Treatise of Civil Policy, Treatise · Question 36
QUEST. XXXVI. Whether the power of Warre be onelyonly in the King?
IT is not hard to determine this queſtion: The Sword in a conſtitute Common-wealth is given to the Judge ſupreme, or ſubordinate, Rom. 13. 4. He beareth not the ſword in vaine, in the Empire; the uſe of Armour is reſtricted to the Emperour by a poſitive Law; ſo the Law ſaith, Armorum officia niſi juſſu Principis ſunt interdicta, lib. de Cod. de Lege. 1. Imperat Valentinian. nulli, nobis inconſultis, uſus armorum tribuatur, ad 1. Jul. Mai. l. 3. Warre is a ſpecies, and a particular, the ſword is a generall.
Aſſert. 1. The power of the ſword by Gods Law is not proper &Inferiour Judges have the power of the ſword aſwell as the King. peculiar to the King only, but given by God, to the inferiour Judges. 1. Becauſe the inferiour Judge is eſſentially a Judge no leſſe then the King, as is proved, and therefore he muſt beare the ſword, Rom. 13. 4. 2. Not Moſes onelyonly, but the Congregation of Iſrael had power of life and death, and ſo of the ſword, Numb. 35. 12. The manſlayer ſhall not die, untill he ſtand before the Congregation in judgement, ver. 24. Then the Congregation ſhall judge betweene the ſlayer and the avenger of blood, Deut. 22. 18. The Elders of the City ſhall take that man and chaſtiſe him. 21. The men of the Citie ſhall ſtone her with ſtones, Deu. 17. 5. Deu. 19. 12, 13. v. 18, 19, 20, 21. Deu. 21. 19. Then ſhall his father and his mother bring him to the Elders of his City. 21. And the men of the City ſhall ſtone him with ſtones. 1 King. 21. 11. The Elders and Nobles that were inhabitants in his City ſtoned Naboth. 3. Inferiour Judges are condemned as murtherers, who have ſhed innocent blood, Eſay 1. 21. Pſal. 94. 5. 6. Ier. 22. 3. Ezek. 22. 12. ver. 27. Hoſea 6. 8. Zephan. 3. 1, 2, 3. Ergo, they muſt have the power of the ſword, hence upon the ſame grounds.
Aſſert. 2. That the King onelyonly hath the power of warre, and raiſing Armies muſt be but a poſitive civill Law. For, 1. by divine right, if the inferiour Judges have the ſword given to them of God, then have they alſo power of Warre, and raiſing Armies. 2. All power of warre that the King hath is cumulative, not privative, and not diſtructive, but given for the ſafety of the Kingdome, as therefore the King cannot take from one particular man the power of the ſword for naturall ſelf-preſervation, becauſe it is the birth-right of life; neither can the King take from a community and Kingdome a power of riſing in Armes for their owne defence: If an Armie of Turks ſhall ſuddenly invade the Land, and the Kings conſent expreſſe cannot be had (for it is eſſentially involved in the office of the King as King, that all the power of the ſword that he hath, be for their ſafety) or if the King ſhould as a man refuſe his conſent, and interdict and diſcharge the Land to riſe in Armes, yet they have his Royall conſent, though they want his perſonall conſent, in reſpect that his office obligeth him to command them to riſe in Armes. 2. Becauſe no King, no Civill power can take away Natures birthright The people tyed to acts of Charity, and to defend themſelves, the Church, and their poſterity againſt a forreigne Army, though the King forbid.of ſelf-defence from any man, or a community of men. 2. Becauſe if a King ſhould ſell his Kingdome, and invite a bloody Conquerour to come in with an Armie of men to deſtroy his people, impoſe upon their conſcience an Idolatrous Religion, they may lawfully riſe againſt that Armie, without the Kings conſent, for though Royaliſts ſay, they need not come in aſinine patience, and offer their throats to cut-throats but may flee, yet two things hindereth a flight. 1. They are obliged by vertue of the firſt Commandement to re-man, and with their ſword defend the Cities of the Lord, and the King. 2 Sam. 10. 