Treatise of Civil Policy, Treatise · Question 16
QUEST. XVI. Whether or no a deſpotiticall and maſterly dominion of men and things, agree to the King, becauſe he is King.
I May here diſpute whether the King be Lord, having a maſterly dominion both over men and things. But I firſt diſcuſſe ſhortly his dominion over his ſubjects.
It is agreed on by Divines, that ſervitude is a penall fruit of ſinne, and againſt nature. Inſtitut. de jure perſonarum, Sect. 1. & F. de ſtatu hominum. l. libertas; Becauſe all men▪ are borne by nature of equall condition.
1 Aſſert. The King hath no proper, maſterly, or herile dominionThe King as King, hath no maſterly domion over the people, but only fiduciarie. over his ſubjects: his dominion is rather fiduciary and miniſteriall, than maſterly.
1. Becauſe Royall Empire is eſſentially to feed▪ rule, defend, and to governe in Peace and Godlineſſe, 1 Tim. 2. 2. as the father doth his children, Pſ. 78. 71. He brought him to feed Jacob his people, and Iſrael his inheritance, Eſa▪ 55. 4. I gave him for a leader and commander to the people, 2 Sam. 5. 2. Thou ſhalt feed my people Iſrael, 2 Sam. 5. 2. 1 Chron 11. 2. 1 Chron▪ 17. 6. And ſo it is, for the good of the people, and to bring thoſe, over whom he is a feeder and ruler, to ſuch a happy end; and, as ſaith Althuſius, polit. c. 1. n. 13. and Marius Salomonius, de princ. …. 2. it is to take care of the good of thoſe over whom the Ruler is ſet, and, conſervare eſt, rem illaeſam ſervare, to keep a thing ſafe. But to be a Maſter, and to have a maſterly and herile power over ſlaves and ſervants, is to make uſe of ſervants for the owners benefit, not for the good of the ſlave, L. 2. de leg. L. Servus de ſervit. expert. Danae polit. l. 1. Toloſſan. de Rep. l. 1. c. 1. n. 15, 16. therefore are ſervants bought and ſold as goods, jure belli. F. de ſtatu hominum, l. & ſervorum.
2. Not to be under Governors and Magiſtrates, is a judgement of God, Eſa. 3. 6 7. Eſa. 3. 1. Hoſ, 3. 4. Iudg. 19. 1, 2. But not to be underTo be a King, is by office, and actu primo, to defend, ſave, feed, and not to hurt or inthral. a maſter, as ſlaves are, is a bleſſing, ſeeing freedome is a bleſſing of God, Ioh. 8. 33. Exod. 21. 2. v. 26, 27. Deut. 15. 12. ſo he that killeth Goliah, 1 Sam. 17. 25. his fathers houſe ſhall be free in Iſrael, Ier. 34. 9. Act. 22. 28. 1 Cor. 9. 19. Gal. 4. 26. 31. Therefore the power of a King cannot be an herile and maſterly power; for then to be under a Kingly power, ſhould both be a bleſſing, and a curſe and juſt puniſhment of ſinne.
3. Subjects are called the ſervants of the King, 1 Sam. 15. 2. 2 Chron. 13. 7. 1 King. 12. 7. Exod. 10. 1, …. Exod▪ 9. 20. but they are not ſlaves, becauſe, Deut. 17. 20. they are his brethren: That the Kings heare be not lifted up againſt his brethren. And his ſonnes, Eſa. 49. 23. And the Lord gave his people a King as a bleſſing, 1 King. 10. 9. Hoſ. 1. 11. Eſa. 1. 26. Ier. 17. 25. And brought them out of the houſe of bondage, Exod. 20. v. 2. as out of a place of miſerie. And therefore to be the Kings ſervants, in the places cited, is ſome other thing then to be he Kings ſlaves.
