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.

QUEST. XXXVI. Whether the power of Warre be onely in the King?

IT is not hard to determine this question: The Sword in a con∣stitute Common-wealth is given to the Judge supreme, or sub∣ordinate, Rom. 13.4. He beareth not the sword in vaine, in the Em∣pire; the use of Armour is restricted to the Emperour by a positive Law; so the Law saith, Armorum officia nisi jussu Principis sunt in∣terdi••••a, lib. de Cod. de Lege. 1. Imperat Valentinian. nulli, nobis inconsultis, usus armorum tribuatur, ad 1. Jul. Mai. l. 3. Warre is a species, and a particular, the sword is a generall.

Assert. 1. The power of the sword by Gods Law is not proper & p••culiar to the King only,* 1.1 but given by God, to the inferiour Judges. 1. Because the inferiour Judge is essentially a Judge no lesse then the ••ing, as is proved, and therefore he must beare the sword, Rom. 13.4. 2 Not Moses onely, but the Congregation of Israel had power of life and death, and so of the sword, Numb. 35.12. The

manslayer shall not die, untill he stand before the Congregation in judgement, ver. 24. Then the Congregation shall judge betweene the slayer and the avenger of blood, Deut. 22.18. The Elders of the City shall take that man and chastise him. 21. The men of the Citie shall stone her with stones, Deu. 17.5. Deu. 19.12, 13. v. 18, 19, 20, 21. Deu. 21.19. Then shall his father and his mother bring him to the Elders of his City. 21. And the men of the City shall stone him with stones. 1 King. 21.11. The Elders and Nobles that were inhabitants in his City stoned Naboth. 3. Inferiou•• Judges are condemned as murtherers, who have shed innocent blood, Esay 1.21. Psal. 94.5.6. Ier. 22.3. Ezek. 22.12. ver. 27. Hosea 6.8. Zephan. 3.1, 2, 3. Ergo, they must have the power of the sword, hence upon the same grounds.

Assert. 2. That the King onely hath the power of warre, and raising Armies must be but a positive civill Law. For, 1. by divine right, if the inferiour Judges have the sword given to them of God, then have they also power of Warre, and raising Armies. 2. All power of warre that the King hath is cumulative, not privative, and not distructive, but given for the safety of the Kingdome, as there∣fore the King cannot take from one particular man the power of the sword for naturall self-preservation, because it is the birth-right of life; neither can the King take from a community and Kingdome a power of rising in Armes for their owne defence: If an Armie of Turks shall suddenly invade the Land, and the Kings consent ex∣presse cannot be had (for it is essentially involved in the office of the King as King, that all the power of the swo••d that he hath, be for their safety) or if the King should as a man refuse his consent, and interdict and discharge the Land to rise in Armes, yet they have his Royall consent, though they want his personall consent, in respect that his office obligeth him to command them to rise in Armes. 2. Because no King, no Civill power can take away Natures birth-right of self-defence from any man, or a community of men.* 1.2 2. Be∣cause if a King should sell his Kingdome, and invite a bloody Con∣querour to come in with an Armie of men to destroy his people, impose upon their conscience an Idolatrous Religion, they may lawfully rise against that Armie, without the Kings consent, for though Royalists say, they need not come in asinine patience, and offer their throats to cut-throats but may flee, yet two things hinde∣reth a flight. 1. They are obliged by vertue of the first Commande∣ment to re-man, and with their sword defend the Cities of the

Lord, and the King. 2 Sam. 10.12. 1 Chron. 19.13. for if to de∣fend our Country and children, and the Church of God from unjust invaders and cut-throats by the sword, be an act of charity, that God and the Law of Nature requireth of a people, as is evident, Prov. 24.11. and if the fift Commandement oblige the Land to defend their aged Parents and young children from these invaders, and i•• the sixt Commandement lay on us the like bond, all the Land are to act works of mercy and charity, though the King un∣justly command the contrary; except Royalists say, that we are not to performe the duties of the second Table commanded by God, if an earthly King forbid us; and if we exercise not acts of mercy to∣ward our brethren, when their life is in hazard, to save them, wee are murtherers, and so men may murther their neighbour, if the King command them so to doe;* 1.3 this is like the Court-faith. 2. The Kin••s power of warres is for the safety of his people; if he deny his conse••t to their raising of Armes till they be destroyed, he playeth the Tyrant, not the King, and the law of Nature will necessi••ate them, either to defend themselves (seeing slight of all in that case is harder then death) else they must be guilty of self-murther. Now the Kings commandement of not rising in Armes, at best is positive and against the nature of his Office, and it ••loweth then from him as from a man, and so must be farre inferiour to the naturall Com∣mandement of God, which commandeth self-preservation, if wee would not be guilty of self-murther, and of obeying men, rather then God. So Althusius Polit. c. 25. n. 9. Halicarnas. l. 4. Antiq. Rom. Aristo. Pol. l. 3. c. 3. 3. David tooke Goliahs sword, and became a Captaine, a Captaine to an hoast of armed men in the battaile, and fought the battailes of the Lord, 1 Sam. 25.28. (and this Abigal by the spirit of prophecy, as I take it, saith, ver. 29, 30, 31.) 1 Sam. 22.2. 1 Chron. 12.1.2.3.17.18.21.22. not onely without Sauls consent, but against King Saul as he was a man, but not against him as hee was King of Israel. 4. If there be no King, or the King be minor, or an usurper, as Athalia be on the Throne, the Kingdome may law∣fully make war without the King,* 1.4 as Iudges cap. 20. The children of Israel, foure hundred thousand footemen that drew sword went out to warre against the children of Benjamin. Iudah had the power of the sword when Iosiah was but eight yeares old, in the beginning of his reigne, 2 King. 22.1, 2. and before Iehoash was crowned King, and while he was minor, 2 King. 11. there were Captaines of hundreds

