father as a father hath not power of the life of his child as a Magistrate he may have power and as something more then a father he may have power of life and death I heare not what Grotius saith Those who are not borne have no accidents and so no rights Non entis nulla sunt accidentia then Children not borne have neither right nor liberty and so no injury may some say can be done to Children not borne though the fathers should give away their liberty to the conquerour those who are not capable of Law are not capable of injury contrary to Law Ans. There is a virtuall alienation of rights and lives of children not borne unlawfull because the children are not borne to say that children not borne are not capable of law and injuries virtuall which become reall in time might say Adam did not an injury to his posterity by his first sin which is contrary to Gods Word so those who vowed yearely to give seven innocent children to the Minotaure to be devoured and to kill their children not borne to bloody Molech did no acts of bloody injury to their children nor can any say then that fathers cannot tye themselves and their posterity to a King by succession but I say To be tyed to a lawfull King is no making away of liberty but a resigning of a power to be justly governed protected and awed from active and passive violence 7. No lawfull King may be dethroned nor lawfull Kingdome dissolved but Law and reason both saith Quod vi partum est imperium vi dissolvi potest Every conquest made by violence may be dissolved by violence Censetur enim ipsa natura jus dare ad id omne sine quo obtineri non potest quod ipsa imperat It is objected that the people of God by their sword conquered seven nations of the Canaanites David conquered the Ammonites for the disgrace done to his Embassadours So God gave Egypt to Nebuchadnezar for his hire in his service done against Iudah had David no right over the Ammonites and Moabites but by expecting their consentâ— yee will say A right to their lands goods and lives but not to challenge their morall subjection well we doubt not but such conquerours will challenge and obtain their morall consent but if the people refuse their consent is there no way for providence giveth no right So D. Ferne so Arnisaeus Ans. A facto ad jus non valeâ— consequentia God to whom belongeth the world and the fulnesse thereof disponed to Abraham and his seed the Land of Canaan for their inheritance and ordained that they should use their bow and their sword for the actuall possession thereof and the like divine right had David to the Edomites and Ammonites though the occasion of Davids taking possession of these Kingdoms by his sword did arise from particular and occasionall exigences and injuries but it followeth in no sort That therefore Kings now wanting any word of promise and so of divine right to any Lands may ascend to the Throns of other Kingdoms then their own by no better title then the bloody sword That Gods will was the chief patent here is clear in that God forbad his people to conquer Edom or Esau's possession when as he gave them command to conquer the Ammorites I doubt not to say if Joshua and David had had no better title then their bloody sword though provoked by injuries they could have had no right to any kingly power over these Kingdoms and if onely successe by the sword be a right of providence it is no right of precept Gods providence as providence without precept or promise can conclude a thing is done or may be done but cannot conclude a thing is lawfully and warrantably done else you might say the selling of Joseph the crucifying of Christ the spoiling of Job were lawfully done 2. Though Conquerors extort consent and oath of Loyaltie yet that maketh not over a Royall right to the Conquerour to be King over their posterity without their consent 3. Though the Children of Ammon did a high injury to David yet no injury can be recompensed in justice with the pressure of the constrained subjection of Loyaltie to a violent Lord if David had not had an higher warrant from God then an injury done to his messengers he could not have conquered them But 1. the Ammonites were the declared enemies of the Church of God and raised forces against David when they themselves were the injurer's and offenders and if Davids Conquest will prove a lawfull title by the sword to all Conquerours then may all Conquerours lawfully do to the conquered people as David did that is they may put them under saws and under harrows of iron and under axes of iron and cause them passe through the Brick-kilne But I beseech you will Royalists say that Conquerours who make themselves Kings by their sword and so make themselves fathers heads defenders and feeders of the people may use the extreamest Tyranny in the world such as David used against the children of Ammon which he could not have done by the naked title of sword-conquest if God had not laid a Commandment of an higher nature on him to serve Gods enemies so I shall then say if a conquering King be a lawfull King because a Conquerour then hath God made such a lawfull King both a father because a King and a Tyrant and cruell and lyon-hearted oppressour of these whom he hath conquered for God hath given him Royall power by this example to put these to whom he is a father and defender by office to torment and also to be a torturer of them by office by bringing their backs under such Instruments of crueltie as saws and harrows of iron and axes of iron QUEST XIII Whether or no Royall dignitie have its spring from nature and how that is true every man is born free and how servitude is contrary to nature I Conceive it to be evident that Royall dignity is not immediately and without the intervention of the peoples consent given by God to any one person 2. That conquest and violence is no just title to a Crown Now the question is If Royalty flow from nature if Royalty be not a thing meerly naturall neither can subjection to Royall power be meerly naturall but the former is rather civill then naturall and the question of the same nature is Whether subjection or servitude be naturall I conceive that there be divers subjections to these that are above us some way naturall and therefore I rank them in order thus 1. There is a subjection in respect of naturall being as the effect to the cause so though Adam had never sinned this morality of the fifth command should have stood in vigour that the son by nature without any positive Law should have been subject to the father because from him he hath his being as from a second cause But I much
an act of Divine bounty and grace above Nature so Psal. 78.70 71. He took David from following the Ewes and made him King and feeder of his people 1 Sam. 13.13 There is no cause why Royallists should deny Government to be naturall but to be altogether from God and that the Kingly power is immediatly and only from God because it is not naturall to us to subject to Government but against Nature and against the hair for us to resign our liberty to a King or any Ruler or Rulers for this is much for us and proveth not but Government is naturall it concludeth that a power of Government tali modo by Magistracy is not naturall but this is but a Sophisme a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ad illud quod est dictum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 this speciall of Government by resignation of our liberty is not naturall Ergo power of Government is not naturall it followeth not a negatione spâ—ciei non sequitur negatio generis non est homo ergo non est animal And by the same reason I may by an antecedent will agree to a Magistrate and a Law that I may be ruled in a politick Society and by a consequent will onely yea and conditionally onely agree to the penalty and punishment of the Law and it is most true no man by the instinct of Nature giveth consent to Penall Laws as Penall for Nature doth not teach a man nor incline his spirit to yeeld that his life shall be taken away by the sword and his blood shed except in this remote ground a man hath a disposition that a veine be cutt by the Physitian or a Member of his body cut off rather then the whole body and life perish by some contagious disease but here reason in cold blood not a naturall disposition is the neerest prevalent cause and disposer of the businesse When therefore a communitie by natures instinct and guidance incline to Government and to defend themselves from violence they do not by that instinct formally agree to Government by Magistrates and when a naturall conscience giveth a deliberate consent to good Laws as to this He that doth violence to the life of a man by man shall his blood be shed Gen. 9.6 He doth tacitely consent that his own blood shall be shed but this he consenteth unto consequently tacitely and conditionally If he shall do violence to the life of his brother Yet so as this consent proceedeth not from a disposition every way purely naturall I grant reason may be necessitated to assent to the conclusion being as it were forced by the prevalent power of the evidence of an insuperable and invincible light in the premises yet from naturall affections there resulteth an act of self-love for self-preservation So David shall condemn another rich man who hath many Lambs and robbeth his poor brother of his one Lamb and yet not condemn himself though he be most deep in that fault 1 Sam. 12.5 6. yet all this doth not hinder but Government even by Rulers hath its ground in a secondary Law of nature which Lawyers call secundariò jus naturale or jus gentium secundarium a secondary Law of nature which is granted by Plato and denied by none of sound judgement in a sound sense and that is this Licet vim virepellere It is lawfull to repeal violence by violence and this is a speciall act of the Magistrate 2. But there is no reason why we may not defend by good reasons that politick Societies Rulers Cities and Incorporations have their rise and spring from the secundary Law of nature 1. Because by Natures Law Family-Government hath its warrant and Adam though there had never been any positive Law had a power of governing his own family and punishing malefactors but as Tannerus saith well and as I shall prove God willing this was not properly a Royall or Monarchicall power and I judge by the reasoning of Sotus Molina and Victoria By what reason a Family hath a power of Government and of punishing Malefactors that same power must be in a societie of men Suppose that societie were not made up of Families but of single persons for the power of punishing ill-doers doth not reside in one single man of a familie or in them all as they are single private persons but as they are in a familie But this argument holdeth not but by proportion for paternall government or a fatherly power of parents over their families and a politick power of a Magistrate over many families are powers different in nature the one being warranted by natures law even in its species the other being in its spece and kind warranted by a positive law and in the generall only warranted by a law of nature 2. If we once lay the supposition that God hath immediately by the law of nature appointed there should be a Government and mediately defined by the dictate of naturall light in a communitie that there shall be one or many Rulers to governe the Communitie then the Scriptures arguments may well be drawn out of the school of nature as 1. The powers that are be of God therefore natures light teacheth that we should be subject to these powers 2. It is against natures light to resist the ordinance of God 3. Not to feare him to whom God hath committed the sword for the terror of evill doers 4. Not to honour the publike rewarder of well-doing 5. Not to pay tribute to him for his worke Therefore I see not but Govarruvias Soto Suarez have rightly said that power of Government is immediately from God and this or this definite power is mediately from God proceeding from God by the mediation of the consent of a Communitie which resigneth their power to one or moe Rulers and to me Barclaius saith the same quamvis populus potentiae largitor videatur c. QUEST III. Whether Royall Power and definite forms of Government be from God THe King may be said to be from God and his word in these seveall notions 1. By way of permission Ier. 43.10 Say to them thus saith the Lord of hoasts the God of Israel Behold I will send and take Nebuchadnezzar the King of Babylon my servant and will set his throne upon these stones that I have hid and he shall spread his royall pavilion over them And thus God made him a Catholick King and gave him all Nations to serve him Jer. 27.6 7 8. though he was but an unjust Tyrant and his sword the best title to those crownes 2. The King is said to be from God by way of naked approbation God giving to a people power to appoint what Government they shall thinke good but instituting none in speciall in his Word This way some make Kingly power to be from God in the generall but in the particular to be an invention of men negatively lawfull and not repugnant to the Word as
