The Peoples Right to Defend Themselves and their Covenanted Religion, Religious tract · Chapter 7
CAP. VII.
Of the Nature of the Kings Power over his Subjects. Our Arguments hence.
FRom what hath been ſaid in the two former chapters, vve may ſaifly gather theſe concluſions concerning the nature of the povver of a Soveraigne over his Subjects, vvhichwhich vvill yeeld us ſo many arguments, confirming the poynt in hand.
1. The Soveraigne's povver over his Subjects, is not properly a parental povver, that is, not ſuch a povver as parents have over their children: for 1. The Soveraigne's power over the Subjects ariſeth from a voluntary compact, and conſent of the Subjects, as was shewed; but the Father's power requireth no ſuch previous conſent or compact. 2. The Soveraigne's power may be reſtricted to ſo many degrees by the Subjects; ſo cannot the Father's by the Children. 3. The Subjects obedience and ſubjections to the Soveraigne may be conditional; as we have proved, and our adverſaries will grante it, in limited Princes: but ſo cannot the ſubjection of Children be. 4. Whetherſoever Children goe, they keep always the ſame relation to the ſame Parents: but Subjects may change their Soveraignes, by changing the places of their habitation. 5. Children can in no caſe break that relation, which is betwixt their Fathers and them; but in many caſes, Royaliſts themſelves will grant, Subjects may shake off the King. 6. Children cannot change their Fathers: but Subjects may change their Soveraignes; for Royalists wil grant that such as are under an Ariſtocracy may make choiſe of a Monarch. 7, Children hold their natural being of their Parents, but Soveraignes are deſigned only for the political or civil welbeing of the Subjects. 8. Subjects may chooſe what Soveraignes they will, whether Monarchical or Ariſtocratical, and what perſones in this, or that forme: Children can not chooſe what Parents they shall have. 9. Subjects can condeſcend upon the time how long ſuch an one shall be their Soveraigne, ad vitam or culpam: but Children can not ſet bounds unto their Parents power. 10. Soveraignes have not begotten all their Subjects, nor doth their relation or power flow form ſuch an act: but Paternal power doth. 11. If the Soveraigne's power were paternal only, then he should not have power of life and death, becauſe parents as ſuch have not that power over their Children▪ 12. The Surveyer himſelf granteth this Pag. 29. in theſe words. [Kings are not fathers of our flesh, or by generation, nor can they be truely called ſo, political and parental power are different things.] So then the Soveraigne's power is paternal only in a metaphorical ſence: becauſe They should have a Fatherly care and inſpection over their Kingdomes, and should nourish, cherish, love and governe them tenderly and carefully; and as Parents in ſome reſpects, love their children better then themſelves, ſo should they preferre the good of the commonwealth unto their owne: and upon this account are ſtiled Fathers Gen. 20. 2. Iudg. 5. 7. 1 Sum. 24. 12. Iſa. 49. 23. as also Paſtors are.
2. The Soveraigne's power is not properly Marital, or ſuch as Husbands have over their Wives, for. 1. Wives cannot limite their Husband's power, as Subjects may limite their Soveraigne's. 2. Wives cannot preſcribe the time how long ſuch an one shall be their Husband, as Subjects may do vvith their Soveraignes. 3. Wives cannot change their Husbands, as Subjects may change an Ariſtocracy into a Monarchy. 4. Wives are appoynted for an helpe to the Huſband, but the Soveraigne is rather for the Commonvvealth, then the Commonvvealth for him. 5. If the Soveraigne's povver vvere ſuch, then he could not have povver of life and death; for a Husband as ſuch hath not that povver over his Wife. 6. Though the Husband and the Wife be in diſtinct Kingdomes, the relation ſtandeth, and is not broken upon that account, but if a ſubject goe out of one Kingdome, to live into another, he changeth his Soveraigne, and hath a relation to a nevv Soveraigne.
