Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No the People Have Any Power over the King, Either by His Oath, Covenant, or Any Other Way
Aristotle says, (Ethic. 8, c. 12,) (O me\n ga\r tu/rannov to\ e9autw| sumfe/rwn skopei~, o9 de basileu\v to\ tw~n a0rxome/nwn. “A tyrant seeks his own, a king the good of the subjects; for he is no king who is not content and excells in goodness.” The former part of these words distinguish essentially the king by his office from the tyrant. Now, every office requires essentially a duty to be performed by him that is in office; and, where there is a duty required, there is some obligation; — if it be a politic duty, it is a politic obligation.
1. Now, amongst politic duties between equal and equal, superior and inferior, that is not, de facto, required co-action for the performance thereof, but, de jure, there is; for two neighbor kings and two neighbor nations, both being equal and independent the one toward the the other, the one owes a duty to the other; and if the Ammonites do a wrong to David and Israel, as they are equal, de facto, the one cannot punish the other, though the Ammonites do a disgrace to David’s messengers, yet, de jure, David and Israel may compel them to politic duties of politic consociation, (for between independent kingdoms there must be some politic government, and some politic and civil laws, for two or three making a society cannot dwell together without some policy,) and David and Israel, as by the law of nature they may repel violence with violence; so, if the laws of neighborhood and nations be broken, the one may punish the other, though there be no relation of superiority and inferiority between them.
2. Wherever there is a covenant and oath between equals, yea, or superiors and inferiors, the one has some co-active power over the other; if the father give his bond to pay to his son ten thousand pounds, as his patrimony to him, though before the giving of the bond the father was not obliged but only by the law of nature to give a patrimony to his son; yet now, by a politic obligation of promise, covenant, and writ, he is obliged so to his son to pay ten thousand pounds, that, by the law of nations and the civil law, the son has now a co-active power by law to compel his father, though his superior, to pay him no less than ten thousand pounds of patrimony. Though, therefore, the king should stand simply superior to his kingdom and estates, (which I shall never grant,) yet if the king come under covenant with his kingdom, as I have proved at length, (c. 13,) he must, by that same, come under some co-active power to fulfill his covenant; for omne promissum (says the law) cadit in debitum, what any does promise falls under debt. If the covenant be politic and civil, as is the covenant between king David and all Israel, (2 Sam. 5:1-3,) and between king Jehoash and the people, (2 Kings 11:17, 18,) then the king must come under a civil obligation to perform the covenant; and, though there be none superior to king and the people on earth, to compel them both to perform what they have promised, yet, de jure, by the law of nations, each may compel the other to mutual performance. This is evident, —
- 1st. By the law of nations, if one nation break covenant to another, though both be independent, yet has the wronged nation a co-active power, de jure, (by accident, because they are weaker they want strength to compel, yet they have right to compel them,) to force the other to keep covenant, or then to punish them, because nature teaches to repel violence by violence, so it be done without desire of revenge and malice.
- 2nd. This is proved from the nature of a promise or covenant, for Solomon says, (Prov. 6:1-2,) “My son, if thou be surety for thy friend, if thou hast stricken thy hand with a stranger, thou art snared with the words of thy mouth, and art taken with the words of thy mouth.” But whence is it that a man free is now snared as a beast in a gin or trap? Certainly Solomon says it is by a word and striking of hands, by a word of promise and covenant. Now, the creditor has co-active power, though he be an equal or an inferior to the man who is surety, even by law to force him to pay, and the judge is obliged to give his co-active power to the creditor, that he may force the surety to pay. Hence it is clear, that a covenant makes a free man under the co-active power of law to an equal or a weaker, and the stronger is by the law of fraternity to help the weaker with his co-active power, to cause the superior fulfill his covenant. If, then, the king (giving, and not granting, he were superior to his whole kingdom) come under a covenant to them to seek their good, not his own, to defend true protestant religion, they have power to compel him to keep his covenant, and Scotland (if the king be stronger than England, and break his covenant to them) is obliged, by God’s law, (Prov. 24:11,) to add their forces and co-active power to help their brethren of England.
