Sources of American Liberty and Law
[Our primary focus in the coming months is on the influences and events that led to and shaped the birth of the United States as an independent nation in 1776. In the last blog we examined some of the political and legal reasoning that occurred back in Europe in the 1620s and 1630s.]
The period of 1640-1660 was especially shaped by the English Civil War and Commonwealth period in England while other European powers were at war with each other in central Europe.
Between 1618 and 1648 Catholic and Protestant powers battled primarily over religion. In terms of percentage of population, it caused more deaths than later occurred in either of the world wars of the 20th century and caused violent turmoil for four times longer. When it finally ended with the Treaty of Westphalia, major changes had occurred in Europe. It especially shifted sovereignty from empires to nations. In that sense Christian nationalism was a step forward in world history (modern caricatures of Christian nationalism are something completely different). And while different nations now had freedom to choose their favored religion, there were still state churches. European nations no longer favored coercion of beliefs and criminalization of denominational diversity, but still largely denied equal treatment of them. That would not happen until American independence over a century later.
Meanwhile, England went through its own civil war in the 1640s with Catholic and Protestant differences at its core, but much more. The English were also pondering a new idea – governance without monarchy. Some of the key writings during the period are listed below:
Key documents of the English Civil War period (1642-1651):
Concerning the Power of Peers and Commons in Parliament (John Selden)
1642 Puritan Declaration to Take Up Arms (by English Parliament)
Solemn League and Covenant (1643 between England and Scotland)
Areopagitica [Liberty of Unlicensed Printing] (John Milton, 1644)
Lex Rex [The Law and the Prince] (Samuel Rutherford, 1644)
Westminster Confession (1646, Westminster assembly of clergymen)
Heads of the Proposals (1647, Ireton and the Model Army)
The English Civil War pitted Royalists (Cavaliers) against Parliamentarians (Roundheads) in England. Oliver Cromwell rose to prominence as the commanding general of the Parliamentarians’ army. He was a model of religious military leadership that was imitated by George Washington over a century later.
In the American colonies the Parliamentarian cause was favored by New England while the Royalists were favored by Virginia and Maryland. During the war in England, New England grew in greater self-governance and resistance to royal interference.
Below are excerpts from a document that shows the faith of the government leaders of England, Scotland and Ireland:
Excerpts from the Solemn League and Covenant, 1643
We noblemen, barons, knights, gentlemen, citizens, burgesses, ministers of the Gospel, and commons of all sorts in the kingdoms of England, Scotland and Ireland, by the providence of God living under one King, and being of one reformed religion; having before our eyes the glory of God, and the advancement of the kingdom of our Lord and Saviour Jesus Christ, the honour and happiness of the King’s Majesty and his posterity, and the true public liberty, safety and peace of the kingdoms, wherein every one’s private condition is included; and calling to mind the treacherous and bloody plots, conspiracies, attempts and practices of the enemies of God against the true religion and professors thereof in all places, especially in these three kingdoms, ever since the reformation of religion;….we have (now at last) after other means of supplication, remonstrance, protestations and sufferings, for the preservation of ourselves and our religion from utter ruin and destruction, ….resolved and determined to enter into a mutual and solemn league and covenant, wherein we all subscribe, and each one of us for himself, with our hands lifted up to the most high God, do swear,
That we shall sincerely, really and constantly, through the grace of God, endeavour in our several places and callings, the preservation of the reformed religion in the Church of Scotland, in doctrine, worship, discipline and government, against our common enemies; the reformation of religion in the kingdoms of England and Ireland, in doctrine, worship, discipline and government, according to the Word of God, and the example of the best reformed Churches; and we shall endeavour to bring the Churches of God in the three kingdoms to the nearest conjunction and uniformity in religion, confession of faith, form of Church government, directory for worship and catechising, that we, and our posterity after us, may, as brethren, live in faith and love, and the Lord may delight to dwell in the midst of us.
That we shall in like manner, without respect of persons, endeavour the extirpation of Popery, prelacy (that is, Church government by…hierarchy), ….that the Lord may be one, and His name one in the three kingdoms….
We shall also, according to our places and callings, in this common cause of religion, liberty and peace of the kingdom, assist and defend all those that enter into this league and covenant, in the maintaining and pursuing thereof; ….but shall all the days of our lives zealously and constantly continue therein, against all opposition, and promote the same according to our power, against all lets and impediments whatsoever; and what we are not able ourselves to suppress or overcome we shall reveal and make known, that it may be timely prevented or removed: all which we shall do as in the sight of God.
And because these kingdoms are guilty of many sins and provocations against God, and His Son Jesus Christ, as is too manifest by our present distresses and dangers, the fruits thereof: we profess and declare, before God and the world, our unfeigned desire to be humbled for our own sins, and for the sins of these kingdoms; especially that we have not as we ought valued the inestimable benefit of the Gospel; that we have not laboured for the purity and power thereof; and that we have not endeavoured to receive Christ in our hearts, nor to walk worthy of Him in our lives, which are the causes of other sins and transgressions so much abounding amongst us; and our true and unfeigned purpose, desire and endeavour, for ourselves and all others under our power and charge, both in public and in private, in all duties we owe to God and man, to amend our lives, and each one to go before another in the example of a real reformation, that the Lord may turn away His wrath and heavy indignation, and establish these Churches and kingdoms in truth and peace. And this covenant we make in the presence of Almighty God, the Searcher of all hearts, with a true intention to perform the same, as we shall answer at that Great Day when the secrets of all hearts shall be disclosed: most humbly beseeching the Lord to strengthen us by His Holy Spirit for this end, and to bless our desires and proceedings with such success as may be a deliverance and safety to His people, and encouragement to the Christian Churches groaning under or in danger of the yoke of Antichristian tyranny, to join in the same or like association and covenant, to the glory of God, the enlargement of the kingdom of Jesus Christ, and the peace and tranquillity of Christian kingdoms and commonwealths….
