Treatise of Civil Policy, Treatise · Question 20
QUEST. XX. Whether or no inferiour Judges be univocally and eſſentially Judges, and the immediate Vicars of God, no leſſe then the King, or if they be onelyonly the Deputies and Vicars of the King?
IT is certain that in one and the ſame Kingdom, the power of the King is more in extenſion, then the power of any inferiour Iudge: but if theſe powers of the King, and the inferiour Iudges differ intenfivè and in ſpece, and nature, is the queſtion, though it be not all the queſtion.
Aſſert. Inferiour Iudges are no leſſe eſſentially Iudges, and the immediate Vicars of God, then the King. 1. Theſe who judge inInferiour Iudges no leſſe Gods immediate Vicars then the King. the room of God, and exerciſe the judgement of God, are eſſentially Iudges, and the Deputies of God, as well as the King: but inferiour Iudges are ſuch. Ergo, The propoſition is clear, the formall reaſon, why the King is univocally and eſſentially a Iudge is, becauſe the Kings throne is the Lords throne, 1 Chron. 29. 23. And Solomon ſate on the throne of the Lord, as King, inſtead of David his father, 1 King. 1. 13. It is called Davids throne, becauſe the King is the Deputy of Iehovah, and the judgement is the Lords: I prove the aſſumption. Inferiour Iudges appointed by King Iehoſhaphat have this place, 2 Chro. 19. 6. The King ſaid to the Iudges, Take heed what ye do, foreign, for ye judge not for man, but for the Lord: then they were Deputies in the place of the Lord, and not the Kings Deputies in the formall and officiall acts of judging. 7. Wherefore now let the fear of the Lord be upon you, take heed and do it, for there is no iniquity with the Lord our God, nor reſpect of perſons, or taking of gifts.
Hence I argue, If the Holy Ghoſt in this good King, forbid inriour Judges wreſting of judgement, reſpecting of perſons, and taking of gifts, becauſe the judgement is the Lords; and if the Lord himſelf were on the Bench, he would not reſpect perſons, nor take gifts; then he preſumeth, that inferiour Iudges are in the ſtead and place of Jehovah: and that when theſe inferiour Iudges ſhould take gifts, they make (as it were) the Lord, whoſe place they repreſent, to take gifts, and to do iniquitie, and to reſpect perſons: but that the holy Lord cannot do. 2. If the inferiour Iudges in the act of judging, were the Vicars, and Deputies of King Jehoſhaphat, he would have ſaid, Judge righteous judgement; Why? For the judgement is mine, and if I the King were on the Bench, I would not reſpect perſons, nor take gifts; and you judge for me the ſupreme Judge, as my Deputies: but the King ſaith, They judge not for man, but for the Lord. 3. If by this they were not Gods immediate Vicars, but the Vicars and Deputies of the King, then being meer ſervants, the King might command them to pronounce ſuch a ſentence, and not ſuch a ſentence as I may command my ſervant and deputy, in ſo far, as he is a ſervant and deputie, to ſay this, and ſay not this: but the King cannot limit the conſcience of the inferiour Iudge, becauſe the judgement is not the Kings, but the Lords. 4. The King cannot command any other to do that, as King; for the doing whereof, he hath no power from God himſelf, but the King hath no power from God to pronounce what ſentence he pleaſeth, becauſe the judgement is not his own, but Gods: And though inferiour Iudges be ſent of The conſcience of the inferiour Iudge is immediately ſubordinate to God, not to the King either mediately, or immedia…ely.the King, and appointed by him to be Iudges, and ſo have their externall call from Gods deputy, the King; yet becauſe judging is an act of conſcience, as one mans conſcience cannot properly be a deputy for another mans conſcience, ſo neither can an inferior Iudge, as a Iudge, be a deputy for a King: therefore the inferiour Iudges have deſignation to their office from the King; but if they have from the King, that they are Iudges, and be not Gods deputies, but the Kings, they could not be commanded to execute judgement for God, but for the King: and Deut. 1. 17. Moſes appointed Iudges, but not as his deputies to judge and give ſentence, as ſubordinate to Moſes: For the judgement (ſaith he) is the Lords, not mine. 6. IfGrotius de jure Belli & pac. l. 1. c. 4. Nam omnis facultas gubernandi in Magiſtratibus, ſummae poteſtati ita ſubjicitur ut quicquid contra voluntatem ſummi imperantis faciant, id defectum ſit …a facultate, ac proinde de proactu privato habendum. all the inferiour Iudges in Iſrael, were but the deputies of the King, and not immediately ſubordinate to God, as his deputies, then could neither inferiour Iudges be admoniſhed, nor condemned in Gods word for unjuſt judgement, becauſe their ſentence ſhould be neither righteous, nor unrighteous judgement, but in ſo far, as the King ſhould approve it, or diſapprove it; and indeed, that Royaliſt Hugo Grotius ſaith ſo, That an inferiour Iudge can do nothing againſt the will of the ſupreme Magiſtrate, if it be ſo: When ever God commandeth inferiour Iudges to execute righteous judgement, it muſt have this ſenſe, Reſpect not perſons in judgement, except the King command you, cruſh not the poor, oppreſſe not the fatherleſſe, except the King command you. I underſtand not ſuch policie: Sure I am, The Lords commandments, rebukes, and threats, oblige in conſcience the inferiour Iudge as the ſuperiour, as is manifeſt in theſe Scriptures, Jerem. 5. 1. Iſai. 1. 17, 21. and 5. 7. and 10. 2. and 59. 14. Jere. 22. 3. Ezek. 18. 8. Amos 5. 7. Micah 3. 9. Habak. 1. 4. Levit. 19. 15. Deut. 17. 11. and 1. 17. Exod. 23. 2.
