Lex Rex, Question 17
QUEST. XVII. Whether or not the Prince have properly a fiduciarie, and ministeriall power of a Tutor, Husband, Patron, Minister, head, father of a family, not of a Lord or dominator?
THat the power of the King is fiduciarie, that is given to him immediatly by God in trust,The Kings power fiduciarie. Royallists deny not; but we hold that the trust is put upon the King by the people. 2. We deny that the people give themselves to the King as a gift, for what is freely given cannot be taken againe▪ but they gave themselves to the King as a pawne; and if the pawne be abused, or not used in that manner as it was conditionated to be used, the party in whose hand the pawne is intrusted, faileth in his trust.
The King a Tutor.1. Assertion. The King is more properly a Tutor then a Father, 1. Indigencie is the originall of Tutors, the Parents dye; what then shall become of the Orphan and his inheritance? he cannot guide it himselfe; therefore nature devised a Tutor to supply the place of a father,Difference between a father and a Tutor. and to governe the Tutor; but with this consideration, the father is Lord of the inheritance, and if he be distressed, may sell it, that it shall never come to the sonne, and the father for the bad deserving of his sonne may dis-inherite him; but the Tutor being but a borrowed father, cannot sell the inheritance of the pupill, nor can he for the pupills bad deserving, by any dominion of Justice over the pupill, take away the inheritance from him, and give it to his owne son; so a Community of it selfe, because of sin, is a naked society that can but destroy it selfe, and every one eate the flesh of his brother, therefore God hath appointed a King or governour, who shall take care of that community, rule them in peace, and save all from reciprocation of mutuall acts of violence, yet so, as because a trust is put on the Ruler of a community, which is not his heritage, he cannot dispose of it as he pleaseth, because he is not the proper owner of the inheritance.
2. The Pupill when he commeth to age, may call his Tutor to an accompt for his administration; I doe not acknowledge that as a truth, which Arnisaeus saith, De authoritate. prin. c. 3. n. 5. The Common-wealth is alwaies minor, and under Tutory, because it alway hath need of a curator and governour, and can never put away its governour, bu… the pupill may grow to age and wisedome, so as he may be without all Tutors, and can guide himselfe, and so may call in question his Tutor, and the pupill cannot be his Iudge, but must stand to the sentence of a superiour Iudge, and so the people cannot judge or punish their Prince, God must be Iudge betwixt them both.
But this is 1. a begging of the question, every comparison halteth, no community but it is Major in this,A free Community no pupill or minor. that it can appoint its owne Tutors, and though it cannot be without all Rulers, yet it may well be without this or that Prince and Ruler, and therefore may resume its power, which it gave conditionally to the Ruler for its owne safety and good, and in so farre as this condition is violated, and power turned to the destruction of the Common-wealth, it is to be esteemed as not given; and though the people be not a politique Iudge in their owne cause, yet in case of manifest oppression, nature can teach them to oppose defensive violence against offensive: a community in its politique body is also above any Ruler, and may judge what is manifestly destructive to it selfe.
Obj. The Pupill hath not power to appoint his owne Tutor, nor doth he give power to him, so neither doth the people give it to the King. Ans. The Pupill hath not indeed a formall power to make a Tutor, but he hath vertually a legall power in his father, who appointeth a Tutor for his sonne, and the people have vertually all Royall power in them, as in a sort of immortall and eternall fountain, and may create to themselves many Kings.
Asser. 2. The Kings power is not properly and univocally a Maritall and husbandly power, but only Analogically, The Kings power not properly Maritall or husbandly.1. The Wife by nature is the weaker Vessell, and inferiour to the man, but the Kingdom, as shall be demonstrated is superiour to the King. 2. The Wife is given as an helpe to the man, but by the contrary the man here is given as an helpe and father to the Common-wealth, which is presumed to be the wife. 3. Maritall and husbandly power is naturall, though it be not naturall, but from free election that Peter is Ana's Husband, and should have been, though man had never sinned: but Royall Power is a politick constitution, and the world might have subsisted, though Aristocracy or Democracy had been the only and perpetuall governments. So let the Prelate glory in his borrowed Logick, he had it from Barclay. It is not in the power of the Wife to repudiat her Husband, though never so wicked, she is tyed to him for ever, and may not give to him a bill of Divorcement, as by Law the Husband might give to her; if therefore the people sweare loyalty to him, they must keep, though to their hurt. Ps. 15. Ans. There's nothing here said, except Barclay and the Plagiarie prove, that the Kings Power is properly a Husbands power, which they cannot prove, but from a Simile that crooketh; but a King elected upon conditions, that if he sell his people, he shall lose his Crown, is as essentially a King, as Adam was Evahs Husband, and yet by grant of parties, the people may devorce from such a King, and dethrone him, if he sell his people; but a Wife may never devorce from her Husband, as the Argument saith. And this poore Argument the Prelate stole from Dr. Ferne, part 2. Sec. 3. pag. 10, 11. 2. The keeping of Covenant though to our hu…t, is a penall hurt, and losse of goods, not a morall hurt, and losse of Religion.
