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A57975 Lex, rex The law and the prince : a dispute for the just prerogative of king and people : containing the reasons and causes of the most necessary defensive wars of the kingdom of Scotland and of their expedition for the ayd and help of their dear brethren of England : in which their innocency is asserted and a full answer is given to a seditious pamphlet intituled Sacro-sancta regum majestas, or, The sacred and royall prerogative of Christian kings, under the name of J. A. but penned by Jo. Maxwell the excommunicate P. Prelat. : with a scripturall confutation of the ruinous grounds of W. Barclay, H. Grotius, H. Arnisœus, Ant. de Domi P. Bishop of Spalata, and of other late anti-magistratical royalists, as the author of Ossorianum, D. Fern, E. Symmons, the doctors of Aberdeen, &c. : in XLIV questions. Rutherford, Samuel, 1600?-1661. 1644 (1644) Wing R2386; ESTC R12731 451,072 480

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Feast when Gods wrath was upon the Land contrary to Gods word Esa. 22.12 13 14. and what will this prove Presbyteries to be inconsistent with Monarchies 41. This Assembly is to judge what Doctrine is treasonable what then Surely the secret Counsell and King in a constitute Church is not Synodically to determine what is true or false Doctrine more then the Roman Emperor could make the Church Canon Act. 15. 42. M. Gibson M. Black preached against King James his maintaining the Tyranny of Bishops his sympathizing with Papists and other crying sins and were absolved in a generall Assembly shal this make Presbyteries inconsistent with Monarchie Nay but it proveth only that they are inconsistent with the wickednesse of some Monarchies and that Prelates have been like the four hundred false prophets that flattered King Achab and these men that preached against the sins of the King and Court by Prelates in both Kingdomes have been imprisoned Banished their Noses ript their cheeks burnt their eares cut 43. The Godly men that kept the Assembly of Aberdeen An. 1603. did stand for Christs Prerogative when K. James took away all generall Assemblies as the event proved and the King may with as good warrant inhibit all Assemblies for Word and Sacraments as for Church Discipline 44. They excommunicate not for light faults and trifles as the Lyar saith our Discipline saith the contrary 45. This Assembly never took on them to chose the Kings Counsellours but these who were in authority took K. James when he was a child out of the Company of a corrupt and seducing Papist Esme Duke of Lennox whom the P. P. nameth Noble Worthy of eminent indowments 46. It is true Glasgow Assembly 1637. voted down the High Commission because it was not consented unto by the Church and yet was a Church Judicature which took upon them to judge of the Doctrine of Ministers and deprive them and did incroach upon the Liberties of the established lawfull Church judicatures 47. This Assembly might well forbid M. John Graham Minister to make use of an unjust decree it being scandalous in a Minister to oppresse 48. Though Nobles Barons and Burgesses that professe the truth be Elders and so Members of the generall Assembly this is not to make the Church the House and the Common-wealth the Hangings for the constistuent Members we are content to be examined by the patern of Synods Act. 15. v. 22 23. Is this inconsistent with Monarchie 49. The Commissioners of the generall Assembly are 1. A meer occasionall judicature 2. Appointed by and subordinate to the Generall Assembly 3. They have the same warrant of Gods Word that Messengers of the Synod Act. 15. v. 22.27 hath 50. The historicall calumnie of the 17. day of December is known to all 1. That the Ministers had any purpose to dethrone King James and that they wrote to John L. Marquesse of Hamilton to be King because K. James had made defection from the true Religion Satan devised Spotswood and this P. P. vented this I hope the true history of this is known to all The holiest Pastors and professors in the Kingdom asserted this Government suffered for it contended with authority only for sin never for the power and Office These on the contrary side were men of another stamp who minded earthly things whose God was the world 2. All the forged inconsistency betwixt Presbyteries and Monarchies is an opposition with absolute Monarchie and concludeth with alike strength against Parliaments and all Synods of either side against the Law and Gospell preached to which Kings and Kingdoms are subordinate Lord establish Peace and Truth Farewell The Table of the Contents of the Book QUEST I. WHether Government be by a divine Law Affirmed Pag. 1. How Government is from God Ibid. Civill Power in the Root