only from this fountaine because the People have transferred their power to the King Lib. 1. digest tit 4. de constit Princip leg 1. sic Vlpian Quod Principi placuit loquitur de Principe formaliter qua Princeps est non qua est homo legis habet vigorem utpote cum lege Regia quae de imperio ejus lata est populus ei in eum omne suum imperium potestatem conferat Yea the Emperour himselfe may be conveened before the Prince Elector Aurea Bulla Carol. 4. Imper c. 5. The King of France may be conveened before the Senate of Paris The States may resist a Tyrant as Bossius saith de Principe privileg jus n. 55. Paris de puteo iu tract syno tit de excess Reg. c. 3. Divines acknowledge that Elias rebuked the halting of Israel betwixt God and Baal that their Princes permitted Baals Priests to converse with the King And is not this the sinne of the Land that they suffer their King to worship Idols and therefore the Land is punished for the sinnes of Manasseh as Knox observeth in his Dispute with Lethington where he proveth that the States of Scotland should not permit the Queen of Scotland to have her abominable Masse Hist. of Scotland l. 4. p. 379. edit an 1644. Surely the power or Sea-Prerogative of a sleepie or mad Pilot to split the ship on a rock as I conceive is limited by the Passengers Suppose a father in a distemper would set his own house on fire and burne himselfe and his ten sonnes I conceive his Fatherly prerogative which neither God nor Nature gave should not be looked to in this but they may binde him Yea Althusius polit c. 39. n. 60. answering that That in Democracie the people cannot both command and obey saith It is true secundum ideus ad idem eodem tempore But the people may saith he choose Magistrates by succession Yea I say 1. they may change Rulers yearely to remove envie A yearely King were more dangerous the King being almost above envie Men incline more to flatter then to envie Kings 2. Aristotle saith polit l. 4. c. 4. l. 6. c. 2. The people may give their judgement of the wisest Obj. Williams B. of Ossorie Vindic. Reg. A Looking-glasse for Rebels saith p. 64. To say the King is better than any one doth not prove him to be better then two and if his supremacie be no more then any other may challenge as much for the Prince is singulis major A Lord is above all Knights a Knight above all Esquires and so the People have placed a King under them not above them Ans. The reason is not alike for all the Knights united cannot make one Lord and all the Esquires united cannot make one Knight but all the People united made David King at Hebron 2. The King is above the people by eminencie of derived authoritie as a Watchman and in actuall supremacie and he is inferior to them in fountaine-power as the effect to the cause Object 2. The Parliament saith Williams may not command the King Why then make they supplications to him if their Vote be a Law Ans. They supplicate ex decentia of decencie and connveniencie for his place as a Citie doth supplicate a Lord Major but they supplicate not ex debito of obligation as beggars seeke almes then should they be cyphers 2. When a Subject oppressed supplicateth his Soveraigne for justice the King is obliged by office to give justice And to heare the oppressed is not an act of grace and mercie as to give almes though it should proceed from mercie in the Prince Psal. 72.13 but an act of Royall debt 3. The P. Prelate objecteth The most you claime to Parliaments is a coordinate power which in law and reason run in equall tearmes In Law par in parem non habet imperium an equall cannot judge an equall much lesse may an inferiour usurpeto judge a superiour Our Lord knew gratiâ visionis the woman taken in adulterie to be guilty bat he would not sâ—ntence her to teach us not improbably not to be both Judge and Witnesse The Parliament are Judges accusers and witnesses against the King in their owne cause against the Imperiall lawes Ans. 1. The Parliament is coordinate ordinarily with the King in the power of making Lawes but the coordination on the Kings part is by derivation on the Parliaments part originaliter fontaliter as in the fountaine 2. In ordinarie there is coordination but if the King turne Tyrant the Estates are to use their fountaine-power And that of the Law Par in parem c. is no better from his Pen that stealeth all he hath then from Barclaius Grotius Arnisaeus Blackwood c. It is cold and sowre We hold the Parliament that made the King at Hebron to be above their own creature the King Barclaius saith more acurately l. 5 cont Monarch p. 129. It is absurd that the People should both be subject to the King and command the King also Ans. It is not absurd that a Father naturall as a private man should be subject to his Sonne even that Jesse and his elder brother the Lord of all the rest be subject to David their King Royalists say Our late Queen being supreme Magistrate might by Law have put to death her own husband for adulterie or murther 2. The Parliament should not be both Accuser Iudge and Witnesse in their own cause 1. It is the Cause of Religion of God of Protestants and of the whole people 2. The oppressed accuse there is no need of Witnesses in raising armes against the Subjects 3. The P. Prelate could not object this if against the Imperiall laws the King were both Partie and Iudge in his own cause and in these acts of arbitrarie power which he hath done through bad counsell in wronging Fundamentall lawes raising armes against his subjects bringing in forraigne enemies into both his Kingdomes c. Now this is properly the cause of the King as he is a man and his owne cause not the cause of God and by no Law of nature reason or Imperiall Statutes can he be both Iudge and party 4. If the King be sole supreame Iudge without any fellow sharers in power 1. He is not obliged by Law to follow Counsell or hold Parliaments for Counsell is not Command 2. It is unpossible to limit him even in the exercises of his power which yet Dr. Ferne saith cannot be said for if any of his power be retrinched God is robbed saith Maxwell 3. He may by Law play the Tyrant gratis Ferne objecteth § 7. pag. 26. The King is a fundamentall with the Estates now foundations are not to be stirred or removed Ans. The King as King inspired with Law is a fundamentall and his power is not to be stirred but as a man wasting his people he is a destruction to the house and community and not a
Interpreter p. 254. Nor is his will the sense of the Law p. 252 253. Nor is he the sole and onely judiciall Interpreter of the Law p. 253 254 255 seq QUEST XXVIII Whether or no Wars raised by the Estates and Subjects for their owne just defence against the Kings bloody Emissaries be lawfull Affir p. 257. The state of the question P. 257 258 If Kings be absolute a superiour Iudge may punish an inferiour Iudge not as a Iudge but an erring man ibid. By Divine institution all Covenants to restraine their power must be unlawfull p. 258 259. Resistance in some cases lawfull p. 260 261 262. Six Arguments for the lawfulnesse of defensive Wars in this Quest. 260. seq Many others follow Quest. 29. and 30. seq QUEST XXIX Whether in the case of defensive War the distinction of the Person of the King as a man who may and can commit hostile acts of tyranny against his subjects and of the Office and Royall Power that he hath from God and the people can have place Affirmatur p. 265. The Kings Person in concreto and his Office in abstracto or which is all one the King using his Power lawfully to be distinguished Rom. 13 p. 265. To command unjustly maketh not a higher power p. 265.266 The person may be resisted and yet the Office cannot be resisted prooved by fourteene Arguments p. 265 266. seq Contrary Objections of Royalists and of the P. Prelate answered p. 270 271. seq What we meane by the person and Office in abstracto in this dispute we doe not exclude the person in concreto altogether but only the person as abusing his power we may kill a person as a man and love him as a sonne father wife according to Scripture p. 272 273 274. We obey the King for the Law and not the Law for the King p. 275 276. The loosing of habituall and actuall Royalty different p. 276. Ioh. 19.10 Pilates power of crucifying Christ no Law-power given to him of God it s proved against Royalists by six Arguments p. 280. QVEST. XXX Whether or no passive obedience be a meane to which we are subjected in conscience by vertue of a Divine Commandement Neg. What a meane resistance is that flying is resistance p. 313. The place 1 Pet. 2.18 discussed ibid. Patient bearing of injuries and resistance of injuries compatible in one and the same subject ibid. Christs non-resistance hath many things rare and extraordinary and so is no leading rule to us p. 315. Suffering is either commanded to us comparatively only that we rather choose to suffer then deny the truth or the manner only is commanded that we suffer with patience p. 317 318. sequent The Physicall act of taking avvay the life or of offending vvhen commanded by the Lavv of self defence is no murther p. 321. We have a greater dominion over our goods and members except in case of mutilation vvhich is a little death then over our life p. 321. To kill is not of the nature of self defence but accidentall thereunto ibid. Defensive vvar cannot be vvithout offending p. 323. The nature of defensive and offensiue Warrâ— p. 324 325. Flying is resistance p. 325 326. QUEST XXXI Whether selfe-defence by opposing violence to unjust violence be lawfull by the Law of God and Nature Affirm p. 326 327. Self-defence in man naturall but Modus the way must be rationall and just p. 327. The method of selfe-defence ibid. Violent re-offending in selfe-defence the last remedy p. 328. It s Physically unpossible for a Nation to fly in the case of persecution for Religion and so they may resist in their owne self-defence p. 328. Tutela vitae proxima and remota p. 329. In a remote posture of selfe-defence we are not to take us to re-offending as David was not to kill Saul when he was sleeping or in the Cave for the same cause ibid. David would not kill Saul because he was the Lords Anoynted p. 330. The King not Lord of chastity name conscience and so may be resisted p. 331. By universall and particular nature selfe-defence lawfull proved by divers Arguments p. 330. And made good by the testimony of Iurists p. 331. The love of our selves the measure of the love of our neighbour and inforceth selfe-defence p. 332. Nature maketh a private man his owne Iudge and Magistrate when the Magistrate is absent and violence is offered to his life as the Law saith p. 334 335. Selfe-defence how lawfull it is p. 333 334 335. What presumption is from the Kings carriage to the two Kingdomes are in Law sufficient grounds of defensive warrs p. 336 337. Offensive and defensive warrs differ in the event and intentions of men but not in nature and spece nor Physically p. 336 337 338. Davids case in not killing Saul nor his men no rule to us not in our lawfull defence to kill the Kings Emissaries the cases farre different p. 338 339. QUEST XXXII Whether or no the lawfulnesse of defensive warrrs can be proved from the Scripture from the examples of David the peoples rescuing Ionathan Elisha and the 80. valiant Priests who resisted Vzziah Affirm p. 340. David warrantably raised an Army of men to defend himselfe against the unjust violence of his Prince Saul p. 340 341 342. Davids not invading Saul and his men who did not aime at Arbitrary Government at subversion of Lawes Religion and extirpation of those that worshipped the God of Israel and opposed Idolatry but only pursuing one single person farre unlike to our case in Scotland and England now p. 342.343 Davids example not extraordinary p. 343 344. Elisha's resistance proveth defensive warrs to be warrantable p. 344 345 Resistance made to King Vzziah by eighty valiant Priests proveth the same p. 346 347 348. The peoples rescuing Ionathan proveth the same p. 348 349. Libnah's revolt proveth this p. 349. The City of Abel defended themselves against Ioab King Davids Generall when he came to destroy a City for one wicked conspirator Sheba his sake p. 349 350. QUEST XXXIII Whether or no Rom. 13.1 make any thing against the lawfulnesse of defensive warrs Neg. p. 350. The King not only understood Rom. 13. p. 351.352 And the place Rom. 13. discussed p. 352 353 354. QUEST XXXIV Whether Royalists prove by cogent reasons the unlawfulnesse of defensive warrs p. 355. Objections of Royalists answered p. 355 356 357. seq The place Exod. 22.28 Thou shalt not revile the Gods c. answered p. 357. And Eccles. 10.20 p. 358. The place Eccles. 8.3 4. Where the word of a King is c. answered p. 357 358. The place Iob 34.18 answered p. 359. And Act. 23.3 God shall smite thee thou whited wall c. p. 359 360 361. The Emperours in Pauls time not absolute by their Law p. 361. That objection that we have no practise for defensive resistance and that the Prophets never complaine of the omission of the duty of resistance of Princes answered p. 163 164 165. The Prophets
