supreme Magistrate in a State and all particulars cease and the Royall line be spent and justice to be executed it returnes to the whole body to see to it As when Josua and divers Judges had ruled in Israel yet we read that after them Judg. 19 1. There was no King in Israel and then was the great sinne committed by the men of Gibeah with the Levites Concubine whereupon all Israel did take the sword of justice and they said Judg. 20. 13. to the men of Gibea Deliver us the men the children of Belial which are in Gibea that we may put them to death which Gibea refusing they did all as one man goe up in Armes against them God himselfe approving their act And what had all Israel to doe to execute justice if the power of the Sword did not returne to the people vacante magistratu supremo Neither can it be objected that though Israell had no King and supreme Magistrate amongst them yet they had severall heads of the Tribes by whose power they did come together for the execution of justice as it might seeme to be Judges 20. 2. For sometimes the chiefe of the Tribes doth in Scripture phrase signifie those that are chiefe in age wisedome and riches not such as were chiefe in authority Besides this action is imputed to all the people there being foure hundred thousand men that came together upon this designe vers. 2 unto whom the Levite made his complaint vers 7. Yee are all children of Israel give here your advice and counsell And all the people arose as one man vers 8 saying vers 9. Now this shall be the thing we will doe to Gibea and vers 11 So all the men of Israel were gathered against Gibea And least that any should thinke that this worke was done by the power of some remaines of regall authority amongst them it is not onely said before this work begun that there was no King in Israel in those dayes Judg. 19 1. But after all was done i is said further chap. 21. 25. In those dayes there was no King in Israel and every man did that which was right in his owne eyes so that Jus gladii the right of the sword in case of defection returneth to them again so far as to see that justice be duly executed And therefore if both the Fluxus and Refluxus of authority be from and to the people then must they needs be under God the first seat subject and receptacle of civill power Object But the Scripture tells us that the powers that be are ordained of God Rom. 13 1. And it ordained of God then not of man nor by any Fluxus or appointment from or of man Ans. Not to speake of the word {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} which signifies rather ordered then ordained Government is of God two wayes either by immediate donation as that of Moses or by mediate derivation as that of Iudges and the Kings of Israel The government of Princes now is not by immediate donation or designation but by mediate derivation and so it is both of God and man too as Fortescue speakes Quicquid facit causa secunda facit causa prima But the Doctor tells us that Kings at first were not by choice of the people but that election was a defection from and a disturbance to that naturall way of descent of governing Kingly power by a paternall right pag. 9. of his Reply That Monarchicall government is not a meere invention of man as Democracie and Aristocracie are but that it is rather ductunaturae though not jure naturae we being led there unto through the veines of Nature in a paternall or fatherly rule pag. 8. as is plaine by the Booke of God that the first fathers of mankinde were the first Kings and Rulers For we see saith he that the earth was divided amongst Noah and his three sonnes and still as they increased new Colonies were sent out who had the government both Regall and Sacerdotall by primogeniture whence it appeares saith he that Monarchy was the first government it being late ere any popular rule Aristocraticall or Democraticall appeared in the world And that Monarchy how ever we cannot say that it was jure divino yet it was exemplo divino the government which God set up over his people being Monarchicall still in Moses Judges and the Kings of Israel pag. 8. Ans. First whereas the Dr saith that the first Kings were not by the choice of the people at the first p. 8. And that popular election was a kinde of defection from and a disturbance to that naturall way c. I refer Doctor Fern unto Doctor Fern who saith both in his first and second book pag. 67. of his Reply It is probable that Kings at first were by election here as elswhere This I have spoke to already and shall speak to yet afterwards neither doe we take it unkindly that the Doctor cannot agree with us seeing he cannot agree with himselfe Secondly whereas he saith Monarchicall government is not a meere invention of Man as Aristocracie and Democracie are I refer him to what he saith himselfe For in his first booke pag. 13. 14. he saith We must distinguish power it selfe and the qualification of that power in severall formes of government If we consider the qualification of this governing power and the manner of executing it according to the severall formes of government we granted it before to be the invention of man And when such a qualification or forme is orderly agreed upon wee say it hath Gods permissive approbation Yet in his Reply he makes this forme of Monarchicall government rather an appointment of God both ducta natura and exemplo divino and not a meere invention of man as other formes of government are Here I must leave him to agree with himselfe Thirdly whereas he saith That the first Fathers of mankinde were the first Kings and Rulers for we see the earth divided amongst Noahs three sonnes c. I referre him for information to the 1 Chron. 