4. The Maſter might in ſome caſes ſell the ſervant for money, yea for his own gain he might doe it, Nehem. 5. 8. Eccleſ. 2. 7. 1 King. 2. 32. G…n 9 25. Gen. 26▪ 14. 2 King. 4. 1. Gen. 20. 14. and might give away his ſervants; and the ſervants were the proper goods and riches of the maſter, Eccleſ. 2. 7. Gen. 30. 43. Gen. 20. 14. Job. 1. 3. 15. But the King may not ſell his Kingdome or Subjects, or give them away for money, or any other way; for Royaliſts grant that King to be a Tyrant, and worthy to be dethroned, who ſhall ſell his people: for the King may not delapidate the rents of the Crown, and give them away to the hurt and prejudice of his ſucceſſors, L. ult. Sect. ſed noſtr. C. Comment. de lege, l. pet…. 69. Sect. fratrom de lege, 2. l. 32. ul…imo. D. T. and farre leſſe can he lawfully ſell men, and give away a whole Kingdome to the hurt of his ſucceſſours, for that were to make merchandize of the living Temples of the Holy Ghoſt. And Arniſaus, de authorit. Princip. c. 3. n. 7. ſaith, Servitude is praeter naturam, beſide nature; he might have ſaid, contrary to nature, l. 5. de ſtat▪ homin. Sect. 2. Iuſt. de jur. perſo. c. 3. & Novel. 89. but the ſubjection of ſubjects is ſo conſonant to nature, that it is ſeen in Bees and Cranes. Therefore a dominion is defined a facultie of uſing of things to what uſes you will. Now a man hath not this way an abſolute dominion over his beaſts, to diſpoſe of them at his will; for a good man hath mercy on the life of his beaſt, Prov. 12. 10. nor hath he dominion over his goods to uſe them as he will, becauſe he may not uſe them to the dammage of the Commonwealth, he may not uſe them to the diſhonour of God; and ſo God and the Magiſtrate hath laid ſome bound on his dominion. And becauſe the King being made a King, leaveth not off to be a reaſonable creature, he muſt be under a Law, and ſo his will and luſt cannot be the rule of his powerA King not over men as reaſonable men. and dominion, but law and reaſon muſt regulate him. Now if God had given to the King a dominion over men as reaſonable creatures▪ his power and dominion which by Royaliſts is conceived to be above Law, ſhould be a rule to men as reaſonable men, which would make men under Kings no better then bruit beaſts; for then ſhould ſubjects exerciſe acts of reaſon, not becauſe good and honeſt, but becauſe their Prince commandeth them ſo to doe; and if this cannot be ſaid, none can be at the diſpoſing of Kings in politick acts liable to Royall government, that way that the ſlave is in his actions under the dominion of his maſter.
The Prelate objecteth out of Spalato, Arniſaeus, and Hug. Grotius,Prelat…. Sacr. ſanct. maſ. c. 16. p. 15. Hugo Grotius hath the ſame de jur. bel. & pacis, l. 1. c. 3. (for in his booke there is not one line which is his own, except his raylings) 1. All government and ſuperioritie in Rulers is not primely and only for the Subjects good: for ſome are by God and Nature appointed for the mutuall and inſeperable good of the ſuperiour and inferiour, as in the government of husband and wife, or father and ſonne; and in herili dominio, in the government of a Lord and his ſervant, the good and benefit of the ſervant is but ſecondary and conſecutively intended, it is not the principall end, but the externall and advent…tious, as the gaine that commeth to a Phyſitian, is not the proper and internall end of his art, but followeth only from his practice of Medicine.
Anſ. The Prelates logick tendeth to this; ſome government tendeth to the mutuall good of the ſuperior and inferior, but Royall Government is ſome government, ergo nothing followeth from a major propoſition, Ex particulari affirmante, in prima figura. Or of two particular propoſitions. 2. If it be thus formed, every maritall government, and every government of the Lord and ſervant is for the mutuall good of the ſuperiour and inferiour: But Royall Government is ſuch, ergo &c. the aſſumption is falſe, and cannot be proved, as I ſhall anon cleare.
2. Obj. Solomon diſpoſed of Cabul, and gave it to Hiram, ergo a conquered Kingdome is for the good of the conquerour eſpecially. Anſ. Solomons ſpeciall giving away ſome Titles to the King of Tyre, being a ſpeciall fact of a Prophet as well as a King, cannot warrant the King of England to ſell England to a forraine Prince, becauſe William made England his owne by conqueſt; which alſo is a moſt falſe ſuppoſition: and this he ſtole from Hugo Grotius, who condemneth ſelling of Kingdomes.
3 Object. A man may render himſelfe totally under the power of a Maſter, without any conditions: and why may not the body of a people doe the like? even to have peace and ſafety, ſurrender themſelves fully to the power of a King? A lord of great Mannours may admit no man to live in his Lands, but upon a condition of a full ſurrender ofA compelled ſurrender of liberty tyeth not. him, and his poſterity to that lord. Tacitus ſheweth us it was ſo anciently amongſt the Germans, and the Campanians ſurrendered themſelves fully to the Romans.
