformed catholic religion; 5. We are not to jostle God out of his right.
Ans. 1. I see nothing but what Dr Ferne, Grotius, Barclay, Blackwood, have said before, with some color of proving the consequence. The P. Prolate gives us other men’s arguments, but without bones. All were good, if the state’s coercing and curbing a power which God never gave to the king were a sin and an act of impatience and unbelief; and if it were proper to God only, by his immediate hand, to coerce tyranny.
2. He calls it not protestant religion, either here or elsewhere, but cunningly gives a name that will agree to the Roman catholic religion. For the Dominicans, Franciscans, and the Parisian doctors and schoolmen, following Occham, Gerson, Almain, and other papists, call themselves reformed catholics. He lays this for a ground, in three or four pages, where these same arguments are again and again repeated in terminus, as his second reason, (p. 149,) was handled ad nauseam (p. 148); his third reason is repeated in his sixth reason, (p. 151.) He lays down, I say, this ground, which is the begged conclusion, and makes. the conclusion the assumption, in eight raw and often-repeated arguments, to wit, That the parliament’s coercing and restraining of arbitrary power is rebellion, and resisting the ordinance of God. But he dare not look the place, Rom. 13, on the face.
Other royalists have done it with bad success. This I desire to be weighed, and I retort the Prelate’s argument. But it is indeed the trivial argument of all royalists, especially of Barclay, obvious in his third book. If arbitrary and tyrannical power, above any law that the lawful magistrate commands under the pain of death, Thou shalt not murder one man, Thou shalt not take away the vineyard of one Naboth violently be lawful and warrantable by God’s word, then an arbitrary power, above all divine laws, is given to the keeping of the civil magistrate. And it is no less lawful arbitrary, or rather tyrannical power, for David to kill all his subjects, and to plunder all Jerusalem, (as I believe prelates and malignants and papists would serve the three kingdoms, if the king should command them,) than to kill one Uriah, or for Ahab to spoil one Naboth. The essence of sin must agree alike to all, though the degrees vary.
Of God’s remedy against arbitrary power hereafter, in the question of resistance; but the confused engine of the Prelate brings it in here, where there is no place for it.
7. His seventh argument is: Before God would authorize rebellion, and give a bad precedent thereof for ever, he would rather work extraordinary and wonderful miracles; and therefore would not authorize the people to deliver themselves from under Pharaoh, but made Moses a prince, to bring them out of Egypt with a stretched-out arm. Nor did the Lord deliver his people by the wisdom of Moses, or strength of the people, or any act that way of theirs, but by his own immediate hand and power.
Ans. I reduce the Prelate’s confused words to a few: for I speak not of his popish term of St. Steven, and others the like; because all that he has said in a book of 149 pages might have been said in three sheets of paper. But, I pray you, what is this argument to the question in hand, which is, whether the king be so above all laws, as people and peers, in the case of arbitrary power, may resume their power and punish a tyrant? The P. Prelate draws in the question of resistance by the hair. Israel’s not rising in arms against king Pharaoh proves nothing against the power of a free kingdom against a tyrant.
- 1st. Moses, who wrought miracles destructive to Pharaoh, might pray for vengeance against Pharaoh, God having revealed to Moses that Pharaoh was a reprobate; but may ministers and nobles pray so against king Charles? God forbid.
- 2nd. Pharaoh had not his crown from Israel.
- 3rd. Pharaoh had not sworn to defend Israel, nor became he their king upon condition he should maintain and profess the religion of the God of Israel; therefore Israel could not, as free estates, challenge him in their supreme court of parliament of breach of oath; and upon no terms could they unking Pharaoh: he held not his crown of them.
- 4th. Pharaoh was never circumcised, nor within the covenant of the God of Israel in profession.
- 5th. Israel had their lands by the mere gift of the king. I hope the king of Britain stands to Scotland and England in a fourfold contrary relation.