Grotius ſaith, It is here as in a Categorie: the middle Spece is in Grotius ibi. ſpecies intermedia, ſi genus reſpicias, …ſt ſpecies, ſi ſpeciem infra poſitam, eſt genus: ita magiſtratus illi, inferiorum quidem ratione habita ſunt publicae, perſonae, at ſupper…ores ſi conſiderentur, ſunt privati.reſpect of the Superiour a Spece, in reſpect of the inferiour a Genus; ſo inferiour Magiſtrates in relation to theſe who are inferiour to them, and under them, they are Magiſtrates or publike perſons, but in relation to ſuperiour Magiſtrates, eſpecially the King, they are private perſons, and not Magiſtrates.
Anſw. Jehoſhaphat eſteemed not Iudges appointed by himſelf private men, 2 Chron. 19. 6, 7. Yee judge not for men, but for the Lord. 2. We ſhall prove, that under Iudges are powers ordained of God. 3. In Scotland the King can take no mans inheritance from him, becauſe he is King: But if any man poſſeſſe Lands belonging to the Crown, the King by his Advocate muſt ſtand before the Lord-Iudges of the Seſſion, and ſubmit the matter to the Laws of the Land; and if the King for propertie of Goods, were not under a Law, and were not to acknowledge Iudges as Iudges, I ſee not how the ſubject in either Kingdoms have any proprietie. 4. I judge it blaſphemie to ſay, That a ſentence of an inferiour Iudge muſt be no ſentence, though never ſo legall, nor juſt, if it be contrary to the Kings will, as Grotius ſaith.
He citeth that of Auguſtine: If the Conſul command one thing,Grot. 16. and the Emperour another thing, you contemn not the power, but you chooſe to obey the higheſt: Peter ſaith, He will have us one way to be ſubject to the King, as to the ſupreme, ſine ulla exceptione, without any exception, but to theſe who are ſent by the King, as having their power from the King.
Anſw. When the Conſull commandeth a thing lawfull, and the King that ſame thing lawfull, or a thing not unlawfull, we are to obey the King, rather then the Conſull: ſo I expone Auguſtine. 2. We are not to obey the King and the Conſull the ſame way, thatInferiour Judges truely Judges in relation to the King. is with the ſame degree of reverence and ſubmiſſion; for we owe more ſubmiſſion of ſpirit to the King, then to the Conſul; but magis & minus non variant ſpeciem, more or leſſe varieth not the natures of things: but if the meaning be that we are not to obey the inferiour Iudge commanding things lawfull, if the King command the contrary, this is utterly denyed: But ſaith Grotius, The inferiour Judge is but the Deputie of the King, and hath all his power from him; therefore we are to obey him for the King. Anſw. The inferiour Iudge may be called the Deputy of the King, (where it is the Kings place to make Iudges) becauſe he hath his externall call from the King, and is Iudge, in foro Soli, in the name and authority of theThe inferiour judge, how the Deputy of the King. King; but being once made a Iudge in foro poli, before God, he is as eſſentially a Iudge, and in his officiall acts no leſſe immediately ſubjected to God, then the King himſelf.
Argum. 2. Theſe powers to whom we are to yield obedience, becauſe they are ordained of God; theſe are as eſſentially Iudges, as the ſupreme Magiſtrate the King; but inferiour Iudges are ſuch. Ergo, Inferiour Iudges are as eſſentially Iudges, as the ſupreme Magiſtrate. The propoſition is Rom. 13. 1. For that is the Apoſtles Arguments; whence we prove, Kings are to be obeyed, becauſe they are powers from God: I prove the aſſumption. Inferiour Magiſtrates are powers from God, Deut. 1. 17. and 19. 6, 7. Exod. 22. 7. Jere. 5. 1. and the Apoſtle ſaith, The powers that are, are ordained of God.