Anſw. What compelled people may do to redeem their lives with loſſe of liberty, is nothing to the point; ſuch a violent Conquerour who will be a father and a husband to a people, againſt their will, is not their lawfull King; and that they may ſell the liberty of their poſteritie, not yet born, is utterly denied as unlawfull; yea, a violentated father to me is a father, and not a father, and the poſteritie may vindicate their own liberty given away unjuſtly, before they were born: Qua omne regnum vi partum poteſt vi diſſolvi.
Object. 4. But (ſaith Doct. Fern) theſe which are ours, and given awa… to another, in which there redoundeth to God by donation a ſpeciall intereſt, as in things devoted to holy uſes, though after they be abuſed, yet we cannot recall them. Ergo, If the people be once forced to give away their liberty, they cannot recall it; far leſſe, if they willingly reſign it to their Prince.
Anſw. This is not true, when the power is given for the conſervation of the Kingdom, and is abuſed for the deſtruction thereof, for a power to deſtruction was never given, nor can it by rationall nature be given. 2. Mortifications given to religious uſes by a poſitive law, may be recalled by a more divine and ſtronger law of nature, ſuch as is this: I will have mercy and not ſacrifice. Suppoſe David of his own proper heritage, had given the Shewbread to the Prieſts, yet when David and his men are famiſhing, he may take it back from them againſt their will. Suppoſe Chriſt man had bought the Corns, and dedicated them to the Altar, yet might he and his Diſciples eat the Ears of Corn in their hunger. The veſſels of ſilver dedicated to the Church, may be taken and beſtowed on wounded Souldiers. 2. A people free may not, and ought not totally ſurrender their liberty to a Prince, confiding on his goodneſſe; 1. Becauſe liberty is a condition of nature, that allA ſurrender of ignorance and miſtake, is ſome way unvoluntary and obligeth not. men are born with, and they are not to give it away, no not to a King, except in part, and for the better, that they may have peace and juſtice for it, which is better for them, hic & nunc. 2. If a people truſting in the goodneſſe of their Prince, inſlave themſelves to him, and he ſhall after turn Tyrant; a raſh and temerarious ſurrender obligeth not, Et ignorantia facit factum quaſi involuntarium: Ignorance maketh the fact ſome way unvoluntary; for if the people had beleeved that a meek King would have turned a rouring Lyon, they ſhould not have reſigned their liberty into his hand; and therefore the ſurrender was tacitely conditionall to the King as meek, or whom they beleeved to be meek, and not to a tyrannous Lord; and therefore, when the contract is made for the utilitie of the one party, the law ſaith their place is for after wits, that men may change their minde, and reſume their liberty, though if they had given away their liberty for money, they cannot recall it; and if violence made the ſurrender of liberty, here is ſlavery, and ſlaves taken in war ſo ſoon as they can eſcape, and return to their own, they are free. D. Sect. item. e… Juſtit. de rerum divin. l. nihil. F. de capt. l. 3. So the learned Ferdin. Vaſquez illuſtri. l. 2. c. 82. …. 15. ſaith, The bird that was taken, and hath eſcaped, is free; nature in a forced people, ſo ſoon as they can eſcape from a violent Conqueror maketh them a free people: and ſi ſolo tempore (ſaith Ferd. Vaſquez, l. 2. c. 82. n. 6.) juſtificatur ſubjectio, ſolo tempore facilius juſtificabitur liberatio.