immediately from God Pag. 2 QUEST II. Whether or no Goverment be warranted by the Law of nature Affirmed Ibid. Civil societie naturall in radice in the root voluntary in modo in the manner Ibid. Power of Government and Power of Government by such and such Magistrates different Pag. 2 3. Civil subjection not formally from natures Law Pag. 3. Our consent to Laws penal not antecedently naturall Ibid. Government by such Rulers a secondary Law of nature Ibid. Family Government and politike different Ibid. Government by Rulers a secondary Law of nature Family Government and Civil different Pag. 4. Civil Government by consequent naturall Pag. 5. QUEST III. Whether Royall Power and definite Forms of Government be from God Affirmed Ibid. That Kings are from God understood in a fourfold sense Pag. 5 6. The Royall Power hath warrant from divine institution Pag. 6. The three forms of Government not different in spece and nature P. 8. How every form is from God Ibid. How Government is an ordinance of man 1 Pet. 2.13 Pag. 8 9. QUEST IV. Whether or no the King be onely and immediately from God and not from the people Prius distinguitur posterius prorsus Negatur pag. 5. How the King is from God how from the people Ibid. Royall Power three wayes in the people P. 6 10. How Royall Power is radically in the people P. 7. The people mak●th the King Ibid. How any form of Government is from God P. 8. How Government is a humane ordinance 1 Pet. 2.3 P. 8 9. The people creat the King P. 10 11. Making a King and choosing a King not to be distinguished P. 12 13. David not a King formally because anointed by God P. 14 15. QUEST V. Whether or no the P. P. proveth that Soveraignty is immediately from God not from the people p. 16. Kings made by the people though the Office in abstracto were immediately from God P. 16. The people have a reall action more then approbation in making a King P. 19 Kinging of a person ascribed to the people P. 20. Kings in a speciall manner are from God but it followeth not Ergo not from the people P. 21. The place Prov. 8.15 proveth not but Kings are made by the people P. 22 23. Nebuchadnezzar and other heathen Kings had no just Title before God to the Kingdom of Judah and divers other subdued Kingdoms P. 26 27. QUEST VI. Whether or no the King be so allanerly from both in regard of Soveraignty and Designation of his person as he is no wayes from the people but onely by meer approbation Negatur pag. 28 29. The Forms of Government not from God by an act of naked Providence but by his approving will Ibid. Soveraignty not from the people by sole approbation P. 29 30. Though God have peculiar acts of providence in creating Kings it followeth not hence that the people maketh not Kings P. 31. The P. Prelate exponeth prophecies true onely of David Solomon and Iesus Christ as true of prophane heathen Kings P. 34 35. The P. P. maketh all the heathen Kings to be Princes anointed with the holy Oyl of saving grace Ibid. QUEST VII Whether the P. Prelate conclude that neither constitution nor designation of Kings is
Sam. 9.17 1 Sam. 10.1 we have not Saul elected and constituted king and Samuel did obeysance to him and kissed him for the honor Royall which God was to put upon him for before this propheticall unction 1 Sam. 9.22 he made him sit in the chiefe place and honored him as king when as yet Samuel was materially King and the Lords Vicegerent in Israel If then the Prelate conclude any thing from Samuel his doing reverence and obeysance to him as King it shall follow that Saul was formally King before Samuel 1 Sam. 10.1 anointed him and kissd him and that must be before he he was formally King otherwise he was in Gods appointment King before ever he saw Samuels face and it is true he ascribeth honour to him as to one appointed by God to be supreame Soveraigne for that which he should be not for that which he was as c. 9.22 he set him in the chiefest place and therefore it is false that we have Sauls election and constitution to be King 1 Sam. 10. for after that time the people are rebuked for seeking a King and that with a purpose to disswade them from it as a sinfull desire and he is chosen by Lots after that and made King after Samuels anoynting of him he was a private man and did hide himselfe amongst the stuffe v. 22.3 The Prelate if of ignorance or wilfully I know not saith the expression and phrase is the same 1 Sam. 12.13 and Ps. 2.6 which is false for 1 Sam. 12.13 it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 behold the Lord hath given you a King such is the expression Hos. 13.11 I gave them a King in my wrath but that expression is not Psal. 2.6 but this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but I have established him my King and though it were the same