With the defeat of the king’s forces and the trial and execution of the king, a new era began that was brand new for the time. Cromwell was chosen as the leader but not given the powers of a king. Some of the key writings during the period are listed below:
Key documents of the Commonwealth period (1649-1660):
Agreement of the Free People of England (1649)
Non-compelling of Heathens (1649, Samuel Rutherford)
Tenure of Kings and Magistrates (1650, John Milton)
Defense of the People of England (1651, John Milton)
Speech Dismissing Parliament (1653, Oliver Cromwell)
Instrument of Government (1653, John Lambert)
Commonwealth of Oceana (1656, James Harrington)
A Healing Question (1656, Henry Vane)
Speech to Parliament Declining Role of Monarch (1657, Oliver Cromwell)
Treatise of Civil Power (1659, John Milton)
A few excerpts that follow below from these documents show the Christian faith of these leaders.
Excerpts from the Agreement of the People of England, 1649
Having, by our late labours and hazards, made it appear to the world at how high a rate we value our just freedom, and God having so far owned our cause as to deliver the enemies thereof into our hands, we do now hold ourselves bound, in mutual duty to each other, to take the best care we can for the future, to avoid both the danger of returning into a slavish condition and the chargeable remedy of another war: for as it cannot be imagined that so many of our countrymen would have opposed us in this quarrel if they had understood their own good, so may we hopefully promise to ourselves, that when our common rights and liberties shall be cleared, their endeavours will be disappointed that seek to make themselves our masters. Since therefore our former oppressions and not-yet-ended troubles have been occasioned either by want of frequent national meetings in council, or by the undue or unequal constitution thereof, or by rendering those meetings ineffectual, we are fully agreed and resolved, God willing, to provide, that hereafter our Representatives be neither left to an uncertainty for times nor be unequally constituted, nor made useless to the ends for which they are intended. In order whereunto we declare and agree,…
Concerning religion, we agree as followeth:—1. It is intended that the Christian Religion be held forth and recommended as the public profession in this nation, which we desire may, by the grace of God, be reformed to the greatest purity in doctrine, worship and discipline, according to the Word of God; the instructing the people thereunto in a public way, so it be not compulsive; as also the maintaining of able teachers for that end, and for the confutation or discovering of heresy, error, and whatsoever is contrary to sound doctrine, is allowed to be provided for by our Representatives; the maintenance of which teachers may be out of a public treasury, and, we desire, not by tithes: provided, that Popery or Prelacy be not held forth as the public way or profession in this nation. 2. That, to the public profession so held forth, none be compelled by penalties or otherwise; but only may be endeavoured to be won by sound doctrine, and the example of a good conversation. 3. That such as profess faith in God by Jesus Christ, however differing in judgment from the doctrine, worship or discipline publicly held forth, as aforesaid, shall not be restrained from, but shall be protected in, the profession of their faith and exercise of religion, according to their consciences, in any place except such as shall be set apart for the public worship; where we provide not for them, unless they have leave, so as they abuse not this liberty to the civil injury of others, or to actual disturbance of the public peace on their parts. Nevertheless, it is not intended to be hereby provided, that this liberty shall necessarily extend to Popery or Prelacy. 4. That all laws, ordinances, statutes, and clauses in any law, statute, or ordinance to the contrary of the liberty herein provided for, in the two particulars next preceding concerning religion, be, and are hereby, repealed and made void….
Essentially what was written below was the first constitution of government that was attempted without a place for a monarch.
Excerpts from the Instrument of Government, 1653
….That the Christian religion, as contained in the Scriptures, be held forth and recommended as the public profession of these nations; and that, as soon as may be, a provision, less subject to scruple and contention, and more certain than the present, be made for the encouragement and maintenance of able and painful teachers, for the instructing the people, and for discovery and confutation of error, hereby, and whatever is contrary to sound doctrine; and until such provision be made, the present maintenance shall not be taken away or impeached.
That to the public profession held forth none shall be compelled by penalties or otherwise; but that endeavours be used to win them by sound doctrine and the example of a good conversation.
That such as profess faith in God by Jesus Christ (though differing in judgment from the doctrine, worship or discipline publicly held forth) shall not be restrained from, but shall be protected in, the profession of the faith and exercise of their religion; so as they abuse not this liberty to the civil injury of others and to the actual disturbance of the public peace on their parts: provided this liberty be not extended to Popery or Prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness.
That all laws, statutes and ordinances, and clauses in any law, statute or ordinance to the contrary of the aforesaid liberty, shall be esteemed as null and void….
