Lex, Rex The Law and the Prince by Samuel Rutherford 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 AID AND HELP OF THEIR DEAR BRETHREN OF ENGLAND; IN WHICH THEIR INNOCENCY IS ASSERTED, AND A FULL ANSWER IS GIVEN TO A SEDITIOUS PAMPHLET, ENTITULED, "SACRO-SANCTA REGUM MAJESTAS," OR THE SACRED AND ROYAL PREROGATIVE OF CHRISTIAN KINGS; UNDER THE NAME OF J. A., BUT PENNED BY JOHN MAXWELL, THE EXCOMMUNICATE POPISH PRELATE; WITH A SCRIPTURAL CONFUTATION OF THE RUINOUS GROUNDS OF W. BARCLAY, H. GROTIUS, H. ARNISÆU, ANT. DE DOMI. POPISH BISHOP OF SPALATO, AND OF OTHER LATE ANTI-MAGISTRATICAL ROYALISTS, AS THE AUTHOR OF OSSORIANUM, DR FERNE, E. SYMMONS, THE DOCTORS OF ABERDEEN, ETC. IN FORTY-FOUR QUESTIONS BY THE REV. SAMUEL RUTHERFORD SOMETIME PROFESSOR OF DIVINITY IN THE UNIVERSITY OF ST. ANDREWS. "But if you shall still do wickedly, ye shall be consumed, both ye and your king."—1 SAM. 12:25 EDINBURGH: ROBERT OGLE AND OLIVER & BOYD M. OGLE & SON AND WILLIAM COLLINS, GLASGOW D. DEWAR, PERTH. A. BROWN & CO., ABERDEEN. W. M'COMB, BELFAST HAMILTON, ADAMS & CO., AND JAMES NISBET & CO., LONDON MDCCCXLIII TABLE OF CONTENTS SKETCH OF THE LIFE OF RUTHERFORD AUTHOR'S PREFACE QUESTION I: Whether government be by a divine law How government is from God.—Civil power, in the root, immediately from God. QUESTION II: Whether or no government be warranted by the law of nature Civil society natural in radice, in the root, voluntary in modo, in the manner.—Power of government, and power of government by such and such magistrates, different.—Civil subjection not formally from nature's laws.—Our consent to laws penal, not antecedently natural.—Government by such rulers, a secondary law of nature.—Family government and politic different.—Government by rulers a secondary law of nature; family government and civil different.—Civil government, by consequent, natural. QUESTION III: Whether royal power and definite forms of government be from God That kings are from God, understood in a fourfold sense.—The royal power hath warrant from divine institution.—The three forms of government not different in specie and nature.—How every form is from God.—How government is an ordinance of man, 1 Pet. 2:13. QUESTION IV: Whether or no the king be only and immediately from God, and not from the people How the king is from God, how from the people.—Royal power three ways in the people.—How royal power is radically in the people.—The people maketh the king.—How any form of government is from God.— How government is a human ordinance, 1 Pet. 2:3.—The people create the king.—Making a king, and choosing a king, not to be distinguished.— David not a king formally, because anointed by God. QUESTION V: Whether or no the P. Prelate proveth that sovereignty is immediately from God, not from, the people Kings made by the people, though the office, in abstracto, were immediately from God.—The people have a real action, more than approbation, in making a king.—Kinging of a person ascribed to the people.—Kings in a special manner are from God, but it followeth not; therefore, not from the people.—The place, Prov. 8:15, proveth not but kings are made by the people.—Nebuchadnezzar, and other heathen kings, had no just title before God to the kingdom of Judah, and divers other subdued kingdoms. QUESTION VI: Whether or no the king be so allenarly from both, in regard of sovereignty and designation of his person, as he is noway from the people, but only by mere approbation The forms of government not from God by an act of naked providence, but by his approving will.—Sovereignty not from the people by sole approbation.—Though God have peculiar acts of providence in creating kings, it followeth not hence that the people maketh not kings.—The P. Prelate exponeth prophecies true only of David, Solomon, and Jesus Christ, as true of profane heathen kings.—The P. Prelate maketh all the heathen kings to be princes, anointed with the holy oil of saving grace. QUESTION VII: Whether the P. Prelate conclude that neither constitution nor designation of kings is from the people The excellency of kings maketh them not of God's only constitution and designation.—How sovereignty is in the people, how not.—A community doth not surrender their right and liberty to their rulers, so much as their power active to do, and passive to suffer, violence.—God's loosing of the bonds of kings, by the mediation of the people's despising him, proveth against the P. Prelate that the Lord taketh away, and giveth royal majesty mediately, not immediately.