A treatise of civil policy: being a resolution of forty three questions concerning prerogative, right and priviledge, in reference to the supream prince and the people.
Rutherford, Samuel, 1600?-1661.
Page  159

QUEST. XX. Whether or no inferiour Judges be univocally and essentially Judges, and the immediate Vicars of God, no lesse then the King, or if they be onely the Deputies and Vicars of the King?

IT is certain that in one and the same Kingdom, the power of the King is more in extension, then the power of any inferiour Iudge: but if these powers of the King, and the inferiour Iudges differ intenfivè and in spece, and nature, is the question, though it be not all the question.

Assert. Inferiour Iudges are no lesse essentially Iudges, and the immediate Vicars of God, then the King. 1. These who judge in* the room of God, and exercise the judgement of God, are essential∣ly Iudges, and the Deputies of God, as well as the King: but in∣feriour Iudges are such. Ergo, The proposition is clear, the formall reason, why the King is univocally and essentially a Iudge is, because the Kings throne is the Lords throne, 1 Chron. 29. 23. And Solomon sate on the throne of the Lord, as King, instead of David his father, 1 King. 1. 13. It is called Davids throne, because the King is the Deputy of Iehovah, and the judgement is the Lords: I prove the assumption. Inferiour Iudges appointed by King Iehoshaphat have this place, 2 Chro. 19. 6. The King said to the Iudges, Take heed what ye do,〈 in non-Latin alphabet 〉, for ye judge not for man, but for the Lord: then they were Deputies in the place of the Lord, and not the Kings Deputies in the formall and officiall acts of judging. 7. Wherefore now let the fear of the Lord be upon you, take heed and do it, for there is no iniquity with the Lord our God, nor respect of persons, or taking of gifts.

Hence I argue, If the Holy Ghost in this good King, forbid in∣riour Judges wresting of judgement, respecting of persons, and taking of gifts, because the judgement is the Lords; and if the Lord him∣self were on the Bench, he would not respect persons, nor take gifts; then he presumeth, that inferiour Iudges are in the stead and place of Jehovah: and that when these inferiour Iudges should take gifts, they make (as it were) the Lord, whose place they represent, to take gifts, and to do iniquitie, and to respect persons: but that the holy Lord cannot do. 2. If the inferiour Iudges in the act of judging, were the Vicars, and Deputies of King Jehoshaphat, he would have said, Judge righteous judgement; Why? For the judge∣ment Page  160 is mine, and if I the King were on the Bench, I would not re∣spect persons, nor take gifts; and you judge for me the supreme Judge, as my Deputies: but the King saith, They judge not for man, but for the Lord. 3. If by this they were not Gods immediate Vicars, but the Vicars and Deputies of the King, then being meer servants, the King might command them to pronounce such a sentence, and not such a sentence as I may command my servant and deputy, in so far, as he is a servant and deputie, to say this, and say not this: but the King cannot limit the conscience of the inferiour Iudge, because the judgement is not the Kings, but the Lords. 4. The King cannot command any other to do that, as King; for the doing whereof, he hath no power from God himself, but the King hath no power from God to pronounce what sentence he pleaseth, because the judgement is not his own, but Gods: And though inferiour Iudges be sent of*the King, and appointed by him to be Iudges, and so have their externall call from Gods deputy, the King; yet because judging is an act of conscience, as one mans conscience cannot properly be a deputy for another mans conscience, so neither can an inferior Iudge, as a Iudge, be a deputy for a King: therefore the inferiour Iudges have designation to their office from the King; but if they have from the King, that they are Iudges, and be not Gods deputies, but the Kings, they could not be commanded to execute judgement for God, but for the King: and Deut. 1. 17. Moses appointed Iudges, but not as his deputies to judge and give sentence, as subordinate to Moses: For the judgement (saith he) is the Lords, not mine. 6. If* all the inferiour Iudges in Israel, were but the deputies of the King, and not immediately subordinate to God, as his deputies, then could neither inferiour Iudges be admonished, nor condemned in Gods word for unjust judgement, because their sentence should be nei∣ther righteous, nor unrighteous judgement, but in so far, as the King should approve it, or disapprove it; and indeed, that Royalist Hugo Grotius saith so, That an inferiour Iudge can do nothing against the will of the supreme Magistrate, if it be so: When ever God com∣mandeth inferiour Iudges to execute righteous judgement, it must have this sense, Respect not persons in judgement, except the King command you, crush not the poor, oppresse not the fatherlesse, except the King command you. I understand not such policie: Sure I am, The Lords commandments, rebukes, and threats, oblige in conscience the inferiour Iudge as the superiour, as is manifest in these Scrip∣tures, Page  161Jerem. 5. 1. Isai. 1. 17, 21. and 5. 7. and 10. 2. and 59. 14. Jere. 22. 3. Ezek. 18. 8. Amos 5. 7. Micah 3. 9. Habak. 1. 4. Le∣vit. 19. 15. Deut. 17. 11. and 1. 17. Exod. 23. 2.