3. Chriſt teſtified, that Pilate had power from God as a Iudge (ſay Royaliſts) no leſſe then Caeſar the Emperour, Iohn 19. 11. and 1 Pet. 2. 12. We are commanded to obey the King, and theſe that are ſent by him, and that for the Lords ſake, and for conſcience to God,Inferiour Iudges powers ordained of God. Rebuked for perverting judgement. and Rom. 13. 5. We muſt be ſubject to all powers that are of God, not onelyonly for wrath, but for conſcience.
4. Theſe, who are rebuked, becauſe they execute not juſt judgement, as well as the King, are ſuppoſed to be eſſentially Iudges, as well as the King; but inferiour Iudges are rebuked, becauſe of this, Ierem. 22. 15, 16, 17. Ezek. 45. 9, 10, 11, 12. Zeph. 3. 3. Amos 5. 6, 7. Eccleſ. 3. 16. Micah 3. 2, 3, 4. Jerem. 5. 31. Ierem. 5. 1.
5. He is the Miniſter of God for good, and hath the ſword not in They are the Miniſters of God.vain, but to execute vengeance on the evil doers; no leſſe then the King, Rom. 13. 2, 3, 4. He to whom agreeth, by an Ordinance of God, the ſpecifick acts of a Magiſtrate, he is eſſentially a Magiſtrate.
6. The reſiſting of the inferiour Magiſtrate in his lawfull commandmen…s,To reſiſt them is to reſiſt God. is the reſiſting of Gods Ordinance, and a breach of the fifth Commandment, as is diſobedience to parents, and not to give him tribute, and fear, and honour, is the ſame tranſgreſſion, Rom. 13. 1, 2, 3, 4, 5, 6, 7.
7. Theſe ſtiles of Gods, of Heads of the people, of Fathers, of Phyſicians, and healers of the ſonnes of the moſt High, of ſuch as Raign and Decree by the wiſdome of God, &c. that are given to Kings, for the which Royaliſts make Kings onelyonly Iudges, and all inferiour Iudges, but deputed, and Iudges by participation, and at the ſecond hand, or given to inferiour Iudges, Exod. 22. 8, 9. Ioh. 10. 35. TheſeThey are Gods who are appointed Iudges under Moſes, Deut. 1. 16. are called in Hebrew or Chaldee, 1 Kings 8. 1, 2. Chap. 5. 2. Mic. 3. 1. Ioſh. 23. 2. Num. 1. 16. foreign raſce, foreign fathers, Act. 7. 2. Ioſh. 14. 1. c. 19. 51. 1 Chro. 8, 28. Healers, Eſai. 3. 7. Gods, and ſonnes of the moſt High, Pſal. 82. 1. 2. 6. 7. Prov, 8. 16, 17. I much doubt, if Kings can infuſe Godheads in their Subjects. I conceive they have from the God of Gods theſe gifts, whereby they are inhabled to be Iudges, and that Kings may appoint them Iudges, but can do no more, they are no leſſe eſſentially Iudges then themſelves.
8. If inferiour Iudges be Deputies of the King, not of God, and have all their authority from the King, then may the King limit the practiſe of theſe inferiour Iudges. Say that an inferiour Iudge hath condemned to death an Paricide, and he be conveying him to the place of execution, the King commeth with a force to reſcue him out of his hand, if this inferiour Magiſtrate beare Gods ſword for the terrour of ill doers, and to execute Gods vengeance on murtherers, he cannot but reſiſt the King in this, which I judge to be his Office: for the inferiour Iudge is to take vengeance on ill doers, and to uſe the coactive force of the ſword, by vertue of his Office, to take away this Paracide, now if he be the Deputy of the King, he is not to breake the jawes of the wicked, Iob 29. 17. not to take vengeance By this the Parliame nt of both Kingdomes ought to put to death cut-rhroat-▪ Cavaliers …aiſing warre againſt the ſubject, though the King commands the contrary. Sac. Sanc. mai. c. 4. pag. 46.on evill doers, Rom. 13. 4. nor to execute judgement on the wicked, Pſ. 149, 9. nor to execute judgment for the fatherleſſe, De. 10. 18. except a mortall man his Creator, the King ſay, Amen. Now truly then God, in all Iſrael, was to rebuke no inferiour Iudge for perverting judgement, As he doth, Exod. 23. 2. 6. Mic. 3. 2, 3, 4. Zach. 3. 3. Numb. 25. 5. Deut. 1. 16. For the King onelyonly is Lord of the conſcience of the inferiour Iudge, who is to give ſentence, and execute ſentence righteouſly upon condition, that the King the onelyonly univocall and proper Iudge, firſt, decree the ſame, as Royaliſts teach.