1 10. where it is said expressely of Nimrod that hee began to be mighty upon the earth whereas if Noah and his sonnes were Kings their dominions being greater before the dâ—vision of the earth into after Colonies they should have been more mighty then he And what his might was is declared to us Gen. 10. 10. And the beginning of his kingdome was Babel c. Here is the first time as Mendoza well observes that we read of a kingdome after the flood and that is marked with a {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} Rebellavit For Nimrod comes of {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} to rebell as if in erecting his Kingdome he had rebelled against the way of government which before wasused if not appointed And it should seem strange if God had appointed that way of government by making the sonnes of Noah Kings that Cham from whom came Nimrod who was that
which in prudence might best correspond with their condition still making people the first subject and receptacle of civill power In proofe whereof I have stayed the longer it being the foundation of all this controversie And now passe on to the fourth Proposition which is 4th Proposition SEeing that the people are under God the first subject of civill power therefore the Prince oâ— supreme Magistrate hath no more power then what is communicated to him from the communitie because the affect doth not exceed the vertue of its cause 5th Proposition ANd as the Prince hath no more power then what is communicated from the communitie so the people or communitie cannot give away from themselves the power of selfe-preservation Because the same Commandement that faith Thou shalt not kill doth also say Thou shalt preserve Precepts that forbid evill do command the contrary good Now the morall naturall Law of God forbids a man to kill himselfe and therefore commands him to preserve himselfe and as by a positive act men cannot make a Law to kill themselves no more can they not to preserve themselves the one being as strongly commanded by the morall Law and as deeply seated in Nature as the other Secondly because if the communitie should give away the power of self-preservation the state should not be in a better but in a worser condition then before The King and Prince is taken into Office for the good of the people therefore called Pater patriae Pastor gregis not because he may arbitrarily rule in the Common wealth as a Father doth in his familie but because of his tender care that he is to have over his people and that the people might live more secure and peaceably in all godlinesse and honestie But if the communitie should give such a trust to any one that they might not at all defend themselves beyond his actuall appointment they should be infinitely in a worser condition then before because before such trust they should be freemen but after the trust they should be slaves unlesse it pleases the King through his own gratious condiscention to let them be free still for what is a slave but such a one who is so absolutely at the power of anothers command that he may be spoiled or sold or put under the Gallies and there beaten daily having no power to make any resistance or selfe-defence Thirdly it is agreeable to the Law of Nations and Reason that no inferiour Court can undo what a superiour Court hath done As where an estate is setled upon children by Act of Parliament no inferiour Court of Justice can cut off the intayle Now selfe-preservation is enacted in the Court of Nature as he that hath read but Magirus unbound I meane common naturall principles will grant and therefore no act of a communitie can cut off this intayle from their posteritie or make such a deed of Conveyance whereby themselves and their children should be spoyled of self-preservation Ob. But though by nature a man is bound to preserve himself yet he may destroy or put himself upon that which will be his destruction for the publick good doth not natura particularis go crosse to its own disposition ne detur vacuum Respons True I have read indeed that Natura particularis gives way to natura universalis but never heard before that natura universalis gives way to natura particularis or that natura universalis doth seek its own destruction or loose the power of self-preservation for the good or betternesse of some particular nature Wherefore if the seat of power be in the community and therefore no more power in the supreme then was and is derived from the communitie and the people cannot give away the power of self preservation Then in case the Prince doth neglect his trust so as not to preserve them but to oppose them to violence it is no usurpation for them to look to themselves which yet may be no act of jurisdiction over their Prince or taking away of any power from him which they gave him but is in truth a stirring up acting and exercising of that power which alwayes was left in themselves CHAP. II. HAving now spoken of power in generall I shall say somewhat of the governing and ruling power of England yet because that concerns the Parliament to declare which they have done and Lawyers for to clear which they do I shall but touch upon it and no more then comes within the compasse and verge I do not say of a divine but subject I find therefore in learned Fortescue Lord chief-Chief-Justice and after Lord Chancellor in King Henry the sixth time that he doth distinguish of governed or ruling power into two sorts the one meerly royall and the other politick When Kingdoms are ruled by royall government saith he then men in a times past excelling in power and greedie of dignity and glory did many times by plain force subdue