expression it followeth not that the people have not hand any other way in appointing Christ their head though that phrase also be in the word Hos. 1. v. 11. then by consenting and beleeving in him as King but this proveth not that the people in appointing a King hath no hand but naked approbation for the same phrase doth not expresse the same action nay the Iudges are to kisse Christ Ps. 2.12 the same way and by the same action that Samuel kissed Saul 1 Sam. 10.1 and the Idolaters kissed the calves Hos. 13.2 for the same Hebrew word is used in all the three places and yet it is certaine the first kissing is spirituall the second a kisse of honour and the third an Idolatrous kissing 4. The anoynting of Saul cannot be a leading rule to the making of all Kings to the worlds end for the P. Prelate forgetting himselfe said that onely some few as Moses Saul and David c. by extraordinary manifestation from Heaven were made Kings pa. 19.5 he saith it was not Arbitrary for the people to admit or reject Saul so designed What meaneth he it was not morally arbitrary because they were under a law Deut. 17.14 15. to make him King whom the Lord should choose That is true but was it not arbitrary to them to breake a law Physically I think he who is a professed Arminian will not side with Manicheans and Fatalists so but the P. Prelate must prove it was not Arbitrary either Morally or Physically to them not to accept Saul as their King because they had no action at all in the making of a King God did it all both by constituting and designing the King why then did God Deut. 17. give a Law to them to make such a man King not such a man if it was not in their free wil to have any action or hand in the making of a King at all but that some sonnes of Belial would not accept him as their King is expresly said 1 Sam. 10.27 and how did Israel conspire with Absolom to unking and dethron● David whom the Lord had made King If the Prelate meane it was not Arbitrary to them physically to reject Saul he speaketh wonders the sonnes of Belial did reject him ergo they had physicall power to doe it If he meane it was not arbitrary that is it was not lawfull to them to reject him that is true but doth it follow they had no hand nor action in making Saul King because it was not lawfull for them to make a King in a sinfull way and to refuse him whom God chose to be King then see what I inferre 1. Then they had no hand in obeying him as King because they sinne in obeying unlawfull commandements against Gods Law and so they had no hand in approving and consenting he should be King the contrary whereof the P. Prelate saith 2. So might the P. Prelate prove men are patientes and have no action in violating all the Commandements of God because it is not lawfull to them to violate any one Commandement 6 The Lord Deut. 17. vindicates this as proper and peculiar to himselfe to choose the person and to choose Saul What then ergo now the people choosing a King have no power to choose or name a man because God anoynted Saul and David by immediate manifestation of his Will to Samuel this consequence is nothing also it followeth in no wise that therefore the people made not Saul King 7. That the peoples approbation of a King is not necessary is Bellarmines and Papists saying and that the people chose their Ministers in the Apostolick Church not by a necessity of a divine Commandement but to conciliate love betwixt Pastor and people Papists hold that if the Pope make a ●●pish King the head and King of Britaine against the peoples will yet is he their King 8. David was then King all the time that Saul presecuted him he sinned truely in not discharging the duty of a King onely because he wanted a ceremony the peoples approbation which the Prelate saith is required to the solemnity and pompe not to the necessity and truth and essence of a formall King So the Kings Coronation Oath and the peoples Oath must be Ceremonies and because the Prelate is perjured himselfe therefore perjury is but a ceremony also 9. The enthronization of Bishops is like the Kinging of the Pope the Apostles must spare Thrones while they come to Heaven Luk. 22.29 30. the P. Prelates with their head the Pope must be enthroned 10. The hereditary King he maketh a King before his Coronation and his Acts are as valid before as after his Coronation it might cost him his head to say that the Prince of Wales is now no lesse King of Britaine and his Acts Acts of Kingly Royalty no lesse then our Soveraigne is King of Britaine if Lawes and Parliaments had their owne vigour from royall Authority 11. I allow that Kings be as high as God hath placed them but that God said of all Kings I will make him my first borne c. Psalm 89.26 27. which is true of Solomon as the Type 2 Sam 7.