—The subordination of people to kings and rulers, both natural and voluntary; the subordination of beasts and creatures to man merely natural.—The place, Gen. 9:5, "He that sheddeth man's blood," &c. discussed. QUESTION VIII: Whether or no the P. Prelate proveth, by force of reason, that the people cannot be capable of any power of government In any community there is an active and passive power to government.— Popular government is not that wherein the whole people are governors. —People by nature are equally indifferent to all the three governments, and are not under any one by nature.—The P. Prelate denieth the Pope his father to be the antichrist.—The bad success of kings chosen by people proveth nothing against us, because kings chosen by God had bad success through their own wickedness.—The P. Prelate condemneth king Charles' ratifying (Parl. 2, an. 1641) the whole proceedings of Scotland in this present reformation.—That there be any supreme judges is an eminent act of divine providence, which hindereth not but that the king is made by the people.—The people not patients in making a king, as is water in the sacrament of baptism, in the act of production of grace. QUESTION IX: Whether or no sovereignty is so in and from the people, that they may resume their power in time of extreme necessity How the people is the subject of sovereignty.—No tyrannical power is from God.—People cannot alienate the natural power of self-defence.— The power of parliaments.—The Parliament hath more power than the king.—Judges and kings differ.—People may resume their power, not because they are infallible, but because they cannot so readily destroy themselves as one man may do.—That the sanhedrim punished not David, Bathsheba, Joab, is but a fact, not a law.—There is a subordination of creatures natural, government must be natural; and yet this or that form is voluntary. QUESTION X: Whether or not royal birth be equivalent to divine unction Impunged by eight arguments.—Royalty not transmitted from father to son.—A family may be chosen to a crown as a single person is chosen, but the tie is conditional in both.—The throne, by special promise, made to David and his seed, by God, (Psal. 89,) no ground to make birth, in foro Dei, a just title to the crown.—A title by conquest to a throne must be unlawful, if birth be God's lawful title.—Royalists who hold conquest to be a just title to the crown, teach manifest treason against king Charles and his royal heirs.—Only, bona fortunæ, not honour or royalty, properly transmitable from father to son.—Violent conquest cannot regulate the consciences of people to submit to a conqueror as their lawful king.— Naked birth is inferior to that very divine unction, that made no man a king without the people's election.—If a kingdom were by birth the king might sell it.—The crown is the patrimony of the kingdom, not of him who is king, or of his father.—Birth a typical designment to the crown in Israel.—The choice of a family to the crown, resolveth upon the free election of the people as on the fountain cause.—Election of a family to the crown lawful. QUESTION XI: Whether or no he be more principally a king who is a king by birth, or he who is a king by the free election of the people The elective king cometh nearer to the first king. (Deut. 17)—If the people may limit the king, they give him the power.—A community have not power formally to punish themselves.—The hereditary and the elective prince in divers considerations, better or worse, each one than another. QUESTION XII: Whether or no a kingdom may lawfully be purchased by the sole title of conquest A Twofold right of conquest.—Conquest turned in an after-consent of the people, becometh a just title.—Conquest not a signification to us of God's approving will.—Mere violent domineering contrary to the acts of governing.—Violence hath nothing in it of a king.—A bloody conqueror not a blessing, per se, as a king is.—Strength as prevailing is not law or reason.—Fathers cannot dispose of the liberty of posterity not born.—A father, as a father, hath not power of life and death. Israel and David's conquests of the Canaanites, Edomites, Ammonites not lawful, because conquest, but upon a divine title of God's promise. QUESTION XIII: Whether or no royal dignity have its spring from nature, and how it is true "Every man is born free," and how servitude is contrary to nature Seven sorts of superiority and inferiority.—Power of life and death from a positive law.—A dominion antecedent and consequent.—Kings and subjects no natural order.