Lex Rex, Question 26
QUEST. XXVI. Whether the King be above the Law or no?
The Law above the King in four considerations.WE may consider the question of the Laws supremacie over the King, either in the supremacie of constitution of the King, 2. or of direction, or 3. of limitation, or 4. of coaction 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 Laws direction] They say nothing;The meaning of this [The King is not subject to the Law] The Law above the King in supremacy of constitution for the King as the King is a living Law; then they say [The Law is not subject to the Laws direction] a very improper speech; or, The King as King, is not subject to the coaction of the Law; that is true, for he who is a living Law, as such, cannot punish himself, as the Law saith.
1. Assert. The Law hath a supremacy of constitution above the King;
1. Because the King by nature is not King, as is proved; Ergo, he must be King by a politique 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 then any other kinde of Governour.
2. It is by Law, that amongst many hundred men, this man is King, not this man; and because, by the which a thing is constituted, by the same thing it is, or may be dissolved; therefore,
3. As a Community finding such and such qualifications as the Law requireth to be in a King, in this man, not in this man; therefore upon Law-ground,
5. They make him a King, and upon Law-grounds and just demerit, they may unmake him again; for, what men voluntarily doe upon condition, the condition being removed, they may undoe again.
2. Assert. It is denyed by none; but the King is under the directive power of the Law, though many liberate the King from the coactive 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 …rdine ad obedientiam, in order to obey; except thus far, that the light that is in the civil Law, is a morall or naturall guide to conduct a King in his walking; but this is the morality of the Law which inlightneth and informeth, not any obligation that aweth the King; and so the King is under Gods and Natures Law, this is nothing to the purpose.
3. Assert. The King is under the Law, in regard of some coercive limitation:
1. Because there is no absolute power given to him to do what he listeth, as a man. And because,
2. God, in making Saul a King, doth not by any Royall 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, In what sense the King m…y do all things.Imperator omnia potest. Baldus in §. F. de no. for. fidel. in F. & in prima constitut. C. col. 2. Chassanaeus in Catalog. gloriae mundi. par. 5. considerat. 24. & tanta est ejus celsitudo, ut non posset ei imponi lex in regno suo. Curt. in consol. 65. col. 6. ad. F. Petrus Rebuff. Notab. 3. repet. l. unicae. C. de sentent. quae pro eo quod nu. 17. pag. 363. All these go no otherwise but thus, The King can do all things which by Law he can do, and that holdeth him: id possumus quod jure possumus. And therefore the King cannot be above the Covenant and Law made betwixt him and his people, at his Coronation-oath; for then the Covenant and Oath should binde him onelyonly, by a naturall obligation, as he is a man, not by a civil or politique 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 people.
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.
4. Assert. The fourth case is, if the King be under the obliging politique coaction of civil Laws, for that he in foro Dei, be under the morality of civil Laws, so as he cannot contraveen any Law in that notion, but he must sin against God, is granted on all hands, Deut. 17.20. Iosh. 1.8. 1 Sam. 12.15. That the King binde himself to the same Law that he doth binde others, is decent, and obligeth the King as he is a man;
1. Because, Matth. 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.
2. It is the Law, Jmperator L. 4. digna v…x. C. de lege & tit. Quod quisque juris in alium statuit, eodem & ipse utatur. Iulius Caesar commanded the youth who had defloured the Emperours daughter, to be scourged, above that which the Law allowed. The youth said to the Emperour,Plutarch in Apoth…g. l. 4. 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.
Assert. 5. The King cannot but he subject to the coactive power of Fundamentall Laws: The King under the fundamentall Laws.Because this is a Fundamentall 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 doth to the hurt of his subjects, he doth it not as King.
2. The Law saith, Qui habet potestatem constituendi etiam & jus adimendi. l. nemo. 37. l. 21. de reg. jure. Those who have power to make, have power to unmake Kings.
3. What ever the King doth as King, that he doth 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 Royall power is above all Law-coaction, as because one & the same man cannot be both the punisher and the punished, and this is a Physicall incongruity rather then a Morall absurdity. So the Law of God layeth a duty on the inferiour Magistrate, to use the sword against the murtherer, and that by vertue of his Office, but I much doubt it for that, he is to use the sword against himselfe in the case of Murther▪ for this is a truth I purpose to make good;Whether the King be punishable, or be to he punished. Two divers questions. Magistratus ipse est judex & execùtor contra s…ipsum, in pr… pria causa, propter excellentiam sut officii, l. s… pater familias▪ & l. & hoc Tiberius Caesar F. De Here…. …oc. just. 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, lawfull even to the ill doer who hath deserved death by Gods Law, to fly from the sword of the lawfull Magistrate; only the manner of suffering with patience is commanded of God. I know the Law saith here, That the Magistrate is both Iudge, and the Executor of the sentence against himselfe, in his owne cause, for the excellency of his Office. Therefore these are to be distinguished, whether the King Ratione demeriti & 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 himselfe, and that by vertue of his Office. In matters of goods the King may be both Iudge and punisher of himselfe, as our Law provideth that any subject may plead his owne heritage from the King before the inferiour Iudges, and if the King be a violent possessour, and in Mala fide for many yeares, by Law he is obliged upon a Decree of the Lords, to execute the sentence against himselfe, Ex officio, and to restore the Lands, and repay the dammage to the just owner, and this the King is to doe against himselfe, ex officio. I grant here the King as King punisheth himselfe as an unjust man, but because bodily suffering is meere violence to nature, I doubt if the King ex officio, is to doe or inflict any bodily punishment on himselfe: Nemo potest a seipso cogi. l. ille a quo. 13. §.