12. 1 Chron. 19. 13. for if to defend our Country and children, and the Church of God from unjuſt invaders and cut-throats by the ſword, be an act of charity, that God and the Law of Nature requireth of a people, as is evident, Prov. 24. 11. and if the fift Commandement oblige the Land to defend their aged Parents and young children from theſe invaders, and if the ſixt Commandement lay on us the like bond, all the Land are to act works of mercy and charity, though the King unjuſtly command the contrary; except Royaliſts ſay, that we are not to performe the duties of the ſecond Table commanded by God, if an earthly King forbid us; and if we exerciſe not acts of mercy toward our brethren, when their life is in hazard, to ſave them, wee are murtherers, and ſo men may murther their neighbour, if theWe muſt defend with the ſword the Church of God, whether the King will or no, except it be ſaid the King may command murther, and diſcharge us of the duties of the ſecond Table. King command them ſo to doe; this is like the Court-faith. 2. The Kings power of warres is for the ſafety of his people; if he deny his conſent to their raiſing of Armes till they be deſtroyed, he playeth the Tyrant, not the King, and the law of Nature will neceſſitate them, either to defend themſelves (ſeeing flight of all in that caſe is harder then death) elſe they muſt be guilty of ſelf-murther. Now the Kings commandement of not riſing in Armes, at beſt is poſitive and againſt the nature of his Office, and it floweth then from him as from a man, and ſo muſt be farre inferiour to the naturall Commandement of God, which commandeth ſelf-preſervation, if wee would not be guilty of ſelf-murther, and of obeying men, rather then God. So Althuſius Polit. c. 25. n. 9. Halicarnaſ. l. 4. Antiq. Rom. Ariſto. Pol. l. 3. c. 3. 3. David tooke Goliahs ſword, and became a Captaine, a Captaine to an hoaſt of armed men in the battaile, and fought the battailes of the Lord, 1 Sam. 25. 28. (and this Abigal by the ſpirit of prophecy, as I take it, ſaith, ver. 29, 30, 31.) 1 Sam. 22. 2. 1 Chron. 12. 1. 2. 3. 17. 18. 21. 22. not onelyonly without Sauls conſent, but againſt King Saul as he was a man, but not againſt him as hee was King of Iſrael. 4. If there be no King, or the King be minor, or an uſurper, as Athalia be on the Throne, the Kingdome may lawfullyExamples of lawfull warres without the King. make war without the King, as Iudges cap. 20. The children of Iſrael, foure hundred thouſand footemen that drew ſword went out to warre againſt the children of Benjamin. Iudah had the power of the ſword when Ioſiah was but eight yeares old, in the beginning of his reigne, 2 King. 22. 1, 2. and before Iehoaſh was crowned King, and while he was minor, 2 King. 11. there were Captaines of hundreds in armes raiſed by Iehoiada and the people of Iudah to defend the young King. It cannot be ſaid, that this is more extraordinary, then that it is extraordinary for Kings to die, and in the interregnum, warres, in an ordinary providence, may fall out in theſe Kingdoms, where Kings goe by election; and for Kings to fall to be Minors, Captives, Tyrannous. And I ſhall be of that opinion that Mr Symmons, who holdeth, That Royall birth is equivalent to divine unction, muſt alſo hold, that election is not equivalent to divine unction; for both election and birth cannot be of the ſame validity, the one being naturall, the other a matter of free choiſe, which ſhall infer that Kings by election are leſſe properly, and analogically onelyonly Kings; and ſo Saul was not properly a King, for he was King by election; but I conceive that rather Kings by birth muſt be leſſe properly Kings, becauſe the firſt King by Gods inſtitution, being the mould of all the reſt, was by election. Deut. 17. 18. 19. 20.