three Kingdoms of England Scotland and Ireland p. 446 447 448. The Parliament of Scotland doth regulate limit and set bounds to the Kings power p. 448 449 Fergus the first King not a Conquerour p. 449. The King of Scotland below Parliaments considerable by them hath no negative voice p. 450 451 seq QUEST XLIV Generall results of the former doctrine in some few Corrolaries in 22 Questions p. 454 455. Concerning Monarchy compared with other forms p. 454. How Royaltie is an issue of nature p. 454 455. And how Magistrates as Magistrates be naturall p. 455. How absolutenesse is not a Ray of Gods Majestie ibid. And resistance not unlawfull because Christ and his Apostles used it not in some cases p. 456 457. Coronation is no ceremony p. 457. Men may limit the power that they gave not p. 457 458. The Common-wealth not a pupill or minor properly p. 459. Subjects not more obnoxious to a King then Clients Vassals Children to their Superiours p. 459 460. If subjection passive be naturall p. 461. Whether King Uzziah was dethroned p. 461 462. Idiots and children not compleat Kings children are Kings in destination onely p. 462. Deniall of passive subjection in things unlawfull not dishonourable to the King more then deniall of active obedience in the same things p. 463. The King may not make away or sell any part of his Dominions p. 463 464. People may in some cases conveen without the King p. 464. How and in what meaning subjects are to pay the Kings debts p. 465. Subsidies the Kingdoms due rather then the Kings p. 465 466. How the Seas Ports Forts Castles Militia Magazeen are the Kings and how they are the Kingdoms p. 466. Lex Rex QUEST I. In what sense Government is from God I Reduce all that I am to speak of the power of Kings to the Author or efficient 2. The matter or subject 3. The form or power 4. The end and fruit of their Government And 5. to some cases of resistance Hence Quest. I. Whether Government be warranted by a divine Law The question is either of Government in generall or of the particular species of Government such as are Government by one only called Monarchy the Government by some chief leading men named Aristocracie the Government by the people going under the name of Democracie 2. We cannot but put difference betwixt the institution of the Office to wit Government and the designation of person or persons to the Office 3. What is warranted by the direction of natures light is warranted by the Law of nature and consequently by a divine Law for who can deny the Law of nature to be a divine Law That power of Government in generall must be from God I make good 1. Because Rom. 13. 1. there is no power but of God the powers that be are ordained of God 2. God commandeth obedience and so subjection of conscience to powers Rom. 13.5 Wherefore we must be subject not onely for wrath or civill punishment but for conscience sake 1 Pet. 2.13 Submit your selves to every ordinance of man for the Lords sake whether it be to the King as Supreme c. Now God onely by a divine Law can lay a band of subjection on the conscience tying men to guilt and punishment if they transgrâ—sse 2. Conclus All civill power is immediately from God in its root In that 1. God hath made man a sociall creature and one who inclineth to be governed by man then certainly he must have put this power in mans nature so are we by good reason taught by Aristotle 2. God and nature intendeth the policie and peace of mankinde then must God and nature have given to mankinde a power to compasse this end and this must be a power of Government I see not then why John Prelate Master Maxwel the excommunicate P. of Rosse who speakâ—th in the name of I. Armagh had reason to say That he feared that we fancied that the Government of Superiours was onely for the more perfit but have no Authoritie over or above the perfit Nâ—c Rex nec Lex justo posita He might have imputed this to the Brasilians who teach That every single man hath the power of the sword to revenge his own injuries as Molina saith QUEST II. Whether or not Government be warranted by the Law of nature AS domestick societie is by natures instinct so is civill societie naturall in radice in the root and voluntary in modo in the manner of coalescing Politick power of Government agreeth not to man singly as one man except in that root of reasonable nature but supposing that men be combined in societies or that one family cannot contain a societie it is naturall that they joyn in a civill societie though the manner of Union in a politick body as Bodine saith be voluntary Gen. 10.10 Gen. 15.7 and Suarez saith That a power of making Laws is given by God as a property flowing from nature Qui dat formam dat consequâ—ntia ad formam Not by any speciall action or grant different from creation nor will he have it to result from nature while men be united into one politick body which Union being made that power followeth without any new action of the will We are to distinguish betwixt a power of Government and a power of Government by Magistracy That we defend our selves from violence by violence is a consequent of unbroken and sin-lesse nature but that we defend our selves by devolving our power over in the hands of one or more Rulers seemeth rather positively morall then naturall except that it is naturall for the childe to expect help against violence from his father For which cause I judge that learned Senator Ferdinandus Vasquius said well That Princedom Empire Kingdom or Iurisdiction hath its rise from a positive and secundary law of Nations and not from the law of pure Nature The Law saith there is no law of Nature agreeing to all living creatures for superiority for by no reason in Nature hath a Boar dominion over a Boar a Lyon over a Lyon a Dragon over a Dragon a Bull over a Bull And if all Men be born equally free as I hope to prove there is no reason in Nature why one Man should be King and Lord over another therefore while I be otherwise taught by the forecasten Prelate Maxwell I conceive all jurisdiction of Man over Man to be as it were Artificiall and Positive and that it inferreth some servitude whereof Nature from the womb hath freed us if you except that subjection of children to parents and the wife to the husband and the Law saith De jure gentium secundarius est omnis principatus 2. This also the Scripture proveth while as the exalting of Saul or David above their Brethren to be Kings and Captains of the Lords people is ascribed not to Nature for King and Beggar spring of one clay-mettall but to
government all humane societies should be dissolved and goe to ruine Then government must be naturall and not depend upon a voluntary arbitrary constitution of men In nature the liveles creatures inferior give a tacit consent silent obedience to their superiour and the superiour have a powerfull influence on the inferiour In the subordination of creatures we ascend from one superior to another till at last we come to one supreme which by the way pleadeth for the excellencie of Monarchie Amongst Angels there is an order how can it then be supposed that God hath left it to the simple consent of man to establish a heraldrie of sub supra of one above another which neither nature nor the Gospel doth warrant To leave it thus arbitrary that upon this supposed principle Mankind may be without government at all is vain which paradox cannot be maintained In nature God hath established a superiority inherent in superior creatures which is no ways derived from the inferior by communication in what proportion it will and resumeable upon such exigents as the inferior listeth therefore neither hath God left to the multitude the communitie the collective the representative or virtuall body to derive from it selfe and communicate soveraigntie whether in one or few or more in that measure and proportion pleaseth them which they resume at pleasure Answ. 1. To answer Spalato No societie hath liberty to be without all government for God hath given to every societie saith Covarruvias a faculty of preserving themselves and warding off violence and injuries and this they could not doe except they gave their power to one or many Rulers But all that the Prelate buildeth on this false supposition which is his fiction and calumnie not our doctrine to wit that it is voluntary to man to be without all government because it is voluntarie to them to give away their power to one or moe Rulers is a meere non-consequence 1. We teach that Government is naturall not voluntary but the way and manner of Government is voluntarie All societies should be quickly ruined if there were no Government but it followeth not therefore God hath made some Kings and that immediately without the interveening consent of the people and ergo it is not arbitrary to the people to choose one supreme Ruler and to erect a Monarchie or to choose moe Rulers and to erect an Aristocracie It followeth no way It is naturall to men to expresse their minde by humane voyces Is not speaking of this or that language Greeke rather then Latine as Aristotle saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by humane institution It is naturall for men to eat ergo election of this or that meat is not in their choise What reason is in this consequence and so it s a poore consequence also Power of Soveraigntie is in the people naturally ergo it is not in their power to give it out in that measure that pleaseth them and to resume it at pleasure It followeth no way Because the inherencie of Soveraigntie is naturall and not arbitary ergo the alienation and giving out of the power to one not to three thus much not thus much conditionally not absolutely and irrevocably must be also arbitrary It is as if you should say a father having six children naturally loveth them all ergo he hath not freedome of will in expressing his affection to give so much of his goods to this sonne and that conditionally if he use these goods well and not more or lesse of his goods at his pleasure 2. There is a naturall subordination in nature in creatures superior and inferior without any freedome of election the earth made not the heavens more excellent then the earth and the earth by no freedome of will made the heavens superior in excellencie to it selfe Man gave no superioritie of excellencie to Angels above himselfe the Creator of all Beings did both immediately without freedome of election in the creature create the being of all creatures and their essentiall degrees of superiority and inferiority but God created not Saul by nature King over Israel nor is David by the act of creation by which he is made a man created also a King over Israel for then David should from the wombe and by nature be a King and not by Gods free gift Here both the free gift of God and the free consent of the people interveene indeed God made the office and royaltie of a King above the dignitie of the people but God by the interveening consent of the people maketh David a King not Eliah and the people maketh a covenant at Davids inauguration that David shall have so much power to wit power to be a Father not power to be a Tyrant power to fight for the people but no power to waste and destroy them The inferior creatures in nature give no power to the superiour and therefore they cannot give in such a proportion power The deniall of the positive degree is a deniall of the comparative and superlative and so they cannot resume any power But the designing of such a man or such men to be Kings or Rulers is a rationall voluntary action not an action of nature such as is Gods act of creating an Angell a nobler creature then a man and the creating of man a more excellent creature then a beast and for this cause the argument is vaine and foolish for inferior creatures are inferior to the more noble and superior by nature not by voluntary designation or as Royalists say by naked approbation which yet must be an arbitrary and voluntary action 3. The P. Prelate commendeth order while we come to the most supreme hence he commendeth Monarchie above all governments because it is Gods government I am not against it that Monarchie well tempered is the best government though the question to me is most problematick but because God is a Monarch who cannot erre or deny himselfe therefore that sinfull Man be a Monarch is miserable logick and he must argue solidly forsooth by this because there is order as he saith amongst Angels will he make a Monarch and a King-Angell His argument if it have any weight in it driveth at that even that there be crowned Kings amongst the Angels QUEST X. Whether or not Royall birth be equivalent to divine unction SYmmons holdeth that Birth is as good a title to the Crowne as any given of God How this question can be cleered I see not except we dispute tha◠Whether or not Kingdomes be proper patrimonies derived from the father to the sonne 2. I take there is a large difference betwixt a thing transmittable by birth from the father to the sonne and a thing not transmittable 3. I conceive as a person is chosen to be a King over a people so a familie or house may be chosen and a Kingdome at first choosing a person to be their King may also tye themselves to choose the first borne of his