Assert. 6. There be some Lawes made in favour of the King as King, as to pay tribute. The King must be above this Law as King. The King above s…me Lawes.True, but if a Noble man of a great rent be elected King, I know not, if he can be free from paying to himselfe as King, tribute, seeing this is not allowed to the King by a Divine Law, Rom. 13.6. as a reward of his worke; and Christ expresly maketh tribute a thing due to Caesar as a King, Matth. 22. v. 21. There be some solemnities of the Law from which the King may be free, Prickman. D. c. 3. n. 78. and he relateth what they are, they are not Lawes, but some circumstances belonging to Lawes, and Prickman answereth to many places alledged out of the Lawyers, to prove the King to be above the Law, Maldorus in 12. Art. 4, 5, 9, 96. will have the Prince under that Law, The King … bove Lawes that con…erne subj…cts as subjects.which concerneth all the Common-wealth equally in regard of the matter, and that by the Law of nature, but he will not have him subject to these Lawes which concerneth the subjects as subjects, as to pay tribute. He citeth Francis…. a Vict. Covarruvia, and Turrecremata. He also will have the Prince under positive Lawes, such as not to transport victualls, not because the Law bindeth him as a Law. But because the making of the Law bindeth him, Tanquam conditio sine qua non, even as he who teacheth another that he should not steale, he should not steale himselfe, 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 Sacriledge, and such sinnes as nature condemneth, if I shall condemne them in others, and doth not prove that the King is under the coactive power of Civill Lawes.
Some Lawyers and Schoole-men free the King from the Law.Vlpianus, l. 31. F. de regibus saith, The Prince is loosed from Lawes, Bodine de Repub. l. 7. c. 8. Nemo imperat sibi, No man commandeth himselfe. Tholosanus saith, Ipsius est dare, non accipere leges. The Prince giveth Lawes, but receiveth none, De Rep. l. 7. c. 20. Donellus Lib. 1. Comment. c. 17. distinguisheth betwixt a Law, and a Royall Law proper to the King. Trentlerus Volum. 1.79.80. saith, The Prince is freed from Laws▪ and that he obeyeth Laws, de honestate, Reasons to prove that the King is under the Law. Th…t a King hath no superiour but God, a false ground to liberate the the King from the coaction of Law.non de necessitate, VponUpon honesty, not of necessity. Thomas P. 1. q. 96. Art. 5. and with him Soto, Gregorius de Valentia, and other Schoole-men, subject the King to the directive power of the Law, and liberate him of the coactive power of the Law.
Assert. 7. If a King turne a Paricide, a Lyon, and a waster and destroyer of the people, as a man he is subject to the Coactive power of the Lawes of the Land. If any Law should hinder that a Tyrant should not be punished by Law, it must be, because he hath not a superiour but God; for Royalists build all upon this, but this ground is false: because the Estates of the Kingdome who gave him the Crowne, are above him, and they may take away what they gave him; as the Law of Nature and God saith, If they had knowne he would turne 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 conditionall is supposed to be against their will. 2. They gave the power to him only for their good, and that they make the King, is cleare, 2 Chron. 23.11. 1 Sam. 10.17, 24. Deut. 17.14, 15, 16, 17. 2 King. 11. v. 12. 1 King. 16.21. 2 King. 10.5. Iud. 9.6.2. 2 Chron. 26.18. fourescore valiant men of the Priests withstood Vzziah in a corporall violence, and thrust him out, and cut him off from the house of the Lord. And,
2. If the Princes place doe not put him above the Lawes of Church-Discipline, (Matth. 18. for Christ excepteth none,Argum. 2. and how can men except?) and if the rod of Christs lips smite the earth, and slay the wicked, Esay 11.4. and the Prophets Elias, Nathan, Ieremiah, Esaiah, &c. Iohn Baptist, Iesus Christ ▪ and his Apostles have used this rod of censure and rebuke, as servants under God, against Kings, this is a sort of spirituall coaction of Lawes put in execution by men, and by due proportion corporall coaction being the same ordinance of God, though of another nature, must have the like power over all, whom the Law of God hath not excepted, but Gods Law excepteth none at all.
3. It is presumed that God hath not provided better for the safety of the part, then of the whole,Argum. 3. especially when he maketh the part a meane for the safety of the whole.
But if God have provided that the King, who is a part of the Common-wealth, shall be free of all punishment, though he be a habituall destroyer of the whole Kingdome, seeing God hath given him to be a Father, Tutor, Saviour, Defender thereof, and destinated him as a meane for their safety, then must God have worse, not better provided, for the safety of the whole, then of the part. The Proposition is cleare in that God, Rom. 13.4. 1 Tim. 2.2. hath ordained the Ruler, and given to him the sword to defend the whole Kingdome and City; but we read no where, that the Lord hath given the sword to the whole Kingdome, to defend one man a King, though a Ruler come going on in a Tyrannicall way of destroying all his subjects.