Grotius saith, It is here as in a Categorie: the middle Spece is in*respect of the Superiour a Spece, in respect of the inferiour a Genus; so inferiour Magistrates in relation to these who are inferiour to them, and under them, they are Magistrates or publike persons, but in relati∣on to superiour Magistrates, especially the King, they are private per∣sons, and not Magistrates.

Answ. Jehoshaphat esteemed not Iudges appointed by himself private men, 2 Chron. 19. 6, 7. Yee judge not for men, but for the Lord. 2. We shall prove, that under Iudges are powers ordained of God. 3. In Scotland the King can take no mans inheritance from him, because he is King: But if any man possesse Lands belonging to the Crown, the King by his Advocate must stand before the Lord-Iudges of the Session, and submit the matter to the Laws of the Land; and if the King for propertie of Goods, were not under a Law, and were not to acknowledge Iudges as Iudges, I see not how the subject in either Kingdoms have any proprietie. 4. I judge it blasphemie to say, That a sentence of an inferiour Iudge must be no sentence, though never so legall, nor just, if it be contrary to the Kings will, as Grotius saith.

He citeth that of Augustine: If the Consul command one thing,* and the Emperour another thing, you contemn not the power, but you choose to obey the highest: Peter saith, He will have us one way to be subject to the King, as to the supreme, sine ulla exceptione, without any exception, but to these who are sent by the King, as having their power from the King.

Answ. When the Consull commandeth a thing lawfull, and the King that same thing lawfull, or a thing not unlawfull, we are to obey the King, rather then the Consull: so I expone Augustine. 2. We are not to obey the King and the Consull the same way, that* is with the same degree of reverence and submission; for we owe more submission of spirit to the King, then to the Consul; but magis & minus non variant speciem, more or lesse varieth not the natures of things: but if the meaning be that we are not to obey the in∣feriour Iudge commanding things lawfull, if the King command the contrary, this is utterly denyed: But saith Grotius, The inferiour Judge is but the Deputie of the King, and hath all his power from him; Page  162 therefore we are to obey him for the King. Answ. The inferiour Iudge may be called the Deputy of the King, (where it is the Kings place to make Iudges) because he hath his externall call from the King, and is Iudge, in foro Soli, in the name and authority of the* King; but being once made a Iudge in foro poli, before God, he is as essentially a Iudge, and in his officiall acts no lesse immediately subjected to God, then the King himself.

Argum. 2. These powers to whom we are to yield obedience, because they are ordained of God; these are as essentially Iudges, as the supreme Magistrate the King; but inferiour Iudges are such. Ergo, Inferiour Iudges are as essentially Iudges, as the supreme Magistrate. The proposition is Rom. 13. 1. For that is the Apostles Arguments; whence we prove, Kings are to be obeyed, because they are powers from God: I prove the assumption. Inferiour Ma∣gistrates are powers from God, Deut. 1. 17. and 19. 6, 7. Exod. 22. 7. Jere. 5. 1. and the Apostle saith, The powers that are, are ordained of God.