Heare our Prelate: How is it imaginable that Kings can be ſaid to Iudge in Gods place, and not receive the power from God? but Kings Iudge in Gods place, Deut. 1. 17. 2 Chro. 19. 6. Let no man ſtumble, (this is his Prolepſis) at this, that Moſes in the one place, and Iehoſaphat in the other ſpeake to ſubordinate Iudges under them, this weakeneth no waies our Argument, for it is a ruled caſe in Law; Quod quis facit per alium, facit per ſe; all Iudgements of inferiour Iudges are in the name, authority, and by the power of the ſupreme, and are but communicatively, and derivatively from the Soveraigne power.
Anſ. How is it poſſible that inferiour Iudges, Deut. 1. 17. 2. Chron. 19. 6. can be ſaid to judge in Gods place, and not receive the power from God immediatly, without any conſent or covenant of men? So the Prelate. But inferiour Iudges judge in the Gods place, as both the P. Prelate and Scripture teach, Deut. 1. 17. 2. Chro. 19. 6. Let the Prelate ſee to the ſtumbling concluſion, for ſo he feareth it proves to his bad cauſe. 2. He ſaith the places, Deut. 1. 17. 2 Chro. 19. 6. prove that the King judgeth in the Roome of God, becauſe their Deputies judge in the place of God. The Prelate may know, we would deny this ſtumbling and lame conſequence; for 1. Moſes and Iehoſaphat are not ſpeaking to themſelves, but to other inferiour Iudges, who doth publickly exhort them. Moſes and Iehoſaphat are perſwading the regulation of the perſonall actions of other men, who might pervert Iudgement. 2. The Prelate is much upon his Law, after he had forſworne the Goſpell, and Religion of theHow the King judgeth by inferiour Iudges. Church, where he was baptized. What the King doth by another, that he doth by himſelfe; but were Moſes and Jehoſaphat feared that they ſhould pervert Iudgement in the unjuſt Sentence pronounced by under Iudges, of which Sentence they could not know any thing? And doe inferiour Iudges ſo judge in the name, authority, and power of the King, as not in the Name, Authority and Power of the Lord of Lords, and King of Kings? or is the Iudgement the Kings? no, the Spirit of God ſaith no ſuch matter, the Iudgement executed by thoſe inferiour Iudges, is the Lords, not a mortall Kings, ergo a mortall King may not hinder them to execute Iudgement. Obj. He cannot ſuggeſt an unjuſt Sentence, and command an inferiour Iudge to give out a ſentence abſolvatory on cut-throates, but he may hinder the exocution of any ſentence againſt Iriſh cut-throates, Anſ. It is all one to hinder the execution of a juſt ſentence, and to ſuggeſt or command the inferiour Iudge to pronounce an unjuſt one, for inferiour Iudges by conſcience of their Office, are both to judge righteouſly, and by force and power of the ſword given to them of God, Rom. 13. 2, 3, 4. to execute the ſentence, and ſo God hath commanded inferiour Iudges to execute Iudgement, and hath forbidden them to wreſt Iudgement, to take gifts, except the King Command them ſo to doe.
Maſter Symmont, The King is by the Grace of God, the inferiour Simmons loyall ſubjects beleif. Sect. 1. pag. 3.Iudge is Iudge by the grace of the King, even as the man is the image of God, and the woman the mans image▪ Anſ. This diſtinction is neither true in Law, nor conſcience; not in Law, for it diſtinguiſheth not betwixt Miniſtros regis, & miniſtros regni. The ſervants of the King are his domeſticks, the Iudges are Miniſtri regni, non regis; the Miniſters and Iudges of the Kingdome, not of the King. The King doth not ſhow grace, as he is a man, in making ſuch a man a Iudge, but Iuſtice as a King, by a Royall Power received from the people, and by an Act of Iuſtice, he makes Iudges of deſerving men, he ſhould neither for favour, nor bribes make any Iudge in the Land. 2. It is the grace of God that men are to be advancedThe honour of an inferiour Iudge commeth neither from Eaſt, nor from Weſt, more then from the King. from a private condi…ion to be inferious Iudges, as Royall Dignity is a free gift of God, 1 Sam. 2. 7. The Lord bringeth low, and lifteth up, Pſ. 75. 7. God pu…t…th downe one, and ſeteth up another. Court flatterers take from God, and give to Kings; but to be a Iudge inferiour, is no leſſe an immediate favour of God, then to be King; though the one be a greater favour then the other. Magis honos, and Majoc honos are to be conſidered.