The King a Patron rather then a Lord.Assert. 3. The King is more properly a sort of Patron, to defend the people, and therefore hath no power given either by God or man to hurt the people, and a Minister or publick and honourable servant, Rom. 13.4. for he is the Minister of God to thee for good; he is the Common-wealths servant objectively, The King an honourable servant.because all the Kings service, as he is King, is for the good, safety, peace and salvation of the people, and in this he is a servant. 2. He is the servant of the people Representatively, in that the people hath impawned in his hand all their power to doe Royall service. Obj. He is the servant of God, ergo he is not the peoples Servant, but their soveraigne Lord. Ans. It followeth not, because all the service the King as King performeth to God, they are acts of Royalty, and acts of Royall service, as terminated on the people; or acts of their Soveraigne Lord, and this proveth that to be their Soveraigne, is to be their servant,Royall power only from God, and only from the people in divers respects. and watch-man.
Object. 2. God maketh a King only, and the Kingly power is in him only, not in the people. Ans. The Royall power is only from God, immediatly, Immediatione simplicis constitutionis, & solum a Deo solitudine primae causae, by the immediation of simple constitution, none but God appointed there should be Kings; but 2. Royall power is not in God, nor only from God; immediatione applicationis regia dignitatis ad personam, nec a Deo solum, solitudine causae applicantis dignitatem, huic, non illi, in respect of the applying of Royall dignity to this person, not to this.
Object. 3. Though Royall power were given to the people, it is not given to the people, as if it were the Royal power of the people, and not the Royall power of God, neither is it any other waies bestowed on the people but as on a beame, a channell, an instrument, by which it is derived to others, and so the King is not the minister or servant of the people.
Ans. It is not in the people as in the principall cause; Sure all Royall power that way is only in God; but it is in the people as in the instrument: and when the people maketh David their King at Hebron, in that same very act, God by the people using their free suffrages and consent, maketh David King at Hebron: so God only giveth raine, and none of the vanities and supposed gods of the Gentiles can give raine, Ier. 14 22. and yet the Clouds also give raine, as nature, as an organ and vessell out of which God powreth down raine upon the dry earth▪ Amos 9.6. and every instrument under God, that is properly an instrument▪ is a sort of Vicarious cause in Gods room, and so the people as in Gods roome, applyeth Royall power to David, The King the servant of the people both objectively & subjectively.not to any of Sauls sonnes, and appointeth David to be their Royall Servant to governe, and in that to serve God, and to doe that, which a Communitie now in the state of sinne cannot formally doe themselves: and so I see not how it is a service to the people, not only objectively, because the Kings Royall service tendeth to the good, and peace, and safety of the people; but also subjectively, in regard he hath his power and Royall authoritie which he exerciseth as King, from the people under God, as Gods instruments: and therefore the King and Parliament give out Lawes and Statutes in the name of the whole people of the Land. And they are but flatterers, and belye the Holy Ghost, who teach that the people doe not make the King; for Israel made Saul King at Mizpeh, and Israel made David King at Hebron.
Object. 3. Israel made David King, that is, Israel designed Davids person to be King, and Israel consented to Gods act of making David King, but they did not make David King.
Ans. I say not that Israel made the Royall dignitie of Kings:By one and the same act the Lord of Heaven, and the People make the King according to the physicall realitie of the act. God, Deut. 17. instituted that himselfe: bu… the Royalist must give us an act of God going before an act of the peoples making David King at Hebron, by which David of no King is made formally a King: and then another act of the People, approving only and consenting to that act of God, whereby David is made formally of no King to be a King. This Royalists shall never instruct, for there be only two acts of God here; 1. Gods act of annointing David by the hand of Samuel; and 2. Gods act of making David King at Hebron: and a third they shall never give. But the former is not that by which David was essentially and formally changed from the state of a private subject, and no King, into the state of a publike Judge and supreme Lord and King, for (as I have proved) after this act of annointing of David King, he was designed only and set apart to be King in the Lords fit time; and after this annointing, he was no more formally a King then Doeg or Nabal were Kings, but a subject who called Saul the Lords annointed and King, and obeyed Saul as another subj…ct doth his King: but it is certaine God by no other act made David King at Hebron, then by Israels act of free electing him to be King and leader of the Lords people, as God by no other act sendeth down rain on the earth, but by Gods melting the clouds, and causing raine to fall on the earth: and therefore to say Israel made David King at Hebron, that is, Israel approved only and consented to a prior act of Gods making David King, is all one as to say Saul prophecied, that is, Saul consented to a prior act of the Spirit of God who prophecied: and Peter preached, Act. 2. that is, Peter approved and consented to the Holy Ghosts act of preaching. Which to say, is childish.