3. Christ testified, that Pilate had power from God as a Iudge (say Royalists) no lesse then Caesar the Emperour, Iohn 19. 11. and 1 Pet. 2. 12. We are commanded to obey the King, and these that are sent by him, and that for the Lords sake, and for conscience to God,* and Rom. 13. 5. We must be subject to all powers that are of God, not onely for wrath, but for conscience.

4. These, who are rebuked, because they execute not just judge∣ment, as well as the King, are supposed to be essentially Iudges, as well as the King; but inferiour Iudges are rebuked, because of this, Ierem. 22. 15, 16, 17. Ezek. 45. 9, 10, 11, 12. Zeph. 3. 3. Amos 5. 6, 7. Eccles. 3. 16. Micah 3. 2, 3, 4. Jerem. 5. 31. Ierem. 5. 1.

5. He is the Minister of God for good, and hath the sword not in*vain, but to execute vengeance on the evil doers; no lesse then the King, Rom. 13. 2, 3, 4. He to whom agreeth, by an Ordinance of God, the specifick acts of a Magistrate, he is essentially a Magi∣strate.

6. The resisting of the inferiour Magistrate in his lawfull com∣mandmens,* is the resisting of Gods Ordinance, and a breach of the fifth Commandment, as is disobedience to parents, and not to give him tribute, and fear, and honour, is the same transgression, Rom. 13. 1, 2, 3, 4, 5, 6, 7.

Page  1637. These stiles of Gods, of Heads of the people, of Fathers, of Physi∣cians, and healers of the sonnes of the most High, of such as Raign and Decree by the wisdome of God, &c. that are given to Kings, for the which Royalists make Kings onely Iudges, and all inferiour Iudges, but deputed, and Iudges by participation, and at the second hand, or given to inferiour Iudges, Exod. 22. 8, 9. Ioh. 10. 35. These* who are appointed Iudges under Moses, Deut. 1. 16. are called in Hebrew or Chaldee, 1 Kings 8. 1, 2. Chap. 5. 2. Mic. 3. 1. Iosh. 23. 2. Num. 1. 16. 〈 in non-Latin alphabet 〉rasce,〈 in non-Latin alphabet 〉fathers, Act. 7. 2. Iosh. 14. 1. c. 19. 51. 1 Chro. 8, 28. Healers, Esai. 3. 7. Gods, and sonnes of the most High, Psal. 82. 1. 2. 6. 7. Prov, 8. 16, 17. I much doubt, if Kings can infuse Godheads in their Subjects. I conceive they have from the God of Gods these gifts, whereby they are inhabled to be Iudges, and that Kings may appoint them Iudges, but can do no more, they are no lesse essentially Iudges then themselves.

8. If inferiour Iudges be Deputies of the King, not of God, and have all their authority from the King, then may the King limit the practise of these inferiour Iudges. Say that an inferiour Iudge hath condemned to death an Paricide, and he be conveying him to the place of execution, the King commeth with a force to rescue him out of his hand, if this inferiour Magistrate beare Gods sword for the terrour of ill doers, and to execute Gods vengeance on mur∣therers, he cannot but resist the King in this, which I judge to be his Office: for the inferiour Iudge is to take vengeance on ill doers, and to use the coactive force of the sword, by vertue of his Office, to take away this Paracide, now if he be the Deputy of the King, he is not to breake the jawes of the wicked, Iob 29. 17. not to take venge∣ance*on evill doers, Rom. 13. 4. nor to execute judgement on the wicked, Ps. 149, 9. nor to execute judgment for the fatherlesse, De. 10. 18. ex∣cept a mortall man his Creator, the King say, Amen. Now truly then God, in all Israel, was to rebuke no inferiour Iudge for perverting judgement, As he doth, Exod. 23. 2. 6. Mic. 3. 2, 3, 4. Zach. 3. 3. Numb. 25. 5. Deut. 1. 16. For the King onely is Lord of the conscience of the inferiour Iudge, who is to give sentence, and execute sentence righ∣teously upon condition, that the King the onely univocall and pro∣per Iudge, first, decree the same, as Royalists teach.