5. If the eſtates create the King, and make this man King, not thisIf the Parliament make the King and give to him the ſword, the King cannot make the Parliament nor uſe the ſword to their deſtruction. man, as is clear Deut. 17. 18. and 2 Chron. 5. 1, 2, 3, 4. they give to him the power of the Sword, and the power of War, and the Militia, and I ſhall judge it ſtrange and reaſonleſſe, that the power given to the King, by the Parliament or eſtates of a free Kingdom, (ſuch as Scotland is acknowledged to be, by all) ſhould create, regulate, limit, abridge, yea and anull that power that created it ſelf, hath God ordained a Parliamentary power to create a Royal power of the ſword and war to be placed in the King, the Parliaments creature, for the ſafety of Parliament and Kingdome, which yet is deſtructive of it ſelfe? D. Ferne ſaith that the King ſummoneth a Parliament, and giveth them power to be a Parliament, and to adviſe and counſell him; and in the meane time Scripture ſaith, Deut▪ 17. 18, 19, 20. 1 Sam. 10 20, 21, 22, 23, 24, 25. 2 Sam. 5. 1, 2, 3, 4. that the Parliament createth the King, heir's admirable reciprocation of creation in policie, and ſhall God make the mother to deſtroy the daughter? The Parliamentarie power that giveth Crown, Militia, ſword and all to the King, muſt give power to the King to uſe ſword and war for the deſtruction of the Kingdome, and to annull all the power of Parliaments, to make, unmake Parliaments, and all Parliamentary power; what more abſurd?
Obj. 1. Symmons Loyall Subj. Pag. 57. Theſe phraſes, 2 Sam. 9. 1. When Kings goe forth to warre, and Luk. 14. 31. What King going forth to warre? ſpeak to my conſcience, that both offenſive and defenſive warre are in the Kings hand.
Anſw. It is not much to other men what is ſpoken to any mans conſcience by Phraſe and cuſtomes; for by this no States where there be no Kings, but government by the beſt, or the people, as in Holland, or in other Nations, can have power of war, for what time of yeare ſhall Kings goe to war who are not Kings? and becauſe Chriſt ſaith, A certaine houſholder delivered talents to his ſervants, will this infer to any conſcience, that none but a houſholder may take uſurie? And when he ſaith, If the good man of the houſe knew at what houre the thiefe would come, he would watch; ſhall it follow, the ſonne or ſervant may not watch the houſe, but onelyonly the good man?
Obj. 2. Ferne, pag. 95. The naturall Bodie cannot move, but upon naturall Principles; and ſo neither can the Politique Bodie move in Warre, but upon Politique reaſons from the Prince, which muſt direct by Law.
Anſw. This may well be retorted, the Politique Head cannot then move, but upon politique reaſons; and ſo the King cannot move to wars, but by the Law, and that is by conſent of Parliament, and no Law can principle the head to deſtroy the members. 2. If an Armie of cut-throats riſe to deſtroy the Kingdome, becauſe the King is in lacking, in his place, to doe his duty, how can the other Judges, the States and Parliament, be acceſſorie to murther committed by them, in not raiſing armies to ſuppreſſe ſuch robbers? Shall the inferiour Judges be guilty of innocent blood, becauſe the King will not doe his duty? 3. The politique body ceaſeth no more to renounce the principles of ſinleſſe nature, in ſelf-defence, becauſe it is a politique body, and ſubject to a King, then it can leave off to ſleep, eat and drink; and there is more need of politique principles to the one, then the other. 4. The Parliaments and Eſtates of both Kingdoms move in theſe wars by the Kings Lawes, and are a formall politique body in themſelves.
Obj. 2. The ground of the preſent wars againſt the King (ſaith D. Ferne, ſect. 4. pag. 13.) is falſe, to wit, that the Parliament is coordinate with the King, but ſo the King ſhall not be ſupreme, the Parliaments conſent is required to an act of ſupremacie, but not to a denyall of that act. And there can no more (ſaith Arniſaeus de jure majeſtatis, c. 3. in quo conſiſtat eſſen. majeſt. c. 3. n. 1. and c. 2. anjur. majeſt. ſepar. &c. n. 2.) be two equall and coordinate ſupreme powers, then there can be two ſupreme Gods, and multitudo deorum eſt nullitas deorum, many gods infer no gods.
