vereignty of masters over servants was absolute, and the apostle exhorteth not to renounce that title as too rigid, but exhorteth to moderation in the use of it.

Ans. 1.-That the Persian monarchy was absolute is but a facto ad jus, and no rule of a lawful monarchy; but that it was absolute, I believe not. Darius, who was an absolute prince, as many think, but I think not, would gladly have delivered Daniel from the power of a law, (Dan. vi. 14,) “And he set his heart on Daniel to deliver him, and he laboured till the going down of the sun to deliver him," and was so sorrowful that he could not break through a law, that he interdicted himself of all pleasures of musicians; and if ever he had used the absoluteness of a prerogative royal, I conceive he would have done it in this, yet he could not prevail. But in things not established by law I conceive Darius was absolute, as to me is clear, (Dan vi. 24,) but absolute not by a divine law, but de facto, quod transierat in jus humanum, by fact, which was now become a law.

2. It was God's oath, and God tied Judah to absolute subjection, therefore, people may tie themselves. It followeth not, except you could make good this inference: 1. God is absolute, therefore the king of Babylon may lawfully be absolute. This is a blasphemous consequence. 2. That Judah was to swear the oath of absolute subjection in the latitude of the absoluteness of the kings of Chaldea, I would see proved. Their absoluteness by the Chaldean laws was to command murder, idolatry, (Dan. iii. 4, 5,) and to make wicked laws. (Dan. vi. 7, 8.) I believe Jeremiah commanded not absolute subjection in this sense, but the contrary. (Jer. x. 11.) They were to swear the oath in the point of suffering; but what if the king of Chaldea had commanded them all, the whole holy seed, men, women and children, out of his royal power, to give their necks all in one day to his sword, were they obliged by this oath to prayers and tears, and only to suffer? and was it against the oath of God to defend themselves by arms? I believe the oath did not oblige to such absolute subjection, and though they had taken arms in their own lawful defence, according to the law of nature, they had not broken the oath of God. The oath was not a tie to an absolute subjection of all and every one, either to worship idols, or then to fly or suffer death. Now,

What

the Service Book commanded, in the king's absolute authority,. all Scotland to commit grosser idolatry, in the intention of the work, if not in the intention of the commander, than was in Babylon. We read not that the king of Babylon pressed the consciences of God's people to idolatry, or that all should either fly the kingdom, and leave their inheritances to papists and prelates, or then come under the mercy of the sword of papists and atheists by sea or land. 3. God may command against the law of nature, and God's commandment maketh subjection lawful, so as men may not now, being under that law of God, defend themselves. then? Therefore we owe subjection to absolute princes, and their power must be a lawful power, it nowise is consequent. God's commandment by Jeremiah made the subjection of Judah lawful, and without that commandment they might have taken arms against the king of Babylon, as they did against the Philistines; and God's commandment maketh the oath lawful. As suppose Ireland would all rise in arms, and come and destroy Scotland, the king of Spain leading, then we were by this argument not to resist. 4. It is denied, that the power, (Rom. xiii.,) as absolute, is God's ordinance. And I deny utterly that Christ and his apostles did swear non-resistance absolute to the Roman emperor.

Obj. 2.-It seemeth, (1 Pet. ii. 18, 19,) if well-doing be mistaken by the reason and judgment of an absolute monarch for illdoing, and we punished, yet the magistrate's will is the command of a reasonable will, and so to be submitted unto; because such a one suffereth by law, where the monarch's will is a law, and in this case some power must judge. Now in an absolute monarchy all judgment resolveth in the will of the monarch, as the supreme law; and if ancestors have submitted themselves by oath, there is no repeal or redressment,