The assumption is evident: for then the King, turning Tyrant, might set an Army of Turkes, A Tyrant in …xercise, may be puni…d by th… ….Jewes, cruell Papists, to destroy the Church of God, without all feire of L…w or punishment. Yea, this is contrary to the doctrine of Royalists: for, Winzetus adversus Buchana…um, p. 275. s…ith of Nero, that he seeking to destroy the Senate and people of Rom…, and seeking to m…ke new lawes for himselfe, excidit jure Regni, lost right to the Kingdome. And Barclaius advers. Monarcho-Machous, l. 3. c. ult. p. 212, 213. saith, A Tyrant, such as Caligula, spoliare se jure Regni, spoileth himselfe of the right to the Crown.But how this c…n … w…th th… d… ctrine o… R…yal…ts, I see not: to wit, Once a father, alway a father, once a King, ever a King. None can punish a King, … Go… Almighty, say they. And in that same place: Regem, si regnum suum alienae ditioni manciparit, regno cadere: If the King sell his Kingdome, he loseth the title to the Crown. Grotius de jure belli & pacis, l. 1. c. 4. n. 7, Si Rex hostili animo in totius populi exitium feratur, amittit regnum: If he turne Enemie to the Kingdome, for their destruction, he loseth his Kingdome, because (saith he) Voluntas imperandi, & voluntas perdendi, simul consistere non possunt: A will or minde to governe, and to destroy, cannot consist together in one. Now if this be true, that a King turning Tyrant, loseth title to the Crown; this is either a falling from his Royall title only in Gods court; or it is a losing of it before men, and in the court of his Subjects. If the former be said, 1. He is no King, having before God lost his Royall 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. 2. In vaine doe these Authors provide remedies to save the people from a Tyrannous waster of the people, if they speake of a Tyrant who is no King in Gods court only, and yet remaineth a King to the people in regard of the Law: for the places speake of Remedies that God hath provided against Tyrants cum titulo, such as are lawfull Kings, but turn Tyrants. Now by this they provide no remedie at all, if only in Gods court, and not in Mans court also, a Tyrant lose his title. As for Tyrants sine titulo, such as usurpe the throne, and have no just claime to it: Barclaius adver. Monarcho-Ma. l. 4. c. 10. p. 268. saith, Any private man may kill him, as a publike enemie of the State: but if he lose his title to the Crown in the court of Men, then is there, 1▪ a Court on Earth to judge the King, and so he is under the coactive power of a Law. 2. Then a King may be resisted, and yet those who resist them, doe not incurre damnation; the contrary whereof Royalists endeavour to prove from Rom. 13.3. Then the people may un-king one who was a King. But 4. I would know who taketh that foreign, from him, whereby he is a King, that beame of Divine majestie? Not the people; because Royalists say, they neither can give, nor take away Royall dignitie, and so they cannot un-king him.
4. The more Will be in the consent ▪ (saith Ferd. Vasquez▪: Arg. 4.l. 1. c 41.) the obligation is the stricter. So, doubled words (saith the Law,The K…ng under the strict…st obligation of L…w. l. 1. §. 13. n. 13.) oblige more strictly. And all lawes of Kings, who are rationall fathers, and so lead us by Lawes, as by rationall meanes to peace and externall happinesse; are contracts of King and People. Omnis lex sponsio & contractus Reip. §. 1. Iust. de ver. relig. Now the King at his Coronation-covenant with the people, giveth 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 Lawes by office, he is a meane to preserve Lawes; and no meane can bee superior and above the end, but inferior thereunto.
5. Bodine proveth, de Rep. l. 2. c. 5. p. 221. that Emperors at first were but Princes of the Commonwealth:Arg. 5. and that Soveraigntie remained still in the Senate and people. Marius Salomonius, A King remaineth a man, and a sociall creature.a learned Romane Civilian, wrote sixe bookes de Principatu, to refute the supremacie of Emperors above the State. Ferd. Vasq. illust. quest. part. 1. l. 1. n. 21. proveth, that the Prince, by Royall dignitie, leaveth not off to be a Citizen, a member of the Politique body; and not a King, but a Keeper of Lawes.
Hence, 6. The Prince remaineth, even being a Prince, a sociall creature, a Man, as well as a King; one who must buy, sell, promise, contract, dispose: Ergo, he is not Regula regulans, but under rule of law: for impossible it is, if the King can, in a politicall way, live as a member of a societie, and doe and performe acts of policie, and so performe them, as he may by his office, buy, and not pay; promise, and vow, and sweare to men, and not performe, 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 humane policie, be free: and that he may give inheritances, as just rewards of vertue and well-doing, and take them away againe. Yea, seeing these sinnes that are not punishable before men, are not sinnes before men: If all the sinnes and oppressions of a Prince be so above the punishment that men can inflict, they are not sinnes before men, by which meanes the King is loosed from all guiltinesse of the sinnes against the Second Table: for, the ratio formalis, the formall reason, why the Iudge, by warrant from God, condemneth, in the Court of men, the guilty man, is, because he hath sinned against humane societie, either through the scandall of blasphemie, or through other heynous sinnes he hath defiled the Land. Now this is incident to the King, as well as to some other sinfull man.