say they we will be quit of thine Oath which thou hast made us to swear There be no mutuall contract made upon certain conditions but if the conditions be not fulfilled the party injured is loosed from the contract Barclay saith That this covenant obligeth the King to God but not the King to the people Ans. It is a vaine thing to say that the people and the King make a covenant and that David made a covenant with the Elders and Princes of Israel for if he be obliged to God only and not to the people by a covenant made with the people it is not made with the people at all nay it is no more made with the people of Israel nor with the Chaldeans for it bindeth David no more to Israel nor to Chaldea as a covenant made with men Arnisaeus saith when two parties contract if one performe the duty the other is acquitted Sect. Ex hujusmod ubi vult just de duob reis l. 3. F. because every one of them are obliged fully Sect. 1. Iust. eod to God to whom the Oath is made for that is his meaning and if either the people performe what is sworne to the Lord or the King yet one of the parties remaineth still under obligation and neither doth the peoples obedience exempt the King from punishment if he faile nor the Kings obedience exempt the people if they faile but every one beareth the punishment of his owne sin and there is no mutuall power in the parties to compell one another to performe the promised duty because that belongeth to the Pretor or Magistrate before whom the contract was made The King hath jurisdiction over the people if they violate their Oath but the people hath no power over the Prince and the ground that Arnisaeus layeth downe is that 1. The King is not a party contracting with the people as if there were mutuall obligations betwixt the King and the people and a mutuall coactive power on either side 2. That the care of Religion belongeth not to the people for that hath no warrant in the Word saith he 2. We read not that the people was to command and compell the Priests and the King to reforme Religion and abolish Idolatry as it must follow if the covenant be mutuall 3. Iehoiada 2 King 11. obligeth himselfe and the King and the people by a like law to serve God and here be not two parts but three the high Priest the King the People if this example prove any thing 4. Both King and people shall finde the revenging hand of God against them if they faile in the breach of their Oath but with this difference and every one of the two King and people by the Oath stand obliged to God the King for himselfe and the people for themselves but with this difference the King oweth to God proper and due obedience as any of the subjects and also to governe the people according to Gods true religion Deut. 17. 2 Chro. 29. and in this the Kings obligation differeth from the peoples obligation the people as they would be saved must serve God and the King for the same cause 1 Sam. 12. But besides this the King is obliged to rule and governe the people and keepe them in obedience to God but the people is not obliged to governe the King and keepe him in obedience to God for then the people should have as great power of jurisdiction over the King as the King hath o-over the people which is against the Word of God and the examples of the Kings of Iudah but this commeth not from any promise or covenant that the King hath made with the people but from a peculiar obligation whereby he is obliged to God as a man not as a King This is the mystery of the businesse but I oppose this in these Assertions 1. Assert As the King is obliged to God for the maintenance of true Religion so are the people and Princes no lesse in their place obliged to maintaine true Religion for 1. the people are rebuked because they burnt Incense in all high places 2 King 17.11 2 Chron. 33.17 Hos. 4.13 And the reason why the high places are not taken away 2 Chro. 20.33 is given for as yet the people had not prepared their heart unto the God of their fathers but you will reply elicite acts of maintenance of true Religion are commanded to the people and that the places prove but the question is De actibus imperatis of commanded acts of Religion sure none but the Magistrate is to command others to worship God according to his Word I answer in ordinary only Magistrates not the King only but all the Princes of the Land and Iudges are to maintaine Religion by their commandements Deut. 1.16 2 Chro. 1.2 Deut. 16.19 Eccles. 5.8 Hab. 1.4 Mic. 3.9 Zach. 7.9 Hos. 5.10.11 and to take care of Religion but when the Iudges decline from Gods way and corrupt the Law we finde the people punished and rebuked for it Ier. 15.4 And I will cause them to be removed to all Kingdomes of the earth because of Manasseh the sonne of Hezekiah King of Iudah for that which he did in Ierusalem 1 Sam. 12.24 only feare the Lord 25. But if yee doe still wickedly yee shall be consumed both yee and your King And this case I grant is extraordinary yet so as Iunius Brutus proveth well and strongly that Religion is not given only to the King that he only should keepe it but to all the inferiour Iudges and people also in their kind but because the estates never gave the King power to corrupt Religion and presse a false and Idolatrous worship upon them therefore when the King defendeth not true Religion but presseth upon the people a false and Idolatrous Religion in that they are not under the King but are presumed to have no King catenus so farre and are presumed to have the power in themselves as if they had not appointed any King at all as if we presume the body had given to the right hand a power to ward off strokes and to defend the body if the right hand should by a Palsie or some other disease become impotent and be withered up when ill is comming on the body it is presumed that the power of defence is recurred to the left hand and to the rest of the body to defend it selfe in this case as if the body had no right hand and had never communicated any power to the right hand at all So if an incorporation accused of Treason and in danger of the sentence of death shall appoint a Lawyer to Advocate their cause and to give in their just defences to the Iudge if their Advocate be stricken with dumbnesse because they have losed their legall and representative tongue none can say that this incorporation hath loosed the tongues that Nature hath given them so as by Natures law they may not plead in their own just
King whom the people maketh King though he were a bloodier and more tyrannous man then Saul Any Tyrant standeth in titulo so long as the People and Estates who made him King have not recalled their grant so as neither David nor any single man though six hundred with him may unking him or detract obedience from him as King So many acts of disloyaltie and breachcs of lawes in the Subjects though they be contrary to this Covenant that the States make with their Prince doth not make them to be no Subjects and the Covenant mutuall standeth thus 3 Arg. If the people as Gods instruments bestow the benefit of a Crown on their King upon condition that he will rule them according to Gods word then is the King made King by the people conditionally but the former is true Ergo so is the latter The assumption is proved thus because to be a King is to be an adopted father tutor a Politick servant and Royall watchman of the State and the Royall honour and Royall maintenance given to him is a reward of his labours and a Kingly hire And this is the Apostles argument Rom. 13.6 For this cause pay you tribute also there is the wages for they are Gods ministers attending continually upon this very thing There is the worke Qui non implet conditionem à se promissam cadit beneficio It is confirmed thus The people either maketh the man their Prince conditionally that he rule according to Law or absolutely so that he rule according to will or lust or 3. without any vocall transactions at all but only brevi manu say Reigne thou over us and God save the King And so there be no conditions spoken on either side Or 4. The King is obliged to God for the condition which he promiseth by oath to performe toward the people but he is to make no reckoning to the people whether he performe his promise or no for the people being inferiour to him and he solo Deo minor only next and immediate to God the people can have no jus no law over him by vertue of any covenant But the first standing we have what we seeke The second is contrary to Scripture He is not Deut. 17.15 16. made absolutely a King to rule according to his will and lust for Reigne thou over us should have this meaning Come thou and play the Tyrant over us and let thy lust and will be a law to us which is against naturall sense nor can the sense and meaning be according to the third That the people without any expresse vocall and positive covenant give a Throne to their King to rule as he pleaseth because 1. it is a vain thing for the Prelate and other Mancipia Aulae Court-bellies to say Scotland and England must produce a written authentick covenant betwixt the first King and their People because say they it s the Lawes word De non apparentibus non existentibus eadem lex that covenant which appeareth not it is not For in positive covenants that is true and in such contracts as are made according to the Civill or Municipall lawes or the secondary law of Nations But the generall covenant of nature is presupposed in making a King where there is no vocall or written covenant if there be no conditions betwixt a Christian King and his people then those things which are just and right according to the law of God and the rule of God in moulding the first King are understood to regulate both King and People as if they had been written and here we produce our written covenant Deut. 17.15 Josh. 1.8 9. 2 Chr. 31 32.1 Because this is as much against the King as the people and more for if the first King cannot bring forth his written and authentick tables to prove that the Crown was given to him and his heires and his successors absolutely and without any conditions so as his will shall be a law cadit causa he loseth his cause say they The King is in possession of the Royall power absolutely without any condition and you must put him from his possession by a law I answer this is most false 1. Though he were in mala fide and in unjust possession the law of Nature will warrant the people to repeal their right and plead for it in a matter which concerneth their heads lives and soules 2. The Parliaments of both Kingdomes standing in possession of a nomothetick power to make lawes proveth cleerely that the King is in no possession of any Royall dignitie conferred absolutely and without any condition upon him and therefore it is the Kings part by law to put the Estates out of possession And so though there were no written covenant the standing law and practice of many hundreth acts of Parliament is equivalent to a written covenant 2. When the people appointeth any to be their King the voyce of Nature exponeth their deed though there be no vocall or written covenant For that fact of making a King is a morall lawfull act warranted by the word of God Deut. 17.15 16. Rom. 13.1.2 and the law of Nature and therefore they having made such a man their King they have given him power to be their father feeder healer protector and so must only have made him King conditionally so he be a father a feeder and tutor Now if this deed of making a King must be exponed to be an investing with an absolute and not a conditionall power this fact shall be contrary to Scripture and to the law of Nature for if they have given him Royall power absolutely and without any condition they must have given to him power to be a father protector tutor and to be a tyrant a murtherer a bloody lyon to waste and destroy the people of God 3. The Law permitteth the bestower of a benefit to interpret his own mind in the bestowing of a benefit even as a King and State must expone their own Commission given to their Ambassadour so must the Estates expone whether they bestowed the Crown upon the first King conditionally or absolutely For the 4th if it stand then must the people give to their first elected King a power to wast and destroy themselves so as they may never controle it but only leave it to God and the King to reckon together but so the condition is a Chimera We give you a Throne upon condition you swear by him who made heaven and earth that you will govern us according to Gods Law and you shall be answerable to God only not to us whether you keep the covenant you make with us or violate it but how a covenant can be made with the people and the King obliged to God not to the people I conceive not 2. This presupposeth that the King as King cannot doe any sin or commit any act of tyranny against the people but against God only because if he be obliged to God only as a