Ans. Whoever was the author of this treatise he is a bad defender of the defensive wars in England, for all the lawfulness of wars then must depend on this: 1. Whether England be a conquered nation at the beginning? 2. If the law-will of an absolute monarch, or a Nero, be a reasonable will, to which we must submit in suffering ill, I see not but we must submit to a reasonable will, if it be reasonable will in doing ill, no less than in suffering ill. 3. Absolute will in absolute monarchies is no

judge de jure, but an unlawful and a usurping judge. (1 Pet. ii. 18, 19.) Servants are not commanded simply to suffer. (I can prove suffering formally not to fall under any law of God, but only patient suffering. I except Christ, who was under a peculiar commandment to suffer.) But servants, upon supposition that they are servants, and buffeted unjustly by their masters, are, by the apostle Peter, commanded (ver. 20) to suffer patiently. But it doth not bind up a servant's hand to defend his own life with weapons if his master invade him, without cause, to kill him; otherwise, if God call him to suffer, he is to suffer in the manner and way as Christ did, not reviling, not threatening. 4. To be a king and an absolute master to me are contradictory. A king essentially is a living law; an absolute man is a creature that they call a tyrant, and no lawful king. Yet do I not mean that any that is a king, and usurpeth absoluteness, leaveth off to be a king; but in so far as he is absolute he is no more a king than in so far as he is a tyrant. But further, the king of England saith in a declaration, 1. The law is the measure of the king's power. 2. Parliaments are essentially lord-judges, to make laws essentially, as the king is, therefore, the king is not above the law. 3. Magna Charta, saith the king, can do nothing but by laws, and no obedience is due to him but by law. 4. Prescriptions taketh away the title of conquests.

Obj. 3.-The king, not the parliament,

is the anointed of God.

Ans. The parliament is as good, even a congregation of gods. (Ps. lxxxii. 6.)

Obj. 4. The parliament in the court, in their acts, they say, with consent of our sovereign lord.

Ans. They say not at the commandment and absolute pleasure of our sovereign lord. He is their lord materially, not as they are formally a parliament, for the king made them not a parliament; but sure I am the parliament had power before he was king, and made him king. (1 Sam. x. 17, 18.)

Obj. 5.-In an absolute monarchy there is not a resignation of men to any will as will, but to the reasonable will of the monarch, which, having the law of reason to direct it, is kept from injurious acts.

Ans. If reason be a sufficient restraint, and if God hath laid no other restraint upon some lawful king, then is magistracy a lame,

a needless ordinance of God; for all mankind hath reason to keep themselves from injuries, and so there is no need of judges or kings to defend them from either doing or suffering injuries. But certainly this must be admirable,-if God, as author of nature, should make the lion king of all beasts, the lion remaining a devouring beast, and should ordain by nature all the sheep and lambs to come and submit their bodies to him, by instinct of nature, and to be eaten at his will, and then say, the nature of a beast in a lion is a sufficient restraint to keep the lion from devouring lambs. Certainly, a king being a sinful man, and having no restraint on his power but reason, he may think it reason to allow rebels to kill, drown, hang, torture to death, an hundred thousand protestants, men, women, infants in the womb, and sucking babes, as is clear in Pharaoh, Manasseh, and other princes.

Obj. 6. There is no court or judge above the king, therefore he is absolutely supreme. Ans. The antecedent is false. 1. The court that made the king of a private man is above him; and here are limitations laid on him at his coronation. 2. The states of parliament are above him, to censure him. 3. In case of open tyranny, though the states had not time to convene in parliament, if he bring on his people an host of Spaniards or foreign rebels, his own conscience is above him, and the conscience of the people far more, called conscientia terra, may judge him in so far as they may rise up and defend themselves.

Obj. 7.-Here the Prelate, (c. 14, p. 144,) borrowing from Grotius, Barclay, Arnisæus, (or it is possible he be not so far travelled, for Dr Ferne hath the same,)

66

Sovereignty weakened in aristocracy cannot do its work, and is in the next place to anarchy and confusion. When Zedekiah was overlorded by his nobles, he could neither save himself nor the people, nor the prophet, the servant of God, Jeremiah; nor could David punish Joab when he was overawed by that power he himself had put in his head. To weaken the hand is to distemper the whole body; if any good prince, or his royal ancestors, be cheated of their sacred right by fraud or force, he may, at his fittest opportunity, resume it. What a sin it is to rob God or the king of their due !"