unto themselves their neighbours the Nations adjoyning and compelled them to do them service and to obey their commands which commands they decreed afterwards to be unto the people very Laws Cap. 12. The forme of institution of a politick Kingdom is that where a King is mad and ordained for the defence of the Law of his Subjects and of their bodies and goods whereunto he receiveth power of his people for that he cannot govern his people by any other power Cap. 13. Now saith he the King of England cannot alter or change the Laws of his Realm at his pleasure for he governeth his people by power not onely Royall but also politick And accordingly Wil. the Conquerour to go no higher in whose entrance to the Crown Dr. F. makes the first contrivement of his English government for conscience to rest upon seemes to me to have possest himself of this Kingdom who though he did conquer the same yet the first claime or title that he laid to this Crown was gift which Edward the Consessor had made to him Herauld the former King having promised the Crown also to him In this right he first set foot on the English shore not in the right of a conquest but in the right of a gift and promise as Speed Cambden and others affirm And afterwards when he had obtained the Crown he swore to use and practise the same good laws of Edward for the common laws of this realme notwithstanding saith Mr Fox Amongst the said lawes I find in ancient Records this was part that the King because he is Vicar of the highest King is appointed to rule the kingdome and the Lords people to defend the holy Church which unlesse he do the name of a King agrees not to him but he loseth the name of a King c. 2ly As the King and Conqueror came into the Kingdome by this claim so we finde that in those times the consent and choice of the people was in use for the establishing of Kings amongst them For
they thought For the soule of man perceiving that the Word preached is compounded with their Art and covered over with humane dung that is poluted with humane affection and passion it doth therefore nauseat the thing delivered and is rather provoked then converted Yet because I have been earnestly desired by friends to open more fully the nature of government and civill government of England I am not unwilling to set pen to paper againe For your better satisfaction therefore give me leave to lead you on by some steps or propositions which I shall lay down in the first and second chapters and then shall come more neerly to answer the Doctor CHAP. I NOw because the Basis of our Question is concerning the nature of Government Rule and Authority or ruling and governing power in which principle our Doctor is so much mistaken I must though at last shew what that is Power in it selfe therefore or {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} the word used Rom. 13. properly signifies a liberty or authority to c worke or act towards others translated licentia from {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} as licentia à licet Sometimes the word is used in the abstract as Luke 4. 6. Luke 19. 17. Sometimes in the concreate as Matth. 8. 9. Rom. 13. 1. 2. Where saith Gerard d not without great advice the Apostle Paul doth use an abstractive manner of speech to shew that subiects ought not so much to respect the persons commanding as the office it selfe in their commandements Take the word in the abstract so it is all one with jurisdiction which is ordinarily described to be Jus dicendi in invitum Now this governing power is either Ecclesiasticall or Civill civill Concerning which our question is according to the Apostle Paul as Gerard e Bucanan and others have it is that ordinance of God which is armed with the sword for the terror of those that are evill and encouragement of those that do well Rom. 13 1 2. 3. This dominion of jurisdiction is distinguished from dominion of propriety for dominion of propriety as Medina observes f is a power of disposing of any thing that is a mans owne to his own profit The power of Jurisdiction or government is not so which while some have mistaken they have attributed so much power to the Prince in regard of Townes Castles and Forts as if he had therein dominion of propriety which breeds much confusion in mens apprehensions and doth bias their thoughts into state errors According to Alman Secular or Civill power g is that power which regularly is given to one or more by the people for the ordering and preservation of the Common-Wealth according to the civill Lawes thereof I shall go no further then the Scripture will lead us plainly in this particular As Ecclesiasticall power or jurisdiction is ministeriall and therefore called Jus clavium the power of the Keyes so Civill power is Lordly and therefore called Jus gladii the power of the Sword whereby some are authorized to exercise jurisdiction in Common-wealths over others for the reward of those that are good and the punishment of those that are evill that is governing or ruling power 2d Proposition IF we take governing or ruling power as abstractively considered so it is an ordinance appointed by God himselfe By me Kings reigne saith God And our Saviour when Pilate said Knowest thou not that I have power to loose thee c. said Thou hadst it not unlesse it were given thee from above And againe Give unto Caesar the things that are Caejars shewing that as God hath his dues in the world so the magistrate hath his Besides we are comanded to obey and submit unto the higher powers Rom. 13. And why should there be any obedience if the power it selfe were not commanded of God yea the Israelites are faulted for contemning of God himselfe in