Heare our Prelate: How is it imaginable that Kings can be said to Iudge in Gods place, and not receive the power from God? but Kings Iudge in Gods place, Deut. 1. 17. 2 Chro. 19. 6. Let no man stumble, Page  164 (this is his Prolepsis) at this, that Moses in the one place, and Iehosa∣phat in the other speake to subordinate Iudges under them, this weake∣neth no waies our Argument, for it is a ruled case in Law; Quod quis facit per alium, facit per se; all Iudgements of inferiour Iudges are in the name, authority, and by the power of the supreme, and are but com∣municatively, and derivatively from the Soveraigne power.

Ans. How is it possible that inferiour Iudges, Deut. 1. 17. 2. Chron. 19. 6. can be said to judge in Gods place, and not receive the power from God immediatly, without any consent or covenant of men? So the Prelate. But inferiour Iudges judge in the Gods place, as both the P. Prelate and Scripture teach, Deut. 1. 17. 2. Chro. 19. 6. Let the Prelate see to the stumbling conclusion, for so he feareth it proves to his bad cause. 2. He saith the places, Deut. 1. 17. 2 Chro. 19. 6. prove that the King judgeth in the Roome of God, because their Deputies judge in the place of God. The Prelate may know, we would deny this stumbling and lame consequence; for 1. Moses and Iehosaphat are not speaking to themselves, but to other inferi∣our Iudges, who doth publickly exhort them. Moses and Iehosaphat are perswading the regulation of the personall actions of other men, who might pervert Iudgement. 2. The Prelate is much upon his Law, after he had forsworne the Gospell, and Religion of the* Church, where he was baptized. What the King doth by another, that he doth by himselfe; but were Moses and Jehosaphat feared that they should pervert Iudgement in the unjust Sentence pronoun∣ced by under Iudges, of which Sentence they could not know any thing? And doe inferiour Iudges so judge in the name, authority, and power of the King, as not in the Name, Authority and Power of the Lord of Lords, and King of Kings? or is the Iudgement the Kings? no, the Spirit of God saith no such matter, the Iudgement executed by those inferiour Iudges, is the Lords, not a mortall Kings, ergo a mortall King may not hinder them to execute Iudgement. Obj. He cannot suggest an unjust Sentence, and command an inferi∣our Iudge to give out a sentence absolvatory on cut-throates, but he may hinder the exocution of any sentence against Irish cut-throates, Ans. It is all one to hinder the execution of a just sentence, and to suggest or command the inferiour Iudge to pronounce an unjust one, for inferiour Iudges by conscience of their Office, are both to judge righteously, and by force and power of the sword given to them of God, Rom. 13. 2, 3, 4. to execute the sentence, and so GodPage  165 hath commanded inferiour Iudges to execute Iudgement, and hath forbidden them to wrest Iudgement, to take gifts, except the King Command them so to doe.

Master Symmont, The King is by the Grace of God, the inferiour*Iudge is Iudge by the grace of the King, even as the man is the image of God, and the woman the mans image▪ Ans. This distinction is neither true in Law, nor conscience; not in Law, for it distingui∣sheth not betwixt Ministros regis, & ministros regni. The servants of the King are his domesticks, the Iudges are Ministri regni, non regis; the Ministers and Iudges of the Kingdome, not of the King. The King doth not show grace, as he is a man, in making such a man a Iudge, but Iustice as a King, by a Royall Power received from the people, and by an Act of Iustice, he makes Iudges of deserving men, he should neither for favour, nor bribes make any Iudge in the Land. 2. It is the grace of God that men are to be advanced* from a private condiion to be inferious Iudges, as Royall Dignity is a free gift of God, 1 Sam. 2. 7. The Lord bringeth low, and lifteth up, Ps. 75. 7. God putth downe one, and seteth up another. Court flat∣terers take from God, and give to Kings; but to be a Iudge inferi∣our, is no lesse an immediate favour of God, then to be King; though the one be a greater favour then the other. Magis honos, and Ma∣joc honos are to be considered.