3. So he is but metaphorically, and not properly called the Head of the Commonwealth: for 1. the head is not made Head by the free choiſe of the Members: but the Soveraigne is choſen by the People. 2. The Members have not ſo much as a conſent in ſetting up the Head: but Subjects, at leaſt, have this much, in ſetting up of Princes 3. the Members can never change the Head, but Subjects may change their Soveraignes. 4. The Members can make no compact with the Head, as Subjects may do with their Princes. 5. The Members cannot limite the power of the Head, as Subjects can limite the power of their Princes. 6. The Members cannot deſtroy the Head and live themſelves, but Subjects can deſtroy the Monarch and chooſe another. 7. The Head communicateth life, ſenſe & motion to the reſt of the members; ſo doth not the Prince unto his Subjects. 8. The ſame individual life is in Head and Members; but not in King and Subjects. 9. Head and Body die and live together, but there is no ſuch connexion betwixt King and Subjects. So then he is but a metaphorical Head, ſo called, becauſe of his ſupereminency, He is over the civil body to rule and guide it aright.
4. The Soveraigne hath no Lordly, dominative, or maſterly power over the Bodyes of his Subjects. For 1. this government is founded upon the law and light of pure nature, but this maſterly dominion is a frute of ſin. 2. Slavery being againſt nature, & a bondage, which all would willingly shun, we cannot ſuppoſe that rational people would chooſe that life, if they could help it: but they willingly, & not out of conſtraint, chooſe government & governours 3. The people in ſetting up a Soveratigne propoſe their owne good & have their owne ends, but if the Soveraigne's power were properly a maſterly power, they should propose rather his good then their owne in ſetting him up. 4. If his power were a maſterly power, their condition after the government were eſtablished should be worſe, then it was before: for their ſtate of liberty was preferable to their ſtate of bondage. 5. They had not acted rationally, if to be free of oppreſſion of others, they had willingly given up themſelves unto an oppreſſour, endued with maſterly dominion and power. 6. Maſters might ſell their ſervants for gaine Gen. 9. 25. and 20. 14. and 26. 14. 1 King. 2. 32. 2. King. 4. 1. Neh. 5. 8. Eccleſ. 2. 7. Iob. 1. 3, 15. But the prince cannot ſell his Kingdome. 7. Soveraignes have not ſuch a povver as this, from God, but only a povver to feed, to rule, to defend, and to watch over the people for their good, 1 Tim. 2. 2. Pſ. 78. 71. 2 Sam. 5. 2. 1 Chron. 11. 2. and 17. 6. Neither have they it from the People; for they cannot give ſuch a povver, vvhereby to make themſelves ſlaves. 8. If it vvere ſo, Princes should not be a bleſſing unto a People, but rather a curſe contrare to 1 King. 10. 9. Eſa. 1. 26. Ier. 17. 25. Hoſ. 1. 11. 9. It is a bleſſing to be free of ſlavery Exod. 21. 2, 26, 27. Deut. 15. 12. Ier. 34. 9. Ioh. 8. 33. 1 Cor. 9. 19. But it is not a bleſſing to be free of government, but a curſe and judgment rather, Iudg. 19. 1, 2. Eſa. 3. 1, 6, 7. Hoſ. 3. 4. 10. Subjects are the King's brethren, Deut. 17. 20. and ſo not his ſlaves. The Surveyer Pag. 30. 31. granteth that there is a great difference betwixt Magiſtratical power and Maſterly, and giveth three maine differences. 1. That the Maſter of ſlaves had his owne profite mainly before his eyes, and the profite of the Slaves only ſecondarily: But the Magiſtrates power is premarily ordinated to the Publick good of the Community it ſelf, and only ſecondarily and conſequentially to the good of Himſelf. 2. That Maſters had a greater power over the bodyes and goods of theſe, who were their Slaves, then a Magiſtrate can clame over Subjects. 3. The Maſter had the ſlaves in ſubjection to him, more out of feare and conſtraint, then love or delight: But a King hath his Subjects under him, in a civil, free, liberal, voluntary, and loving ſubjection. Thus we see this point is cleare and undenyable by him, though other Royaliſts will not grant ſo much: but ſure if they were his ſlaves, they behoved to be taken in war or bought with money.