When Parliament asked Cromwell to become king, his refusal was explained in this amazing speech as follows:
Cromwell’s Speech, 1657
I come hither to answer That that was in your last Paper to your Committee you sent to me ‘yesterday;’ which was in relation to the Desires that were offered me by the House in That they called their Petition.
I confess, that Business hath put the House, the Parliament, to a great deal of trouble, and spent much time. I am very sorry for that. It hath cost me some ‘too,’ and some thoughts: and because I have been the unhappy occasion of the expense of so much time, I shall spend little on it now.
I have, the best I can, revolved the whole Business in my thoughts: and I have said so much already in testimony to the whole, I think I shall not need to repeat what I have said. I think it is ‘An Act of’ Government which, in the aims of it, seeks the Settling of the Nation on a good foot, in relation to Civil Rights and Liberties, which are the Rights of the Nation. And I hope I shall never be found one of them that go about to rob the Nation of those Rights:-but ‘always’ to serve it what I can to the attaining of them. It has also been exceedingly well provided there for the safety and security of honestmen in that great natural and religious liberty, which is Liberty of Conscience.-These are the great Fundamentals; and I must bear my testimony to them; as I have done, and shall do still, so long as God lets me live in this world: That the intentions and the things are very honourable and honest, and the product worthy of a Parliament.
I have only had the unhappiness, both in my Conferences with your Committee, and in the best thoughts I could take to myself, not to be convinced of the necessity of that thing which hath been so often insisted on by you,-to wit, the Title of King,-as in itself so necessary as it seems to be apprehended by you. And yet I do, with all honour and respect, testify that, coeteris paribus, no private judgment is to be in the balance with the judgment of Parliament. But in things that respect particular persons,-every man who is to give an account to God of his actions, he must in some measure be able to prove his own work, and to have an approbation in his own conscience of that which he is to do or to forbear. And whilst you are granting others Liberties, surely you will not deny me this; it being not only a Liberty but a Duty, and such a Duty as I cannot without sinning forbear,-to examine my own heart and thoughts and judgment, in every work which I am to set my hand to, or to appear in or for.
I must confess therefore, though I do acknowledge all the other ‘points,’ I must be a little confident in this, That what with the circumstances which accompany human actions,-whether they be circumstances of time or persons (Straitlaced Republican Soldiers that have just been presenting you their Petition), whether circumstances that relate to the whole or private and
particular circumstances such as compass any person who is to render an account of his own actions,-I have truly thought, and I do still think, that, at the best, if I should do anything on this account to answer your expectation, at the best I should do it doubtingly. And certainly whatsoever is so is not of faith.
And whatsoever is not so, whatsoever is not of faith, is sin to him that doth it,- whether it be with relation to the substance of the action about which that consideration is conversant, or whether to circumstances about it (Thinskinned Republicans, or the like “circumstances”), which make all indifferent actions good or evil. I say “Circumstances (Yes); which make all indifferent actions good or evil. I say “Circumstances” (Yes); and truly I mean “good or evil” to him that doth it. (Not to you Honourable Gentlemen who have merely advised it in general.)
I, lying under this consideration, think it my duty-Only I could have wished I had done it sooner, for the sake of the House, who have laid such infinite obligations on me (With a kind glance over these honourable faces: all silent as if dead, many of them with their mouths open); I wish I had done it sooner for your sake, and for saving time and trouble; and for the Committee’s sake, to whom I must acknowledge I have been unreasonably troublesome! But truly this is my answer, That (although I think the Act of Government doth consist of very excellent parts, in all but that one thing, of the Title as to me) I should not be an honest man, if I did not tell you that I cannot accept of the Government, nor undertake the trouble and charge of it-as to which I have a little more experimented than everybody what troubles and difficulties do befall men under such trusts, and in such undertakings-(Sentence irrecoverable)-I say I am persuaded to return this answer to you, That I cannot undertake this Government with the Title of King. And that is mine answer to this great and weighty Business.
Summary of this Commonwealth period:
George Washington was similar to Cromwell who went from heroic military leader to the head of state. When Oliver Cromwell’s Puritan Commonwealth governed England for a time the Puritans in New England felt their governance model was affirmed and vindicated, while southern colonies shifted to become a place of refuge for Royalist Anglicans and Catholics. But when the monarchy was restored in 1660, it shifted back, with some limits. Eventually the ideas of limited constitutional monarchy were solidified in England with the Glorious Revolution three decades later.
[The paid subscriber section below offers an excerpt from Samuel Rutherford’s Lex Rex of 1644.]
The content below was originally paywalled.
Excerpt from Lex Rex by Samuel Rutherford, 1644
Question XX.
Whether or no inferior judges be univocally and essentially judges, and the immediate vicars of God, no less than the king, or if they be only 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 than the power of any inferior judge; but if these powers of the king and the inferior judges differ intensive and in spece, and nature is the question, though it be not all the question.