casting off the government of Samuel which there should not have been had not government been appointed by God {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} said the Heathen Luther calls Magistracie Necessarium naturae corruptaremedium the necessarie remedy of corrupt nature And Tertullian saith well Inde Imperator unde homo antequam Imperator The voice of nature is the voice of God now nature it selfe teacheth that in a commmunity or body politicke there must be justice administred otherwise the community can never be preserved but justice cannot be administred nnlesse authority power or jurisdiction be first appointed for what hath a private man to do to put another to death Thou shalt not kill is made to all men Object But the Apostle calls it {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} an humane constitution or creature how therefore is it true that ruling power is an ordinance appointed of God himselfe Answ. The Apostle dorh no where say that power it selfe or Magistracie in the abstract is an ordinance of man but the forme or qualification of it as Monarchy Aristocracie Democracie which are the chanels in which this power runs is {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} And therefore the Apostle having said Be subject to every ordidinance of man he addeth whether to the King as supreame or to the Governours c. h Durandus here distinguishes between institution of power and acquisition of it Secular power saith he considered according to its institution is of God but according to its acquisition and way of use so not Our Doctor doth ordinarily confound these in his reasonings yea though he distinguishes them when he sets downe his owne naked judgement yet when he comes to reason against us he will take no notice of his owne distinction neither can we perswade him to it but the thing being as visible as the Sunne I passe to the third and chiefe step of my discourse which is this following 3◠Propos. THough power abstractively considered be originally from God himselfe yet he hath communicated that power to the people so as the first subject seat and receptacle of ruling civill power under himselfe is the whole people or body politicke To this purpose Doctor Ruherfords words are very plaine Afree Common-wealth saith he containes ordines regni the States that have Nomotheticke power and they not onely by the law of Nature may use justa tutela a necessary defence of their lives from a tyrants fury but also by the law of Nations may authoritatively represse and limit as is proved by Junius Brutus Bucherius Althasius Haenomus Therefore Heming Amiceus doe well distinguish between Plebem {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} populum for indeed the multitude excluding the States or base of the people can hardly have another law against i tyrant then the law of Nature But the Common-wealth including the States of a free Kingdome hath an authoritative So Isodore Origen Atistotle Plato Titus Livius Plutarch and that of the Councell of Basil Plus valet Regnum quam
Rex The Kingdome is more worth then the King approved by all Thus farre Doctor Rutherford professor of Divinity in Scotland The reasons of my position are these First when God gave the power of the Sword to men Gen. 9 6. he gave it indiscriminatim without difference to all the world Noah and his sonnes being all the men that were then alive in the world and he gave not the Sword onely to Noah but to all his sonnes that then were upon the face of the earth not that every one might ordinarily use it but that they might as they thought fit appoint one or more who might exercise that power that was given to all as the first seat of it Secondly because the power of ruling and governing is naturall and what ever is naturall doth first agree to the communitie or totum and afterward to the particular person or part as the power of seeing and hearing as k Facultas Parisiensis observes to this purpose is firstly in the man and from the man in the eye or eare or particular member Thirdly because the Fluxus and Refluxus of civill authoritie is from and to the people If the authority of ruling in a Commonwealth be given by the people to him that ruleth I speake what is Jure Regulariter and returneth to them againe to see justice done in case that there is no particular supreme Magistrate left to rule then the first subject seat and receptable of ruling power must needs be in the people Now so it is that both these are true which I shall prove one after another As first The Fluxus of civill authority is from the people civill government or authority is derived from the people to the Prince or him that ruleth they ordinarily and regularly doe and are to communicate that governing power where with such or such a person is so invested therefore saith the Lord Dâ—ut. 17. 14. 