9. Arg. Thoſe powers which differ gradually, and per magis & Argu. 9. Power of Kings and of inferiour Iudges differ gradually, not ſpecifically.minus, by more and leſſe only, differ not in nature and ſpece, and conſtitute not Kings and inferiour Iudges different univocally. But the power of Kings and inferiour Iudges are ſuch, therefore Kings and Inferiour Iudges differ not univocally. That the powers are the ſame in nature, I prove 1. by the ſpecifice acts, and formall object of the power of both, for 1. both are power ordained of God, Rom. 13. 1. to reſiſt either, is to reſiſt the ordinance of God, v. 2. both are by Office a terrour to evill workes, v. …3.The ſpecifick acts and formall object of Kings and inferiour Iudges are the ſame. 3. both are the Miniſters of God for good. 2. Though the King ſend and give a call to the inferiour Iudge, that doth no more make the inferiour Iudges powers in nature and ſpece different, then Miniſters of the Word called by Miniſters of the Word, have Offices different in nature. Timotheus Office to be Preacher of the Word differeth not in ſpecie, from the Office of the Presbytery, which layed hands on him, though their Office by extenſion, be more then Timothies Office. 3. The peoples power is put forth in duplicate page duplicate page thoſe ſame acts, when they chooſe one to be their King and ſupreame Governour, and when they ſet up an Ariſtocraticall Government, and chooſe many, or more then one, to be their Governours▪ for the formall object of one or many Governours is Iuſtice and Religion, as they are to be advanced. 2. The forme and manner of their opperation is, brachio ſeculari, by a coactive power, and by the ſword. 3. The formall acts of King and many Iudges in Ariſtocracy, are theſe ſame, the defending of the poore and needy from violence, the conſervation of a Community in a peaceable and a godly life, The ſame obligation of conſcience that lyeth on the King in all things, lyeth on the inferiour Iudge.1 Tim. 2. 2 Iob 29. 12, 13. Eſay 1. 17. 4. Theſe ſame Lawes of God that regulateth the King in all His Acts of Royall Government, and tyeth and obligeth his conſcience, as the Lords Deputy to execute Iudgement for God, and not in the ſtead of men, in Gods Court of Heaven, doth in like manner tye, and oblige the conſcience of Ariſtocraticall Iudges, and all inferiour Iudges, as is cleare and evident by theſe places, 1 Tim. 2. 2. not only Kings, but all in authority foreign are obliged to procure that their ſubjects leade a quiet and peaceable life, in all godlineſſe and honeſty. All in conſcience are obliged, Deut. 1. 16. to judge righteouſly between every man and his brother, and the ſtranger that is with them. 17. Neither are they to reſpect perſons in judgement, but are to heare the ſmall as well as the great, nor to be affraid of the face of men, the judgement adminiſtred by all, is Gods. 2. Chro. 19. 6. All are obliged to feare God, Deut. 17. 19. 20. to keepe the words of the Law, not to be lifted up in heart above their brethren, Eſay 1. 17. Ier. 22. 2, 3. Let any man ſhow me a difference according to Gods Word, but in the extention that what the King is to doe as a King in all the Kingdome, and whole Dominions, (if God give to him many) as he gave to David and Solomon, and Ioſhua, that the inferiour Iudges are to doe in ſuch and ſuch Circuits, and limited places, and I quit the cauſe, ſo as the inferiour Iudges are little Kings, and the King a great and delated Iudge, as a compreſſed hand or fiſt, and the hand ſtretched out in fingers and thumbe, are one hand, ſo here. 4. God owneth inferiour Iudges as a congregation of Gods, Pſ. 82. 1. 2. for that God ſitteth in a congregation or Senate of Kings or Monarches I ſhall not beleeve, till I ſee Royaliſts ſhew to me a Commonwealth of Monarches convening in one Iudicature; all are equally called Gods, Ioh. 10. 35. Exod. 22. 8. if for any cauſe, but becauſe all Iudges even inferiour are the immediate Deputies of the King of Kings, and their ſentence in Iudgement as the ſentence of the Iudge of all the earth, I ſhall be informed by the P. Prelate when he ſhall anſwer my reaſons, if his interdicted Lordſhip may caſt an eye to aInferiores Iudices ſunt impropriè Vicarii Regis, quoad miſſionem externam ad officium, ſed immediati Dei vicarii, quoad officium in quod miſſi ſunt. Barcl. l. 2. contr. Monarchom. p. 56, 57. Arniſaeus de authorit. Princ. c. 3. …. 9. Marant. disp. 1. Zoan. tract. 