All divines know that Pharaoh, his princes, and the Egyptians, were his peers and people, and that Israel were not his native subjects, but a number of strangers, who, by the laws of the king and princes, by the means of Joseph, had gotten the land of Goshen for their dwelling, and liberty to serve the God of Abraham, to whom they prayed in their bondage, (Exod. 2:23, 24,) and they were not to serve the gods of Egypt, nor were they of the king’s religion. And therefore, his argument is thus: A number of poor exiled strangers under king Pharaoh, who were not Pharaoh’s princes and peers, could not restrain the tyranny of king Pharaoh; therefore, the three estates in a free kingdom may not restrain the arbitrary power of a king.
1. The Prelate must prove that God gave a royal and kingly power to king Pharaoh, due to him by virtue of his kingly calling, (according as royalists explain 1 Sam. 8:9, 11,) to kill all the male children of Israel, to make slaves of themselves, and compel them to work in brick and clay, while their lives were a burden to them; and that if a Roman catholic, Mary of England, should kill all the male children of protestants, by the hands of papists, at the queen’s commandment, and make bondslaves of all the peers, judges, and three estates, who made her a free princess; yet, notwithstanding that Mary had sworn to maintain the protestant religion, they were to suffer and not to defend themselves. But if God give Pharaoh a power to kill all Israel, so as they could not control it, then God gives to a king a royal power by office to sin, only the royalist saves God from being the author of sin in this, that God gave the power to sin; but yet with this limitation, that the subjects should not resist this power.
2. He must prove that Israel was to give their male children to Pharaoh’s butchers, for to hide them was to resist a royal power; and to disobey a royal power given of God, is to disobey God.
3. The subjects may not resist the king’s butchers coming to kill them and their male children; for to resist the servant of the king in that wherein he is a servant, is to resist the king. (1 Sam. 8:7; 1 Pet. 2:14; Rom. 13:1.)
4. He must prove, that upon the supposition that Israel had been as strong as Pharaoh and his people; that without God’s special commandment, (they then wanting the written word,) they should have fought with Pharaoh; and that we now, for all wars, must have a word from heaven, as if we had not God’s perfect will in his word, as at that tune Israel behooved to have in all wars, Judg. 18:5; 1 Sam. 14:37; Isa. 30:2; Jer. 38:37; 1 Kings 22:5; 1 Sam. 30:5; Judg. 20:27; 1 Sam. 23:2; 2 Sam. 16:23; 1 Chron. 10:14. But because God gave not them an answer to fight against Pharaoh, therefore we have no warrant now to fight against a foreign nation invading us; the consequence is null, and therefore this is a vain argument. The prophets never reprove the people for not performing the duty of defensive wars against tyrannous kings; therefore, there is no such duty enjoined by any law of God to us. For the prophets never rebuke the people for non-performing the duty of offensive wars against their enemies, but where God gave a special command and response from his own oracle, that they should fight. And if God was pleased never to command the people to rise against a tyrannous king, they did not sin where they had no commandment of God; but I hope we have now a more sure word of prophecy to inform us.
5. The Prelate conjectures Moses’ miracles, and the deliverance of the people by dividing the Red Sea, was to forbid and condemn defensive wars of people against their king; but he has neither Scripture nor reasons to do it. The end of these miracles was to seal to Pharaoh the truth of God’s calling of Moses and Aaron to deliver the people, as is clear, Exod. 4:1-4, compared with 7:3-10. And that the Lord might get to himself a name on all the earth, Rom. 9:17; Exod. 9:16; 13:13, 14. But of the Prelate’s conjectural end, the Scripture is silent, and we cannot take an excommunicated man’s word. What I said of Pharaoh, who had not his crown from Israel, that I say of Nebuchadnezzar and the kings of Persia, keeping the people of God captive.
P. Prelate (p. 153). So in the book of Judges, when the people were delivered over to the hand of their enemies, because of their sins, he never warranted the ordinary judges or community to be their own deliverers; but when they repented, God raised up a judge. The people had no hand in their own deliverance out of Babylon; God effected it by Cyrus, immediately and totally. Is not this a real proof God will not have inferior judges to rectify what is amiss; but we must wait in patience till God provide lawful means, some sovereign power immediately sent by himself, in which course of his ordinary providence, he will not be deficient.
