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, [Hebrew] 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,) [Hebrew] rasce, [Hebrew] [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 pantes oi en uperoche ontes 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 

[Hebrew] 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.







[1] Grotius de jure belli et pac. lib. 1, c. 4, Nam omnis facultas 

gubernandi in magistratibus, summa potestati ita. subjicitur ut quioquid 

contra voluntatem summi imperantis faciant, id defectum ait ea 

facultate, ac proinde de pro actu privato habendum.



[2] Grotius ib. species intermedia, si genus respicias, est species, 

srepeciem infra positam, est genus; ita magistratus illi, inferiorum 

quidem ratione habita sunt publicæ, personæ, ac superiorea si 

considerentur, sunt privati.



[3] Symmon's Loyal Subjects' Belief, sect. 1, p. 3.



[4] Inferiores Judices sunt improprie Vicarii Regis, quod missionem 

externam ad officium, sed immediati Dei vicarii. quoad officium in quod 

misai sunt. Barclaius contr. Monarch. l. 2, p. 56, 57.



[5] Arnisæus de authoritate princip. c. 3, n. 9. 



[6] Marant. disp. l.. Zoan. tract. 3, de defens. Mynsing. obs, 18, cent. 

5.



[7] Symmons, sect. 1, p. 2.



______



[8] Original in Estrangela Syriac, [Syriac], transliterated by 

Rutherford into Hebrew.