5. Neither hath he a deſpotick & maſterly power over the go…ds of his Subjects, what ever uſe may be allowed to make of them, in caſe of neceſſity (when, in ſome reſpect, all things are common) for the Common good, and good not only of the owners, but alſo of all the Community. Yet the Subjects are righteous proprietors of their owne goods. For 1. the People make choiſe of him, for this very end to preſerve them in their rights, to keep their rights inviolated, to keep them from oppreſſion and injuries of others; ſo that it cannot be imagined that rational People would make choiſe of one great robber, to preſerve them from leſſer robbers. 2. Their caſe should be rather worſe as better, by the erecting of a civil government, if the Soveraigne were the only proprietor of all their goods for before the erection they had a juſt right and title unto their owne goods. 3. Soveraignes should not be a bleſſing unto a People, but a curſe: Which is falſe. 4. Then they could wrong no man take what they would from him, contrare to Zeph. 3: 3. Eſai 3: 14, 15. and 58: 4, 6. Mich. 3: 3. ſee Timpl. pol. lib. 5. cap. 1. quaest. 3. 5. The law, Deut. 17. contradicteth this maſterly power over the Subjects goods. 6. Ahab was blaimed for taking Naboths Vineyaird. 7. This is the very character of a Tyrant, 1 Sam. 8. 8. The Kings of Egypt had not his propriety, Gen. 45. 9. No man might then defend his owne right by law againſt the Soveraigne, but he might take what he pleaſed, from whom he pleaſed, and give to whom he pleaſed. 10. Then the King could not properly buy or ſell with his Subjects. 11. Nor could Subjects make any barganes amongſt themſelves without his conſent. 12. Nor could they exerce any acts of charity; becauſe charity muſt be of Mens owne, Eſa 58: 7. Ecc. 11: 1. 13. Yea, Subjects could neither perform a duty, nor fail in a duty, in the matter of goods, if all were his. 14. Subjects could not be enjoyned to pay tribute unto the Prince, contrare to Rom. 13: 6. 15. It is contrare both to the Law of God and nature: ſee Timpl. ubi ſupra.
6. Hence Soveraignes are not proper proprietors of their Kingdomes: Becauſe 1. there are other qualifications required of them, then is required of ordinary proprietors. 2. The People then could never change their Soveraignes. 3. The Soveraigne might ſell and diſpone his Kingdomes, as he pleaſed, which Royaliſts themſelves wil not grant. 4. Kingdomes then should come in amongſt bona fortuna. 5. His place should not be properly a function or office, but a proper poſſeſſion. 6. Several Kings both in Scotland & elſewhere, have been hindered from dilapidating the revenues of the crovvne, or by gifts and other contracts deteriorating the Kingdome, and punished for ſo doing. 7. Would rational men give themſelves up for a prey to one, that they might be ſaife from becoming a prey to others? 8. How should then a Soveraigne be choſen for the good of the Kingdom, if he might do with it what he pleaſed, ſell it, or diſpone it to the Turk: or ſuch like. 9. Paul, by commanding that tribute & cuſtome be given to him, ſupponeth ſome other thing: ſee Althuſ. poli. cap. 24. n. 35, 37.
7. Nor ſo much as uſufructuaryes: For 1. they may not lay their Kingdomes in pledge, as an uſufructuary may do. 2. Nor can they give them freely away. Nor 3. may they do with them what they pleaſe, as uſufructuaryes may do with what they have by that right: See Iun. Brut. vind. cont. Tyr. q. 3. p. (mihi) 205.
8. The Soveraigne's power is properly a fiduciary power, ſuch as the power of a Tutor of Patron, for to this end & purpoſe was He created of the People that he might defend them from injuries and oppreſſions. He is appoynted over them by God for their good, and is to ſeek that mainly. 2. though he hath his power by way of compact, yet it is not a compact ex condigno, ſuch as betwixt buyer and ſeller, upon valuable prices and conſiderations 3. His power is limited & reſtricted and he is bound to conditions, as we shewed. 4. He may not (as was ſaid) diſpose of his Subjects, and of their lives as he pleaſeth. 5 if he ſell his Kingdomes, Royaliſts grant he may be dethroned; therefore he hath no other power then of a Tutor, Publick Servant, or Watchman, 6. His power is over his Subjects, as it is over the law of God and religion, but over thoſe he hath no other power, but a miniſterial Tutorypower: He is to take care for them ex officio, as a ſpecial pawne committed to his truſt, to ſee that they be not wronged or violated: ſee Althuſ. polit. cap. 24. n. 43, 44, 45. Adrian the Imperour uſed to ſay Ita ſe Remp. gesturum ut ſciret Populi eſſe. non ſuam.