Ans. 1. All this is beside the question, and proves nothing less than that peers and community may not resume their power to curb an arbitrary power. For, in the first case, their is neither arbitrary nor lawful supreme judge.
2. If the first prove any thing, it proves that it was rebellion in the inferior judges and community of Israel to fight against foreign kings, not set over them by God; and that offensive wars against any kings whatsoever, because they are kings, though strangers, are unlawful. Let Socinians and anabaptists consider if the P. Prelate help not them in this, and may prove all wars to be unlawful.
3. He is so malignant to all inferior judges, as if they were not powers sent of God, and to all governors that are not kings, and so upholders of prelates, and of himself as he conceives, that by his arguing he will have all deliverance of kings only, the only lawful means in ordinary providence; and so aristocracy and democracy, except in God’s extraordinary providence, and by some divine dispensation, must be extraordinary and ordinarily unlawful.
- 1st. The acts of a state, when a king is dead and they choose another, shall be an anticipating of God’s providence.
- 2nd. If the king be a child, a captive, or distracted, and the kingdom oppressed with malignants, they are to wait, while God immediately from heaven create a king to them, as he did Saul long ago. But have we now kings immediately sent as Saul was? How is the spirit of prophecy and government infused in them, as in king Saul? or are they by prophetical inspiration, anointed as David was? I conceive their calling to the throne on God’s part differs as much from the calling of Saul and David, in some respect, as the calling of ordinary pastors, who must be gifted by industry and learning and called by the church, and the calling of apostles.
- 3rd. God would deliver his people from Babylon by moving the heart of Cyrus immediately, the people having no hand in it, not so much as supplicating Cyrus; therefore, the people and peers who made the king cannot curb his tyrannical power, if he make captives and slaves of them, as the kings of Chaldea made slaves of the people of Israel. What! Because God uses another mean, therefore, this mean is not lawful. It follows in no sort. If we must use no means but what the captive people did under Cyrus, we may not lawfully fly, nor supplicate, for the people did neither.
P. Prelate. You read of no covenant in Scripture made without the king. (Exod. 34) Moses king of Jeshurun: neither tables nor parliament framed it. Joshua another, (Josh. 24) and Asa, (2 Chron. 15; 2 Chron. 34; Ezra 10.) The covenant of Jehoiada in the nonage of Joash, was the high priest’s act, as the king’s governor. There is a covenant with hell, made without the king, and a false covenant. (Hos. 10:3-4.)
Ans. We argue this negatively.
1. This is neither commanded, nor practiced, nor warranted by promise; therefore, it is not lawful. But this is not practiced in Scripture; therefore, it is not lawful. It follows it. Show me in Scripture the killing of a goring ox who killed a man; the not making battlements on a house; the putting to death of a man lying with a beast; the killing of seducing prophets, who tempted the people to go a whoring, and serve another God than Jehovah: I mean, a god made by the hand of the baker, such a one as the excommunicated Prelate is known to be, who has preached this idolatry in three kingdoms. (Deut.13.) This is written, and all the former laws are divine precepts. Shall the precept make them all unlawful, because they are not practiced by some in Scripture? By this? I ask, Where read ye that the people entered in a covenant with God, not to worship the golden image, and the king; and those who pretended they are the priests of Jehovah, the churchmen and prelates, refused to enter in covenant with God? By this argument, the king and prelates, in non-practicing with us, wanting the precedent of a like practiced in Scripture, are in the fault.
2. This is nothing to prove the conclusion in question.
3. All these places prove it is the king’s duty, when the people under him, and their fathers, have corrupted the worship of God, to renew a covenant with God, and to cause the people to do the like, as Moses, Asa, and Jehoshaphat did.
4. If the king refuse to do his duty, where is it written that the people ought also to omit their duty, and to love to have it so, because the rulers corrupt their ways? (Jer. 5:31.) To renew a covenant with God is a point of service due to God that the people are obliged unto, whether the king command it or no. What if the king command not his people to serve God; or, what if he forbid Daniel to pray to God? Shall the people in that case serve the King of kings, only at the nod and royal command of an earthly king? Clear this from Scripture.