Assert. — Inferior judges are no less essentially judges, and the immediate vicars of God, than the king. Those who judge in the room of God, and exercise the judgment of God, are essentially judges and deputies of God, as well as the king; but inferior judges are such, therefore the proposition is clear. The formal reason, why the king is univocally and essentially a judge, is, because the king’s throne is the Lord’s throne; 1 Chron. xxix. 23, “Then Solomon sat on the throne of the Lord, as king, instead of David his father.” 1 Kings i. 13, It is called David’s throne, because the king is the deputy of Jehovah; and the judgment is the Lord’s. I prove the assumption. Inferior judges appointed by king Jehoshaphat have this place, 2 Chron. xix, 6, “The king said to the judges, Take heed what ye do, hwFhyla yk@i w%+p%;#O;t@i Mdf)fl; )Ol yk@i for ye judge not for man, but for the Lord.” Then, they were deputies in the place of the Lord, and not the king’s deputies in the formal and official acts of judging. Ver. 7, “Wherefore, now, let the fear at 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, 1. If the Holy Ghost, in this good king; forbid inferior judges, wresting of judgment, respecting of persons, and taking of gifts, because the judgment is the Lord’s, and if the Lord himself were on the bench, he would not respect persons, nor take gifts, then he presumeth, that inferior judges are in the stead and place of Jehovah, and that when these inferior judges should take gifts, they make, as it were, the Lord, whose place they represent, to take gifts, and to do iniquity, and to respect persons; but that the Holy Lord cannot do. 2. If the inferior judges, in the act of judging, were the vicars and deputies of king Jehoshaphat, he would have said, judge righteous judgment. Why? For the judgment is mine, and if I, the king, were on the bench, I would not respect 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 God’s immediate vicars, but the vicars and deputies of the king, then, being mere 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 deputy, to say this, and say not that; but the king cannot limit the conscience of the inferior judge, because the judgment is not the king’s, but the Lord’s. 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 judgment is not his own but God’s. And though inferior judges be sent of the king, and appointed by him to be judges, and so have their external call from God’s deputy the king, yet, because judging is an act of conscience, as one man’s conscience cannot properly be a deputy for another man’s conscience, so neither can an inferior judge, as a judge, be a deputy for a king. Therefore, the inferior judges have designation to their office from the king; but if they have from the king that they are judges, and be not God’s deputies, but the king’s, they could not be commanded to execute judgment for God, but for the king: (Deut. i. 17,) Moses appointed judges; but not as his deputies to judge and give sentence, as subordinate to him; for the judgment (saith, he) is the Lord’s, not mine, 3. If all the inferior judges in Israel were but the deputies of the king, and not immediately subordinate to God as his deputies, then could neither inferior judges be admonished nor condemned in God’s word for unjust judgment, because their sentence should be neither righteous nor unrighteous, judgment, but in so far as the king should approve it or disapprove it; and, indeed, that royalist, Hugo Grotius[1] saith so, — that an inferior judge can do nothing against the will of the supreme magistrate if it be so. Whenever God commandeth inferior judges to execute righteous judgment, it must have this sense, “Respect. not persons in judgment, except the king command you; crush not the poor, oppress not the fatherless, except the king command you.” I understand not such policy. Sure I am the Lord’s commandments, rebukes and threats, oblige, in conscience, the inferior judge as the superior, as is manifest in these scriptures, Jer. v. 1; Isa. i. 17, 21; v. 7; x. 2; lix. 14; Jer. xxii. 3; Ezek. xviii. 8; Amos v. 7; Mic. iii. 9; Hab. i. 4; Lev. xix, 15; Deut. xvii. 11; i. 17; Exod. xxiii. 2.
Grotius saith,[2] “It is here as in a category: the middle specie is, in respect of the superior, a specie, — in respect of the inferior, a genus; so inferior magistrates in relation to those who are inferior to them and under them, are magistrates or public persons; but in relation to superior magistrates, especially the king, they are private persons, and not magistrates.
Ans — Jehoshaphat esteemed not judges, appointed by himself, private men, 2 Chron. xix. 6, 7, “Ye judge not for men, but for the Lord.” We shall prove that under-judges are powers ordained of God: in Scotland the king can take no man’s inheritance from him because he is the king; but if any man possess lands belonging to the crown, the king, by his advocate, must stand before the lord-judges of the session, and submit the matter to the laws of the land; and if the king, for property of goods, were not under a law, and were not to acknowledge judges as judges, I see not how the subjects in either kingdoms have any property. I judge it blasphemy to say, that a sentence of an inferior judge must be no sentence, though never so legal nor just, if it be contrary to the king’s will, as Grotius saith.
He citeth that of Augustine: “If the consul command one thing, and the emperor 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 those who are sent by the king, as having their power from the king.
Arg. 1. — When the consul commandeth a thing lawful, and the king that same thing lawful, or a thing not unlawful, we are to obey the king rather than the consul. So I expone Augustine. We are not to obey the king and the consul the same way, that is, with the same degree of reverence and submission; for we owe more submission of spirit to the king than to the consul; but magis et minus non variant speciem, more or less varieth not the nature of things. But if the meaning be that we are not to obey the inferior judge, commanding things lawful, if the king command the contrary, this is utterly denied. But saith Grotius, “The inferior judge is but the deputy of the king, and hath all his power from him; therefore we are to obey him for the king.” — Ans. The inferior judge may be called the deputy of the king, (where it is the king’s place to make judges,) because he hath his external call from the king, and is judge in foro soli, in the name and authority of the king; but being once made a judge, in foro poli, before God, he is as essentially a judge, and in his official acts, no less immediately subjected to God than the king himself.