… Mai. … 1…6, 14….To these, and the like, heare what the excommunicated Prelate hath to say; 1. They say (he meaneth the Jesuites) Every societie of men is a perfect Republick, and so must have within it selfe a power to preserve it selfe from ruine, and by that to punish a Tyrant. He answereth, A societie without a Head, is a disorderly rout, not a Politique body; and so cannot have this power.
Ans. 1. The Pope giveth to every Societie, Politick power to make away a Tyrant, or hereticall King, and to un-king him, by his brethren the Jesuites 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 iniquitie of time, and dominion of Prelates in Scotland, advanced him, against all worth of true learning and holinesse, to be a Preacher in Edinborough) and Iesuites agree, as the builders of Babylon. It is the purpose of God to destroy Babylon.
2. This answer shall inferre, that the Aristocraticall 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 Politicall societie, as by Natures instinct, they may appoint a Head, or Heads to themselves: so also if their Head, or Heads become ravenous Wolves, the God of Nature hath not left a perfect Societie remedilesse; 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 Politique, to unmake a Tyrannous Commander, as they were to make a just Governour. The Prelate saith, It is alike to conceive a Politique body without a Governour, as to conceive the naturall body without a Head. He meaneth, None of them can be conceivable. I am not of his minde. When Saul was dead, Israel was a perfect Politique body: and the Prelate, if he be not very obtuse in his head, (as this hungry peece stollen from others, sheweth him to be) may conceive a visible Politicall societie performing a Politicall action, 2 Sam. 5.1, 2, 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 Chymera's unconceivable: 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 severall families had government, yet these consociated families had no government; and yet so conceivable a Politique body, as if Maxwell would have compeared amongst them, and called them a disorderly rout, or an unconceivable Chymera, they should have made the Prelate know, that Chymera's can knock down Prelates. Neither is a King the life of a Politique body, as the soule is of the naturall body: The body createth not the soule: 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 naturall body can make soules to it selfe by succession; Nor can Seas create new Prelates alwayes.
P. Prelate. Jesuites and Puritans differ infinitely; We are hopefull God shall cast down this Babel. The Iesuites, for ought I know, seat the superintendent power in the Communitie: Some Sectaries follow them, and warrant any individuall person to make away a King in case of defects, and the worke is to be rewarded as when one killeth a ravenous Wolfe. Some will have it in a collective body, but how? not met together by warrant, or writ of Soveraigne Authoritie, but when fancie of reforming Church and State calleth them. Some will have the power in the Nobles and Peeres; some in the three Estates assembled by the Kings Writ; some in the inferior Iudges. I know not where this power to curbe Soveraigntie is, but in Almighty God.
Ans. 1. Iesuites and Puritans differ infinitely: true. Jesuites deny the Pope to be Antichrist, hold all Arminian doctrine, Christs locall descension to hell: all which the Prelate did preach. We deny all this.
2. We hope also the Lord shall destroy the Jesuites Babel; the suburbs whereof, and more, are the Popish Prelates in Scotland and England.
3. The Jesuites, for ought he knoweth, In what considerations the people is the subject of all politike power.place all superintendent power in the Communitie. The Prelate knoweth not all his brethren the Iesuites wayes: but it is ignorance, not want of good will. For Bellarmine, Beucanus, Suarez, Gre…gor, de Valentia, and others his deare fellowes say, That all superintendent power of policy, in ordine ad spiritualia is in the man, whose foot Maxwell would kisse for a Cardinals Hat.
4. If these be all the differences, it is not much, the Community is the remote and l…st subject, the representative body the nearest subject, the Nobles a partiall subject; the Iudges as Iudges sent by the King, are so in the game, that when an Arbitrary Prince at his pleasure setteth 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 maketh a Fancie at this time▪ it is as if the theeves and robbers should say a Iustice Court were a fancie; but if the Prelate might compeare before the Parliament of Scotland (to which he is an out-law, like his father, 2 Thess: 2.4.) such a fancie I conceive should hang him, and that deservedly.
P. Prelate. The subject of this superintending power must be secured from errour, Sac. Mai. p. 147, 148.in judgement and practise, and the community and States then should be infallible.
Ans▪ The consequence is nought, no more then the King the absolute independent is infallible. 2. It is sure the people are in lesse hazard of Tyranny and selfe destruction, then the King is to subvert Lawes, and make himselfe 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 erre, then God hath left the state remedilesse except the King remedy it.
Ans. There's no consequence here, except the King be impeccable. 2. Posteriour Parliaments may correct the former. 3. A State is not remedilesse, because Gods remedies, in sinfull mens hands may miscarry. But the question is now, whether God hath given power to one man to destroy men, subvert Lawes, and Religion, without any power above him to coerce, restraine or punish.