Assert. 4. The King is an head of the Commonwealth only metaphorically, The King head of the Communitie only metaphoricallyby a borrowed speech, in a politique sense, because he ruleth, commandeth, directeth the whole politique body in all their operations and functions. But he is not univocally and essentially the head of the Commonwealth. 1. The same very life in number that is in the head, is in the members: there be divers distinct soules and lives in the King, and in his Subjects. 2. The head naturall is not made an head by the free election and consent of armes, shoulders, leggs, toes, fingers, &c. The King is made King only by the free election of his people. 3. The naturall head, so long as the person liveth, is ever the head, and cannot cease to be a head while it is seated on the shoulders: The King, if he sell his people, their persons and soules, may leave off to be a King and Head. 4. The head and members live together, and dye together: the King & the people are not so; the King may dye, and the People live. 5. The naturall head cannot destroy the members, and preserve it selfe: but King Nero may waste and destroy his people. D. Ferne, M. Simmons, the P. Prelate, when they draw arguments from the head, do but dream, as the members should not resist the head. Naturall members should not, or cannot resist the head, though the hand may pull a tooth out of the head, which is no small violence to the head. But the members of a Politique body may resist the Politique head. 2. This or that King is not the adequate and totall Politique head of the Common-wealth: and therefore though you cut off a Politique head, there's nothing done against nature. If you cut off all Kings of the Royall line, and all Governors Aristocraticall, both King and Parliament, this were against nature; And a Common-wealth which would cut off all Governors, and all Heads, should goe against nature, and run to ruine quickly. I conceive a societie of reasonable men cannot want Governours. 6. The naturall head communicateth life, sense, and motion to the members, and is the seat of externall and internall senses: the King is not so.
Hence Assert. 5. the King is not properly the head of a family,The King but metaphorically only Lord of the familie. for, 1. (as Tholossa saith well de Rep. l. 5. c. 5.) Nature hath one intention in making the thumbe, another intention in making the whole hand, another in forming the body: so there is one intention of the God of nature in governing of one man, another in governing a Familie, another in governing a Citie: nor is the thumbe King of all the members: so domestick government is not Monarchicall properly. 1. The mother hath a parentall power as the father hath, Prov. 4.5. & 10.3. & 31.17. so the 5. Command saith, Honour thy father and thy mother. 2. Domestick government is naturall, Monarchicall politique. 3. Domestick is necessary, Monarchicall is not necessary, other governments may be as well as it. 4. Domestick is universall, Monarchicall not so. 5. Domesticall hath its rise from naturall instinct without any farther instruction: a Monarchicall government is not, but from election, choosing one Government, not another.
Hence that is a fiduciarie power, or a power of trust,The King not heire nor proprietor of the Kingdome. wherein 1. the thing put in trust is not his own proper either heritage or gift, so as he may dispose of it as he pleaseth, as men dispose of their goods or heritage. But the King may not dispose of men as men, as he pleaseth; nor 2. of Lawes as he pleaseth; nor 3. of governing men, killing or keeping alive, punishing and rewarding, as he pleaseth.
2. My life and Religion, and so my Soule, in some cases, are committed to the King as to a publick Watchman, even as the flock to the feeder, the Citie to the Watchmen: And he may berray it to the Enemy. Ergo, he hath the trust of Life and Religion, and hath both tables of the Law in his custodie, ex officio, to see that other men then himselfe keep the Law: But the Law is not the Kings own, but given to him in trust. 3. He who receiveth a Kingdom conditionally, may be dethroned if he sell it, or put it away to any other is a fiduciarie Patron, and hath it only in trust. So Hottoman, quest. ill. 1. Ferdinand. Vasquez, illust. quest. l. 1. c. 4. Althusius polit. c. 24. n. 35. so saith the law of every Factor or Deputy, l. 40. l. 63. procur. l. 16. C. dict. 1. Antigonus dixit Regnum esse nobilem servitutem. Tyberius Caesar called the Senate, Dominum suum, his Lord. Suetonius in vita Tiberii, c. 29.