Arg. 2. — These powers to whom we are to yield obedience, because they are ordained of God, these are as essentially judges as the supreme magistrate the king; but inferior judges are such, therefore inferior judges are as essentially judges as the supreme magistrate. The proposition is, Rom. xiii 1, for that is the apostle’s arguments; whence we prove kings are to be obeyed, because they are powers from God. I prove the assumption: inferior magistrates are powers from God, Deut. i 17; xix. 6, 7; Exod. xxii. 7; Jer. v. i.; and the apostle saith, “The powers that be are ordained of God.”
Arg. 3. — Christ testified that Pilate had power from God as a judge (say royalists) no less than Cæsar the emperor. (John xix. 11; 1 Pet. ii. 12.) We are commanded to obey the king and those that are sent by him, and that for the Lord’s sake, and for conscience to God; and (Rom. xiii. 5) we must be subject to all powers that are of God, not only for wrath, but for conscience.
Arg. 4. Those who are rebuked because they execute not just judgment, as well as the king, are supposed to be essentially judges, as well as the king; but inferior judges are rebuked because of this, Jer. xxii. 15-17; Ezek. xlv. 9-12; Zeph. iii. 3; Amos v. 6, 7; Eccles. iii. 16; Mic. iii. 2-4; Jer. v. 1, 31.
Arg. 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 less than the king. (Rom. xiii. 2-4.) He to whom agreeth, by an ordinance of God, the specific acts of a magistrate, is essentially a magistrate.
Arg 6. — The resisting of the inferior magistrate in his lawful commandments is the resisting of God’s 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. xiii. 1-7.
Arg. 7. — These styles, of gods, of heads of the people, of fathers, of physicians and healers of the sons of the Most High, of such as reign and decree by the wisdom of God, &c., that are given to kings, for the which royalists make kings only judges, and all inferior judges but deputed, and judges by participation, and at the second hand, or given to inferior judges. (Exod, xxii. 8, 9; John x. 35.) Those who are appointed judges under Moses (Deut. i. 16) are called, in Hebrew or Chaldee, (1 Kings viii. 1, 2; v. 2; Mic. iii. 1; Josh. xxiii. 2; Num. i. 16,) y#’O)rF rasce, y#O’yrI [8] fathers, (Acts vii. 2; Josh. xiv. 1; xix. 15; 1 Chron. viii. 28,) healers, (Isa. iii. 7,) gods, and sons of the Most High. (Psal. lxxxii. 1, 2, 6, 7; Prov. viii. 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 enabled to be judges; and that kings may appoint them judges, but can do no more: they are no less essentially judges than themselves.
Arg. 8. — If inferior judges be deputies of the king, not of God, and have all their authority from the king, then may the king limit the practice of these inferior judges. Say that an inferior judge hath condemned to death a paricide, and he be conveying him to the place of execution, the king cometh with a force to rescue him out of his hand; if this inferior magistrate bear God’s sword for the terror of ill-doers, and to execute God’s vengeance on murderers, he cannot but resist the king in this, which I judge to be his office; for the inferior judge is to take vengeance on ill-doers, and to use the co-active force of the sword, by virtue of his office, to take away this paricide. Now, if he be the deputy of the king, he is not to break the jaws of the wicked (Job xxix. 17); not to take vengeance on evil-doers (Rom. xiii. 4); nor to execute judgment on the wicked, Psal. cxlix. 9); nor to execute judgment for the fatherless (Deut. x. 18); except a mortal man’s creator, the king, say Amen. Now, truly then, God, in all Israel, was to rebuke no inferior judge for perverting judgment, — as he doth, Exod. xxiii. 26; Mic. iii. 2-4; Zech. iii. 3; Num. xxv. 5; Deut. i. 16; for the king only is lord of the conscience of the inferior judge who is to give sentence, and execute sentence righteously, upon condition that the king, the only univocal and proper iudge, first decree the same, as royalists teach.
Hear our Prelate (c. 4, p. 46). — How is it imaginable that kings can be said to judge in God’s place, and not receive the power from God? But kings judge in God’s place. (Deut. i. 17; 2 Chron. xix. 6.) Let no man stumble (this is his prolepsis) at this, that Moses in the one place, and Jehoshaphat in the other, spake to subordinate judges under them. This weakeneth nowise our argument; for it is a ruled case in law, Quod quis facit per alium, facit per se, all judgments of inferior judges are in the name, authority, and by the power of the supreme, and are but communicatively and derivatively from the sovereign power.