of a beast though he be obliged by a naturall obligation being a rationall Creature in regard of the law of nature L. naturaliter L. si id quod L. interdum F. de conà indebit cum aliis 2. The subject could not by Solomon be forbidden to be suretie for his friend as King Solomon doth counsell Prov. 6.1 2 3. he could not be condemned to bring on himself poverty by sluggishnesse as Prov. 6.6 7 8 9 10. nor were he to honour the Lord with his riches as Prov. 3.9 nor to keep his Covenant though to his losse Psal. 15.4 nor could he be mercifull and lend Psal. 37.26 nor had he power to borrow nor could he be guiltie in not paying all again Psal. 37.21 For subjects under a Monarch can neither perform a duty nor fail in a duty in the matter of Goods If all be the Kings what power or dominion hath the subject in disposing of his Princes Goods See more in Petr. Rebuffus tract congruae portionis num 225. pag. 109 110. Sed quoad dominium rerum c. QUEST XVII Whether or not the Prince have properly a fiduciarie and ministeriall power of a Tutor Husband Patron Minister head father of a family not of a Lord or dominator THat the power of the King is fiduciarie that is given to him immediatly by God in trust Royallists deny not but we hold that the trust is put upon the King by the people 2. We deny that the people give themselves to the King as a gift for what is freely given cannot be taken againe but they gave themselves to the King as a pawne and if the pawne be abused or not used in that manner as it was conditionated to be used the party in whose hand the pawne is intrusted faileth in his trust 1. Assertion The King is more properly a Tutor then a Father 1. Indigencie is the originall of Tutors the Parents dye what then shall become of the Orphan and his inheritance he cannot guide it himselfe therefore nature devised a Tutor to supply the place of a father and to governe the Tutor but with this consideration the father is Lord of the inheritance and if he be distressed may sell it that it shall never come to the sonne and the father for the bad deserving of his sonne may dis-inherite him but the Tutor being but a borrowed father cannot sell the inheritance of the pupill nor can he for the pupills bad deserving by any dominion of Justice over the pupill take away the inheritance from him and give it to his owne son so a Community of it selfe because of sin is a naked society that can but destroy it selfe and every one eate the flesh of his brother therefore God hath appointed a King or governour who shall take care of that community rule them in peace and save all from reciprocation of mutuall acts of violence yet so as because a trust is put on the Ruler of a community which is not his heritage he cannot dispose of it as he pleaseth because he is not the proper owner of the inheritance 2. The Pupill when he commeth to age may call his Tutor to an accompt for his administration I doe not acknowledge that as a truth which Arnisaeus saith De authoritate prin c. 3. n. 5. The Common-wealth is alwaies minor and under Tutory because it alway hath need of a curator and governour and can never put away its governour buâ— the pupill may grow to age and wisedome so as he may be without all Tutors and can guide himselfe and so may call in question his Tutor and the pupill cannot be his Iudge but must stand to the sentence of a superiour Iudge and so the people cannot judge or punish their Prince God must be Iudge betwixt them both But this is 1. a begging of the question every comparison halteth no community but it is Major in this that it can appoint its owne Tutors and though it cannot be without all Rulers yet it may well be without this or that Prince and Ruler and therefore may resume its power which it gave conditionally to the Ruler for its owne safety and good and in so farre as this condition is violated and power turned to the destruction of the Common-wealth it is to be esteemed as not given and though the people be not a politique Iudge in their owne cause yet in case of manifest oppression nature can teach them to oppose defensive violence against offensive a community in its politique body is also above any Ruler and may judge what is manifestly destructive to it selfe Obj. The Pupill hath not power to appoint his owne Tutor nor doth he give power to him so neither doth the people give it to the King Ans. The Pupill hath not indeed a formall power to make a Tutor but he hath vertually a legall power in his father who appointeth a Tutor for his sonne and the people have vertually all Royall power in them as in a sort of immortall and eternall fountain and may create to themselves many Kings Asser. 2. The Kings power is not properly and univocally a Maritall and husbandly power but only Analogically 1. The Wife by nature is the weaker Vessell and inferiour to the man but the Kingdom as shall be demonstrated is superiour to the King 2. The Wife is given as an helpe to the man but by the contrary the man here is given as an helpe and father to the Common-wealth which is presumed to be the wife 3. Maritall and husbandly power is naturall though it be not naturall but from free election that Peter is Ana's Husband and should have been though man had never sinned but Royall Power is a politick constitution and the world might have subsisted though Aristocracy or Democracy had been the only and perpetuall governments So let the Prelate glory in his borrowed Logick he had it from Barclay It is not in the power of the Wife to repudiat her Husband though never so wicked she is tyed to him for ever and may not give to him a bill of Divorcement as by Law the Husband might give to her if therefore the people sweare loyalty to him they must keep though to their hurt Ps. 15. Ans. There 's nothing here said except Barclay and the Plagiarie prove that the Kings Power is properly a Husbands power which they cannot prove but from a Simile that crooketh but a King elected upon conditions that if he sell his people he shall lose his Crown is as essentially a King as Adam was Evahs Husband and yet by grant of parties the people may devorce from such a King and dethrone him if he sell his people but a Wife may never devorce from her Husband as the Argument saith And this poore Argument the Prelate stole from Dr. Ferne part 2. Sec. 3. pag. 10 11. 2. The keeping of Covenant though to our huâ—t is a penall hurt and losse of goods not a
God and the people is only the instrumentall cause and Spalato saith that the people doth indirectly only give Kingly power because God at their act of election ordinarily giveth it Ans. The Scripture saith plainly as we heard before the people made Kings and if they doe as other second causes produce their effects it is all one that God as the principall cause maketh Kings else we should not argue from the cause to the effect amongst the creatures 2. God by that same action that the people createth a King doth also by them as by his instruments create a King and that God doth not immediatly at the naked presence of the act of popular election conferre Royall dignity on the man without any action of the people as they say by the Churches act of conferring Orders God doth immediatly without any act of the Church infuse from Heaven supernaturall habilities on the man without any active influence of the Church is evident by this 1. The Royall power to make Lawes with the King and so a power eminent in their states representative to governe themselves is in the people for if the most high act of Royalty be in them why not the power also and so what need to fetch a Royall power from Heaven to be immediatly infused in him seeing the people hath such a power in themselves at hand 2. The people can and doth limite and bind Royall power in elected Kings ergo they have in them Royall power to give to the King those who limit power can take away so many degrees of Royall power and those who can take away power can give power and it is unconceiveable to say that people can put restraint upon a power immediatly comming from God if Christ immediatly infuse an Apostolick spirit in Paul mortall men cannot take from him any degrees of that infused spirit if Christ infuse a spirit of nine degrees the Church cannot limit it to six degrees only but Royalists consent that the people may choose a King upon such conditions to raigne as he hath Royall power of ten degrees whereas his Ancester had by birth a power of foureteen degrees 3. It is not intelligible that the Holy Ghost should give Commandement to the people to make such a man King Deut. 17.15 16. and forbid them to make such a man King if the people had no active influence in making a King at all but God solely and immediately from Heaven did infuse Royalty in the King without any action of the people save a naked consent only and that after God had made the King they should approve only with an after-act of naked approbation 4. If the people by other Governours as by heads of families and other choise men governe themselves and produce these same formall effects of Peace Justice Religion on themselves which the King doth produce then is there a power of the same kind and as excellent as the Royall power in the people and no reason but this power should be holden to come immediatly from God as the Royall Power for it is every way of the same nature and kind and as I shall prove Kings and Iudges differ not in nature and spece but it is experienced that people doe by Aristocraticall guides governe themselves c. so then if God immediatly infuse Royalty when the people chooseth a King without any action of the people then must God immediatly infuse a beame of governing on a Provost and a Bailiffe when the people choose such and that without any action of the people because all Powers are in abstracto from God Rom. 13.2 and God as immediatly maketh inferiour Iudges as superiour Prov. 8.16 and all promotion even to be a Provost or Major commeth from God only as to be a King except Royalists say all promotion commeth from the East and from the West and not from God except promotion to the Royall Throne the contrary whereof is said Ps. 75.6 7. 1 Sam. 2.7 8. not only Kings but all Judges are Gods Ps. 82.1 2. and therefore all must be the same way created and moulded of God except by Scripture Royalists can shew us a difference An English Prelate giveth Reasons why People who are said to make Kings as efficients and Authors cannot unmake them the one is because God as chief and sole supreame Moderator maketh Kings but I say Christ as the chiefe Moderator and head of the Church doth immediatly conferre abilities to a man to be a Preacher and though by industry the man acquire abilities yet in regard the Church doth not so much as instrumentally conferre those abilities they may be said to come from God immediatly in relation to the Church who calleth the man to the ministery yea Royalists as our excommunicated Prelate learned from Spalato say that God at the naked presence of the Churches call doth immediatly infuse that from Heaven by which the man is now in Holy Orders and a Pastor whereas he was not so before and yet Prelates cannot deny but they can unmake Ministers and have practised this in their unhallowed Courts and therefore though God immediatly without any action of the people make Kings this is a weake reason to prove they cannot unmake them As for their undeleble character that Prelates cannot take from a Minister it is nothing if the Church may unmake a Minister though his character goe to prison with him we seeke no more but to anull the reason God immediatly maketh Kings and Pastors ergo no power on earth can unmake them this consequence is as weake as water 2. The other cause is because God hath erected no Tribunall on earth higher then the Kings Tribunall ergo no power on earth can unmake a King the Antecedent and consequence is both denyed and is a begging of the question for the Tribunall that made the King is above the King 2. Though there be no Tribunall formally regall and Kingly above the King yet is there a Tribunall vertuall eminently above him in the case of tyranny for the States and Princes have a Tribunall above him 3. To this the constituent cause is of more power and dignity then the effect and so the people is above the King The P. Prelate borrowed an answer from Arnisaeus and Barclay and other Royalists and saith If we knew any thing in Law or were ruled by reason Every constituent saith Arnisaeus and Barclay more accurately then the P. Prelate had a head to transcribe their words where the constituent hath resigned all his power in the hand of the Prince whom hâ— constitutes is of more worth and power then he in whose hand they resigne the power so the proposition is false The servant who hath constituted his Master Lord of his liberty is not worthier then his Master whom he hath made his Lord and to whom he hath given himselfe aâ— a slave for after he hath resigned his liberty he cannot repent he