3. de defenſ. Mynſin g. obſ. 18. cent. 5. Symmons, ſect. … p. 2. The Iudges of Iſrael, and the Kings after them, differed, but not eſſentially. poore Presbyter below, and as wiſedome is that by which Kings raigne, Prov. 8. 15. ſo alſo v. 16. by which Princes Rule, and Nobles, even all the Iudges of the earth; all that is ſaid againſt this is: That the King hath a Prerogative Royall, by which he is differenced from all Iudges in Iſrael, called jus regis foreign for (ſaith Barclay) The King as King eſſentially hath a Domination and power above all, ſo as none can cenſure him, or puniſh him but God, becauſe there be no thrones above his, but the throne of God. The Iudges of Iſrael, as Samuel, Gedeon, &c. had no domination, the dominion was in Gods hand. 2. Wee may reſiſt an inferior Iudge (ſaith Arniſaeus) otherwiſe there were no appeale from him, and the wrong we ſuffer were irreparable, as ſaith Marantius. And all the Iudges of the earth (ſaith Edw. Symmons) are from God more remotely, namely (mediante Rege) by the mediation of the Supreame, even as the leſſer ſtarres have their light from God by the mediation of the Sun. To the firſt I anſwer, There was a difference betwixt the Kings of Iſrael and their Iudges, no queſtion: but if it be an eſſentiall difference, it is a queſtion: for, 1. The Iudges were raiſed up in an extraordinary manner, out of any Tribe, to defend the people, and vindicate their libertie, God remaining their King: the King by the Lords appointment was tyed, after Saul, to the Royall tribe of Judah, till the Meſſiahs comming. God tooke his own bleſſed libertie to ſet up a ſucceſſion in the ten tribes- 2. The Iudges were not by ſucceſſion from father to ſonne: the Kings were, as I conceive, for the typicall eternitie of the Meſſiahs throne, preſignified to ſtand from generation to generation. 3. Whether the Iudges were appointed by the election of the people, or no, ſome doubt, becauſe Iepthah was ſo made Iudge: but I thinke it was not a law in Iſrael that it ſhould be ſo: but the firſt mould of a King, Deut. 17. is by election. But that God gave power of domineering, that is, of Tyrannizing, to a King, ſo as he cannot be reſiſted, which he gave not to a Iudge, I thinke no Scripture can make good: For by what Scripture can Royaliſts warrant to us that the people might riſe in armes to defend themſelves againſt Moſes, Gideon, Eli, Samuel, and other Iudges, if they ſhould have tyrannized over the people: and that it is unlawfull to reſiſt the moſt Tyrannous King in Iſrael and Iudah? Yet Barclay and others muſt ſay this, if they be true to that principle of Tyranny, That the jus Regis, the law or manner of the King, 1 Sam. 8. 9, 11. & 1 Sam. 10. 25, doth eſſentially difference betwixt the Kings of Iſrael, and the Iudges of Iſrael: but we thinke God gave never any power of Tyranny to either Iudge or King of Iſrael; and domination in that ſenſe was by God given to none of them. 2. Arniſaeus hath as little for him, to ſay the inferior Magiſtrate may be reſiſted, becauſe we may appeale from him: but the King cannot be reſiſted, quia ſanctitas Majeſtatis id non permittit, the ſanctitie of Royall majeſtie will not permit us to reſiſt the King. Anſ. That is not Pauls argument, to prove it unlawfull to reſiſt Kings, as Kings, and doing their office, becauſe of the ſanctitie of their Majeſtie, that is, as the man intendeth, becauſe of the ſupreme abſolute and illimited power that God hath given him. But this is a begging of the queſtion, and all one as to ſay, the King may not be reſiſted, becauſe he may not be reſiſted: for ſanctitie of Majeſtie, if we beleeve Royaliſts, includeth eſſentially an abſolute ſupremacie of power, whereby they are above the reach of all thrones, lawes, powers, or reſiſtance on Earth. But the Argument is, Reſiſt not, becauſe the Power is of God. But the inferiour Magiſtrates power is of God. 2. Reſiſt not, becauſe you reſiſt Gods ordinance, in reſiſting the Iudge: But the inferior Iudge is Gods ordinance, Rom. 13. 1. Deut. 1. 17. 2 Chro. 19. 6. 