Ans. — How is it possible that inferior judges (Deut. i. 17; 2 Chron. xix. 8) can be said to judge in God’s place, and not receive the power from God immediately, without any consent or covenant of men? So saith the P. Prelate. But inferior judges judge in the place of God, as both the P. Prelate and Scripture teach. (Deut. i. 17; 2 Chron. xix. 6.) Let the Prelate see to the stumbling conclusion, for so he feareth it proves to his bad cause. He saith the places, Deut. i. 17; 2 Chron. xix. 6, prove that the king judgeth in the room of God, because his deputies judge in the place of God. The Prelate may know we would deny this stumbling and lame consequence; for 1. Moses and Jehoshaphat are not speaking to themselves, but to other inferior judges, and doth publicly exhort them. Moses and Jehoshaphat are persuading the regulation of the personal actions of other men who might pervert judgment. 2. The Prelate is much upon his law, after he had foresworn the gospel and religion of the church where he was baptized. “What the king doth by another, that he doth by himself.” But were Moses and Jehoshaphat afraid that they should pervert judgment in the unjust sentence pronounced by under judges, of which sentence they could not know any thing? And do inferior judges 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 judgment the king’s? So; the Spirit of God saith no such matter. The judgment executed by those inferior judges is the Lord’s, not a mortal king’s; therefore, a mortal king may not hinder them to execute judgment.
Obj. — He cannot suggest an unjust sentence, and command an inferior judge to give out a sentence absolvatory on cut-throats, but he may hinder the execution of any sentence against Irish cut-throats. Ans. — It is all one to hinder the execution of a just sentence, and to suggest or command the inferior judge to pronounce an unjust one; for inferior judges, by conscience of their office, are both to judge righteously, and by force and power of the sword given to them of God (Rom. xiii. 1-4) to execute the sentence; and so God hath commanded inferior judges to execute judgment, and hath forbidden them to wrest judgment, to take gifts, except the king command them so to do.
The king is by the grace of God, the inferior judge is judge by the grace of the king; even as the man is the image of God, and the woman the man’s image.[3]
Ans. 1. — This distinction is neither true in law nor conscience. Not in law, for it distinguisheth not betwixt ministros regis, et ministros regni. The servants of the king are his domestics, the judges are ministri regni, non regis; the ministers and judges of the kingdom, not of the king. The king doth not show grace, as he is a man, in making such a man a judge; but justice as a king, by a royal power received from the people, and by an act of justice, he makes judges of deserving men; he should neither for favour nor bribes make any one judge in the land. 2. It is by the grace of God that men are to be advanced from a private condition to be inferior judges, as royal dignity is a free gift of God; 1 Sam. ii. 7, “The Lord bringeth low and lifteth up;” Psal. lxxv. 7, “God putteth down one and setteth up another.” Court flatterers take from God and give to kings; but to be a judge inferior is no less an immediate favour of God than to be king, though the one be a greater favour than the other. Magis honos and Majoc honos are to be considered.
Arg. 9. — Those powers which differ gradually, and per magis et minus, by more and less only, differ not in nature and species, and constitute not kings and inferior judges different univocally. But the power of kings and inferior judges are such; therefore kings and inferior judges differ not univocally. That the powers are the same in nature, I prove, 1. by the specific acts and formal object of the power of both; for both are powers ordained of God. (Rom. xiii. 1.) To resist either, is to resist the ordinance of God. 2. Both are by office a terror to evil workers, ver. 3. 3. Both are the ministers of God for good. Though the king send and give a call to the inferior judge, that doth no more make the inferior judge’s powers in nature and specie different than ministers of the Word, called by ministers of the Word, have offices different in nature. Timothy’s office to be preacher of the Word differeth not in specie from the office of the presbytery which laid hands on him, though their office by extension be more than Timothy’s office. The people’s power is put forth in those same acts, when they choose one to be their king and supreme governor, and when they set up an aristocratical government, and choose many, or more than one, to be their governors; for the formal object of one or many governors is justice and religion, as they are to be advanced. The form and manner of their operation is, brachio seculari, by a co-active power, and by the sword. The formal acts of king and many judges in aristocracy are these same, the defending of the poor and needy from violence, the conservation of a community in a peaceable and a godly life. (1 Tim. ii. 2; Job xxix. 12, 13; Isa. i. 17.) These same laws of God that regulateth the king in all his acts of royal government, and tyeth and obligeth his conscience, as the Lord’s deputy, to execute judgment for God, and not in the stead of men, in God’s court of heaven, doth in like manner tie, and oblige the conscience of aristocratical judges, and all inferior judges, as is clear and evident by these places, 1 Tim. ii. 2, not only kings, but all in authority pa/ntev oi3 e0n u9peroxh|~ o!ntev are obliged to procure that their subjects lead a quiet and peaceable life, in all godliness and honesty. All in conscience are obliged (Deut. i. 16) to judge righteously between every man and his brother, and the stranger that is with them. Neither are they to respect persons in judgment, but are to hear the small as well as the great, nor to be afraid of the face of men, — the judgment administered by all, is God’s. (2 Chron. xix. 6.) All are obliged to fear God, (Deut. xvii. 19, 20,) to keep the words of the law; not to be lifted up in heart above their brethren. (Isa. i. 17; Jer. xiii. 2, 3,) Let any man show me a difference, according to God’s word, but in the extension, that what the king is to do as a king, in all the kingdom and whole dominions, (if God give to him many, as he gave to David, and Solomon, and Joshua,) that the inferior judges are to do in such and such circuits, and limited places, and I quit the cause; so as the inferior judges are little kings, and the king a great and delated judge, — as a compressed hand or fist, and the hand stretched out in fingers and thumb, are one hand; so here. 4. God owneth inferior judges as a congregation of gods; (Psal. lxxxii. 