Lex, rex: the law and the prince, a dispute for the just prerogative of king ... - Samuel Rutherford

The royalists make the king as absolute as the great Turk.-The king not absolute in his power,
proved by nine arguments.-Why the king is a living law.-Power to do ill not from God.-Roy-
alists say power to do ill is not from God, but power to do ill, as punishable by man, is from God.
-A king, actu primo, is a plague, and the people slaves, if the king, by God's institution, be abso-
lute.-Absoluteness of royalty against justice, peace, reason, and law. Against the king's relation
of a brother.-A damsel forced may resist the king. The goodness of an absolute prince hinder-
eth not but he is actu primo a tyrant.

PAGE

QUESTION XXIII.

Whether the king hath a prerogative royal above law,

Prerogative taken two ways.-Prerogative above laws a garland proper to infinite majesty.-A three-

fold dispensation, 1. Of power; 2. Of justice; 3. Of grace.-Acts of mere grace may be acts of

blood. An oath to the king of Babylon tyed not the people of Judah to all that absolute power

could command.-The absolute prince is as absolute in acts of cruelty, as in acts of grace.-Ser-

vants are not (1 Pet. ii. 18, 19) interdicted of self-defence. The parliament materially only, not

formally, hath the king for their lord.-Reason not a sufficient restraint to keep a prince from

acts of tyranny.-Princes have sufficient power to do good, though they have not absolute to do

evil.-A power to shed innocent blood can be no part of any royal power given of God.-The

king, because he is a public person, wanteth many privileges that subjects have.

QUESTION XXIV.

What relation the king hath to the law,

Human laws considered as reasonable, or as penal.-The king alone hath not a nemothetic power.-

Whether the king be above parliaments as their judge.-Subordination of the king to the parlia-

ment and co-ordination both consistent.-Each one of the three governments hath somewhat from

each other, and they cannot any one of them be in its prevalency conveniently without the mix-

ture of the other two.-The king as a king cannot err, as he erreth in so far, he is not the remedy

of oppression intended by God and nature.-In the court of necessity the people may judge the

king.-Human laws not so obscure as tyranny is visible and discernible.-It is more requisite

that the whole people, church, and religion be secured than one man.-If there be any restraint

by law on the king it must be physical, for a moral restraint is upon all men.-To swear to an ab-

solute prince as absolute, is an oath eatenus, in so far unlawful, and not obligatory.

106

113

QUESTION XXV.

Whether the supreme law, the safety of the people, be above the king,

The safety of the people to be preferred to the king, for the king is not to seek himself, but the

good of the people.-Royalists make no kings but tyrants.-How the safety of the king is the

safety of the people.-A king, for the safety of the people, may break through the letter and

paper of the law. The king's prerogative above law and reason, not comparable to the blood that

has been shed in Ireland and England. The power of dictators prove not a prerogative above law.

The law above the king in four things, 1. in constitution; 2. direction; 3. limitation; 4. co-action.-

In what sense the king may do all things.-The king under the morality of laws; under funda-

mental laws, not under punishment to be inflicted by himself, nor because of the eminency of his

place, but for the physical incongruity thereof.-If, and how, the king may punish himself.-That

the king transgressing in a heinous manner, is under the co-action of law, proved by seven argu-

ments. The coronation of a king, who is supposed to be a just prince, yet proveth after a tyrant,

is conditional and from ignorance, and so involuntary, and in so far not obligatory in law.-Roy-

alists confess a tyrant in exercise may be dethroned.-How the people is the seat of the power

of sovereignty. The place, Psal. li., "Against thee only have I sinned," &c. discussed.-Israel's

not rising in arms against Pharaoh examined.—And Judah's not working their own deliver-

ance under Cyrus.-A covenant without the king's concurrence lawful.

QUESTION XXVII.

Whether or no the king be the sole, supreme, and final interpreter of the law,.

He is not the supreme and peremptory interpreter.-Nor is his will the sense of the law.-Nor is

he the sole and only judicial interpreter of the law.