9. Arg. Those powers which differ gradually, and per magis &*minus, by more and lesse only, differ not in nature and spece, and constitute not Kings and inferiour Iudges different univocally. But the power of Kings and inferiour Iudges are such, there∣fore Kings and Inferiour Iudges differ not univocally. That the powers are the same in nature, I prove 1. by the specifice acts, and formall object of the power of both, for 1. both are pow∣er ordained of God, Rom. 13. 1. to resist either, is to resist the ordi∣nance of God, v. 2. both are by Office a terrour to evill workes, v. 3.* 3. both are the Ministers of God for good. 2. Though the King send and give a call to the inferiour Iudge, that doth no more make the inferiour Iudges powers in nature and spece different, then Mini∣sters of the Word called by Ministers of the Word, have Of∣fices different in nature. Timotheus Office to be Preacher of the Word differeth not in specie, from the Office of the Presbytery, which layed hands on him, though their Office by extension, be more then Timothies Office. 3. The peoples power is put forth in 〈1 page duplicate〉Page  164〈1 page duplicate〉Page  165Page  166 those same acts, when they choose one to be their King and supreame Governour, and when they set up an Aristocraticall Government, and choose many, or more then one, to be their Governours▪ for the formall object of one or many Governours is Iustice and Religion, as they are to be advanced. 2. The forme and manner of their op∣peration is, brachio seculari, by a coactive power, and by the sword. 3. The formall acts of King and many Iudges in Aristocracy, are these same, the defending of the poore and needy from violence, the conservation of a Community in a peaceable and a godly life,* 1 Tim. 2. 2 Iob 29. 12, 13. Esay 1. 17. 4. These same Lawes of God that regulateth the King in all His Acts of Royall Govern∣ment, and tyeth and obligeth his conscience, as the Lords Deputy to execute Iudgement for God, and not in the stead of men, in Gods Court of Heaven, doth in like manner tye, and oblige the conscience of Aristocraticall Iudges, and all inferiour Iudges, as is cleare and evident by these places, 1 Tim. 2. 2. not only Kings, but all in authority〈 in non-Latin alphabet 〉are obliged to procure that their subjects leade a quiet and peaceable life, in all godlinesse and honesty. All in conscience are obliged, Deut. 1. 16. to judge righte∣ously between every man and his brother, and the stranger that is with them. 17. Neither are they to respect persons in judgement, but are to heare the small as well as the great, nor to be affraid of the face of men, the judgement administred by all, is Gods. 2. Chro. 19. 6. All are obliged to feare God, Deut. 17. 19. 20. to keepe the words of the Law, not to be lifted up in heart above their brethren, Esay 1. 17. Ier. 22. 2, 3. Let any man show me a difference according to Gods Word, but in the extention that what the King is to doe as a King in all the Kingdome, and whole Dominions, (if God give to him many) as he gave to David and Solomon, and Ioshua, that the inferiour Iudges are to doe in such and such Circuits, and limited places, and I quit the cause, so as the inferiour Iudges are little Kings, and the King a great and delated Iudge, as a compressed hand or fist, and the hand stretched out in fingers and thumbe, are one hand, so here. 4. God owneth inferiour Iudges as a congregation of Gods, Ps. 82. 1. 2. for that God sitteth in a congregation or Senate of Kings or Mo∣narches I shall not beleeve, till I see Royalists shew to me a Common∣wealth of Monarches convening in one Iudicature; all are equally called Gods, Ioh. 10. 35. Exod. 22. 8. if for any cause, but because all Iudges even inferiour are the immediate Deputies of the King of Page  167 Kings, and their sentence in Iudgement as the sentence of the Iudge of all the earth, I shall be informed by the P. Prelate when he shall answer my reasons, if his interdicted Lordship may cast an eye to a* poore Presbyter below, and as wisedome is that by which Kings raigne, Prov. 8. 15. so also v. 16. by which Princes Rule, and No∣bles, even all the Iudges of the earth; all that is said against this is: That the King hath a Prerogative Royall, by which he is differen∣ced from all Iudges in Israel, called jus regis〈 in non-Latin alphabet 〉 for (saith Bar∣clay) The King as King essentially hath a Domination and power a∣bove all, so as none can censure him, or punish him but God, because there be no thrones above his, but the throne of God. The Iudges of Israel, as Samuel, Gedeon, &c. had no domination, the dominion was in Gods hand. 2. Wee may resist an inferior Iudge (saith Arnisaeus) otherwise there were no appeale from him, and the wrong we suffer were irre∣parable, as saith Marantius. And all the Iudges of the earth (saith Edw. Symmons) are from God more remotely, namely (mediante Rege) by the mediation of the Supreame, even as the lesser starres have their light from God by the mediation of the Sun. To the first I an∣swer, There was a difference betwixt the Kings of Israel and their Iudges, no question: but if it be an essentiall difference, it is a question: for, 1. The Iudges were raised up in an extraordinary manner, out of any Tribe, to defend the people, and vindicate their libertie, God remaining their King: the King by the Lords appoint∣ment was tyed, after Saul, to the Royall tribe of Judah, till the Messiahs comming. God tooke his own blessed libertie to set up a succession in the ten tribes- 2. The Iudges were not by succession from father to sonne: the Kings were, as I conceive, for the typi∣call eternitie of the Messiahs throne, presignified to stand from ge∣neration to generation. 