Ans.-Aristocracy is no less an ordinance

of God than royalty, for (Rom. xiii. 1, and 1 Tim. ii.)-1. All in authority are to be acknowledged as God's vice-regents, the senate, the consuls, as well as the emperor; and so one ordinance of God cannot weaken another, nor can any but a lawless animal say, aristocracy bordereth with confusion; but he must say, order and light are sister-germans to confusion and darkness. 2. Though Zedekiah, a man void of God, was over-awed by his nobles, and so could not help Jeremiah, it followeth not that because kings may not do this and this good, therefore they are to be invested with power to do all ill if they do all the good that they have power to do, they will find way to help the oppressed Jeremiahs, And, because power to do both good and evil is given by the devil to our Scottish witches, it is a poor consequent that the states should give to the king power absolute to be a tyrant. 3. A state must give a king more power than ordinary, especially to execute laws, which requireth singular wisdom, when a prince cannot always have his great council about with him to advise him. 1. That is power borrowed, and by loan, and not properly his own; and therefore it is no sacrilege in the states to resume what the king hath by a fiduciary title, and borrowed from them. 2. This power was given to do good, not evil. David had power over Joab to punish him for his murder, but he executed it not upon carnal fears, and abused his power to kill innocent Uriah, which power neither God nor the states gave him. But how proveth he the states took power from David, or that Joab took power from David to put to death a murderer? That I see not. 3. If princes' power to do good be taken from them, they may resume it when God giveth opportunity; but this is to the Prelate perjury, that the people by oath give away their power to their king and resume it when he abuseth it to tyranny. But it is no perjury in the king to resume a taken-away power, which, if it be his own, is yet lis sub judice, a great controversy, Quod in Cajo licet, in Nevio non licet. So he teacheth the king that perjury and sacrilege is lawful to him. If princes' power to do ill and cut the whole land off as one neck, (which was the wicked desire of Caligula,) be taken from them by the states, I am sure this power was never theirs, and never the people's; and you cannot take the prince's power from him which was never his power. I

am also sure the prince should never resume an unjust power, though he were cheated of it.

P. Prelate. It is a poor shift to acknowledge no more for the royal prerogative than the municipal law hath determined, as some smatterers in the law say. They canuot distinguish betwixt a statute declarative and a statute constitutive; but the statutes of a kingdom do declare only what is the prerogative royal, but do not constitute or make it. God Almighty hath by himself constituted it. It is laughter to say the decalogue was not a law till God wrote it.

Ans.-Here a profound lawyer calleth all smatterers in the law, who cannot say that non ens, a prerogative royal, that is, a power contrary to God and man's law to kill and destroy the innocent, came not immediately down from heaven. But I profess myself no lawyer; but do maintain against the Prelate that no municipal law can constitute a power to do ill, nor can any law either justly constitute or declare such a fancy as a prerogative royal. So far is it from being like the decalogue, that is, a law before it be written, that this prerogative is neither law before it be written, nor after court-hunters have written for it; for it must be eternal as the decalogue if it have any blood from so noble a house. In what scripture hath God Almighty spoken of a fancied prerogative royal?

P. Prelate (p. 145).-Prerogative resteth not in its natural seat, but in the king. God saith, Reddite, not Date, render to kings that which is kings, not give to kings; it shall never be well with us if his anointed and his church be wronged.

-

Ans. - The Prelate may remember a country proverb: he and his prelates (called the church, the scum of men, not the church,) are like the tinker's dogs,-they like good company-they must be ranked with the king. And hear a false prophet: It shall never be well with the land while arbitrary power and popery be erected, saith he, in good sense.