QUESTION XXVIII.

Whether or no wars raised by the estates and subjects for their own just defence

against the king's bloody emissaries be lawful,

The state of the question.-If kings be absolute, a superior judge may punish an inferior judge, not

as a judge but an erring man.-By divine institution all covenants to restrain their power must be

unlawful.-Resistance in some cases lawful.-Six arguments for the lawfulness of defensive wars.

Whether, in the case of defensive wars, 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 royal power that he hath from God and the people, can have place, 143

The king's person in concreto, and his office in abstracto, or, which is all one, the king using his
power lawfully to be distinguished (Rom. xiii).-To command unjustly maketh not a higher power.
The person may be resisted and yet the office cannot be resisted, proved by fourteen argu-
ments. Contrary objections of royalists and of the P. Prelate answered.-What we mean by the
person and office in abstracto in this dispute; we do 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 son,
father, wife, according to Scripture. We obey the king for the law, and not the law for the king.
-The losing of habitual and actual royalty different.-John xix. 10, Pilate's power of crucifying
Christ no law-power given to him of God, is proved against royalists, by six arguments.

QUESTION XXX.

Whether or no passive obedience be a mean to which we are subjected in conscience by

virtue of a divine commandment; and what a mean resistance is. That flying is

resistance,

The place, 1 Pet. ii. 18, discussed.-Patient bearing of injuries and resistance of injuries compatible
in one and the same subject.-Christ's non-resistance hath many things rare and extraordinary,

152

and is no leading rule to us.-Suffering is either commanded to us comparatively only, that we
rather choose to suffer than deny the truth; or the manner only is commanded, that we suffer
with patience.-The physical act of taking away the life, or of offending when commanded by the
law of self-defence, is no murder.-We have a greater dominion over goods and members, (except
in case of mutilation, which is a little death,) than over our life.-To kill is no of the nature
of self-defence, but accidental thereunto.-Defensive war cannot be without offending.-The na-
ture of defensive and offensive wars.-Flying is resistance.

QUESTION XXXI.

PAGE

Whether self-defence, by opposing violence to unjust violence, be lawful, by the law of

God and nature,
159

Self-defence in man natural, but modus, the way, must be rational and just.-The method of self-
defence.-Violent re-offending in self-defence the last remedy.-It is physically impossible for a
nation to fly in the case of persecution for religion, and so they may resist in their own self-de-
fence.-Tutela vitæ proxima and remota.-In a remote posture of self-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.-David would not kill Saul because he was the Lord's anointed. The king not lord
of chastity, name, conscience, and so may be resisted. By universal and particular nature, self-
defence lawful, proved by divers arguments. And made good by the testimony of jurists.-The
love of ourselves, the measure of the love of our neighbours, and enforceth self-defence.-Nature
maketh a private man his own judge and magistrate, when the magistrate is absent, and violence
is offered to his life, as the law saith.-Self-defence, how lawful it is.-What presumption is from
the king's carriage to the two kingdoms, are in law sufficient grounds of defensive wars.-Offen-
sive and defensive wars differ in the event and intentions of men, but not in nature and specie,
nor physically.-David's case in not killing Saul nor his men, no rule to us, not in our lawful de-
fence, to kill the king's emissaries, the cases far different.

QUESTION XXXII.

Whether or no the lawfulness of defensive wars can be proved from the Scripture,

from the examples of David, the people's rescuing Jonathan, Elisha, and the

eighty valiant priests who resisted Uzziah,

David warrantably raised an army of men to defend himself against the unjust violence of his prince
Saul.-David's not invading Saul and his men, who did not aim at arbitrary government, at sub-
version of laws, religion, and extirpation of those that worshipped the God of Israel and opposed
idolatry, but only pursuing one single person, far unlike to our case in Scotland and England
now.-David's example not extraordinary.-Elisha's resistance proveth defensive wars to be war-
rantable.-Resistance made to king Uzziah by eighty valiant priests proveth the same.-The peo-
ple's rescuing Jonathan proveth the same.-Libnah's revolt proveth this.-The city of Abel de-
fended themselves against Joab, king David's general, when he came to destroy a city for one
wicked conspirator, Sheba's sake.