15. When thou art come into the land which the Lord thy God giveth thee and shalt possesse it and shalt dwell therein and shalt say I will set a King over me like as all the nations that are about me thou shalt in any wise set him King over thee whom the Lord thy God shall chuse thou shalt not set a stranger over thee which is not thy brother Where we shall see that the whole power of appointing and setting a King over them was given unto that people as other Nations had it by God himselfe For first God directing them herein doth not say thus When thou dwellest in the land which I shall give thee Take heed that thou do not set a King over thee which thing belongs not to thee but as a matter belonging to the people he saith when thou shalt say I will set a King over me be sure that he be a good one and such as is pleasing to me Secondly In that he doth take away the power from them of making a stranger he granteth them a power to make a brother as l Mendoza well observes Now saith God to them thou mayest not set a stranger over thee which is not thy brother Thirdly what can be more plaine then the words themselves In the 15. verse the words are reduplicated Ponendo pones according to the Hebrew in placing thou shalt place And that there might bee no mistake in the matter God is pleased to explaine the former word {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} which we translate set or place by an afterward in the â—5 verse {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} which signifies to give Thus thou maiâ—st not give a stranger over thee so that setting and giving in these two verses are all one shewing that is firstly in the people to set or give a power unto others to rule over them Secondly the Apostle Peter calis this civill power {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} Now it is not therefore called so onely because it concerns men or because it is conversant about men or appointed for the good of men for then the government m of the Church also should be so called but because the way of governing is raised appointed established by man himselfe as is observed out of Oecumenius n Thirdly this derivation of authority from the people will appeare also if men do seriously consider the state of Jewish government There was no people nnder heaven whom God did so immediatly reigne over as their King yet if we observe those Kings that were the most immediatly appointed by God himselfe we shall finde the intervening choice of the people insomuch as it is said of Saul expresly that the people did chuse him 1 Sam. 12. 13. Behold your King whom you have chosen and desired upon which words Mendoza observes that by the word chosen cannot be meant desired because that word was added too as different from the former yet it is said 1 Sam. 11. 15. That all the people went to Gilgall and there they made Saul King Whereupon sayes o Mendoza What is more plain Neither could they make him King otherwise then by conferring Kingly power upon him I doe not say that God did not make a designation of his person to the Crowne there is much difference between the designation of person and collation of power When the Israelites were under the government of the Judges they desired chose a new way of government saying to Samuel Now make us a King to judge us like all the Nations 1. Sam. 8 5. And when God had yeelded to them and had designed Saul over them the people also came in with their election and sufftages Neither are these two Gods designation and mans election repugnant but may stand together For as Zepperus observes on those words Deut. 17. p Thou shalt set over thee a man whom God shall choose the election may be of God the constitution susception and comprobation of the people by their suffrages And Car. Scribanius q who purposely writes of the forme and manner of the Jewes government and Common-wealth speaks abundantly and plainly thus But for that which concernes the creation of the King of Israel he was first saith he created by the suffrages of the whole people And if God would have it so then among the children of Israel whom he intended in speciall manner to reigne over himselfe much more may we thinke that God would have the first constitution of Kingdomes to be so ordered now and amongst other people Wherefore I conclude this That the Prince doth and ought at first to receive his government and authoritie from the people and that the people themselves do give it to him And if so then the first seat and subject of civill government is the people r For that nothing can give that to another which it hath not it selfe first either formally or virtually And now secondly for the reflux of authority so it is that in case there have been a
Parliament hath raised this Army by an act of judgement and jurisdiction not over their Prince but in regard of Delinquents so the same act may be a work of jurisdiction in regard of others and yet an act of preservation in regard of our selves The execution of any malefactor in an ordinary way of Law is both preservation to the State and a work of jurisdiction in regard of the offender so here yet I do not say it is a work of jurisdiction over our Prince but in regard of delinquents that are about him Dr. F. Mr. Bridge gives us proofes for this way of self-preservation from the Law of Nature it being naturall to a man and so to a communitie to defend it self And were this argument good then might private men and the people without the Parliament take up armes and resist for self-preservation is naturall to them Ans. It follows not because though I say every thing may defend it self by nature yet I say also it must do it modo suo naturae suae convenienti we say that all creatures do defend themselves and it is naturall so to do yet we do not therefore say that a beast defends himself in the same manner as a man doth or a man as a beast but in a way sutable to every nature Now if a private person be in danger to be oppressed by a Prince flying is more fit defence for him and therefore saith our Saviour If they persecute thee in one City flie to another but if the State be wronged and oppressed which is a publick grievance then the State and those that represent them are more fit to take up Armes for its preservation For Nature in generall teacheth self-preservation Nature specificated teacheth this or that preservation now the nature of a communitie and of a particular person are distinct and therefore though I say a community is to defend it self because sui tutela is naturall to every thing yet I do not say that a particular private person may ordinarily defend himself in that way which is most sutable to the communitie as the taking up of Armes is yet I suppose no moderate man will denie this that the Subjects though not invested with authoritie have a power to keep out an enemie from landing incase of forrain invasion yea though the Kings Officers should be negligent therein or so malitious and treacherous as to forbid them to defend themselves and their Countrey Secondly saith the Doctor He proves it by Scriptures 1 Chron. 