P. Prelate. If when the Parliament erreth, the remedy is left to the Wisedome of God, C. 15. p. 148.why not when the King erreth?
Ans. Neither is Antecedent true, nor the consequence valid, for the founder part may resist; and it is easier to one to destroy many, having a power absolute, which God never gave him, then for many to destroy themselves. Then if the King Vzza… intrude himselfe and sacrifice, the Priests doe sin in remedying thereof.
P. Prelate. Why might not the people of Israell, Stollen from Arnisaeus De authorit. Prin. c. 4. num, 5. pag. 73▪Peers or Sanedrim have convened before them, judged, and punished David, for his Adultery and Murther? Romanists and new Statists acknowledge no case lawfull, but Heresie, Apostacy, or Tyranny; and tyranny they say must be universall, 2. Manifest as the Sunne. 3. And with obstinacy, and invincible by prayers; as is recorded of Nero, whose wish was rather a transported passion, then a fixed resolution, this cannot fall in the attempts of any but a Mad-man. Now this cannot be proved of our King; but though we grant in the foresaid case, that the community may resume their power, and rectifie what is amisse, which we canno grant, but this will follow by their doctrine in every case of male administration.
Ans. The Prelate draweth me to speake of the case of the Kings unjust Murther, confessed Ps. 51. to which I answer,If David in his Murthering Vriah and his Adultery sinned against none but God. He taketh it for confessed, that it had been treason in the Sanedrin and States of Israel to have taken on them to judge and punish David for his Adultery and his Murther; but he giveth no reason for this, nor any word of God; and truely though I will not presume to goe before others in this, Gods Law, Gen. 9.6. compared with Num. 35.30.31. seemeth to say against them.
Nor can I thinke that Gods Law, or his Deputy the Iudges are to accept the persons of the great, because they are great,Arg. 6. Deut. 1.17. 2 Chro. 19.6, 7. and we say, We cannot distinguish where the Law distinguisheth not, The Lord speaketh to under Iudges, Levit. 19.15. Thou shalt not respect the person of the poore, nor honour the person of the mighty, or of the Prince, for we know what these names foreign and foreign meaneth. I grant, it is not Gods meaning that the King should draw the sword against himselfe, but yet it followeth not, that if we speake of the demerit of blood, that the Law of God accepteth any Iudge, great or small, & if the Estate be above the King, as I conceive they are, though it be a humane politicke constitution, that the King be free of al coaction of Law, because it conduceth for the peace of the Common-wealth, yet if we make a matter of conscience, for my part I see no exception that God maketh it, if men make,The place Psa. 51. Against hee only have I sinned, Discussed. I crave leave to say, A facto ad jus non sequitur. And I easily yeeld 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 only have I sinned. foreign flatterers alleadge it to be a place that proveth that the King is above all earthly Tribunals, and all Lawes, and that there was not on earth any who might punish King David; and so they cite Clemens Alexandrin. Strom. l. 4. Arnobi. Psal. 50. Dydimus, Hieronim. But Calvine on the place giveth the meaning that most of the Fathers give. Domine, etiam si me totus mundus absolvat, mihi tamen plusquam satis est, quod te solum judicem sentio. It is true, Beda, Euthymius, Ambrosius, Apol. David, c. 4. &. c. 10. do all acknowledge from the place, De facto, there was none above David to judge him, and so doth Augustine, Basilius, Theodoret say, and Chrysostomus, and Cyrillus, and Hyeronim. Epist. 22. Ambrose Sermo. 16. in Psal. 118. Gregorius, and Augusti. Ioan. 8. saith, he meaneth no man durst judge or punish him, but God only. Lorinus the Iesuit observeth eleven interpretatiōs of the Fathers all to this sense, since Lyra, saith he, sinned only against God, because God only could pardon him; Hugo Cardinalis, because God only could wash him, which he asketh in the Text. And Lorin. Solo Deo conscio peccavi. But the simple meaning is, Against thee only have I sinned, as my eye witnesse and imediate beholder; and therfore he addeth, and have done this evill in thy sight. 2. Against thee only, as my Iudge, that thou maist be justified when thou judgest, Against thee only, &c. cannot exclu…e men, as if David had sinned against no mortall men on earth, as Royalists would teach.as cleare from all unrighteousnesse, when thou shalt send the sword on my house. 3. Against thee, O Lord only, who canst wash me, and pardon me, v. 1, 2. And if this (thee only) exclude all together, Vriah, Bathsheba, and the Law of the Iudges, 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 halfe of the Law, Thou shalt love thy neighbour as thy selfe. 2. He shall not need to say, Forgive us our sinnes, 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 sonnes sin against the King and Father, then to say the Father and King sin against the sonnes and subjects. 3. By this, the King killing his Father Iesse, should sin against God, but not breake the fift Command, nor sinne against his father. 4. God should in vaine forbid fathers to provoke their children to wrath.
1. And Kings to doe unjustice to their subjects, because by this the superiour cannot sinne against the inferiour, for as much as Kings can sin against none, but those who have power to judge and punish them; but God only, and no inferiours, 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 denyed by Royalists.