166

QUESTION XXXIII.

Whether or no Rom. xiii. 1 make any thing against the lawfulness of defensive wars, 172

The king not only understood, Rom. xiii.-And the place, Rom. xiii., discussed.

QUESTION XXXIV.

Whether royalists prove, by cogent reasons, the unlawfulness of defensive wars,

Objections of royalists answered.-The place, Exod. xxii. 28, "Thou shalt not revile the gods," &c.

answered.-And Eccles. x. 20.-The place, Eccles. viii. 3, 4, "Where the word of a king is," &c.

answered. The place, Job. xxxiv. 18, answered.-And Acts xxiii. 3, "God shall smite thee, thou

whited wall," &c.—The emperors in Paul's time not absolute by their law. That objection, that

we have no practice for defensive resistance, and that the prophets never complain of the omis-

sion of the resistance of princes, answered.-The prophets cry against the sin of non-resistance,

when they cry against the judges, because they execute not judgment for the oppressed -Judah's

subjection to Nebuchadnezzar, a conquering tyrant, no warrant to us to subject ourselves to ty-

rannous acts.-Christ's subjection to Cæsar nothing against defensive wars.

175

QUESTION XXXV.

Whether the sufferings of the martyrs in the primitive church militant be against the

lawfulness of defensive wars,

Tertullian neither ours nor theirs in the question of defensive wars.

PAGE

182

Inferior judges have the power of the sword no less than the king.-The people tyed to acts of cha-

rity, and to defend themselves, the church, and their posterity against a foreign enemy, though

the king forbid.-Flying unlawful to the states of Scotland and England now, God's law tying

them to defend their country.-Parliamentary power a fountain-power above the king.

QUESTION XXXVII.

Whether the estates of Scotland are to help their brethren, the protestants of England,

against cavaliers, proved by argument 13,

Helping of neighbour nations lawful, divers opinions concerning the point. The law of Egypt

against those that helped not the oppressed.

184

187

QUESTION XXXVIII.

Whether monarchy be the best of governments,

Whether monarchy be the best of governments hath divers considerations, in which each one may

be less or more convenient.-Absolute monarchy is the worst of governments. Better want

power to do ill as have it.-A mixture sweetest of all governments-Neither king nor parliament

have a voice against law and reason.

QUESTION XXXIX.

Whether or no any prerogative at all above the law be due to the king. Or if jura

majestatis be any such prerogative,

A threefold supreme power.-What be jura regalia.-Kings confer not honours from their pleni-

tude of absolute power, but according to the strait line and rule of law, justice, and good observ-

ing. The law of the king, 1 Sam. viii. 9, 11.-Difference of kings and judges.-The law of the

king, (1 Sam. viii. 9, 11,) no permissive law, such as the law of divorce.-What dominion the king

hath over the goods of the subjects.

QUESTION XL.

Whether or no the people have any power over the king, either by his oath, covenant,

or any
other way,

The people have power over the king by reason of his covenant and promise.-Covenants and pro-

mises violated, infer co-action, de jure, by law, though not de facto. Mutual punishments may be

where there is no relation of superiority and inferiority. Three covenants made by Arnisæus.-

The king not king while he swear the oath and be accepted as king by the people.-The oath of the

kings of France.-Hugo Grotius setteth down seven cases in which the people may accuse, punish,

or dethrone the king. The prince a noble vassal of the kingdom upon four grounds.-The cove-

nant had an oath annexed to it. The prince is but a private man in a contract.-How the royal

power is immediately from God, and yet conferred upon the king by the people.

QUESTION XLI.