in armes raised by Iehoiada and the people of Iudah to defend the young King. It cannot be said, that this is more extraordinary, then that it is extraordinary for Kings to die, and in the interregnum, warres, in an ordinary providence, may fall out in these Kingdoms, where Kings goe by election; and for Kings to fall to be Minors, Captives, Tyrannous. And I shall be of that opinion that M^r Sym∣mons, who holdeth, That Royall birth is equivalent to divine unction, must also hold, that election is not equivalent to divine unction; for both election and birth cannot be of the same validity, the one being naturall, the other a matter of free choise, which shall in∣fer that Kings by election are lesse properly, and analogically onely Kings; and so Saul was not properly a King, for he was King by election; but I conceive that rather Kings by birth must be lesse pro∣perly Kings, because the first King by Gods institution, being the mould of all the rest, was by election. Deut. 17.18.19.20.

5. If the estates create the King, and make this man King, not this man, as is clear Deut. 17.18. and 2 Chron. 5.1, 2, 3,* 1.5 4. they give to him the power of the Sword, and the power of War, and the Militia, and I shall judge it strange and reasonlesse, that the power given to the King, by the Parliament or estates of a free King∣dom, (such as Scotland as acknowledged to be, by all) should create, regulate, limit, abridge, yea and anull that power that created it self, hath God ordained a Parliamentary power to create a Royal power of the sword and war to be placed in the King, the Parliaments creature, for the safety of Parliament and Kingdome, which yet is destructive of it selfe? D. Ferne saith that the King summoneth a Parliament, and giveth them power to be a Parliament, and to advise and counsell him; and in the meane time Scripture saith, Deut. 17.18, 19, 20. 1 Sam. 10▪20, 21, 22, 23, 24, 25. 2 Sam. 5.1, 2, 3, 4. that the Parliament createth the King, heir's admirable reciprocation of creation in policie, and shall God make the mother to destroy the daughter? The Parliamentarie power that giveth Crown, Mi∣litia, sword and all to the King, must give power to the King to use sword and war for the destruction of the Kingdome, and to annull all the power of Parliaments, to make, unmake Parliaments, and all Parliamentary power; what more absurd?

Obj. 1. Symmons Loyall Subj. Pag. 57. These phrases, 2. Sam. 9.1. When Kings goe forth to warre, and Luk. 14.31. What King going forth to warre? speak to my conscience, that both offensive

and defensive warre are in the Kings hand.

Answ. It is not much to other men what is spoken to any mans conscience by Phrase and customes; for by this no States where there be no Kings, but government by the best, or the people, as in Holland, or in other Nations, can have power of war, for what time of yeare shall Kings goe to war who are not Kings? and be∣cause Christ saith, A certaine housholder delivered talents to his ser∣vants, will this infer to any conscience, that none but a housholder may take usurie? And when he saith, If the good man of the house knew at what houre the thiefe would come, he would watch; shall it follow, the sonne or servant may not watch the house, but onely the good man?

Obj. 2. Ferne, pag. 95. The naturall Bodie cannot move, but up∣on naturall Principles; and so neither can the Politique Bodie move in Warre, but upon Politique reasons from the Prince, which must di∣rect by Law.

Answ. This may well be retorted, the Politique Head cannot then move, but upon politique reasons; and so the King cannot move to wars, but by the Law, and that is by consent of Parlia∣ment, and no Law can principle the head to destroy the members. 2. If an Armie of cut-throats rise to destroy the Kingdome, because the King is in lacking, in his place, to doe his duty, how can the o∣ther Judges, the States and Pa••liament, be accessorie to murther committed by them, in not raising armies to suppresse such robbers? Shall the inferiour Judges be guilty of innocent blood, because the King will not doe his duty? 3. The politique body ceaseth no more to renounce the principles of sinlesse nature, in self-defence, be∣cause it is a politique body, and subject to a King, then it can leave off to sleep, eat and drink; and there is more need of politique prin∣ciples to the one, then the other. 4. The Parliaments and Estates of both Kingdoms move in these wars by the Kings Lawes, and are a formall politique body in themselves.