- 3rd. The law shall warrant to loose the vassal from the lord when the lord has broken his covenant. Hippolitus in l., Si quis viduam col. 5, et dixit de quest. l. Si quis major. 41 et 161. Bartol. n. 41. The Magdeburgens. in libel. de offic. magistrat. Imperatores et reges esse primarios vassallos imperii, et regni, et proinde si feloniam contra imperium aut regnum committant, feudo privari, proinde ut alios vasallos.
Arnisaeus (q. 6. An princeps qui jurat subditis, etc. n. 2) says, “This occasions confusion and sedition.” “The Egyptians cast off Ptolemaeus because he affected too much the name of a king of the Romans, his own friend,” Dion. (L 9.) “The States punished Archidanius because he married a wife of a low stature,” Plutarch, (in Ages, in pris.) “The ancient Burgundians thought it cause enough to expel their king, if matters went not well in the state,” Marcel. (l. 27.) “The Goths in Spain gave no other cause of expelling their king, nisi quod sibi displiceret, because he displeased them,” Aimon. (l. 2, c. 20, l. 4, c. 35.)
Ans. — All these are not to be excused in people, but neither every abuse of power in a king dethrones a king, nor every abuse in people can make null their power.
Arnisaeus makes three kinds of oaths: The first is, when the king swears to defend true religion and the Pope; and he denies that this is an oath of fidelity, or by pact or covenant made to the Pope or clergy, he says it is only on oath of protection, nor does the king receive the crown from the Pope or clergy.
Ans. 1. — Arnisaeus divides oaths that are to be conjoined. We do not read that kings swear to defend religion in one oath, and to administer judgment and justice in another; for David made not two covenants, but only one, with all Israel. 2. The king was not king while he did swear this oath, and therefore is must be a pactal oath between him and the kingdom, and it is true the king receives not a crown from the church; yet David received a crown from the church, for this end, “to feed the Lord’s people,” and so conditionally. Papir. Masse (l. 3, Chron. Gal.) says, the king was not a king before the oath, and that he swore to be a keeper not only of the first, but also of the second table of the law. Ego N. Dei gratia, mox futurus rex Francorum, in die ordinationis meae coram Deo, et sanctis ejus polliceor, quod servabo privilegia canonica, justitiamque et jus unicuique Praelato debitum, vosque defendam, Deo juvante, quantum potero, quemadmodum rex ex officio in suo regno defendere debet, unumquemque episcopum ac ecclesiam, et administrabo populo justitiam et leges, uti jus postulat. And so it is ordained in the council of Toledo: Quisquis deinceps regni sortitus fuerit apicem, non ante conscendat regiam sedem, quam inter reliquas conditiones sacramento policitus fuerit, quod non sinet in regno suo degere eum qui non sit catholicus. All these by Scripture are oaths of covenant, Deut. 17:17, 18; 2 Sam. 5:1-4; 2 Kings 11:17, 18.
Arnisaeus makes a second oath of absolute kings, who swear they shall reign according to equity and justice; and he says, “There is no need of this oath, a promise is enough; for an oath increases not the obligation, (L. fin. de non num. pec.,) only it adds the bound of religion; for there is no use of an oath where there is no pact of law against him that swears; it he violate the oath, there follows only the punishment of perjury. And the word of a prince is as good as his oath, only he condescends to swear to please the people, out of indulgence, not out of necessity. And the king does not therefore swear because he is made king, but because he is made king he swears. And he is not king because he is crowned, but he is crowned because he is king. Where the crown goes by succession, the king never dies; and he is king by nature before he be crowned.”
Ans. 1. — This oath is the very first oath spoken of before, included in the covenant that the king makes with the people; (2 Sam. 5:2-4;) for absolute powers, by Arnisaeus; grant, does swear to do the duties of a king, as Bodinus makes the oath of France, (de Rep. l. 1. c. 8,) Juro ego, per deum, ac promitto me juste regnaturum judicium, equitatem, ac misericordiam facturum; and Papir. Masse (l. 3, Chron.) has the same expressly in the particulars. And by this a king swears he shall not be absolute; and if he swear this oath, he binds himself not to govern by the law of the king, whereby he may play the tyrant, as Saul did, (1 Sam. 8:9-12, etc.,) as all royalists expound the place.