Whether doth the P. Prelate with reason ascribe to us doctrine of Jesuits in the

question of lawful defence,

The sovereignty is originally and radically in the people, as in the fountain, was taught by fathers,
ancient doctors, sound divines, lawyers, before there was a Jesuit or a prelate whelped, in rerum

natura.-The P. Prelate holdeth the Pope to be the vicar of Christ.-Jesuits' tenets concerning
kings. The king not the people's deputy by our doctrine, it is only the calumny of the P. Pre-
late. The P. Prelate will have power to act the bloodiest tyrannies on earth upon the church of
Christ, the essential power of a king.

PAGE

QUESTION XLII.

Whether all Christian kings are dependent from Christ, and may be called his vice-

gerents,

Why God, as God, hath a man a vicegerent under him, but not as mediator.-The king not headof the
church. The king a sub-mediator, and an under-redeemer, and a sub-priest to offer sacrifices to
God for us if he be a vicegerent.-The king no mixed person.-Prelates deny kings to be subject
to the gospel.-By no prerogative royal may the king prescribe religious observances and human
ceremonies in God's worship.-The P. Prelate giveth to the king a power arbitrary, supreme, and
independent, to govern the church.-Reciprocation of subjections of the king to the church, and of
the church to the king, in divers kinds, to wit, of ecclesiastical and civil subjection, are no more
absurd than for Aaron's priest to teach, instruct and rebuke Moses, if he turn a tyrannous Achab,
and Moses to punish Aaron if he turn an obstinate idolator.

QUESTION XLIII.

Whether the king of Scotland be an absolute prince, having a prerogative above laws

and parliaments,

The king of Scotland subject to parliaments by the fundamental laws, acts, and constant practices

of parliaments, ancient and late in Scotland.-The king of Scotland's oath at his coronation.-A

pretended absolute power given to James VI. upon respect of personal endowments, no ground of

absoluteness to the king of Scotland.-By laws and constant practices the kings of Scotland sub-

ject to laws and parliaments, proved by the fundamental law of elective princes, and out of the

most partial historians, and our acts of parliament of Scotland.-Coronation oath. And again at

the coronation of James VI. that oath sworn; and again, 1 Parl. James VI. ibid and seq.-How

the king is supreme judge in all causes.-The power of the parliaments of Scotland.-The Confes-

sion of the faith of the church of Scotland, authorised by divers acts of parliament, doth evi-

dently hold forth to all the reformed churches the lawfulness of defensive wars, when the supreme

magistrate is misled by wicked counsel.-The same proved from the confessions of faith in other

reformed churches.-The place, Rom. xiii., exponed in our Confession of faith.-The confession,

not only Saxonic, exhibited to the Council of Trent, but also of Helvetia, France, England, Bohe-

mia, prove the same.-William Laud and other prelates, enemies to parliaments, to states, and to

the fundamental laws of the three kingdoms of England, Scotland, and Ireland. The parliament

of Scotland doth regulate, limit, and set bounds to the king's power. Fergus the first king not a

conqueror.-The king of Scotland below parliaments, considerable by them, hath no negative

General results of the former doctrine in some few corollaries, in twenty-two ques-

tions,

227

Concerning monarchy, compared with other forms-How royalty is an issue of nature.--And how
magistrates, as magistrates, be natural.-How absoluteness is not a ray of God's majesty.-And
resistance not unlawful, because Christ and his apostles used it not in some cases.-Coronation is
no ceremony-Men may limit the power that they gave not.-The commonwealth not a pupil or
minor properly.-Subjects not more obnoxious to a king than clients, vassals, children, to their
superiors. If subjection passive be natural.-Whether king Uzziah was dethroned.-Idiots and
children not complete kings, children are kings in destination only.-Denial of passive subjection
in things unlawful, not dishonourable to the king, more than denial of active obedience in the
same things.-The king may not make away or sell any part of his dominions.-People may in
some cases convene without the king.-How, and in what meaning subjects are to pay the king's
debts. Subsidies the kingdom's due, rather than the king's.-How the seas, ports, forts, castles,
militia, magazine, are the king's, and how they are the kingdom's.

« Previous Continue »

Books