1, 2;) for that God sitteth in a congregation or senate of kings or monarchs, I shall not believe till I see royalists show to me a commonwealth of monarchs convening in one judicature. All are equally called gods, (John x. 35; Exod. xxii. 8,) if for any cause, but because all judges, even inferior, are the immediate deputies of the King of kings, and their sentence in judgment as the sentence of the Judge of all the earth, I shall he informed by the P. Prelate, when he shall answer my reasons, if his interdicted lordship may cast an eye to a poor presbyter below; and as wisdom is that by which kings reign, (Prov. viii. 15, so also ver. 16,) by which princes role, and nobles, even all the judges of the earth; all that is said against this is, that the king hath a prerogative royal, by which he is differenced from all judges in Israel, called jus regis +p%a#;Omi for, (saith Barclay,[4]) the king, as king, essentially hath a domination and power above 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 judges of Israel, as Samuel, Gideon, &c. had no domination, — the dominion was in God’s hand. “We may resist an inferior judge, (saith Arnisæus,[5]) otherwise there were no appeal from him, and the wrong we suffer were irreparable” as saith Marantius.[6] “And all the judges of the earth (saith Edward Symmons[7]) are from God more remotely; namely, mediante rege, by the mediation of the Supreme, even as the lesser stars have their light from God by the mediation of the sun. To the first I answer: — There was a difference betwixt the kings of Israel and their judges, no question; but if it be an essential difference, it is a question. For, 1. The judges were raised up in an extraordinary manner, out of any tribe, to defend the people, and vindicate their liberty, God remaining their king: the king, by the Lord’s appointment, was tyed, after Saul, to the royal tribe of Judah, till the Messiah’s coming. God took his own blessed liberty to set up a succession in the ten tribes. 2. The judges were not by succession from father to son: the kings were, as I conceive, for the typical eternity of the Messiah’s throne, presignified to stand from generation to generation. 3. Whether the judges were appointed by the election of the people, or no, some doubt; because Jephthah was so made judge: but I think it was not a law in Israel that it should be so. But the first mould of a king (Deut. xvii.) is by election. But that God gave power of domineering, that is, of tyrannising, to a king, so as he cannot be resisted, which he gave not to a judge, I think no scripture can make good. For by what scripture can royalists warrant to us that the people might rise in arms to defend themselves against Moses, Gideon, Eli, Samuel, and other judges, if they should have tyrannised over the people; and that it is unlawful to resist the most tyrannous king in Israel and Judah? 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. viii. 9, 11; and 1 Sam. x, 25) doth essentially differ betwixt the kings of Israel and the judges of Israel. But we think God gave never any power of tyranny to either judge or king of Israel; and domination in that sense was by God given to none of them. Arnisæus hath as little for him, to say the inferior magistrate may be resisted, because we may appeal from him; but the king cannot be resisted, quia sanctitas majestatis id non permittit, the sanctity of royal majesty will not permit us to resist the king.
Ans. — That is not Paul’s argument to prove it unlawful to resist kings, as kings, and doing their office, because of the sanctity of their majesty; that is, as the man intendeth, because of the supreme, absolute, and unlimited 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 sanctity of majesty, if we believe royalists, includeth essentially an absolute supremacy of power, whereby they are above the reach of all thrones, laws, powers, or resistance on earth. But the argument is, resist not, because the power is of God. But the inferior magistrate’s power is of God. Resist not, because you resist God’s ordinance in resisting the judge; but the inferior judge is God’s ordinance. (Rom. xiii. 1; Deut. i. 17; 2 Chron. xix. 6.) Mr Symmons saith, “All judges on earth are from the king, as stars have their light from the sun.” I answer, 1. Then aristocracy were unlawful, for it hath not its power from monarchy. Had the lords of the Philistines have the states of Holland, no power but from a monarchy? Name the monarch. Have the Venetians any power from a king? Indeed, our Prelate saith from Augustine, (Confess. lib. 3, cap. 8,) Generale pactum at societatis humanæ, obedire Regibus suis, it is an universal covenant of human society, and a dictate of nature, that men obey their kings. “I beg the favour of sectaries (saith he) to show as much for aristocracy and democracy.” Now all other governments, to those born at court, are the inventions of men. But I can show that same warrant for the one as for the other; because it is as well the dictate of nature that people obey their judges and rulers as it is that they obey their kings. And Augustine speaketh of all judges in that place, though he name kings; for kingly government is no more of the law of nature than aristocracy or democracy; nor are any born judges or subjects at all. There is a natural aptitude in all to either of these, for the conservation of nature, and that is all. Let us see that men, naturally inclining to government, incline rather to royal government than to any other. That the P. Prelate shall not be able to show; for fatherly government, being in two, is not kingly, but nearer to aristocracy; and when many families were on earth, every one independent within themselves, if a common enemy should invade a tract of land governed by families, I conceive, by nature’s light, they should incline to defend themselves, and to join in one politic body for their own safety, as is most natural. But, in that case they, having no king, and there were no reason of many fathers all alike loving their own families and sell-preservation, why one should be king over all, rather than another, except by voluntary compact. So it is clear that nature is nearer to aristocracy before this contract than a monarchy. And let him show us in multitudes of families dwelling together, before there was a king, as clear a warrant for monarchy as here is for aristocracy; though to me both be laudable and lawful ordinances of God, and the difference merely accidental, being one and the same power from the Lord, (Rom. xiii. 1,) which is in divers subjects; in one as a monarchy, in many as in aristocracy; and the one is as natural as the other, and the subjects are accidental to the nature of the power. 2. The stars have no light at all but in actual aspect toward the sun; and they are not lightsome bodies by the free will of the sun, and have no immediate light from God formally, but from the sun; so as if there were no sun, there should be no stars. 3. For actual shining and sending out of beams of light actu secundo, they depend upon the presence of the sun; but for inferior judges, though they have their call from the king, yet have they gifts to govern from no king on earth, but only from the King of kings. 4. When the king is dead, the judges are judges, and they depend not on the king for their second acts of judging; and for the actual emission and putting forth their beams and rays of justice upon the poor and needy, they depend on no voluntary aspect, information or commandment of the king, but on that immediate subjection of their conscience to the King of kings. And their judgment which they execute is the Lord’s immediately, and not the king’s; and so the comparison halteth.