2. We acknowledge Tyra…ny must only unking a Prince. The Prelate denyeth it, but he is a green Statist. Barclay, Grotius, Winzetus, as I have proved granteth it.
3. He will excuse Nero as of infirmity, wishing all Rome to have one necke, that he may cut it off. And is that charitable of Kings▪ that they will not be so mad as to destroy their owne Kingdome? But when Stories teach us there have been more Tyrants then Kings, the Kings are more obliged to him for flattery, then for State-wit, except we say that all Kings who eate the people of God, as they doe bread, owe him little, for making them all madde and franticke.
4. But let them be Nero's, and madde, and worse, there is no coercing of them, but all must give their neckes to the sword, if the poore Prelate be heard; and yet Kings cannot be so madde as to destroy their subjects. Mary of England was that madde, the Romish Princes who have given, Revel. 17.13. their power and strength to the beast, and doe make warre with the Lambe; and Kings inspired with the spirit of the beast, and drunke with the wine of the Cup of Babells fornications, are so madde, and the ten Emperours are so madde, who wasted their faithfullest subjects.
P. Prelate. If there be such a power in the Peeres, resumable in the ex…gent 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, &c, then mine? for you are the affirmer. I can prove a power in the King, limited onelyonly to feed, governe, and save the people; and you affirme that God hath given to the King, not only a power officiall and Royall 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, Iohn P. P. I beleeve you not, Royall power is Deut. 17.18. Rom. 3.14. I am sure there is there a power given to the King to doe good, and that from God: Let John P.P. prove a power to doe ill, given of God to the King.
2. We shall quickly prove that the States may represse 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 teacheth, If … give my sword to my fellow to defend me from the murtherer, if he shall fall to, and murther me with my own sword, I may (if I have strength) take my sword from him.
Prelate. It is infidelitie, to thinke that God cannot helpe us; and impatience, that we will not wait on God. When a King oppresseth us, it is against Gods wisdome, that he hath not provided another meane for our safetie, than intrusion on Gods right. 2. It is against Gods power▪ 3. his Holinesse, 4. Christian Religion, that we necessitate God to so weake a meane, to make use of sinne: and we cast the aspersion of Treason on Religion, and deterre Kings to professe Reformed Catholike Religion. 5. We are not to justle God out of his right.
Ans. I see nothing but what D. Ferne, Grotius, Barclay, Blackwood have said before, with some colour of proving the consequence. The P. Prelate giveth us other mens arguments, but without bones. All were good, if the States coercing and curbing a power which God never gave to the King, were a sinne, and an act of impatience, and unbelief: And, if it were proper to God only, by his immediate hand, to coerce Tyrannie.
2. He calleth it not Protestant Religion, either here, or elsewhere; but cautelously giveth a name that will agree to the Roman Catholique Religion: For the Dominicans, Franciscans, and the Parisian Doctors and Schoolemen, following Occham, Gerson, Alma…, and other Papists, call themselves Reformed Catholiques. 2. He layeth this for a ground, in 3 or 4 pages, where these same Arguments are againe and againe repeated in terminis, as his second Reason, p. 149. was handled ad nauseam, p. 148. his 3. Reason is repeated in his 6. Reason, p. 151. He layeth (I say) down this ground, which is the begged Conclusion, and maketh the Conclusion the Assumption, in 8 raw and often repeated Arguments: to wit, That the Parliaments coercing and restraining of Arbitrarie power, is rebellion, and resisting the Ordinance of God. But he dare not looke the place Rom. 13. on the face: other Royalists have done it with bad successe. This I desire to be weighed, and I retort the Prelates argument. But it is indeed the triviall Argument of all Royalists, especially of Barclay, obvious in his 3. Booke. If Arbitrarie and Tyrannicall power above any Law that the lawfull Magistrate commandeth under the paine of death, (Thou shalt not murther one man) (Thou shalt not take away the vineyard of one Naboth violently) be lawfull and warrantable by Gods word; then an Arbitrarie power above all Divine lawes, is given to the keeping of the Civill Magistrate. And it is no lesse lawfull Arbitrarie, or rather Tyrannicall power, for David to kill all his Subjects, and to plunder all Jerusalem, (as I beleeve, Prelates, and Malignants, and Papists would serve the three Kingdomes, if the King should command them) then to kill one Vriah, or for Achab to spoile one Naboth. The essence of …inne must agree alike to all, though the degrees varie.
Of Gods remedie against Arbitrary power, hereafter, in the Question of Resistance: but the confused ingine of the Prelate bringeth it in here, where there is no place for i….
His 7. Argument is: Before God would authorize Rebellion, and give a bad president thereof for ever, he would rather worke extraordinary and wond…rfull 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 str…tched-out arm…: nor did the Lord deliver his people by the wisdome 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 Prelates confused words to a few: for I speake not of his Popish tearme of Saint Steven, and others the like: because all that he hath 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, w…ch is, Whether the King be so above all Lawes, as People and Peeres, in the case of Arbitrarie power, may resume their power, and punish a Tyrant? The P. Pr…late draweth in the Question of Resistance by the haire. Israels not rising in armes against K. Pharaoh, proveth nothing against the power of a Free Kingdome against a Tyrant.