Hence we draw theſe arguments for reſiſtence of Soveraignes by meer private Subjects, in caſes of neceſſity.
1. If it be lawful for Children to reſiſt their Father, when enraged againſt them, and ſeeking in his fury, to deſtroy and cut them off, whithout any violation of the Law of God enjoyning Children to obey, and be ſubject to, their Parents in the Lord; Then it is lawful for Subjects though private perſons, to reſiſt the fury of their enraged Soveraigne, when he is ſeeking, in his cruelty and rage, contrary to compact, oathes and vowes, to deſtroy Them and their Religion. But the former is true. Therefore &c. The Aſſumption cannot be denyed by any rational perſon. It being moſt juſt and rational, that when the Father is taken with a diſtemper in his braine, and in his madneſſe ſeeketh to deſtroy or cut the throates of his Children, They may joyne together, binde his hands, pull the weapon out of his hand and defend themſelves the beſt way they can. The connexion of the propoſition is certane; for, the moſt the adverſaries can make of the Soveraignes power is that it is paternal, and that he is parens patriae the Father of the Commonwealth: & yet ſeing natural Fathers may be reſiſted by their natural Children, in caſe of neceſſity, without the help or conduct of Magiſtrates: Why may not alſo private Subjects, without the conduct of a Parliament, defend of themſelves, in caſe of neceſſity, againſt the fury and rage of their civil father, when he by his bloody emiſtaries, is ſeeking to undoe them? But next we may draw the argument from the leſſe to the more. If it be lawful for Children, in caſes of neceſſity, to defend themſelves againſt, and to reſiſt the unjuſt violence of their enraged Father: Then much more is it lawful, for private ſubjects, in caſes of neceſſity, without the conduct of Parliament, to defend themſelves againſt and to repel the unjuſt violence of their Soveraigne. For there is not ſuch a connection betwixt the Soveraigne and his Subjects, as betwixt Parents and their Children, as we have abundantly cleared: And againe, if ſome of the Children may reſiſt the unjuſt violence of their Parent and of others of their Brethren, joyning with their enraged Father to cut them off, that they alone may enjoy the whole inheritance or for ſome ſuch ends: Then far more may a part of the Commonwealth reſiſt the Prince's unjuſt Tyranny, though he hath the other parts of the Commonwealth concurring with him, to their deſtruction: For the argument followeth, as I ſaid, à; minori ad majus, from the leſſe to the more: And the union, tye & relation betwixt Brethren, Sones of the ſame Father, is as great, yea greater, then the tye, union and relation betwixt one part of the Commonwealth & another; this relation being but political and in itſelf no wayes indiſſoluble, but the other natural and indiſſoluble.
2▪ If Wives may lawfully defend themſelves againſt the manifeſt and unjuſt violence of unnatural and enraged Husbands, and repel, in caſe of neceſſity, violence with violence, without the conduct or concurrence of other Magiſtrates. Then it is no leſſe, yea much more, lawful for meere Private Subjects, in caſes of neceſſity, to reſiſt without the help and conduct of a Parliament, the furious and unjuſt aſſaults of their enraged Soveraigne. But the former is true, as all will grant. Therefore, &c. The propoſition is cleare from this. That there is not ſo great a tye betwixt Prince and Subjects, as betwixt Husband and Wife: And ſay that he had an equal power over his Subjects, with that which the Husband hath over his Wife (which is falſe,) yet the connexion will be firme, as to a lawfulneſſe in this caſe, as wel as in the other.