2. It is but a poor evasion to distinguish between the king’s promise and his oath; for the promise and covenant of any man, and so of the king, does no less bring him under a civil obligation and politic co-action to keep his promise than an oath; for he that becomes surety for his friend does by no civil law swear he shall be good for the son, or perform in lieu and place of the friend; what he is to perform he does only covenant and promise, and in law and politic obligation he is taken and snared by that promise, no less than if he had sworn. Reuben offered to be caution to bring Benjamin safe home to his old father, (Gen. 13:37,) and Judah also, (Gen. 43:9,) but they do not swear any oath; and it is true that an oath adds nothing to a contract and promise, but only it lays on a religious tie before God, yet so as consequently, if the contractor violate both promise and oath, he comes under the guilt of perjury, which a law of men may punish. Now, that a covenant brings the king under a politic obligation as well as an oath, is already proved, and farther confirmed by Gal. 3:15, “Though it be a man’s testament or covenant, no man disannuls and adds thereunto.” No man, even by man’s law, can annul a confirmed covenant; and therefore the man that made the covenant brings himself under law to fulfill his own covenant, and so must the king put himself under men’s law, by a covenant at his coronation; yea, and David is reputed by royalists an absolute prince, yet he comes under a covenant before he be made a king.
3. It is but a weak reason to say that an oath is needless, where no action of law can be against the king who swears, if it have any strength of reason. I retort it; a legal and solemn promise then is needless also, for there is no action of law against a king (as royalists teach) if he violate his promise, So then king David needlessly made a covenant with the people at his coronation; for though David should turn as bloody an enemy to the church as Nero or Julian, the people have no law-action against David; and why then did Jeremiah, seek an oath of the king of Judah, that he would not kill him nor deliver him into the hands of his enemies? and why did David seek an oath of Jonathan? It is not like Jeremiah and David could have law-action against a king and a king’s son, if they should violate the oath of God; and farther, it is a begging of the question to say that the states can have no action against the king if he should violate his oath. Hugo Grotius puts seven cases in which the people may have real action against the king to accuse and punish.
- (1.) They may punish the king to death, for matters capital, if so it be agreed on between the king and the people, as in Lacedaemonia.
(2.) He may be punished as a private man.
(3.) If the king make away a Kingdom given to him by succession, his act is null, and he may be resisted, because the kingdom is a life-rent only to him; yea, says Barclay, he loses the crown.
(4.) He loses his kingdom, if, with a hostile mind, he seek the destruction of the kingdom.
(5.) If such a clause be put in, that if he commit felony, or do such oppressions, the subjects shall be loosed from the bonds of subjection; then the king, failing thus, turns a private man.
(6.) If the king have the one-half or part of the kingdom, and the people or senate the other half; if the king prey upon that half which is not his own, he may violently be resisted, for in so far he has not the empire.
(7.) If, when the crown was given, this be declared, that in some cases he may be resisted, then some natural liberty is free from the king’s power, and reserved in the people’s hand.
4. It is then reason that the king swear an oath, (1.) That the king’s oath is but a ceremony to please the people, and that because he is king, and king by birth, therefore he swears, and is crowned, is in question, and denied. No man is born a king, as no man is born a subject; and because the people makes him king, therefore he is to swear. The council of Toledo says, non antea conscendat regiam sedem quam juret. (2.) An oath is a religious obligation, no arbitrary ceremony. (3.) He may swear in his cabinet-chamber, not covenanting with the people, as David and Jehoash did. (4.) So he makes promises that he may be king, not because he is king; it were ridiculous he should promise or swear to be a just king, because he is a just king; and by the same reason the estates swear the oath of loyalty to the new king, not that they may be loyal in all time coming, but because they are loyal subjects already; for if the one-half of the covenant on the king’s part be a ceremony of indulgence, not of necessity, by the same reason the other half of the covenant must be a ceremony of indulgence also to the people.
Obj. — Arnisaeus says, A contract cannot be dissolved in law, but by consent of two parties contracting, because both are obliged; (l. ab emptione 58, in pr. de pact. l. 3, de rescind. vend. l. 80, de solu😉 therefore, if the subjects go from the covenant that they have made to be loyal to the king, they ought to be punished.