3. Whether the Iudges were appointed by the election of the people, or no, some doubt, because Iepthah was so made Iudge: but I thinke it was not a law in Israel that it should be so: but the first mould of a King, Deut. 17. is by electi∣on. But that God gave power of domineering, that is, of Tyran∣nizing, to a King, so as he cannot be resisted, which he gave not to a Iudge, I thinke no Scripture can make good: For by what Scrip∣ture can Royalists warrant to us that the people might rise in armes to defend themselves against Moses, Gideon, Eli, Samuel, and other Iudges, if they should have tyrannized over the people: and that it is unlawfull to resist the most Tyrannous King in Israel and Iudah? Page  168 Yet Barclay and others must say this, if they be true to that principle of Tyranny, That the jus Regis, the law or manner of the King, 1 Sam. 8. 9, 11. & 1 Sam. 10. 25, doth essentially difference betwixt the Kings of Israel, and the Iudges of Israel: but we thinke God gave never any power of Tyranny to either Iudge or King of Israel; and domination in that sense was by God given to none of them. 2. Arnisaeus hath as little for him, to say the inferior Magi∣strate may be resisted, because we may appeale from him: but the King cannot be resisted, quia sanctitas Majestatis id non permittit, the sanctitie of Royall majestie will not permit us to resist the King. Ans. That is not Pauls argument, to prove it unlawfull to resist Kings, as Kings, and doing their office, because of the sanctitie of their Majestie, that is, as the man intendeth, because of the supreme absolute and illimited power that God hath given him. But this is a begging of the question, and all one as to say, the King may not be resisted, because he may not be resisted: for sanctitie of Majestie, if we beleeve Royalists, includeth essentially an absolute supremacie of power, whereby they are above the reach of all thrones, lawes, powers, or resistance on Earth. But the Argument is, Resist not, be∣cause the Power is of God. But the inferiour Magistrates power is of God. 2. Resist not, because you resist Gods ordinance, in resisting the Iudge: But the inferior Iudge is Gods ordinance, Rom. 13. 1. Deut. 1. 17. 2 Chro. 19. 6. 3. Mr. Symmons saith, all Iudges on earth are from the Kings, as starres have their light from the Sun. I an∣swer, 1. Then Aristocracie were unlawfull, for it hath not its power* from Monarchie. Had the Lords of the Philistims, have the States of Holland no power but from a Monarchie? Name the Mo∣narch. Have the Venetians any power from a King? Indeed our Prelate saith from Augustine, Confess. lib. 3. cap. 8. Generale pactum est societatis humana, obedire Regibus suis: It is an universall covenant of humane societie, and a dictate of nature, that men obey their Kings. I beg the favour of Sectaries (saith he) to shew as much for Aristocracie and Democracie. Now all other governments to bellies borne at Court, are the inventions of men. But I can shew that same warrant for the one as for the other, because it is as well the dictate of nature, that People obey their Iudges and Rulers, as it is that they obey their Kings. And Austin speaketh of all Iudges, in that place, though he name Kings; for Kingly government is no more of the law of nature, then Aristocracie or Democracie: nor Page  169 are any borne Iudges, or Subjects at all: There is a naturall apti∣tude in all to either of these, for the conservation of nature, and that is all. Let us see that men naturally inclining to Government, in∣cline* rather to Royall Government, then to any other. That the P. Prelate shall not be able to show. For fatherly government be∣ing in two, is not Kingly, but nearer to Aristocracy; and when many families were on earth, every one independent within them∣selves, if a commune enemy should invade a tract of Land governed by families, I conceive, by natures light they should incline to de∣fend themselves, and to joyne in one politique body for their owne safety, as is most naturall; but in that case they having no King, and there were no reason of many fathers all alike loving their own families and selfe preservation, why one should be King over all, ra∣ther then another, except by voluntary compact; so it is cleare that Nature is nearer to Aristocracy before this contract, then a Mo∣narchy: and let him shew us in multitudes of families dwelling to∣gether before there was a King, as cleare a warrant for Monarchy, as here is for Aristocracy, though to me both be lawdable and law∣full ordinances of God, and the difference meerely accidentall, being one and the same power from the Lord, Rom. 13. 1. which is in di∣vers subjects in one, as a Monarchy, in many as in Aristocracy, and the one is as naturall as the other: and the subjects are accidentall to the nature of the power. 2. The Starrs have no light at all, but in actuall aspect toward the Sun, and they are not lightsome bodies by the free will of the Sunne, and have no immediate light from God formally, but from the Sun, so as if there were no Sun, there should be no Starres. 3. for actuall shining and sending out of beames of light actusecundo, they depend upon the presence of the Sun, but for* inferiour Iudges though they have their call from the King, yet have they gifts to governe from no King on earth, but only from the King of Kings. 4. When the King is dead the Iudges are Iudges, and they depend not on the King for their second acts of judging, and for the actuall emission and putting forth their beames and raies of justice, upon the poore and needy, they depend on no voluntary aspect, information or commandement of the King, but on that im∣mediate subjection of their conscience to the King of Kings. And their Iudgement which they execute is the Lords immediatly, and not the Kings, and so the comparison halteth.