5. Ezra (ch. 5) had no commandment in particular from Artaxerxes, king of Persia, or from Darius, but a general. (Ezra 7:23.) “Whatsoever is commanded by the God of heaven, let it be diligently done for the house of the God of heaven.” But the tables in Scotland, and the two parliaments of England and Scotland, who renewed the covenant, and entered in covenant not against the king, (as the P. P. says,) but to restore religion to its ancient purity, have this express law both from king James and king Charles, in many acts of parliament, that religion be kept pure. Now, as Artaxerxes knew nothing of the covenant, and was unwilling to subscribe it, and yet gave to Ezra and the princes a warrant, in general, to do all that the God of heaven required to be done, for the religion and house of the God of heaven, and so a general warrant for a covenant, without the king; and yet Ezra and the people, in swearing that covenant, failed in no duty against their king, to whom, by the fifth commandment, they were no less subject than we are to our king: just so we are, and so have not failed.
But they say, the king has committed to no lieutenant and deputy under him, to do what they please in religion, without his royal consent in particular, and the direction of his clergy, seeing he is of that same religion with his people; whereas Artaxerxes was of another religion than were the Jews and their governor. Ans. Nor can our king take on himself to do what he pleases, and what the prelates (amongst whom those who ruled all are known, before the world and the sun, to be of another religion than we are) pleases, in particular. But see what religion and worship the Lord our God, and the law of the land (which is the king’s revealed will) allows to us, that we may swear, though the king should not swear it; otherwise, we are to be of no religion but of the king’s, and to swear no covenant but the king’s, which is to join with papists against protestants.
6. The strangers of Ephraim and Manasseh, and out of Simeon fell out of Israel in abundance to Asa, when they saw that the Lord his God was with him, (2 Chron. 15:9-10,) and aware that covenant without their own king’s consent, their own king being against it. If a people swear a religious covenant, without their king, who is averse thereunto, far more may the nobles, peers, and estates of parliament do it without their king; and here is an example of a practice, which the P. Prelate requires.
7. That Jehoiada was governor and viceroy during the nonage of Joash, and that by this royal authority the covenant was sworn, is a dream, to the end he may make the Pope, and the archprelate, now viceroys and kings, when the throne varies. The nobles were authors of the making of that covenant, no less than Jehoiada was; yea, and the people of the land, when the king was but a child, went unto the house of Baal, and brake down his images, etc. Here is a reformation, made without the king, by the people.
8. Grave expositors say, that the covenant with death and hell (Isa. 28) was the king’s covenant with Egypt.
9. And the covenant (Hos. 10) is by none exponed of a covenant made without the king. I have heard said, this Prelate, preaching on this text before the king, exponed it so; but he spake words (as the text is) falsely. The P. Prelate, to the end of the chapter, gives instance of the ill success of popular reformation, because the people caused Aaron to make a golden calf, and they revolted from Rehoboam to Jeroboam, and made two golden calves, and they conspired with Absalom against David.
Ans. If the first example make good any thing, neither the high priest, as was Aaron, nor the P. Prelate, who claims to be descended of Aaron’s house, should have any hand in reformation at all; for Aaron erred in that. And to argue from the people’s sins to deny their power, is no better than to prove Ahab, Jeroboam, and many kings in Israel and Judah, committed idolatry, therefore they had no royal power at all. In the rest of the chapter, for a whole page, he sings over again his matins in a circle, and gives us the same arguments we heard before; of which you have these three notes:
- (1.) They are stolen, and not his own.
(2.) Repeated again and again to fill the field.
(3.) All hang on a false supposition, and a begging of the question. That the people, without the king, have no power at all.
1. Plutarch in Apotheg. lib. 4.
2. Magistratus ipse est judex et executor contra scipcum, in propria causa, propter excellentiam sui officii, l. si pater familias, at l. et hoc. Tiberius Caesar, F. de Hered. hoc. just.
3. Stolen from Arnisaeus, de authorit. prin. c. 4, n. 5, p. 73.