Ans. — A contract, the conditions whereof are violated by neither side, cannot be dissolved but by the joint consent of both; and in buying and selling, and in all contracts unviolated, the sole will of neither side can violate the contract: of this speaks the law. But I ask the royalists, if the contract between the spies sent to view Jericho, and Rahab the harlot, had not been null, and the spies free from any obligation, if Rahab had neglected to keep within doors when Jericho was taken, though Rahab and the spies had never consented expressly to break the covenant? We hold that the law says with us, that vassals loss their farm if they pay not what is due.1 Now, what are kings but vassals to the state, who, if they turn tyrants, fall from their right?
Arnisaeus says in the council of Toledo, (4. c. 47,) the subjects ask from the king, that kings would be meek and just, not upon the ground of a voluntary contract and pact, but because God shall rejoice in king and people by so doing.2
Ans. — These two do no more fight with one another than that two merchants should keep faith one to another, both because God has said he shall dwell in God’s mountain who swears and covenants, and stands to his oath and covenant, though to his loss and hurt, (Psal. 15) and also because they made their covenant and contract thus and thus.
Arnisaeus. — Every prince is subject to God, but not as a vassal; for a master may commit felony, and lose the propriety of his farm. Can God do so? The master cannot take the farm from the vassal without an express cause legally deduced; but cannot God take what he has given but by a law process? A vassal can entitle to himself a farm against the master’s will, as some jurists say, but can a prince entitle a kingdom to himself against the God of heaven’s will? Though we grant the comparison, yet the subjects have no law over the kings, because the coercive power of the vassal is in the lord of the manor, the punishing of kings belongs to God.
Ans. 1. — We compare not the lord of a manor and the Lord of heaven together; all these dissimilitudes we grant, but as the king is God’s vassal, so is he a noble and princely vassal to the estates of a kingdom because they make him. 2. They make him rather than another their noble servant. 3. They make him for themselves and their own godly, quiet, and honest life. 4. They, in their first election, limit him to such a way, to govern by law, and give to him so much power for their good, no more; in these four acts they are above the prince, and so have a coercive power over him.
Arnisaeus. — It is to make the prince’s fidelity doubtful to put him to an oath. Lawyers say there is no need of an oath, when a person is of approved fidelity.
Ans. 1. — Then we are not to seek an oath of an inferior magistrate, of a commander in wars, of a pastor, it is presumed these are of approved fidelity, and it makes their integrity obnoxious to slander to put them on an oath. 2. David was of more approved fidelity than any king now a-days, and to put him to a covenant seemed to call his fidelity in question; Jonathan sought an oath of David to deal kindly with his seed when he came to the throne; Jeremiah sought an oath of the king of Judah. Did they put any note of falsehood on them therefore?
Arnisaeus. — You cannot prove that ever any king gave an oath to his subjects in Scripture.
Ans. 1. — What more unbeseeming kings is it to swear to do their duty, than to promise covenant-wise to do the same? And a covenant you cannot deny. 2. In a covenant for religious duties there was always an oath, (2 Chron. 15:12-14,) hence the rite of cutting a calf, and swearing in a covenant (Jer. 34:18). 3. There is an oath that the people gives to the king to obey him, (Eccles. 8:2,) and a covenant (2 Sam. 5:1-3) mutual between the king and people; I leave it to the judicious, if the people swear to the king obedience in a covenant mutual, and he swear not to them.
Arnisaeus shows to us a third sort of oath that limited princes do swear. This oath in Denmark, Sweden, Poland, Hungary, is sworn by the kings, who may do nothing without consent of the senate, and according to order of law; this is but the other two oaths specified, and a prince cannot contravene his own contract; the law says, in that the prince is but as a private man (in l. digna vox C. de ll. Rom. cons. 426, n. 17); and it is known that the emperor is constituted and created by the prince’s electors, subject to them, and by law may be dethroned by them.
The Bishop of Rochester (de potest p. 1. 2, c. 20) says from Barclay, “None can denude a king of his power, but he that gave him the power, or has an express commandment so to do, from him that gave the power. But God only, and the people, gave the king his power; therefore God, with the people, having an express commandment from God, must denude the king of power.