Arg. Our 10th. Arg. If the King dying, the Iudges inferiour re∣maine*Page  170 powers from God, the Deputies of the Lord of Hoasts ha∣ving their power from God, then are they essentially Iudges; yea and if the estates in their prime representators, and leaders, have power in the death of the King, to choose and make another King, then are they not Iudges and Rulers by derivation and participati∣on,* or unproperly, but the King is rather the Ruler by derivation and participation, then these who are called inferiour Iudges. Now if these Iudges depend in their Sentences upon the immediat will of him who is supposed to be the only Iudge, when this only Iudge dyeth, they should cease to be Iudges: for Expirante mandatore ex∣pirat mandatum, because the Fountaine Iudge drying up, the streames must dry up. Now when Saul dyed, the Princes of the Tribes remaine by Gods institution Princes, and they by Gods Law and Warrant, Deut. 17. choose David their King.

11. If the King through absolute power doe not send inferiour* Iudges, and constitute them, but only by a power from the people; and if the Lord have no lesse immediate influence in making inferi∣our Iudges, then in making Kings, then is there no ground that the* King should be sole Iudge, and the inferiour Iudge only Iudge by derivation from him, and essentially his Deputy, and not the imme∣diate Deputy of God. But the former is true, ergo so is the latter. And first that the Kings absolute Will maketh not inferiour Iudges, is cleare, from Deut. 1. 15. Moses might not follow his owne will in making inferiour Iudges whom he pleased: God tyed him to a Law, v. 13. that he should take wise men, known amongst the people, and fearing God, and hating covetousnesse. And these qualifications were not from Moses, but from God; and no lesse immediatly from God then the inward qualification of a King, Deut. 17. and therefore it is not Gods Law that the King may make inferiour Iudges only, Durante beneplacito, during his absolute will; for if these Divine qualifications remaine in the seventy Elders, Moses at his will could not remove them from their places. 2. That the King can make heritable Iudges more then he can communicate faculties and parts of judging, I doubt, riches are of fathers, but not promotion, which* is from God, and neither from the East, nor the West. That our Nobles are borne Lords of Parliament, and Iudges by blood, is a positive Law. 3. It seemeth to me from Esay 3. 1, 2, 3, 4. that the inferiour Iudge is made by consent of the people, nor can it be cal∣led a wronging of the King, that all cities and Burroughs of ScotlandPage  171 and England, have power to choose their owne Provests, Rulers, and Majors. 4. If it be warranted by God, that the lawfull Call of God to the Throne, be the election of the people, the call of inferi∣our Iudges must also be from the people, mediatly or immediatly: So I see no ground to say that, the inferiour Iudge is the Kings Vicegerent, or that he is in respect of the King, or in relation to supreme Authority, only a private man.