1. Moses, who wrought miracles destructive to Pharaoh, might pray a 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.
2. Pharaoh had not his Crown from Israel.
3. Pharaoh had not sworne to defend Israel, nor became he their King upon condition he should maintaine and professe 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 termes could they un-king Pharaoh; He held not his Crown of them.
4. Pharaoh was never circumcised, nor within the Covenant of the God of Isr…el, in profession.
5. Israel had their lands by the meere gift of the King. I hope the King of Britaine standeth to Scotland and England in a foure-fold contrary relation.
All Divines know, that Pharaoh his Princes, and the Egyptians, were his Peeres and People; and that Israel were not his native Subjects, but a number of strangers, who by the lawes of the King and Princes, by the meanes of Joseph, had gotten the land of Goshen for their dwelling, and libertie 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 of the Kings Religion: And therefore his Argument is thus: A number of poore exiled strangers under King Pharaoh, who were not Pharaohs Princes and Peeres, could not restraine the Tyrannie of King Pharaoh: Ergo, the three Estates in a free Kingdome may not restraine the Arbitrarie power of a King.
2. The Prelate must prove that God gave a Royall and Kingly power to King Pharaoh, due to him by vertue of his Kingly calling, (according as Royalists expone 1 Sam. 8.9, 11.) to kill all the male children of Israel, to make slaves of themselves, and compell them to worke in brick and clay, while their lives were a burden to them: And that if a Romish Catholique, Mary of England, should kill all the male Children of Protestants, by the hands of Papists, at the Queenes commandement, and make bondslaves of all the Peeres, Iudges, and three Estates, who made her a free Princesse: yet notwithstanding that Mary had sworne to maintaine 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 controll it; then God giveth to a King a Royall power by office to sinne: only the Royalist saveth God from being the author of sinne, in this, that God gave the power to sinne, but yet with this limitation, that the Subjects should not resist this power. 2. He must prove that Israel was to give their Male-child…en to Pharaohs Butchers, for to hide them, was to resist a Royall power, and to disobey a Royall power given of God, is to disobey God. 3. The Subjects may not resist the Kings 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 Gods speciall 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 Gods perfit Will in his Word, as at that time Israel behoved to have in all wars, Judg. 18.5. 1 Sam. 14.37. Esa. 30.2. Iere. 38.37. 1 King. 22.5. 1 Sam. 30.5. Iudg. 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 ag…inst a forraign 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 Tyra… nous Kings. Ergo▪ There is no such dutie enjoyned by any Law of God to us; For the Prophets never rebuke the people for non-performing the dutie of offensive wars against their enemies; but where God gave a speciall command, and responce, 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 prophecie to inform us. 5. The Prelate conjectureth Moses his mira…les, 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 hath neither Scripture, nor Reasons to do it. The end of these miracles, was to Seal to Pharaoh the Truth of Gods calling of Moses and Aaron, to deliver the people, as is clear, Exod. 4.1, 2, 3, 4. compared with Chap. 7. vers. 8, 9, 10. And that the Lord might get to himself a name on all the earth, Rom. 9.17. Exod. 9.16. and 13.13, 14. and 15. 1, 2, 3. & seq. But of the Prelates conjecturall end, the Scripture is silent, and we cannot take an excommunicated mans word. What I said of Pharaoh, who had not his Crown from Israel, that I say of Nebuchadnezzar, and the Kings of Persia, keeping th… people of God captive.
Sac. sanct. maj. pag. 153.P. Prelate. So in the Book of the Judge…, when the people were delivered over to the hand of their enemies, because of their sins; h… never warranted the ordinary Iudges, or Communitie, to be their own deliverers, Gods delivering his people by Iudges, and by Cyrus nothing ag…inst the power of a free people.but when they repented, God raised up … Iudge. The people had no hand in their own deliverance out of Babylon, God effected it by Cyrus, immediately and totally. Is not this a reall proof, God will not have inferiour Iudges, to rectifie what is amisse; but we must waite in patience till God provide lawfull means, some Soveraign power immediately sent by himself, in which course of his ordinary providence, he will not be deficient.