Ans. 1. — This shall prove that God only, by an immediate action, or some having an express commandment from him, can deprive a preacher for scandals; Christ only, or those who have an express commandment from him, can excommunicate; God only, or the magistrate with him, can take away the life of man (Numb. 11:14-16); and no inferior magistrates, who also have their power from God immediately, (Rom. 13:1,) if we speak of the immediation of the office, can denude inferior judges of their power. God only, by the husbandman’s pains, makes a fruitful vineyard, therefore, the husbandman cannot make his vineyard grow over with nettles and briers. 2. The argument must run thus, else the assumption shall be raise. God only by the action of the people as his instrument, and by no other action, makes a lawful king; God only by the action of the people, as his instrument, can make a king; God only by the action of the people, as his instrument, can dethrone a king; for as the people, making a king, are in that doing what God does before them, and what God does by them in that very act, so the people unmaking a king, does that which God does before the people; both the one and the other according to God’s rule obliges. (Deut. 17:14-20.)
The Prelate, whose tribe seldom says truth, adds, — “As a fatherly power, by God and nature’s law, over a family, was in the father of a family before the children could either transfer their power, or consent to the translation of that power to him, so a kingly power (which succeeds to a paternal or fatherly power) to govern many families, yea, and a kingdom, war in that same father, in relation to many families, before these many families can transfer their power. The kingly power flows immediately from God, and the people does not transfer that power, but does only consent to the person of the king, or does only choose his person at some time. And though this power were principally given to the people, it is not so given to the people as if it were the people’s power, and not God’s, for it is God’s power; neither is it any otherwise given to the people, but as to a stream, a beam, and an instrument which may confer it to another.” M. Antonius (de domini. l. 6, c. 2, n. 22, 22) does more subtlely illustrate the matter: “If the king should confer honor on a subject, by the hand of a servant who had not power or freedom to confer that honor, or not to confer it, but by necessity of the king’s commandment must confer it, nothing should hinder us to say, that such a subject had his honor immediately from the king: so the earth is immediately illuminated by the sun, although light be received on the earth, but by the intervening mediation of many inferior bodies and elements, because by no other thing but by the sun only, is the light as an efficient cause in a nearest capacity to give light; so the royal power in whomsoever it be, is immediately from God only, though it be applied by men to this or that person, because from God only, and from no other the kindly power is formally and effectively that which it is, and works that which it works; and if you ask by what cause is the tree immediately turned into fire, none sound in reason would say, it is made fire, not by the fire, but by him that laid the tree on the fire.” John P. P. would have stolen this argument also, if he had been capable thereof.
Ans. 1. — A fatherly power is in a father, not before he has a child, but indeed before his children by an act of their free-will consent that he be their father; yea, and whether the children consent or no, from a physical act of generation, he must be the father; and let the father be the most wicked man, and let him be made by no moral requisite, yet is ha made a father, nor can he ever leave off physically to be a father: he may leave off morally to do the duty of a father, and so be non pater officio, but he cannot but be pater naturae generantis vi. So there never is, nor can be, any need that children’s free consent intervene to make Kish the father of Saul, because he is by nature a father. To make Saul a king and a moral father by analogy and improperly, — a father by ruling, governing, guiding, defending Israel by good laws, in peace and godliness, I hope there is some act of the people’s free-will required even by Spalato’s way; the people must approve him to be king, yea, they must king him, or constitute him king, say we. No such act is required of natural sons to make a physical father, and so here is a great halt in the comparison, and it is most raise that there is a kingly power to govern many families in the same father, before these many families can transfer their power to make him king. Put royalists to their logic, they have not found out a medium to make good that there is a formal kingly power whereby Saul is king and father morally over all Israel before Israel chose him and made him, as Kish was Saul’s father formally, and had a fatherly power to be his father, before Saul had the use of free-will to consent that ha should be his father. Royalists are here at a stand. The man may have royal gifts before the people make him king, but this is not regia potestas, a royal power, by which the man is formally king. Many have more royal gifts than the man that bears the crown, yet are never kings, nor is there formally regia potestas, kingly power, in them. In this meaning Petrarch said, Plures sunt reget quam regna.
2. He says, “The people does not confer royal power, but only consent to the person of the man, or choice of his person.” This is nonsense, for the people’s choosing of David at Hebron to be king, and their refusing of Saul’s seed to be king, what was it but an act of God, by the free suffrages of the people, conferring royal power on David, and making him king? Whereas in former times, David even anointed by Samuel at Bethlehem, (1 Sam. 16) was only a private man, the subject of king Saul, and never termed by the Spirit of God a king; nor was he king till God, by the people’s consent made him king at Hebron; for Samuel neither honored him as king, nor bowed to him as king, nor did the people say, God save king David; but after this David acknowledged Saul as his master and king. Let royalists show us any act of God making David king, save this act of the people making him formally king at Hebron, and therefore the people, as God’s instrument, transferred the power, and God by them in the same act transferred the power, and in the same they chose the person; the royalists affirm these to be different actions, affirmanti incumbit probatio.