3. Mr. Symmons ſaith, all Iudges on earth are from the Kings, as ſtarres have their light from the Sun. I anſwer, 1. Then Ariſtocracie were unlawfull, for it hath not its powerSacr. ſanct. maj. c. 7. p. 81, 82. from Monarchie. Had the Lords of the Philiſtims, have the States of Holland no power but from a Monarchie? Name the Monarch. Have the Venetians any power from a King? Indeed our Prelate ſaith from Auguſtine, Confeſſ. lib. 3. cap. 8. Generale pactum eſt ſocietatis humana, obedire Regibus ſuis: It is an univerſall covenant of humane ſocietie, and a dictate of nature, that men obey their Kings. I beg the favour of Sectaries (ſaith …he) to ſhew as much for Ariſtocracie and Democracie. Now all other governments to bellies borne at Court, are the inventions of men. But I can ſhew that ſame warrant for the one as for the other, becauſe it is as well the dictate of nature, that People obey their Iudges and Rulers, as it is that they obey their Kings. And Auſtin ſpeaketh of all Iudges, in that place, though he name Kings; for Kingly government is no more of the law of nature, then Ariſtocracie or Democracie: nor are any borne Iudges, or Subjects at all: There is a naturall aptitude in all to either of theſe, for the conſervation of nature, and that is all. Let us ſee that men naturally inclining to Government, inclineNature is a… neare to Ariſtocracy as to Monarchy, for the wiſe cannot be under the husband, as a ſubject under a Monarch, ſhe by the fift Commandement ha…h a joynt …headſhip with the husband. rather to Royall Government, then to any other. That the P. Prelate ſhall not be able to ſhow. For fatherly government being in two, is not Kingly, but nearer to Ariſtocracy; and when many families were on earth, every one independent within themſelves, if a commune enemy ſhould invade a tract of Land governed by families, I conceive, by natures light they ſhould incline to defend themſelves, and to joyne in one politique body for their owne ſafety, as is moſt naturall; but in that caſe they having no King, and there were no reaſon of many fathers all alike loving their own families and ſelfe preſervation, why one ſhould be King over all, rather then another, except by voluntary compact; ſo it is cleare that Nature is nearer to Ariſtocracy before this contract, then a Monarchy: and let him ſhew us in multitudes of families dwelling together before there was a King, as cleare a warrant for Monarchy, as here is for Aristocracy, though to me both be lawdable and lawfull ordinances of God, and the difference meerely accidentall, being one and the ſame power from the Lord, Rom. 13. 1. which is in divers ſubjects in one, as a Monarchy, in many as in Ariſtocracy, and the one is as naturall as the other: and the ſubjects are accidentall to the nature of the power. 2. The Starrs have no light at all, but in actuall aſpect toward the Sun, and they are not lightſome bodies by the free will of the Sunne, and have no immediate light from God formally, but from the Sun, ſo as if there were no Sun, there ſhould be no Starres. 3. for actuall ſhining and ſending out of beames of light actuſecundo, they depend upon the preſence of the Sun, but forIudges inferiour depend on the King, in fieri when the conſtitution▪ of the Kingdome is ſuch, but not in facto eſſe nor in their eſſence. inferiour Iudges though they have their call from the King, yet have they gifts to governe from no King on earth, but only from the King of Kings. 4. When the King is dead the Iudges are Iudges, and they depend not on the King for their ſecond acts of judging, and for the actuall emiſſion and putting forth their beames and raies of juſtice, upon the poore and needy, they depend on no voluntary aſpect, information or commandement of the King, but on that immediate ſubjection of their conſcience to the King of Kings. And their Iudgement which they execute is the Lords immediatly, and not the Kings, and ſo the compariſon halteth.
Arg. Our 10th. Arg. If the King dying, the Iudges inferiour remaineArg. 10. powers from God, the Deputies of the Lord of Hoaſts having their power from God, then are they eſſentially Iudges; yea and if the eſtates in their prime repreſentators, and leaders, have power in the death of the King, to chooſe and make another King, then are they not Iudges and Rulers by derivation and participation,Inferiour Iudges, after the King is dead, as alſo the States of Parliament remain Iudges. or unproperly, but the King is rather the Ruler by derivation and participation, then theſe who are called inferiour Iudges. Now if theſe Iudges depend in their Sentences upon the immediat will of him who is ſuppoſed to be the only Iudge, when this only Iudge dyeth, they ſhould ceaſe to be Iudges: for Expirante mandatore expirat mandatum, becauſe the Fountaine Iudge drying up, the ſtreames muſt dry up. Now when Saul dyed, the Princes of the Tribes remaine by Gods inſtitution Princes, and they by Gods Law and Warrant, Deut. 17. chooſe David their King.