is his due is a great sin but when he abuseth his power to the destruction of his subjects it is lawfull to throw a sword out of a mad-mans hand though it be his owne proper sword and though he have due right to it and a just power to use it for good for all fiduciary power abused may be repealed and if the Knights and Burgesses of the House of Commons abuse their fiduciary power to the destruction of these Shires and Corporations who put the trust on them the observator did never say that Parliamentary power was so intire and irrevocably in them as that the people may not resist them anull their Commissions and rescind their acts and denude them of fiduciary power even as the King may be denuded of that same power by the three estates for particular Corporations are no more to be denuded of that fountain-power of making Commissioners and of the self preservation then the three estates are 2. The P. Prelate commeth not home to the mind of Buchanan who knew the fundamental Lawes of Scotland the power of Parliaments for his meaning was not to deny a legislative power in the Parliament but when he calleth their Parliamentary declarations 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his meaning is only that which Lawyers and Schoole-men both say Leges non promulgatae non habent vim legis actu completo obligatoriae Lawes not promulgated doe not oblige the subject while they be promulgated but he falsifies Buchannan when he saith Parliamentary Lawes must have the authoritative influence of the people before they can be formall Lawes or any more then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or preparatory notions And it was no wonder when the King denyed a Parliament and the supreme Senate of the secret Counsell was corrupted then that the people did set up Tables and extraordinary judicatures of the three estates seeing there could not be any other government for the time 6. Barclay answereth to that The meane is inferiour to the end it holdeth not the Tutor and Curator is for the minor as for the end and given for his good but it followeth not that therefore the Tutor in the administration of the minor or Pupils inheritance is not superiour to the minor Ans. 1. It followeth well that the Minor virtually and in the intention of the Law is more excellent then the Tutor though the Tutor can exercise more excellent acts then the Pupill by accident for defect of age in the Minor yet he doth exercise those acts with subordination to the Minor and with correction because he is to render an account of his doings to the Pupill comming to age so the Tutor is only more excellent and superiour in some respect 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but not simply and so is the King in some respect above the people The P. Prelate beggeth from the Royalists another of our Arguments Quod efficit tale est magis tale That which maketh another such is farre more such it selfe if the people give Royall Power to the King then farre more is the Royall Power in the people By this saith the Prelate it shall follow if the observator give all his goods to me to make me rich the observator is more rich if the people give most part of their goods to foment the Rebellion then the people are more rich having given all they have upon the Publicke Faith Ans. 1. This greedy Prelate was made richer then ten poore Pursevants by a Bishopricke it will follow well ergo the Bishopricke is richer then the Bishop whose goods the curse of God blasteth 2. It holdeth in efficient causes so working in other things as the vertue of the effect remaineth in the cause even after the production of the effect As the Sunne maketh all things light the Fire all things hot therefore the Sun is more light the Fire more hot but where the cause doth alienate and make over in a corporall manner that which it hath to another as the hungry Prelate would have the Observators goods it holdeâ—h not for the effect may exhaust the vertue of the cause but the people doth as the fountaine derive a streame of Royalty to Saul and make him King and yet so as they keepe Fountain-power of making Kings in themselves yea when Saul is dead to make David King at Hebron and when he is dead to make Solomon King and after him to make Rehoboam King and therefore in the people there is more fountaine power of making Kings then in David in Saul in any King of the world as for the Prelates jeere about the peoples giving of their goods to the good cause I hope it shall by the blessing of God inrich them more whereas Prelates by the Rebellion in Ireland to which they assent when they counsell His Majesty to sell the blood of some hundred thousands of innocents killed in Ireland are brought from thousands a yeare to begg a morsell of bread The Prelate answereth that Maxime Quod efâ—icit tale id ipsum est magis tale That which maketh another such it is it selfe more such It is true De principio formali effectivo as I learned in the Vniversity of such an Agent as is formally such in it selfe as is the effect produced Next it is such as is effective and productive of it selfe as when fire heateth cold water so the quality must be formally inherent in the Agent as Wine maketh drunke it followeth not Wine is more drunke because Drunkennesse is not inherent in the Wine nor is it capable of drunkennesse and therefore Aristotle qualifieth the Maxime with this Quod efficit tale est magis tale modo utrique insit And it holdeth not in Agents who operate by donation if the right of the King be transferred from the people to the King The donation devesteth the people totally of it except the King have it by way of loane which to my thinking never yet any spoke Soveraignty never was never can be in the Community Soveraignty hath power of life and death which none hath over himselfe and the community conceived without government all as equall endowed with Natures and native liberty of that community can have no power over the life of another And so the Argument may be turned home if the people be not tales such by nature as hath formally Royall power he should say they cannot give the King Royall Power Also none hath power of life and death either eminenter or formally the people either singly or collectively have not power over their owne life much lesse over their neighbours Ans. 1. The Prelate would make the maxime true of a formall cause and this he learned in the University of St. Andrewes he wrongeth the University he rather learned it while he kept the Calves of Craile the wall is white from whitenesse ergo whitenesse is more white by the Prelates learning never such thing was taught in that learned University 2.
positive covenant made with him To finde out the essentiall difference betwixt a King and a Tyrant We are to observe that it is one thing to sin against a man another thing against a Stat◠David killing Vriah committed an act of murther But on this supposition that David is not punished for that murther he did not so sin against the State and Catholike good of the State that he turneth Tyrant and ceaseth to be a lawfull King A Tyrant is he who habitually sinneth against the Catholike good of the Subjects and State and subverteth Law Such a one should not be as Jason of whom it is said by Aeneas Silvius Graviter ferebat si non regnaret quasi nesciret esse privatus When such as are monstrous Tyrants are not taken away by the Estates God pursueth them in wrath Domitian was killed by his own Family his wife knowing of it Aurelianus was killed with a thunder-bolt Darius was drowned in a River Dioclesian fearing death poysoned himself Salerius died eaten with Worms The end of Herod and Antiochus Maxentius was swallowed up in a standing River Iulian died being stricken through with a Dart thrown at him by a man or an Angel it is not known Valens the Arian was burnt with fire in a little Village by the Gothes Anastasius the Eutychian Emperour was stricken by God with thunder Gundericus Vandalus when he rose against the Church of God being apprehended by the Divell died Some time the State have taken order with Tyrants The Empire was taken from Vitellius Heliogabalus Maximinus Didius Iulianus So was the two Childerici of France served So were also Sigebertus Dagabertus and Lodowick the 11. of France Christiernus of Denmark Mary of Scotland who killed her husband and raised Forces against the Kingdom So was Henricus Valesius of Pol for fleeing the Kingdom Sigismundus of Pol for violating his faith to the States QUEST XXV What force the Supreme Law hath over the King even that Law of the Peoples safetie called Salus Populi THe Law of the 12. Tables is Salus populi Suprema lex The safetie of the People is the supreme and Cardinall law to which all Lawes are to stoope And that from these Reasons 1. Originally Because if the People be the first Author Fountaine and Efficient under God of Law and King then their own safetie must be principally sought and their safetie must be farre above the King as the safetie of a Cause especially of an universall Cause such as is the People must be more then the safetie of one as Aristotle saith l. 3. polit alias l. 5. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The part cannot be more excellent then the whole nor the effect above the cause 2. Finaliter This Supreme law must stand for if all Law Policie Magistrates and Power be referred to the peoples good as the end Rom. 13.4 and to their quiet and peaceable life in godlinesse and honestie then must this Law stand as of more worth then the King as the end is of more worth then the meanes leading to the end for the end is the measure and rule of the goodnesse of the meane and finis ultimus in influxu est potentissimus The King is good because he conduceth much for the safetie of the People Ergo the safetie of the people must be better 3. By way of limitation Because no Law in its letter hath force where the safetie of the Subject is in hazard and if Law or King be destructive to the people they are to be abolished This is cleare in a Tyrant or a wicked man 4. In the desires of the most holy Moses a Prince desired for the safetie of Gods people and rather then God should destroy his people that his name should be razed out of the booke of life And David saith 1 Chron. 21.17 Let thine hand I pray thee O Lord my God be on me and on my fathers house but not on thy people that they should be plagued This being a holy desire of these two publick Spirits the object must be in it selfe true and the safetie of Gods people and their happinesse must be of more worth then the salvation of Moses and the life of David and his Fathers house The Prelate borroweth an answer to this for he hath none of his own from D. Ferne. The safetie of the Subjects is the prime end of the constitution of Government but it is not the sole and adequate end of government in Monarchie for that is the safetie of both King and People And it beseemeth the King to proportion his lawes for their good and it becommeth the People to proportion all their obedience actions and endeavours for the safetie honour and happinesse of the King It 's impossible the people can have safetie when Soveraigntie is weakened Ans. The Prelate would have the other halfe of the end why a King is set over a People to be the safetie and happinesse of the King as well as the safetie of the People This is new Logick indeed that one and the same thing should be the meane and the end The question is For what end is a King made so happy as to be exalted King The Prelate answereth He is made happy that he may be happy and made a King that he may be made a King Now is the King as King to intend this halfe end that is Whether or no accepteth he the burden of setting his head and shoulders under the Crowne for this end that he may not only make the people happy but also that he may make himselfe rich and honorable above his brethren and enrich himselfe I beleeve not but that he feed the people of God For if he intend himselfe and his own honour it is the intention of the man who is King and intentio operantis but it is not the intention of the King as the King or intentio operis The King as a King is formally and essentially the Minister of God for our good Rom. 13.4 1 Tim. 2.2 and cannot come under any notion as a King but as a mean not as an end nor as that which he is to seeke himselfe I conceive God did forbid this in the moulding of the first King Deut. 17.18 19 26. He is a minister by office and one who receiveth honour and wages for this worke that ex officio he may feed his people But the Prelate saith the people are to intend his riches and honour I cannot say but the people may intend to honour the King but that is not the question whether the people be to referre the King and his government as a meane to honour the King I conceive not But that end which the people in obeying the King in being ruled by him may intend is 1 Tim. 2.2 That under him they may lead a quiet and a peaceable life in all Godlinesse and honestie And Gods end in giving a King is the good and safetie of