3. This power is the people’s radically, naturally, as the bees (as some think) have a power natural to choose a king-bee, so has a community a power naturally to defend and protect themselves; and God has revealed in Deut. 17:14, 15, the way of regulating the act of choosing governors and kings, which is a special mean of defending and protecting themselves; and the people is as principally the subject and fountain of royal power, .as a fountain is of water. I shall not contend, if you call a fountain God’s instrument to give water, as all creatures are his instruments.
4. For Spalato’s comparison, he is far out, for the people choosing one of ten to be their king, have free will to choose any, and are under a law (Deut. 17:14, 15) in the manner of their choosing, and though they err and make a sinful choice, yet the man is king, and God’s king, whom they make king; but, if the king command a servant to make A. B. a knight, if the servant make C. D. a knight, I shall not think C. D. is a valid knight at all; and indeed the honor is immediately here from the king, because the king’s servant by no innate power makes the knight, but nations by a radical, natural, and innate power, makes this man a king, not that man; and I conceive the man chosen by the people owes thanks and grateful service to the people, who rejected others, that they had power to choose, and made him king.
5. The light immediately and formally is light from the sun, and so is the office of a king immediately instituted of God, Deut. 17:14. Whether the institution be natural or positive, it is no matter. 2. The man is not king, because of royal endowments, though we should say these were immediately from God, to which instruction and education may also confer not a little; but he is formally king, ratione e0cousi/av basili/khj in regard of the formal essence of a king, not immediately from God, as the light is from the sun, but by the mediation of the free consent of the people; (2 Sam. 5:1-3;) nor is the people in making a king, as the man who only casts wood in the fire; the wood is not made fire formally, but by the fire, not by the approach of fire to wood, or of wood to fire; for the people do not apply the royalty, which is immediately in and from God to the person. Explicate such an application; for to me it is a fiction inconceivable, because the people has the royalty radically in themselves, as in the fountain and cause, and confers it on the man who is made king; yea, the people, by making David king, confer the royal power on the king. This is so true, that royalists, forgetting themselves, inculcate frequently in asserting their absolute monarch from Ulpian, but misunderstood that the people have resigned all their power, liberty, right of life, death, goods, chastity, a potency of rapine, homicides, unjust wars, etc., upon a creature called an absolute prince; even, says Grotius, as a man may make himself a slave, by selling his liberty to a master. Now, if the people make away this power to the king, and this be nothing but the transcendent absoluteness of a king, certainly this power was in the people; for how can they give to a king that which they have not themselves?
As a man cannot make away his liberty to a master, by becoming a slave to him, if his liberty were immediately in God, as royalists say, sovereignty is immediately in God, and people can exercise no act about sovereignty, to make it over to one man rather than to another. People only have an after-approbation, that this man to whom God has given it immediately, shall have it. Furthermore, they say, people in making a king may make such conditions, as in seven cases a king may be dethroned, at least resisted, says Hugo Grotius: therefore people may give more or less, half or whole, limited or absolute royal power to the prince; but if this power were immediately in God and from God, how could the people have the husbanding of it, at their need to expend it out in ounce weights, or pound weights, as they please? And that the people may be purveyors of it to sell or give it, is taught by Grotius (de jur. bel et pac. l..1, c. 4); Barclay (advers. monarch. l. 4, c. 6); Arnisaeus (c. 6, de majest. an princeps qui jurat subditis, etc. n. 10, n. se Aventium Anal. l. 3); Chytreus (l. 23, l. 28); Saxon Sleidan (lib. 1, in fi); yet Arnisaeus is not ashamed to cite Anstot. (polit. c. 12, l. 3), that he is not a true and absolute king who rules by laws. The point blank contrary of which Aristotle says.
1. Bartol. in l. l. n. 4. de his. qui not. infam.
2. Arnis., c. 6, an princeps qui jurat subditis, etc.