—A man is born, consequenter, in politic relation.—Slavery not natural from four reasons.—Every man born free in regard of civil subjection (not in regard of natural, such as of children and wife, to parents and husband) proved by seven arguments.—Politic government how necessary, how natural.—That parents should enslave their children not natural. QUESTION XIV: Whether or no the people make a person their king conditionally or absolutely; and whether the king be tyed by any such covenant The king under a natural, but no civil obligation to the people, as royalists teach.—The covenant civilly tyeth the king proved by Scriptures and reasons, by eight arguments.—If the condition, without which one of the parties would never have entered into covenant, be not performed, that party is loosed from the covenant.—The people and princes are obliged in their places for justice and religion, no less than the king.—In so far as the king presseth a false religion on the people, eatenus, in so far they are understood not to have a king.—The covenant giveth a mutual co-active power to king and people to compel each other, though there be not one on earth higher than both to compel each of them.—The covenant bindeth the king as king, not as he is a man only.—One or two tyrannous acts deprive not the king of his royal right.—Though there were no positive written covenant (which yet we grant not) yet there is a natural, tacit, implicit covenant tying the king, by the nature of his office.—If the king be made king absolutely, it is contrary to Scripture and the nature of his office.—The people given to the king as a pledge, not as if they became his own to dispose of at his absolute will.—The king could not buy, sell, borrow, if no covenant should tie him to men.—The covenant sworn by Judah (2 Chron. 15) tyed the king. QUESTION XV: Whether the king be univocally, or only analogically and by proportion, a father Adam not king of the whole earth because a father.—The king a father metaphorically and improperly, proved by eight arguments. QUESTION XVI: Whether or no a despotical or masterly dominion agree to the king, because he is king The king hath no masterly dominion over the subjects as if they were his servants, proved by four arguments.—The king not over men as reasonable creatures to domineer.—The king cannot give away his kingdom or his people as if they were his proper goods.—A violent surrender of liberty tyeth not.—A surrender of ignorance is in so far involuntarily as it oblige not.—The goods of the subjects not the king's, proved by eight arguments.—All the goods of the subjects are the king's in a fourfold sense. QUESTION XVII: Whether or no the prince have properly the fiduciary or ministerial power of a tutor, husband, patron, minister, head, master of a family, not of a lord or dominator The king a tutor rather than a father as these are distinguished.—A free community not properly and in all respects a minor and pupil.—The king's power not properly marital and husbandly.—The king a patron and servant.—The royal power only from God, immediatione simplicis constitutionis, et solum solitudine causæ primæ, but not immediatione applicationis dignitatis ad personam.—The king the servant of the people both objectively and subjectively.—The Lord and the people by one and the same act according to the physical relation maketh the king.—The king head of the people metaphorically only, not essentially, not univocally, by six arguments.—His power fiduciary only. QUESTION XVIII: What is the law or manner of the king (1 Sam. 8:9, 11) discussed fully The power and the office badly differenced by Barclay.—What is ךלּמחּ תפשמ ָ the manner of the king, by the harmony of interpreters, ancient and modern, protestants and papists.—Crying out (1 Sam. 8) not necessarily a remedy of tyranny, nor a praying with faith and patience.—Resisting of kings that are tyrannous, and patience, not inconsistent.—The law of the king not a permissive law, as was the law of divorcement.—The law of the king (1 Sam. 12:23, 24) not a law of tyranny. QUESTION XIX: Whether or no the king be in dignity and power above the people In what consideration the king is above the people, and the people above the king.—A mean, as a mean, inferior to the end, how it is true.—The king inferior to the people.—The church, because the church, is of more excellency than the king, because king.—The people being those to whom the king is given, worthier than the gift.—And the people immortal, the king mortal.—The king a mean only, not both the efficient, or author of