Answ. All this is beside the question, and proveth nothing lesse, then that Peers and Communitie, may not resume their power to curbe an Arbitrary power: For in the first case, there is neither Arbitrary, nor lawfull supreme Iudge. 2. If the first prove any thing, it proveth, That it was rebellion in the inferiour Iudges▪ and Communitie of Israel, to fight against forraign Kings, not set over them by God; and that offensive wars against any Kings whatsoever, because they are Kings, though strangers, are unlawfull. Let Socinians and Anabaptists consider, if the P. Prelate help not them in this, and may prove all wars to be unlawfull. 3. He is so Malignant to all inferiour Iudges, as if they were not powers sent of God, and to all Governours, that are not Kings, and so upholders of Prelates, and of himself as he conceiveth, that by his arguing, he will have all deliverance by Kings onelyonly, the onelyonly lawfull means in ordinary providence: and so Aristocracy and Democracy except in Gods extraordinary providence, and by some divine dispensation must be extraordinary, and ordinarily unlawfulh 2. The Acts of a State, when a King is dead, and they choos… another, shall be an Anticipating of Gods providence. 3. If the King be a childe, a captive, or distracted, and the Kingdom oppressed with Malignants, they are to waite, 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? 1. How is the spirit of Prophecie and Government infused in them, as in King Saul? Or are they by propheticall inspiration, anointed as David was: I conceive their calling to the throne on Gods part, do differ 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. 4. 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. Ergo, The People and Peers who made the King, cannot curb his Tyrannicall power, if he make captives and slaves of them, as the Kings of Chaldea made slaves of the people of Israel. What? Because God useth another mean. Ergo, This mean is not lawfull. It followeth in no sort; If we must use no means, but what the captive people did under Cyru…, we may not lawfully flie, 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 Iesurum: neither Tables nor Parliament framed it. Joshua another, Iosh. 24. and Asa, 2 Chron. 15. and 2 Chron. 34. and Ezra 10. The Covenant of Iehojada in the non-age of Ioash, was the High Priests Act, as the Kings Governour. There is a covenant with Hell, made without the King, an… a false Covenant, Hos. 10.3, 4.
Answ. We argue this negatively; This is neither commanded, nor practised, nor warranted by promise. Ergo, It is not lawfull. But this is not practised in Scripture: Ergo, It is not lawfull. It followeth it. Shew me in Scripture the killing of a Goaring Ox who killed a man; the not making battlements on an 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, then Jehovah: I mean, a god made by the hand of the Baker, such a one as the excommunicated Prelate is known to be, who hath Preached this Idolatry in three Kingdoms, yet Deut. 13. This is written, and all the former Laws are divine Precepts; shall the Precept make them all unlawfull, because they are not practised by some in Scripture? By this? I ask, Where read yee, that the people entered in a Covenant with God, not to worship the Golden Image, and the King; and these who pretend they are the Priests of Iehovah, the Church-men and Pelates refused to enter in Covenant with God? By this argument, the King and Prelates in non-practising with us, wanting the precedent of a like practice in Scripture, are in the fault. 2. This is nothing to prove the conclusion in question. 3. All these places prove it is the Kings dutie, 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,That the people may swear a Covenant for Reformation, of Religion, without the King, is proved. as Moses, Asa, Iehoshaphat did… 4. If the King refuse to do his dutie, where is it written. That the people ought also to omit their dutie, and to love to have it so, because the Rulers corrupt their wayes, Ierem. 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, onelyonly at the nod, and Royall 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 generall, that Ezr. 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. saith) but to restore Religion to its ancient Puritie, have this expresse Law from King James and King Charles both, 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 generall, 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 generall warrant, for a Covenant without the King; and yet Ezra, and the people, in swearing that Covenant▪ failed in no dutie against their King: to whom, by the fifth Commandment, they were no lesse subject then we are to our King, just so we are, and so have not failed; but they say, The King hath committed to no Lievtenant and Deputie under him, to do what they please in Religion, without his Royall 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, then were the Iews, and their Governour. Answ. Nor can our King take on himself, to do what he pleaseth, and what the Prelates (amongst whom these who ruled all, are known before the World and the Sun, to be of another Religion, then we are) pleaseth in particular. But see what Religion and Worship the Lord our God, and the Law of the Land (which is the Kings revealed will) alloweth to us, that we may swear, though the King should not swear it; otherwayes, we are to be of no Religion, but of the Kings, and to swear no Covenant, but the Kings, which is to joyn 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 sware that Covenant without their own Kings consent, their own King being against it; If a people may 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 practise, which the P. Prelate requireth. 7. That Jehojadah was Governour and Vice-Roy, during the non-age of Joash, and that by this Royall Authoritie the Covenant was sworn, is a dream, to the end he may make the Pope, and the Arch-Prelate, now Vice-Royes and Kings, when the throne varieth. The Nobles were Authors of the making of that Covenant, no lesse then Iehojadah was; yea, and the People of the Land, when the King was but a childe, went unto the house of Baal, and brake down his Images, &c. Here is a Reformation made without the King by the people. 8. Grave Expositors say, That the Covenant with death and hell, Esay 28. was the Kings Covenant with Egypt. 9. And the Covenant, Hos. 10. is by none exponed of a Covenant made without the King. I heard say, this Prelate Preaching on this Text before the King, exponed it so, But he spake words (as the Text is) falsly. The P. Prelate, to the end of the Chapter, giveth instance of the ill-successe of Popular Reformation, because the people caused Aaron to make a Golden Calf, and they revolted from Rehoboam to Ieroboam, and made two Golden Calves, and they conspired with Absolom against David. Answ. If the first example make good any thing, neither the High-Priest, as was Aaron, nor the P. Prelate, who claimeth to be descended of Aarons house, should have any hand in Reformation at all, for Aaron erred in that; and to argue from the peoples sins, to deny their power, is no better then to prove Achab, Ieroboam, and many Kings in Israel and Judah, committed Idolatry. Ergo, They had no Royall power at all. In the rest of the Chapter, for a whole Page, he singeth over again his Mattens in a circle, and giveth us the same Arguments we heard before; of which you have these three notes; 1. They are stoln, 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.