P. Prelate (c. 16, p. 170, 171).-The king hath his right from God, and cannot make it away to the people. Render to Cæsar the things that are Cæsar's. Kings' persons, their charge, their right, their authority, their prerogative, are by Scriptures, fathers, jurists, sacred, inseparable ordinances inherent in their crowns,-they cannot be made away; and when they are

given to inferior judges, it is not ad minu endam majestatem, sed solicitudinem, to lessen sovereign majesty, but to ease them,

Ans.-The king hath his right from God. What, then not from the people? I read in Scripture, the people made the king, never that the king made the people. All these are inseparably in the crown, but he stealeth in prerogative royal, in the clause which is now in question, "Render to Cæsar all Cæsar's;" and therefore, saith he, render to him a prerogative, that is, an absolute power to pardon and sell the blood of thousands. Is power of blood either the the king's, or inherent inseparably in his crown? Alas! I fear prelates have made blood an inseparable accident of his throne, When kings, by that public power given to them at their coronation, maketh inferior judges, they give them power to judge for the Lord, not for men. (Deut. i. 17; 2 Chron. xix. 6.) Now, they cannot both make away a power and keep it also; for the inferior judge's conscience hangeth not at the king's girdle. He hath no less power to judge in his sphere than the king hath in his sphere, though the orb and circle of motion be larger in compass in the one than in the other; and if the king cannot give himself royal power, but God and the people must do it, how can he communicate any part of that power to inferior judges except by trust? Yea, he hath not that power that other men have in many respects :—

1. He may not marry whom he pleaseth ; for he might give his body to a leper woman, and so hurt the kingdom.-2. He may not do as Solomon and Ahab, marry the daughter of a strange god, to make her the mother of the heir of the crown, He must in this follow his great senate. He may not expose his person to hazard of wars.-3. He may not go over sea and leave his watch-tower, without consent.-4. Many acts of parliament of both kingdoms discharge papists to come within ten miles of the king,-5. Some pernicious counsellors have been discharged his company by laws,—6. He may not eat what meats he pleaseth.-7. He may not make wasters his treasurers.-8. Nor dilapidate the rents of the crown.-9. He may not disinherit his eldest son of the crown at his own pleasure.-10. He is sworn to follow no false gods and false religions, nor is it in his power to go to mass.-11. If a priest say mass to the king, by the law he is hanged, drawn and quartered.-12. He may not

write letters to the Pope, by law.-13. He may not, by law, pardon seducing priests and Jesuits.-14. He may not take physic for his health but from physicians, sworn to be true to him.-15. He may not educate his heir as he pleaseth.-16. He hath not power of his children, nor hath he that power that other fathers have, to marry his eldest son as he pleaseth.-17. He may not befriend a traitor.-18. It is high treason for any woman to give her body to the king, except she be his married wife.-19. He ought not to build sumptuous houses without advice of his council. 20, He may not dwell constantly where he pleaseth,-21. Nor may he go to the country to hunt, far less to kill his subjects and desert the parliament. -22. He may not confer honours and high places without his council.-23. He may not deprive judges at his will.-24. Nor is it in his power to be buried where he pleaseth, but amongst the kings. Now, in most of these twenty-four points, private persons have their own liberty far less restricted than the king.

QUESTION XXIV.

WHAT POWER THE KING HATH IN RELATION TO THE LAW AND THE PEOPLE, AND HOW A KING AND A TYRANT DIFFER.

Mr Symmons saith, (sect. 6, p. 19,) that authority is rooted rather in the prince than in the law; for as the king giveth being to the inferior judge, so he doth to the law itself, making it authorisable; for propter quod unum-quodque tale, id ipsum magis tale, and therefore the king is greater than the law; others say, that the king is the fountain of the law, and the sole and only lawgiver.