because of Saul the son of Kish And they were amongst the mighty men helpers of the warre It is a scorne to say that their might and their helping in warre consisted in being meere patients with David and such as fled from Saul for they had beene on Sauls side before and to come with armour to flee is a mocking of the word of God 2. It is cleare the scope of the Spirit of God is to shew how God helped his innocent servant David against his persecuting Prince and Master King Saul in moving so many mighty men of warre to come in such multitudes all in Armes to help him in warre Now to what end would the Lord commend them as fit for Warre men of might fit to handle shield buckler whose faces are as the faces of Lyons as swift as the Roes on the Mountaines ver 8. and commend them as helpers of David if it were unlawfull for David and all those mighty men to carry Armes to pursue Saul and his followers and to doe nothing with their armour but flee Judge if the Spirit of God in reason could say All these men came armed with bowes ver 2. and could handle both the right hand and the left in slinging stones and shooting of arrowes and that ver 22. all these came to David being mighty men of valour and they came as Captains over hundreds and thousands they put to slight all them of the valleyes both toward the East and toward the West ver 14 15. and that David received them and made them Captains of the band if they did not come in a posture of warre and for hostile invasion if need were For if they came on●ly to suffer and to flee not to pursue Bowes Captaines and Captaines of Bands made by David and Davids helpers in the warre came not to help David by ●lying that was a hurt to David not a help It is true M. Symmons saith 1 Sam. 22.2 Those that came out to David strengthened him but he strengthened not them and David might easily have revenged himselfe on the Ziphites who did good will to betray him to the hands of Saul if his conscience had served him Answ. 1. This would inferre that these armed men came to help David against his conscience and that David was a patient in the businesse the contrary is in the Text 1 Sam. 26.2 David became a Captaine over them and 1 Chron. 12.17 If ye come peaceably to help me my heart shall be knit to you ver 18. Then David received them and made them Captains of the band 2. David might have revenged himselfe upon the Ziphites True but that Conscience hindred him cannot be proved To pursue an enemie is an act of a Councell of Warre and he saw it would create more enemies not help his Cause 3. To David to kill Saul sleeping and the people who out of a mis-informed conscienc● came out many of them to help their lawfull Prince against a Traitor as was supposed seeking to kill their King and to usurp the throne had not been wisdome nor justice because to kill the enemie in a just self-defence must be when the enemie actually doth invade and the life of the defendant cannot be otherwise saved A sleeping enemie is not in the act of unjust pursuit of the innocent but if an Armie of Papists Philistims were in the fields sleeping pursuing not one single David onely for a supposed personall wrong to the King but lying in the fields and campe against the whole Kingdome and Religion labouring to introduce arbitrary Government Popery Idolatry and to destroy Lawes and Liberties and Parliaments then David were obliged to kill these murtherers in their sleep If any say The case is all one in a naturall self-defence what ever be the cause and who ever be the enemy because the self-defender is not to offend except the unjust Invader be in actuall pursuit now Armies in their sleep are not in actuall pursuit Answ. Wh●n one man with a multitude invadeth one man that one man may pursue as he seeth most conducible for self-defence Now the Law saith Threatnings and terror of Armour maketh imminent danger and the case of pursuit in self-defence lawfull i● therefore an Armie of Irish Rebels and Spanyards were sleeping in their Camp and our King in a deep sleep in the midst of them and these R●b●ls actually in the Camp besieging the Parliament and the Citie of London most unjustly to take away Parliament Laws and Liberties of Religion it should follow that Generall Essex ought not to kill the Kings Majesty in his sleep for he is the Lords Anointed but 1. will it follow that Generall Essex may not kill the Irish Rebels sleeping about the King and that he may not rescue the Kings Person out of the hands of the Papists and Rebels ensnaring the King and leading him on to Popery and to employ his Authority to defend Popery and trample upon Protestant Parliaments and Lawes Certainly from this example this cannot be concluded For Armies in actuall pursuit of a whole Parliament Kingdome Lawes and Religion though sleeping in the Camp because in actuall pursuit may be invaded and killed though sleeping And David useth no argument from conscience why hee might not kill Sauls Armie I conceive he had not Armes to doe that and should have created more enemies to himselfe and hazard his owne life and the life of all his men if he had of purpose killed so many sleeping men yea the inexpedience of that for a private wrong to kill Gods mis-led people should have made all Israel enemies to David But David useth an Argument from Conscience onely to prove it was not lawfull for him to stretch forth his hand against the King and for my part so long as he remaineth King and is not dethroned by those who made him King at Hebron to put hands on his person I judge utterly unlawfull one man sleeping cannot be in actuall pursuit of another man so that the self-defender may lawfully kill him in his sleep but the case is farre otherwise in lawfull wars the Israelites might lawfully kill the Philistims encamping about Jerusalem to destroy it and Religion and the Church of God though they were all sleeping even though we suppose King Saul had brought them in by his Authority though he were sleeping in the midst of the uncircumcised Armies and it is evident that an hoast of armed enemies though sleeping by the law of self-defence may be killed lest they awake and kill us whereas one single man and that a King cannot be killed 2. I think certainly David had not done unwisely but hazarded his owne life and all his mens if he and Ahimelech and Ab●shai should have killed an host of their enemies sleeping that had been a work as impossible to three so hazard some to all his men D. Ferne as Arnisaeus did before him saith The example of David was extraordinary