Obj. 2. The ground of the present wars against the King (saith D. Ferne, sect. 4. pag. 13.) is false, to wit, that the Parliament is coor∣dinate with the King, but so the King shall not be supreme, the Parli∣aments consent is required to an act of supremacie, but not to a denyall of that act. And there can no more (saith Arnisaeus de jure majestatis, c. 3. in quo consistat essen▪ majest. c. 3. n. 1. and c. 2. an jur. majest. se∣par. &c. n. 2.) be two equall and coordinate supreme powers, then

there can be two supreme Gods, and multitudo deorum est nullitas deorum, many gods infer no gods.

Ans. 1. If we consider the fountaine-power,* 1.6 the King is subordi∣nate to the Parliament, and not coordinate; for the constituent is above that which is constituted. If we regard the derived and exe∣cutive power in Parliamentarie acts, they make but a totall and compleat soveraigne power, yet so as the soveraigne power of the Parliament being habitually and underived, a prime and fountaine power, (for I doe not here separate people and Parliament) is per∣fect without the King, for all Parliamentarie acts, as is cleare, in that the Parliament make Kings. 2. Make Lawes, raise Armies, when either the King is minor, captived, tyrannous, or dead, but Royall power Parliamentarie without the Parliament is null, be∣cause it is essentially but a part of the Parliament, and can work no∣thing separated from the Parliament, no more then a hand cut off from the body, can write; and so here we see two supremes coor∣dinate: Amongst infinite things there cannot be two, because it in∣volveth a contradiction, that an infinite thing can be created, for then should it be finite; but a royall power is essentially a derived and created power and supreme, secundum quid, onely in relation to single men, but not in relation to the Communitie; it is alwayes a creature of the communitie with leave of the Royalist. 2. It is false, that to an act of Parliamentarie supremacie the consent of the King is required, for it is repugnant that there can be any Parliamen∣tarie judiciall act without the Parliament, but there may be without the King. 3. More false it is, that the King hath a negative voice in Parliament, then he shall be sole Judge▪ and the Parliament, the Kings Creator and Constituent, shall be a cypher.

Obj. 3. Arnesaeus de jur. Maj. de potest. armorum, c. 5. n. 4. The Peo∣ple is mad and furious, therefore supreme Majestie cannot be secured, and Rebels suppressed, and publike Peace kept, if the power of Ar∣mour be not in the Kings hand only.

Answ. To denude the people of Armour, because they may abuse the Prince, is to expose them to violence and oppression, unjustly; for one King may easilier abuse armour, then all the people; one man may more easily fail, then a Community. 2. The safety of the peo∣ple is far to be preferred before the safety of one man▪ though he were two Emperours, one in the East, another in the West, because the Emperour is ordained of God, for the good and safety of the people,

1 Tim. 2.2. 3. There can be no inferiour Judges to bear the sword, as God requireth, Rom. 13 4. Deut. 1.15, 16. 2 Chron. 19.6, 7. and the King must be sole Judge, if he onely have the sword, and all armour monopolized to himselfe.

* 1.7Obj. 4. The causes of Warre (saith M. Simmons, sect. 4. pag. 9.) should not be made knowne to the Subjects, who are to look more to the lawfull call to Warre from the Prince, then to the cause of the War.

* 1.8Answ. The Parliament and all the Judges and Nobles are Sub∣jects to Royalists, if they should make war and shed blood upon blind obedience to the King, not inquiring either in causes of Law, or fa••t, they must resigne their consciences to the King. 2. The King cannot make unlawfull warre to be lawfull by any authority Royall, exc••pt he could raze out the sixt Commandement: there∣fore Subj••cts must look more to the causes of Warre, then to the au∣thority of the King; and this were a faire way to make Parliaments of both Kingdomes set up Popery by the sword, and root out the Reformed Religion upon the Kings Authority, as the lawfull call to warre, not looking to the causes of warre.

Notes

• * 1.1

  Inferiour Judges have the 〈◊〉〈◊〉 of the sword as∣well as the King.
• * 1.2

  The people ty∣ed to acts of Charity, and to defend them∣selves, the Church, and their posterity against a for∣reigne Army, though the King forbid.
• * 1.3

  We must de∣fend with the sw••rd ••he Church of God, whether the King will or no, ••xcept it be said the King may c••mma••d murther, and discharge us 〈◊〉〈◊〉 the dut••es 〈◊〉〈◊〉 the second Table.
• * 1.4

  Examples of lawfull warres without the Ki••g.
• * 1.5

  If the Parlia∣ment make the King and give to him the sword, the King cannot make the Parliament nor use the sword to their destruction.
• * 1.6

  Parliamentary power a foun∣taine power a∣bove the King.
• * 1.7

  〈…〉〈…〉. Beliefe.
• * 1.8

  Cause•• o•• war make law••ull war, not the s••le pleasure 〈◊〉〈◊〉 the Ki••g.