Assertion First.-1. The law hath a twofold consideration,-(1.) Secundum esse pœnale, in relation to the punishment to be inflicted by man. (2.) Secundum esse legis, as it is a thing legally good in itself. In the former notion it is this way true,-human laws take life and being, so as to be punished or rewarded by men, from the will of princes and law-givers; and so Symmons saith true, because men cannot punish or reward laws but where they are made; and

1 Barclaius, lib. 4, c. 23, p. 225.

R

the will of rulers putteth a sort of stamp on a law, that it bringeth the commonwealth under guiltiness if they break this law. But this maketh not the king greater than the law, for therefore do rulers put the stamp of relation to punishment on the law, because there is intrinsical worth in the law prior to the act of the will of lawgivers for which it meriteth to be enacted; and, therefore, because it is authorisable as good and just, the king putteth on it this stamp of a politic law. God formeth being and moral aptitude to the end in all laws, to wit, the safety of the people, and the king's will is neither the measure nor the cause of the goodness of kings.

2. If the king be he who maketh the law good and just, because he is more such himself, then as the law cannot crook, and err, nor sin, neither can the king sin, nor break a law. This is blasphemy; every man is a liar a law which deserveth the name of a law cannot lie.

3. His ground is, that there is such majesty in kings, that their will must be done either in us or on us. A great untruth. Ahab's will must neither be done of Elias, for he commandeth things unjust, nor yet on Elias, for Elias fled, and lawfully we may fly tyrants; and so Ahab's will in killing

Elias was not done on him.

Assertion Second.-1. Nor can it be made good, that the king only hath power of making laws, because his power were then absolute to inflict penalties on subjects, without any consent of theirs; and that were a dominion of masters, who command what they please, and under what pain they please. And the people consenting to be ruled by such a man, they tacitly consent to penalty of laws, because natural reason saith, an illdoer should be punished; (Florianus in l. inde. Vasquez, ì. 2, c. 55, n. 3,) therefore they must have some power in making these laws.

2. Jer. xxvi., It is clear the princes judge with the people. A nomothetic power differeth gradually only from a judicial power, both being collateral means to the end of government, the people's safety. But parliaments judge, therefore they have a nomothetic power with the king.

3. The parliament giveth all supremacy to the king, therefore to prevent tyranny, it must keep a co-ordinate power with the king in the highest acts.

4. If the kingly line be interrupted, if

the king be a child or a captive, they make laws who make kings; therefore, this nomothetic power recurreth into the states, as to the first subject.

Obj.-The king is the fountain of the law, and subjects cannot make laws to themselves more than they can punish themselves. He is only the supreme.

Ans.-The people being the fountain of the king must rather be the fountain of laws. It is false that no man maketh laws to himself. Those who teach others teach themselves also, (1 Tim. ii. 12; 1 Cor. xiv. 34,) though teaching be an act of authority. But they agree to the penalty of the law secondarily only; and so doth the king who, as a father, doth not will evil of punishment to his children, but by a consequent will. The king is the only supreme in the power ministerial of executing laws; but this is a derived power, so as no one man is above him; but in the fountain-power of royalty the states are above him.

the

5. The civil law is clear, that the laws of emperor have force only from this fountain, because the people have transferred their power to the king. Lib. 1, digest. tit. 4, de constit. Princip. leg. 1, sic Ulpian. Quod principi placuit, (loquitur de principe formaliter, qua princeps est, non qua est homo,) legis habet vigorem, utpote cum legi regia, quæ de imperio ejus lata est. populus ei, et in cum, omne suum imperium et potestatem conferat. Yea, the emperor himself may be convened before the prince elector. (Aurea Bulla Carol. 4, Imper. c. 5.) The king of France may be convened before the senate of Paris. The states may resist a tyrant, as Bossius saith, (de principe, et privileg. ejus, n. 55. Paris de puteo, in 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 Baal's priests to converse with the king. And is not this the sin of the land, that they suffer their king to worship idols? And, therefore, the land is punished for the sins 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 mass. (Hist. of Scotland.) Surely the power, or sea prerogative, of a sleepy or mad pilot, to split the ship on a rock, as I conceive, is

1 Symmons' Loyal Subject, sect. 5, p. 8.