3. If there be not ſuch a connexion betwixt the Soveraigne and his Subjects, as is betwixt the natural Head, and the Body. Then it can no more yea, far leſſe, be an unnatural thing for Subjects to defend themſelves againſt the violence of diſtempered Princes, Who ſeek directly to deſtroy the Commonwealth, when neceſſity doth urge; Then it is for the members of the Body, to defend and fortify themſelves againſt danger, paine or ſickneſſe, occaſioned by a diſtemper of the braine, yea and with violence ſeek to cure & remove that diſtemper in the head, that is like to deſtroy the whole body.
4. If the Soveraigne hath not a Lordly domination, & maſterly power over his Subjects, but they be is Brethren & not his Slaves; and, if the very Law will allow Servants to defend themſelves againſt their Lords and Maſters, L. Minime 35. de Rel. & ſumpt. funer. and no man with us will account it unlawful for ſervants to defend themſelves againſt the unjuſt and violent aſſaults of their Lords and Maſters. Then farr leſſe can it be accounted unlawful for private Subjects to defend themſelves, when conſtrained with neceſſity, againſt the unjuſt aſſaults of the Soveraigne or his emiſlaries. But the Antecedent is cleared, and confeſſed. Ergo.
5. If the Soveraigne have no deſpotick or Maſterly power over the goods and heritages of his Subjects, as we have proved. Them very lawfully may they defend their lands goods and heritages, from the violent and unjuſt oppreſſions; of the Prince or his emiſſaries, ſent out to plunder, rob, deſtroy their corns, cattel, goods, land ſummes of money, &c.
6. If the Kingdome be not his proper heritage, nor he proprietor thereof, as was shewed; Then when He or his Emiſſaries come to deſtroy a conſiderable part of the Kingdome, and to alienate the profites and emoluments thereof unto others, then the proper owners and proprietors, unjuſtly. Then may that part of the Kingdome lawfully reſiſt theſe unjuſt oppreſſours and invaders, & defend their owne.
7. If He be not ſo much as an uſufructuary of the Kingdome: then when He laboureth by his Emiſſaries to waſte and deſtroy the Kingdome or any part thereof, by unjuſt violence, private Subjects may reſiſt that unjuſt violence, and oppoſe his oppreſſing Emiſſaryes. If a Maſter may hinder his uſufructuary tennants who would deteriorate the land, which they poſſeſſe by compact; Then much more may ſubjects reſiſt the Princes Emiſſaries when labouring utterly to ſpoile, and lay waſte theſe lands, whereof he is not ſo much as an uſufructuary:
8. If the King's power be only fiduciary as is shewed. Then when that power is manifeſtly abuſed, and the pawne which he hath gote to keep, in imminent and manifeſt danger, lawfully enough may he be reſiſted; When the Lives, the Liberties of the People, or their Religion is committed unto him, as to a publick Tutor, Watchman, or Servant; & He what through negligence, what through wilful wickedneſſe, laboureth to deſtroy, and undoe, and overturne all, very lawfully may Subjects, in that caſe of extreame neceſſity, ſeek to ſecure the Neceſſary and deſireable things, and reſiſt his fury and unjuſt violence, who contrare to his oath and promiſe, ſeeketh to have all overturned and ruined. Althuſius pol. cap. 38. n. 39. ſpeaketh well to this, ſaying [Octava ratio ſumitur a natura contractus mandati, quo ſumma Magiſtratui adminiſtratio est delata à populo, ad hoc ut Reip pro…it non ut noceat, Rom. 13. Vaſq. lib. 1. c. 44. n. 6. &c. 1. & 2. Illuſt. Contr. quando igitur mandatarius fines mandatiexcedit non illi obligatus est mandator, § 15. qui Juſt. de Mand. Luc. 16: 1, 2, 3, &c. & quando conditio, ſtatus & fortuna mandatarii mutatur in deterius L. ſi quis cum de procur. L. cum quis deſolut. Aut mandatum a mandante revocatur, vel ipſe mandans agere & tractare negotium incipit ut tradunt J. CC. Vide Vaſq. Lib. 1. c. 43. n. 5. &c. 4, n. 12. Illuſt Controv.] What he addeth is worth the reading.