12. 19. where the Word of God saith expresly that David went out against Saul to battell but he was Sauls subject at that time A desperate undertaking to make people beleeve this is expresse Scripture for subjects to go out to battell against their King But he should have added what is expressed there it was with the Philistines that he went out and that he helped them not for he did but make shew of tendring his service to Acisâ— Ans. Here I need give no other answer then repeat those words fully that he replyes to which were these which Scripture I bring not to prove that a Subject may take up armes against the King but that the Subjects may take up arms against those that are malignant about the Kings person notwithstanding the Kings command to the contrary For seeing that Davids heart smote him formerly for cutting of the lap of Sauls garment and yet it is said in expresse words in this text that he went out against Saul its likely that his intentions were against those that were evill and wicked about him Then the Doctor brings in another peece of my argument not the whole reason or the sense of it thus Be subject to the higher powers Rom. 13. but the Parliament is the highest Court of Justice pa. 3. To which he replies modo suo well assumed and so it is for is not the highest Court of Justice an higher power We grant faith the Doctor there is a subjection due to them and if he meant by the Parliament the 3. Estates concurring all manner of subjection is due unter them It 's well he will acknowledge any subjection due to the Parliament without the third estate And if any subjection then they have some authority but none they can have if not power to bring in the accused to be tried before them And if they have power to bring in 20 by force then 100. then 1000. then 10000. which cannot be done without raising an Army Then he undertakes sayes the Doctor to shew out of Scripture that Kings receive their power from the people and hath the ill hap to light on Saul David and Salomon for examples Ans. The Doctor hath the ill hap alwayes to misse the argument which lay thus If it be the duty of the King to looke to the safety of the Kingdome and that because he is trusted therewith by the Common wealth then if the Parliament be immediatly trusted by the Common-wealth with the safety thereof as well as the King though not so much then are they to looke to it and to use all means for the preservation thereof as well as the King But so it is that the King is bound to look to the safety thereof and that because he is intrusted therwith as was Saul David and Salomon who came to their government by the consent and choice of the people Whereupon the Doctor replies He hath the ill hap to light on Saul David and Salomon But it seems the Doctor had not the good hap to meet with these severall Authors which affirme that even these Kings Saul David and Salomon were chosen by the people If he had read or minded them he would not have imputed this as an ill hap unto me for to light on these examples I will give him but the testimony of Mendoza who though not of our judgement in this matter yet ingeniously confesses that with great probability Authors do reason for a popular choise of Saul David and Salomon Whereas saith Mendoza it is objected that Samuel by anointing Saul without any consent of the people saying the Lord hath anointed thee King over his heritage did thereby clearly shew that the regall power was conferr'd upon Saul not from the people but from God that is easily answered that that Vnction was not a signe of power already conferr'd but to be conferr'd as may be proved by the anointing of David whom Samuel anointed 1 King 16. 13. Dureing Sauls Raigne yea while he had many yeares to raâ—gnt Wherby it appeares that David did not receive regall power by that unction but by that which he had afterward by all the Tribes Elders when coming to Hebron they anointed David King over Israel Therfore that first unction was not the conferring the regal power but only a signification of this latter unction by which this Kingly power was to be derived or conveyed so also that first anointing of Saul before the consent of
the people did not signifie the Kingly power already conferred but to be conferred upon him to wit when all being gathered together by Samuel to Mispah gave their consent and cryed out Let the King live He hath fouâ—d an example and proofe for thetrust of Parliement in Davids time 1 Cro. 13. 