Anſ. 1. If we conſider the fountaine-power, the King is ſubordinateParliamentary power a fountaine power above the King. to the Parliament, and not coordinate; for the conſtituent is above that which is conſtituted. If we regard the derived and executive power in Parliamentarie acts, they make but a totall and compleat ſoveraigne power, yet ſo as the ſoveraigne power of the Parliament being habitually and underived, a prime and fountaine power, (for I doe not here ſeparate people and Parliament) is perfect without the King, for all Parliamentarie acts, as is cleare, in that the Parliament make Kings. 2. Make Lawes, raiſe Armies, when either the King is minor, captived, tyrannous, or dead, but Royall power Parliamentarie without the Parliament is null, becauſe it is eſſentially but a part of the Parliament, and can work nothing ſeparated from the Parliament, no more then a hand cut off from the body, can write; and ſo here we ſee two ſupremes coordinate▪ Amongſt infinite things there cannot be two, becauſe it involveth a contradiction, that an infinite thing can be created, for then ſhould it be finite; but a royall power is eſſentially a derived and created power and ſupreme, ſecundum quid, onelyonly in relation to ſingle men, but not in relation to the Communitie; it is alwayes a creature of the communitie with leave of the Royaliſt. 2. It is falſe, that to an act of Parliamentarie ſupremacie the conſent of the King is required, for it is repugnant that there can be any Parliamentarie judiciall act without the Parliament, but there may be without the King. 3. More falſe it is, that the King hath a negative voice in Parliament, then he ſhall be ſole Judge▪ and the Parliament, the Kings Creator and Conſtituent, ſhall be a cypher.
Obj. 3. Arneſaeus de jur. Maj. de poteſt. armorum, c. 5. n. 4. The People is mad and furious, therefore ſupreme Majeſtie cannot be ſecured, and Rebels ſuppreſſed, and publike Peace kept, if the power of Armour be not in the Kings hand only.
Anſw. To denude the people of Armour, becauſe they may abuſe the Prince, is to expoſe them to violence and oppreſſion, unjuſtly; for one King may eaſilier abuſe armour, then all the people; one man may more eaſily fail, then a Community. 2. The ſafety of the people is far to be preferred before the ſafety of one man, though he were two Emperours, one in the Eaſt, another in the Weſt, becauſe the Emperour is ordained of God, for the good and ſafety of the people, 1 Tim. 2. 2. 3. There can be no inferiour Judges to bear the ſword, as God requireth, Rom. 13 4. Deut. 1. 15, 16. 2 Chron. 19. 6, 7. and the King muſt be ſole Judge, if he onelyonly have the ſword, and all armour monopolized to himſelfe.
Obj. 4. The cauſes of Warre (ſaith M. Simmons, ſect. 4. pag. 9.) Loyall S…aj. Belief….ſhould not be made knowne to the Subjects, who are to look more to the lawfull call to Warre from the Prince, then to the cauſe of the War.
Anſw. The Parliament and all the Judges and Nobles are SubjectsCauſes o… w…r make lawfull war, not the ſole pleaſure of the King. to Royaliſts, if they ſhould make war and ſhed blood upon blind obedience to the King, not inquiring either in cauſes of Law, or fact, they muſt reſigne their conſciences to the King. 2. The King cannot make unlawfull warre to be lawfull by any authority Royall, except he could raze out the ſixt Commandement: therefore Subjects muſt look more to the cauſes of Warre, then to the authority of the King; and this were a faire way to make Parliaments of both Kingdomes …et up Popery by the ſword, and root out the Ref…rmed Religion upon the Kings Authority, as the lawfull call to warre, not looking to the cauſes of warre.