Arg. 10. — If the king dyine, the judges inferior remain powers from God, the deputies of the Lord of Hosts, having their power from God, then are they essentially judges; 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 judges and rulers by derivation and participation, or improperly; but the king is rather the ruler by derivation and participation than those who are called inferior judges. Now, if these judges depend in their sentences upon the immediate will of him who is supposed to be the only judge, when this only judge dieth, they should cease to be judges: for Expirante mandatore exspirat mandatum; because the fountain-judge drying up, the streams must dry up. Now, when Saul died, the princes of the tribes remain by God’s institution princes, and they by God’s law and warrant (Deut. xvii.) choose David their king.
Arg. 11. — If the king, through absolute power, do not send inferior judges, and constitute them, but only by a power from the people; and if the Lord have no less immediate influence in making inferior judges than in making kings, then there is no ground that the king should be sole judge, and the inferior judge only judge by derivation from him, and essentially his deputy, and not the immediate deputy of God. If the former is true, therefore, so is the latter. And, 1. That the king’s absolute will maketh not inferior judges, is clear, from Deut. i. 15. Moses might not follow his own will in making inferior judges whom he pleased: God tyed him to a law, (ver. 13,) that he should take wise men, known amongst the people, and fearing God, and hating covetousness. And these qualifications were not from Moses, but from God; and no less immediately from God than the inward qualification of a king (Deut. xvii.); and therefore, it is not God’s law that the king may make inferior judges only, Durante beneplacito, during his absolute will; for if these divine qualifications remain in the seventy elders, Moses, at his will, could not remove them from their places. 2. That the king can make heritable judges more than 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 born lords of parliament, and judges by blood, is a positive law. 3. It seemeth to me, from Isa. iii. 1-4, that the inferior judge is made by consent of the people; nor can it be called a wronging of the king, that all cities and burghs of Scotland and England have power to choose their own provosts, rulers, and mayors. 4. If it be warranted by God, that the lawful call of God to the throne be the election of the people, the call of inferior judges must also be from the people, mediately or immediately. So I see no ground to say, that the inferior judge is the king’s vicegerent, or that he is in respect of the king, or in relation to supreme authority, only a private man.
Arg. 12. These judges cannot but be univocally and essentially judges no less than the king, without which in a kingdom justice is physically impossible; and anarchy, and violence, and confusion, must follow, if they be wanting in the kingdom. But without inferior judges, though there be a king, justice is physically impossible; and anarchy and confusion, &c. must follow. Now this argument is more considerable, that without inferior judges, though there be a king in a kingdom, justice and safety are impossible; and if there be inferior judges, 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 enemy’s land, vet justice is possible, and the kingdom preserved; the medium of the argument is grounded upon God’s word, Num. xi. 14, 15, when Moses is unable alone to judge the people, seventy elders are joined with him (ver. 16, 17); so were the elders adjoined to help him (Exod. xxiv. 1; Deut. v. 23; xxii. 16; Josh. xiii. 2; Judg. viii. 14; xi. 5, 11; 1 Sam. xi. 3; 1 Kings xx. 7; 2 Kings vi. 32; 2 Chron. xxxiv. 29; Ruth iv. 4; Deut. xix. 12; Ezek. viii. 1; Lam. i. 19); then were the elders of Moab thought to have a king. The natural end of judges hath been indigence and weakness, 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 judge or judges to obtain the end of self-preservation. But nature useth the most efficacious means to obtain its end; but in a great society and kingdom, the end is more easily attained by many governors than by one only; for where there is but one, he cannot minister justice to all; and the farther that the children are removed from their father and tutor, they are the nearer to violence and injustice. Justice should be at as easy a rate to the poor at a draught of water. Samuel went yearly through the land to Bethel, Gilgal, Mizpeh, (1 Sam. vii. 16,) and brought justice to the doors of the poor. So were our kings of Scotland obliged to do of old; but now justice is as dear as gold. It is not a good argument to prove inferior judges to be only vicars and deputies of the king, because the king may censure and punish them when they pervert judgment. 1. Because the king, in that punisheth them not as judges, but as men. 2. That might prove all the subjects to be vicars and deputies of the king, because he can punish them all, in the case of their breach of laws.