1 2. Because David consults with the Captaines and Leaders which were Officers â—ot of the King but Kingdome but those were Officers of the King and Kingdome meerly designed by him not the People and called by h m to that trust pag 43 44 True I have found an example indeed in Davids time for what I alledged Namely that there were then certaine Officers of the Kingdome not of the King onely and though under him yet were they with him trusted with the affaires of the Kingdome This also was the judgement of the Protestant Divines in France whose Testimonie I shall relate afterwards of lumus Josephus Brutus Zepperus Sigonius and many others Zepperus saith thus That in Saul David and Salomons time so before the Captivity the Kingdom of Israel was mixed with Aristocracie for it had a Senate of 70. or great Synedrim which sate at Jerusalem whose Iudges were called Princes who sitting by the King did dispatch the great affaires of the Kingdome unto whom was referred the choice of the King and High Priest and matters of War and other things greatly concerning the people Of this Synedrion Josephus saith Nihilagat Rex sine Senatorum sententia Yea these Senators were in such place with the King that they were called his friends brethren 1 Chron. 2. 2. And though the Dr. saies Those Officers in Davids time were designed by the King not the people Yet if we look to the originall in the first of Deut. 13. We â—inde that the people did first give them to Moses before he did make them Rulers for v. 13. Moses relating the first constitution of that Government saith I said unto you give mee wise men and understanding and known men among your Tribes and I will make them Rulers over you The English Translation readeth Take yâ—e wise men the Hebrew is give yee us as Montanus hath it when they had given them to Moses he saith v. 15. So I received them so is the Hebrew he would not make any rulers over them but such as he had first e c eived from them and they had given unto him and so though at the first it pleased God to appoint those Rulers or Councell of State called the Sanedrym or Synedrion whereupon Mendosa saith that they were equal to Moses being appointed by God as Moses was Numbers 11. 14 15 16. Yet that was by and with the consent and choice of the people not meerly by appointment of the King as our Doctor would Car. Sigoâ—ius will tell him out of the Tolmodists and other Divines that he had search'd into that this Sinedrion or Colledge of Elders did represent the Scepter that the Scepter it selfe did depend on it that none did judge the Tribe and the Scepter but this house of Judgement To this purpose Gerrara shewes that this Synedrion was chosen of the chiefe men of Israel in whom was power of judging controversies exercising of publique justice yea of choosing and deposing Kings And therefore of the Talmodist this Councell was called the house of Judgement or the house of the Scepter and publique Authoritie And Zepperus with Doctor Biljon saith this Synedrion continued with that people of God unto the time of Herod Iosepâ—us being witnes I presse not so much as these Authors speake of But whether there were not in those times of David Officiariâ— Regns wich were not meerly designed by the King and what inference I do make from thence let Conscience judge Againe whereas I argue from the being and nature of Parliament that if it hath not power to send for by force those that are accused to be tryed before them that should not be a Court of Justice seeing that even inferiour Courts have a power to force those before them that are to be tryed And if the Parliament may send one Sergeant at Armes then 20. then 100. then 1000 c. The Doctor Replies Therfore Inferiour Courts have a power to raise Armes Answer this followes not For though I say every Court hath power to force in the accused yet it must be in a way suitable Now this raising of Armes is not suitable unto an Inferiour Court but to the Parliament being a more Nationall and publike Court then any other is The Dr. tells us indeed that other Courts have their posse comitatus So the Parliament have their Orders to fetch and force in the accused which are established by law aswell as his posse Comitatus is But saith the Dr. I did not know before that all the Parliament Souldiers were Sergeants at Armes Answer how doth hee catch at the word and let the sence goe the sence scope and drift of the Argument was to shew that as they might send forth one who by force should fetch in the accused by the same reason they might send forth ten and by the same Reason that they may send forth 10 they may send forth 20 so 100 so 1000 so 10000 The Dr. puts off the Argument with a Jeere because hee hath no list to meddle with the Reason In the 45 Page hee would enervate the Testimonies of Divines which I brought to shew that all Protestant Divines were of our minde Let us see therefore what hee saith to them And first he begins with the Testimony of the Germane Divines and for that saith he The Testimony of the Centuriste speakes nothing to this purpose A short answer soon and â—â—sily given but why nothing to our purpose nay stay there the Dr. will keepe his Reason to himselfe I set downe therefore the Testimony againe and let men judge whether it bee to the purpose Governours say they in such things as are repugnant to the law of God have no power or 〈…〉 above other private men and they themselves commanding that which is evill have no power or immunitie above others Yea they themselves commanding that which is evill are as much bound to feare the Ordinance of God bearing the word for the punishment of vice for St. Paul Rom. 13. saith that God dia instance and ordaine a power both of defending that which is good and punishing that which is evill and hee commands that every soule and so the governours themselves should bee subject â—o this Ordinance of God if they would be defended by it and not by their wicked deeds makes themselves liable to punishment Of the French and Low Country Divines he brings no testimony saith the Dr. but for proose tels us ne know their practice so I for answer may returne him his owne words we know what hath been the practice of those Protestants and so they are parties interessed not so fit