Mutilation lâ—sse of Chastity Quoniam facta infecta fieri nequeunt things of that kinde once done can never be undone we are to prevent the enemy l. Zonat. tract defens par 3. l. in bello § factae de capit notat Gloss. in l. si quis provocatione If the King send an Irish Rebell to cast me over a bridge and drowne me in a water I am not to do nothing while the Kings emissary first cast me over and then in the next room I am to defend my self but nature and the law of self-defence warranteth me if I know certainly his ayme to horse him first over the bridge and then consult how to defend my sâ—lfe at my own leasure Royalists object that David in his defence never invaded and persecuted Saul yea when he came upon Saul and his men sleeping hee would not kill any but the Scottish and Parliaments Forces not onely defend but invade offend kill and plunder and this is cleerely an offensive not a defensive warre Answ. There is no defensive warre different in spece and nature from an offensive warre if we speake physically they differ onely in the event and intention of the heart and it is most cleare that the affection and intention doth make one and the same action of taking away the life either homicide or no homicide If a man out of hatred deliberatâ—ly take away his brothers life he is a murtherer catenus but if that same man had taken away that same brothers life by thâ—â—lying off oâ— an Axe heâ—d ofâ— the staffe while he was hewing timber he neither hating him before nor intending to hurt his brother he is no murtherer by Gods expresse Law Deut. 4.42 Deut. 19 4. Ioshua 20.5 2. The cause betweene the King and the two Parliaments and betweene Saul and David are so different in this as it is much for us Royalists say David might if he had seene offending to conduce for sâ—lfe-preservation have invaded Sauls men and say they the case was extraordinary and bindeth not us to selfe-defence and thus they must say for offensive weapons such as Goliahs sword and an hoast of armed men cannot by any rationall men be assumed and David had the wisdome of God but to offend if providence should so dispose and so what was lawfull to David is lawfull to us in self-defence he might offend lawfully and so may we 2. If Saul and the Philistims ayming as under an oath to set up Dagon in the land of Israel should invade David and the Princes and Elders of Israel who made him King and if David with an hoast of armed men he and the Princes of Israel should come in that case upon Saul and the Philistims sleeping if in that case David might not lawfully have cut oft the Philistims and as he defended in that case Gods Church and true Religion if he might not then have lawfully killed I say the Philistims I remit to the conscience of the Reader Now to us Papists and Prelates under the Kâ—nâ—s banner are Philistims introducing the Idolatry of Bread-worship and Popery as hatefull to God as Dagon-worship 3. Saul intended no arbitrary government nor to make Israel a conquered people nor yet to cut off all that professed the true worship of God nor came Saul against these Princes Elders and people who made him King only Davids head would have made Saul lay downe Arms but Prelates and Papists and Malignants under the King intâ—nd to make the Kings sole will a Law to destroy the Court of Parliament which putteth Lawes in execution against their Idolatry and their ayme is that Protestants be a conquered people and their attempt hath been hitherto to blow up King and Parliament to cut off all Protestants and they are in Armes in divers parts of the Kingdome against the Princes of the Land who are no lesse Judges and deputies of the Lord then the King himselfe and would kill and do kill plunder and spoyle us if we kill not them And the case is every way now betweene Armies and Armies as betweene a single man unjustly invaded for his life and an unjust invader neither in a naturall action such as is self-defence is that of policy to be urged none can be Judge in his owne cause when oppression is manifest one may be both agent and patient as the fire and water conflicting there is no need of a judge a community casts not off nature when the judge is wanting nature is judge actor accused and all Lastly no man is Lord of his owne members of his body m. l. liber homo ff ad leg Aqui. nor Lord of his owne life but is to be accountable to God for it QUEST XXXII Whether or no the lawfulnesse of defensive warres hath its warrant in Gods word from the example of David Elisha the eighty Priests who resisted Uzziah c DAvid defended himselfe against King Saul 1. by taking Goliahs sword with him 2. by being Captaine to six hundred men yea it is more then cleare 1 Chron. 12. that there came to David a hoast like the hoast of God v. 22. to help against Saul exceeding foure thousand v. 36. Now that this hoast came warrantably to help him against Saul I prove 1. because it is said ver 1. Now these are they that came to David to Ziglag while he kept himselfe close because of Saul the son of Kish and they were amongst the mighty men helpers of the warre and then so many mighty Captains are recâ—oâ—ed out v. 16. There came of the children of Benjamin and Iudah to the hold of David v. 19. And there fell some of Manasseh to David 20. As he went to Ziglag there fell to him of Manasseh Kenâ—h and Jozabad Jediel and Michael and Jozabad and Elihu and Zilthai Captaines of the thousands that were of Manasseh 21. And they helped David against the band of the rovers 22. At that time day by day there came to David untill it was a great hoast like the hoast of God Now the same expression that is ver 1. where it is said they came to help David against Saul which ver 1. is repeated ver 16. ver 19 20 21 22 23. 2. That they warrantably came is evident because 1. the Spirit of God commendeth them for their valor and skill in war ver 2. ver 8. ver 15. ver 21. which the Spirit of â—od doth not in unlawfull wars 2. Because Amasai v. 18. The Spirit of the Lord comming on him saith Thine are we David and on thy side thou son of Jesse peace peace unto thee and peace to thy helpers for thy God helpeth thee The Spirit of God inspireth no man to pray peace to those who are in an unlawfull warre 3. That they came to Davids side onely to be sufferers and to flee with David and not to pursue and offend is ridiculous 1. It is said ver 1. They came to David to Ziglag while he kept himselfe close
because he was anointed and designed by God as successor to Saul and so he must use an extraordinary way of guarding himselfe Arnisaeus citeth Alberic Gentilis that David was now exempted from amongst the number of Subjects Answ. There were not two Kings in Israel now both David and Saul 2. David acknowledgeth his subjection in naming Saul the Lords Anointed his Master Lord King and therefore David was yet a subject 3. If David would have proved his title to the Crowne by extraordinary wayes he who killed Goliah extraordinarily might have killed Saul by a miracle but David goeth a most ordinary way to work for self-defence and his comming to the Kingdom was through persecution want eating shew-bread in case of necessity defending himself with Goliahs sword 4. How was any thing extraordinary and above a Law seeing David might have killed his enemie Saul and according to Gods Law he spared him and hee argueth from a morall duty he is the Lords annoynted therefore I will not kill him was this extraoardinary above a law then according to Gods law he might have killed him Royalists cannot say so what ground to say one of Davids acts in his deportment toward Saul was extraordinary and not all was it extraordinary that David fled no or that David consulted the oracle of God what to do when Saul was coming against him 5. in an ordinary fact something â—ay be extraordinary as the dead sleep from the Lord upon Saul and his men 1. Sam. 26. and yet the fact according to its substance ordinary 6. Nor is this extraordinary that a distressed man being an excellent warriour as David was may use the help of six hundred men who by the law of charity are to help to deliver the innocent from death yea all Israel were obliged to defend him who killed Goliah 7. Royalists make Davids act of not putting hands on the Lords annointed an ordinary morall reason against resistance but his putting on of armour they will have extraordinary and this 〈◊〉 I confesse a short way to an adversary to cull out something tâ—at is for his cause and make it ordinary and something that is against his cause must be extraordinary 8. These men by the law of nature were obliged to joyne in armes with David ergo the non-helping of an oppressed man must be Gods ordinary law a blasphemous tenet 9. If David by an extraordinary spirit killed â—ot King Saul then the Jesuits way of killing must be Gods ordinary Law 2. David certainly intended to keep Keilah against King Saul for the Lord would not have answered David in an unlawfull fact for that were all one as if God should teach David how to play the Traitor to his King for if God had answâ—red They will not deliver thee up but they shall save thee from the hand of Saul As David beleeved he might say this as well as its contradicent then David behoved to keep the city for certainly Davids question pre-supposeth he was to keep the city The example of Elisha the Prophet is considerable 2 Kings 6.32 But Elisha sate in his house and the Elders with him And the King sent a man before him but â—re the messengers came to him he said to the Elders See now the sonnâ— of a murtherer hath sent to take away mine head Here is unjust violence offered by King Ioram to an innocent man Elisha keepeth the house violently against the Kings Messenger as we did keep Castles against King Charles his unlawfull messengers Look saith he when the messenger commeth shut the doore 2. There is violence also commanded and resistence to be made Hold him fast at the doore In the Hebrew it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arias Montan. Claudite ostium opprimetis eum in ostio Violently presse him at the doore And so the Chaldee Paraphrase Ierom. Ne sinatis eum introirâ— The LXX Interpreters 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 illidite eum in ostio Presse him betwixt the doore and the wall It is a word of bodily violence according to Vatablus Yea Theodoret will have King Ioram himselfe holden at the doore And 3. It is no Answer that D. Ferne and other Royalists give that Elisha made no personall resistance to the King himselfe but onely to the Kings cut-throat sent to take away his head Yea they say It is lawfull to resist the Kings cut-throats But the text is cleere that the violent resistance is made to the King himselfe also for he addeth Is not the sound of his Masters feet behinde him And by this answer it is lawfull to keep Townes with iron gates and barres and violently to oppose the Kings cut-throats comming to take away the heads of the Parliaments of both Kingdomes and of Protestants in the three Kingdomes Some Royalists are so impudent as to say that there was no violence here and that Elisha was an extraordinary man and that it is not lawfull for us to call a King the son of a murtherer as the Prophet Elisha did but Ferne sect 2. pag. 9. forgeâ—ting himselfe saith from hence It is lawfull to resist the Prince himselfe thus farre as toward his blowes and hold his hands But let Ferne answer if the violent binding of the Princes hands that he shall not be able to kill be a greater violence done to his Royall person then Davids cutting off the lap of Sauls garment for certainly the Royall body of a Prince is of more worth then his cloathes Now it was a sinne I judge that smote Davids conscience that he being a subject and not in the act of naturall self-defence did cut the garment of the Lords Annointed Let Ferne see then how he will save his owne principles for certainly hee yeeldeth the cause for me I judge that the person of the King or any Judge who is the Lords Deputy as is the King is sacred and that remaining in that honourable case no subject can without guiltinesse before God put hands in his person the case of naturall self-defence being excepted for because the Royall dignity doth not advance a King above the common condition of men and the Throne maketh him not leave off to bee a man and a man that can do wrong and therefore as one that doth manifest violence to the life of a man though his subject he may be resisted with â—odâ—ly 〈◊〉 in the case of uâ—jâ—st and violent invasion It is a vaine thing to say Who shall be judge betweene the King and his subjâ—cts The â—ubject cannot judge the King because none can be judge in his owne cause and an inferiour or equall cannot judge a superiour or equall But I answer 1. This is the Kings owne cause also and he doth unjust violence as a man and not as a King and so he cannot be judge more then the subject 2. Every one that doth unjust violence as he is such is inferiour to the innocent and so ought to be judged by some 3. There is no need of