12. These Iudges cannot but be univocally and essentially Iudges, no lesse then the King, without which in a Kingdome Iustice is Phy∣sically unpossible: and Anarchie and violence and confusion must follow, if they be wanting in the Kingdome. But without inferiour Iudges, though there be a King, Iustice is Physically unpossible, and Anarchie and confusion must follow, &c.

Now this Argument is more considerable, that without inferiour Iudges, though there be a King in a Kingdome, Iustice and safety are unpossible, and if there be inferiour Iudges, though there be no King, as in Aristocracy, and when the King is dead, and another not Crowned, or the King is Minor, or absent, or a captive in the enemies Land, yet justice is possible, and the Kingdome preserved; the Medium of the Argument is grounded upon Gods Word, Num. 11. 14, 15. when Moses is unable alone to judge the peo∣ple,*seventy Elders re-joyned with him, 16. 17. so were the Elders adjoyned to helpe him, Exo. 24. 1. Deut. 5. 23. c. 22. 16. Iosh. 23. 2. Iudg. 8. 14. Iudg. 11. 5. Iudg. 11. ••. 1 Sam. 11. 3. 1 King. 20. 7. 2 King. 6. 32. 2 Chro. 34. 29. Ruth 4. 4. Deut. 19. 12. Ezech. 8. 1 Lament. 1. 19. then were the Elders of Moab thought they had a King. 2. The end naturall of Iudges hath been indigence and weaknesse, because men could not in a society defend themselves from violence, therefore by the light of nature they gave their power to one, or more, and made a Iudge, or Iudges to obtaine the end of selfe preservation. But Nature useth the most efficacious meanes to obtaine its end, but in a great society and Kingdome the end is more easily attained by many Governours, then by one only; for where there is but one, he cannot minister Iustice to all, and the farther that the children are removed from their father and tutor, they are the nearer to violence and unjustice. Iustice should be at as easie a rate to the poore, as a draught of water▪ Samuel went yeare∣ly through the Land to Bethell, Gilgall, Mizpeh, 1 Sam. 7. 16. and brought Iustice to the doores of the poore. So were our Kings of Page  172Scotland obliged to doe of old; but now justice is as deare as gold. it is not a good argument to prove inferior Iudges to be only Vi∣cars and Deputies of the King, because the King may censure and punish them when they pervert judgement. 1. Because the King, in that, punisheth them not as Iudges, but as men. 2. That might prove all the Subjects to be Vicars and Deputies of the King▪, be∣cause he can punish them all, in the case of their breach of lawes.