dissimilitudes we grant but as the King is Gods vassal so is he a noble and Princely vassal to the Estates of a kingdom because they make him 2. They make him rather then another their noble servant 3. They make him for themselves and their own Godly quiet and honest life 4. They in their first election limit him to such a way to governe by law and give to him so much power for their good no more in these four acts they are above the Prince and so have a coercive power over him Arnisaeus n. 9. It is to make the Princes fidelity doubtfull to put him to an oath Lawyers say there is no need of an oath when a person is of approved fidelitie Answ. Then we are not to seek an oath of an inferiou r Magistrate of a Commander in wars of a pastor it is presumed these are of approved fidelity and it maketh their integritie obnoxious to sland●rs to put them to an oath 2. David was of more approved fidelity then any King now adayes and to put him to a covenant seemed to call his fidelity in question Ionathan sought an oath of David to deal kindly with his seed when he came to the throne Ieremiah sought an oath of the King of Iudah did they put any note of false-hood on them therefore Arnisaeus You cannot prove that ever any King gave an oath to their subjects in Scriptures Answ. What more unbeseeming Kings is it to swear to do their duty then to promise covenant wayes to do the same and a covenant you cannot deny 2. In a covenant for religious duties there was alwayes an oath 2 Chro. 15.12 13 14. hence the right of cutting a calf and swearing in a covenant Ier. 34.18 3. There is an oath that the people giveth to the King to obey him Eccles. 8.2 and a covenant 2 Sam. 5.1 2 3. mutuall between the king and people I leave it to the juditious if the people swear to the king obedience in a covenant mutuall and he swear not to them Arnisaeus sheweth to us a third sort of oath that limited Princes do swear this oath in Denmarke Suecia Polonia Hungaria is sworne by the kings who may do nothing without consent of the Senat and according to order of Law this is but the other two oathes specified and a Prince cannot contraveen his own contract the law saith in that the Prince is but as a private man in l. digna vox C. de ll Rom. cons. 426. n. 17. And it is known that the Emperour is constituted and created by the Princes Electors subject to them and by Law may be dethroned by them The B. of Rochester saith from Barclay none can denude a King of his power but he that gave him the power or hath an expresse commandement so to do from him that gave the power But God onely and the people gave the King his power Ergo God with the people having an expresse commandement from God must denude the King of power Answ. 1. This shall prove that God onely by an immediat action or some having an expresse commandement from him can deprive a preacher for scandals Christ onely or those who have an expresse commandement from him can excommunicate God only or the magistrate with him can take away the life of man and Numb 11.14 15 16. No inferiour Magistrates who also have their power from God immediatly Rom. 13.1 If we speak of the immediation of the office can devide inferiour judges of their power God only by the husbandmans paines maketh a fruitfull vineyard Ergo the husbandman cannot make his vineyard grow over with nettles and briars 2. The argument must run thus else the assumption shall be false God onely by the action of the people as his instrument and by no other action make a lawfull King God onely by the action of the people as his instrument can make a King God onely by the action of the people as his instrument can dethrone a King for as the people making a King are in that doing what God doth before them and what God doth by them in that very act so the people unmaking a King doth that which God doth before the people both the one and the other according to Gods rule obligeth Deut. 17.14.15.16.17.18.19.20 The Prelate whose tribe seldom saith truth addeth As a fatherly power by God and natures law over a family was in the father of a family before the children could either transfer their power or consent to the translation of that power to him so a Kingly power which succeedeth to a paternal or fatherly power to governe many families yea a Kingdom was in that same father in relation to many families before these many families can transfer their power The Kingly power floweth immediately from God the people doth not transfer that power but doth onely consent to the person of the King or doth onely choose his person at some time And though this power were principally given to the people it is not so given to the people as if it were the peoples power not Gods for it is Gods power neither is it any other waies given to the people but as to a streame a beam and an instrument which may confer it to another M. Anton. de domini l. 6. c. 2. n 22.23 doth more subtilly illustrate the matter if the King should confer honour on a subject by the hand of a servant who had not power or freedom to confer that honour or not to confer it but by necessity of the Kings commandment must confer it nothing should hinder us to say that such a subject had his honour immediately from the King so the earth is immediately illuminated by the sun although light be received in the earth but by the interveening mediation of many inferiour bodies and elements because by no other thing but by the sun only is the light as an efficient cause in a nearest capacity to give light so the Royall power in whomsoever it be is immediatly from God onely though it be applyed by men to this or this person because from God onely and from no other the Kingly power is formally and effectively that which it is and worketh that which it worketh and if you ask by what cause is the tree immediatly turned in fire none sound in reason would say it is made fire not by the fire but by him that laid the tree on the fire Iohn P. P. would have stollen this argument also if he had been capable thereof Ans. 1. A fatherly power is in a father not before he have a child but indeed before his children by an act of their free-will consent that he be their father yea whether the children consent or no from a physical act of generation he must be the father let the father be the most wicked man let him be made by no moral requisite is he made a father nor can heever leave off physically