not before then they were more Absolute These who can adde Absolutenesse must have it in themselves Nemo dat quod non habet if it be said King James had that before the Act the Parliament legally declared it to be his power which before the Declaration was his power I answer All he had before this Declaration was to govern the people according to Law and Conscience and no more and if they declare no other Prerogative Royall to be due to him there is an end we grant all But then this which they call Prerogative Royall is no more then a power to govern according to Law and so you adde nothing to King James upon the ground of his personall vertues onely you make an oration to his praise in the Acts of Parliament 4. If this Absolutenesse of Prerogative be given to the King the subjects swearing obedience swear That he hath power from themselves to destroy themselves this is neither a lawfull oath nor though they should swear it doth it oblige them 6. A Supreme Iudge is a supreme father of all his children and all their causes and to be a supreme Father cannot be contrary to a supreme Iudge but contrary it must be if this supremacy make over to the Prince a power of devouring as a Lyon and that by a regall priviledge and by office whereas he should be a father to save or if a Iudge kill an ill-doer though that be an act destructive to one man yet is it an act of a father to the Common-wealth An act of supreme and absolute Royaltie is often an act of destruction to one particular man and to the whole Common-wealth For example when the King out of his Absolute Prerogative pardoneth a murtherer and he killeth another innocent man and out of the same ground the King pardoneth him again and so till he kill twenty for by what reason the Prerogative giveth one pardon he may give twenty there is a like reason above Law for all This act of Absolute Royaltie is such an act of murther as if a shepherd would keep a Woolf in the fold with the sheep he were guilty of the losse of these sheep Now an act of destroying cannot be an act of judging far lesse of a supreme Iudge but of a supreme Murtherer 7. Whereas he is called Absolute Prince and Supreme Judge in all Causes Ecclesiasticall and Civill It is to be considered 1. That the Estates professe in these acts not to give any new Prerogative but onely to continue the old power and that onely with that amplitude and freedom which the King and his Predecessors did enjoy and exerce of before the extent whereof is best known from the Acts of Parliament Histories of the time and the Oaths of the Kings of Scotland 2. That he is called Absolute Prince not in any relation of freedom from Law or Prerogative above Law whereunto as unto the norma regula ac mensura potestatis suae ac subjectionis meae He is tyed by the Fundamentall Law and his own Oath but in opposition to all forraign Iurisdiction or principalitie above him as is evident by the Oath of Supremacie set down for acknowledging of his power in the first Act of Parliament 21. K. Iam. 6. 3. They are but the same expressions giving onely the same power before acknowledged in the 129. Act. Parl. 8. K. Iam. 6. And that onely over Persons or Estates considered Separatim and over Causes but neither at all over the Laws nor over the Estates taken Conjunctim and as convened in Parliament as is clear both by the two immediately subsequent Acts of that Parliament 8. K. Iam. 6. Establishing the Authority of Parliaments equally with the Kings and discharging all Iurisdictions alâ—eit granted by the King without their Warrant as also by the Narrative Depositive words and certification of the Act it self otherwayes the Estates convened in Parliament might by vertue of that Act be summoned before and censured by the Kings Majestie or His Councell a Iudicatory substitute be subordinate to and censurable by themselves which were contrary to sense and reason 4. The very termes of Supreme Iudge and in all Causes according to the nature of Correlates presupposeth Courts and judiciall Proceedings and Laws as the ground work and rule of all not a freedom from them 5. The sixth Act of the twenty Parliament K. Iac. 6. Cleerly interpreteth what is meant by the Kings Iurisdiction in all Spirituall and Ecclesiastick Causes to wit to be onely in the Consistoriall Causes of Matrimony Testaments Bastardy Adulteries abusively called Spirituall Causes because handled in Commissary Courts wherin the King appoints the Commissary his Deputies and makes the Lords of the Session his great Consistory in all Ecclesiasticall Causes with reservation of his Supremacy and Prerogative therein 7. Supreame Iudge in all causes cannot be taken Quoad actus elicitos as if the King were to judge between two Sea-men or two Husband-men or two Trades-men in that which is proper to their Art or between two Painters certainly the King is not to Iudge which of the two draweth the fairest Picture but which of the two wasteth most gold on his Picture and so doth interest most of the Common-wealth So the King cannot judge in all Ecclesiasticall Causes that is he cannot Quoad actos elicitos prescribe this Worship for example the Masse not the Sacrament of the Lords Supper Therefore the King hath but Actus imperatos some Royall Politicall Acts about the Worship of God to command God to be Worshipped according to his Word to punish the superstitions or neglectors of Divine Worship therefore cannot the King be sole Iudge in matters that belong to the Colledge of Iudges by the Lawes of Scotland the Lords of Session onely may judge these maters K. Iames 1. Parl. 2. Act. 45. K. Iames 3. Par. 8. Act 62. K. Iames 3. Par. 4. Act. 105. K. I. 1. Parl. 6. Act. 83. K. I. 1. Par. 6 Act. 86. K. I. 5. Par. 7. Act. 104. and that only according to Law without any remedy of appellation to King or the Parliament Act 62 and 63. Par. 14. K. I. 2. And the King is by Act of Parliament inhibited to send any private letter to stay the Acts of Iustice or if any such letter be procured the Iudges are not to acknowledge it as the Kings Will for they are to proceed unpartially according to Iustice and are to make the Law which is the King and Parliaments publick revealed will their rule King I. 5. Parl. 5. Act. 68. K. Ia. 6. Part. 8. Act. 139. and K. I. 6. Par. 6. Act. 92. most lawfull Nor may the Lords suspend the course of Iustice or the sentence or execution of Decrees upon the Kings private letter King I. 6. Parl. 11. Act 79. and K. Iam. 6. Par. 11. Act 47. and so if the Kings Will or desire as he is a man be opposite to his Law and his Will as King it is not to
doubt if the relation of a father as a father doth necessarily infer a Royall or Kingly authority of the father over the son or by natures Law that the father hath power of life and death over or above his children and the reasons I give are 1. Because power of life and death is by a positive Law presupposing sin and the fall of man and if Adam standing in innocency could lawfully kill his son though the son should be a Malefactor without any positive Law of God I much doubt 2. I judge that the power Royall and the fatherly power of a father over his children shall be found to be different and the one is founded on the Law of nature the other to wit Royall power on a meere positive Law The 2. degree or order of subjection naturall is a subjection in respect of gifts or age so Aristotle 1 Polit. cap. 3. saith that some are by nature servants his meaning is good that some gifts of nature as wisedom naturall or aptitude to govern hath made some men of gold fitter to command and some of iron and clay fitter to be servants and slaves But I judge this title to make a King by birth seeing Saul whom God by supervenient gifts made a King seemeth to ow small thanks to the womb or nature that he was a King for his crueltie to the Lords Priests speaketh nothing but naturall basenesse It s possible Plato had a good meaning Dialog 3. de legib who made six orders here 1. That fathers command their sons 2. The noble the ignoble 3. The elder the younger 4. The masters the servants 5. The stronger the weaker 6. The wiser the ignorant 3. Aquinas 22. q. 57. art 3. Driedâ— de libert Christ. l. 1. pag. 8. following Aristotle polit l. 7. c. 14. hold though man had never sinned there should have been a sort of dominion of the more gifted and wiser above the lesse wise and weaker not antecedent from nature properly but consequent for the utilitie and good of the weaker in so far as it is good for the weaker to be guided by the stronger which cannot be denyed to have some ground in nature but there is no ground for Kings by nature here 1. Because even these who plead that the mothers womb must be the best title for a Crown and make it equivalent to Royall unction are to be corrected in memory thus That it is meerly accidentall and not naturall for such a son to be born a King because the free consent of the people making choice of the first father of that Line to be their King and in him making choice of the first born of the family is meerly accidentall to father and son and so cannot be naturall 2. Because Royall gifts to reign are not holden by either us or our adversaries to be the specifice essence of a King for if the people Crown a person their King say we if the womb bring him forth to be a King say the opponents he is essentially a King and to be obeyed as the Lords annointed though nature be very Parca sparing and a niggard in bestowing Royall gifts Yea though he be an idiot say some if he be the first born of a King he is by just title a King but must have Curators and Tutors to guide him in the exercise of that Royall right that he hath from the womb But Buchanan saith well He who cannot govern himself shall never govern others 1 Assert de facto As a man commeth into the world a member of a politick societie he is by consequence borne subject to the laws of that societie but this maketh him not from the wombe and by nature subject to a King as by nature he is subject to his Father who begat him no more then by nature a Lyon is borne subject to another King-Lyon for it is by accident that he is borne of parents under subjâ—ction to a Monarch or to either Democraticall or Aristocraticall governours for Cain and Abel were borne under none of these formes of Government properly and if he had been borne in a new planted Colonie in a wildernesse where no government were yet established he should be under no such Government 2 Assert Slavery of servants to Lords or Masters such as were of old amongst the Iews is not naturall but against nature 1. Because slaverie is malum naturae a penall evill and contrary to nature and a punishment of sinne 2. Slaverie should not have been in the world if man had never sinned no more then there could have been buying and selling of men which is a miserable consequent of sin and a sort of death when men are put to the toyling paines of the hireling who longeth for the shadow and under iron harrowes and sawes and to hew wood and draw water continually 3. The originall of servitude was when men were taken in warre to eschew a greater evill even death the captives were willing to undergoe a lesse evill slaverie S. Servitus 1. de jur Pers. 4. A man being created according to Gods image he is res sacra a sacred thing and can no more by natures law be sold and bought then a religious and sacred thing dedicated to God S. 1. Instit. de invtil scrupl l. inter Stipulantem S. Sacram. F. de verber Obligat 3 Assert Every man by nature is a freeman borne that is by nature no man commeth out of the wombe vnder any civill subjection to King Prince or Judge to master captaine conquerour teacher c. 1. Because freedome is naturall to all except freedome from subjection to Parents And subjection politick is meerly accidentall comming from some positive lawes of men as they are in a politique societie whereas they might have been borne with all concomitants of nâ—ure though borne in a single familie the only naturall and first societie in the world 2. Man is borne by nature free from all subjection except of that which is most kindly and naturall and that is fatherly or filial subjection or matrimoniall subjection of the wife to the husband and especially he is free of subjection to a Prince by nature Because to be under jurisdiction to a Iudge or King hath a sort of jurisdiction Argument L. Si quis sit fugitivus F. de edil edict in S. penult vel fin especially to be under penall lawes now in the state of sinne The learned Senator Ferdinandus Vasquez saith l. 2. c. 82. n. 15. Every subject is to lay down his life for the Prince now no man is borne under subjection to penall lawes or dying for his Prince 3. Man by nature is borne free and as free as beasts but by nature no beast no Lyon is born King of Lyons no Horse no Bullock no Eagle King of Horses Bullocks Eagles nor is there any subjection here except that the young Lyon is subject to the old every foul to its damme