11. If the King through abſolute power doe not ſend inferiourArg. 11. Iudges, and conſtitute them, but only by a power from the people; and if the Lord have no leſſe immediate influence in making inferiour Iudges, then in making Kings, then is there no ground that theGod, not the abſolute Prince, maketh the inferiour Iudges. King ſhould be ſole Iudge, and the inferiour Iudge only Iudge by derivation from him, and eſſentially his Deputy, and not the immediate Deputy of God. But the former is true, ergo ſo is the latter. And firſt that the Kings abſolute Will maketh not inferiour Iudges, is cleare, from Deut. 1. 15. Moſes might not follow his owne will in making inferiour Iudges whom he pleaſed: God tyed him to a Law, v. 13. that he ſhould take wiſe men, known amongſt the people, and fearing God, and hating covetouſneſſe. And theſe qualifications were not from Moſes, but from God; and no leſſe immediatly from God then the inward qualification of a King, Deut. 17. and therefore it is not Gods Law that the King may make inferiour Iudges only, Durante beneplacito, during his abſolute will; for if theſe Divine qualifications remaine in the ſeventy Elders, Moſes at his will could not remove them from their places. 2. That the King can make heritable Iudges more then he can communicate faculties and parts of judging, I doubt, riches are of fathers, but not promotion, whichNo heritable Iudges according to Gods Word. is from God, and neither from the Eaſt, nor the Weſt. That our Nobles are borne Lords of Parliament, and Iudges by blood, is a poſitive Law. 3. It ſeemeth to me from Eſay 3. 1, 2, 3, 4. that the inferiour Iudge is made by conſent of the people, nor can it be called a wronging of the King, that all cities and Burroughs of Scotland and England, have power to chooſe their owne Proveſts, Rulers, and Majors. 4. If it be warranted by God, that the lawfull Call of God to the Throne, be the election of the people, the call of inferiour Iudges muſt alſo be from the people, mediatly or immediatly: So I ſee no ground to ſay that, the inferiour Iudge is the Kings Vicegerent, or that he is in reſpect of the King, or in relation to ſupreme Authority, only a private man.
12. Theſe Iudges cannot but be univocally and eſſentially Iudges, no leſſe then the King, without which in a Kingdome Iuſtice is Phyſically unpoſſible: and Anarchie and violence and confuſion muſt follow, if they be wanting in the Kingdome. But without inferiour Iudges, though there be a King, Iuſtice is Phyſically unpoſſible, and Anarchie and confuſion muſt follow, &c.
Now this Argument is more conſiderable, that without inferiour Iudges, though there be a King in a Kingdome, Iuſtice and ſafety are unpoſſible, and if there be inferiour Iudges, though there be no King, as in Ariſtocracy, and when the King is dead, and another not Crowned, or the King is Minor, or abſent, or a captive in the enemies Land, yet juſtice is poſſible, and the Kingdome preſerved; the Medium of the Argument is grounded upon Gods Word, Num. 11. 14, 15. when Moſes is unable alone to judge the people,Inferiour Iudges more neceſſary in a large Kingdom then the Kfng, and fo Ariſtocracy in that more ſutable to the naturall end of government then Monarchy. ſeventy Elders re-joyned with him, 16. 17. ſo were the Elders adjoyned to helpe him, Exo. 24. 1. Deut. 5. 23. c. 22. 16. Ioſh. 23. 2. Iudg. 8. 14. Iudg. 11. 5. Iudg. 11. …. 1 Sam. 11. 3. 1 King. 20. 7. 2 King. 6. 32. 2 Chro. 34. 29. Ruth 4. 4. Deut. 19. 12. Ezech. 8. 1 Lament. 1. 19. then were the Elders of Moab thought they had a King. 2. The end naturall of Iudges hath been indigence and weakneſſe, becauſe men could not in a ſociety defend themſelves from violence, therefore by the light of nature they gave their power to one, or more, and made a Iudge, or Iudges to obtaine the end of ſelfe preſervation. But Nature uſeth the moſt efficacious meanes to obtaine its end, but in a great ſociety and Kingdome the end is more eaſily attained by many Governours, then by one only; for where there is but one, he cannot miniſter Iuſtice to all, and the farther that the children are removed from their father and tutor, they are the nearer to violence and unjuſtice. Iuſtice ſhould be at as eaſie a rate to the poore, as a draught of water▪ Samuel went yearely through the Land to Bethell, Gilgall, Mizpeh, 1 Sam. 7. 16. and brought Iuſtice to the doores of the poore. So were our Kings of Scotland obliged to doe of old; but now juſtice is as deare as gold. it is not a good argument to prove inferior Iudges to be only Vicars and Deputies of the King, becauſe the King may cenſure and puniſh them when they pervert judgement. 1. Becauſe the King, in that, puniſheth them not as Iudges, but as men. 2. That might prove all the Subjects to be Vicars and Deputies of the King▪, becauſe he can puniſh them all, in the caſe of their breach of lawes.