Aſſert. 20. All the Goods of the Subjects belongeth not to theThe Goods of the Subjects not the Kings. King: I preſuppoſe, that the diviſion of Goods doth not neceſſarily flow from the law of nature, for God made man before the fall, Lord of the creatures indefinitely; but what Goods be Peters, and not Pauls, we know not. But ſuppoſing mans ſin, though the light of the Sun and Air be common to all, and religious places be proper to none, yet it is morally unpoſſible, that there ſhould not be a diſtinction of meum & tuum, mine and thine: and the decalogue forbidding theft, and coveting the wife of another man, (yet is ſhe the wife of Peter, not of Thomas by free election, not by an act of natures law) doth evidence to us, that the diviſion of things is ſo far forth, (men now being in the ſtate of ſin) of the law of nature, that it hath evident ground in the Law of nations; and thus farre naturall, that the heat that I have from my own coat and cloak, and the nouriſhment from my own meat, are phyſically incommunicable to any *Quod jure gentium dicitur. F. de juſti tia & jure. l. ex hee. Quod partim jure civili. Iuſti. de rerum diviſio. ſect. ſingulorum.. But I haſten to prove the Propoſition: If 1. I have leave to premit, that in time of neceſſitie all things are common by Gods Law: A man travelling, might eat Grapes in his neighbours vineyard, though he was not licenced to carry any away. I doubt if David wanting money, was neceſſitated to pay money for the Shew-bread, or for Goliahs ſword, ſuppoſing theſe to be the very Goods of private men, and ordinarily to be bought and ſold: natures Law in extremity, for ſelf preſervation, hath rather a Prerogative Royall above all Laws of Nations, and all civill Laws then any mortall King; and therefore by the civill Law, all are the Kings, in caſe of extreme neceſſity; in this meaning, any one man is obliged to give all he hath for the good of the Common-wealth, and ſo far the good of the King, in as farre as he is head and father of the Common-wealth *L. item ſi verberatum. F. de rei vindicat. Iaſ. plene m. l. Barbarius. F. de o…fici. praetor. all the goods of the people are the Kings in a fourfold notion, but not in propriety.. 2. All things are the Kings, in regard of his publike power, to defend all men, and their Goods from unjuſt violence. 3. All are the Kings in regard of his Act of conſervation of Goods, for the uſe of the juſt owner. 4. All are the Kings in regard of a legall limitation, in caſe of a dammage, offered to the Common-wealth, juſtice requireth confiſcation of Goods for a fault; but confiſcated Goods are to help the intereſſed Common-wealth, and the King, not as a man (to beſtow them on his children) but as a King; to this we may referre theſe called bona cadu…a & inventa, things loſed by Shipwrack, or any other providence, Ʋlpian. tit. 19. t. c. de bonis vacantibus. C. de Theſauro.Subjects are propriators of their own Goods. Argum. 1.
And the Reaſons why private men are juſt Lords and proprietors of their own Goods, are, 1. Becauſe by order of nature, diviſion of Goods cometh neerer to natures law, and neceſſity, then any King or Magiſtrate in the world; for becauſe it is agreeable to nature, that every man be warmed by his own fleece, nouriſhed by his own meat; therefore to conſerve every mans Goods to the juſt owner, and to preſerve a communitie from the violence of rapine and theft, a Magiſtrate and King was deviſed. So it is clear, men are juſt owners of their own Goods, by all good order, both of nature and time, before there be any ſuch thing as a King or Magiſtrate. Now if it be good that every man enjoy his own Goods, as juſt proprietor thereof for his own uſe, before there be a King, who can be proprietor of his Goods, and a King being given of God for a bleſſing, not for any mans hurt and loſſe; the King cometh in to preſerve a mans Goods, but not to be lord and owner thereof himſelf, nor to take from any man Gods right to his own Goods.
2. When God created man at the beginning, he made all theArgum. 2. creatures for man▪ and made them by the law of nature, the proper poſſeſſion of man, but then there was not any King formally as King; for certainly Adam was a father before he was a King, and no man being either born, or created a King over an other man, no more then the firſt Lyon, and the firſt Eagle, that God created, were by the birth-right, and firſt-ſtart of creation, by nature, the King of all Lyons, and all Eagles to be after created; no man can by natures law, be the owner of all Goods of particular men: And becauſe the law of nations founded upon the law of nature, hath brought in meum & tuum, mine and thine, as proper to every particular man, and the introduction of Kings cannot overturn natures foundation; neither civility, nor grace deſtroyeth, but perfiteth nature: and if a man be not born a King, becauſe he is a man, he cannot be born the poſſeſſour of my Goods.
3. What is a Character, and note of a Tyrant, and an oppreſſingArgum. 3. King as a Tyrant, is not the juſt due of a King as a King: But to take the proper Goods of Subjects, and uſe them as his own, is a proper Character, and note of a Tyrant, and an oppreſſour. Ergo, the propoſition is evident. A King and a Tyrant are by way of contradiction contrary one to another: the aſſumption is proved thus, Ezek. 45. 9. Thus ſaith the Lord, Let it ſuffice you, O Princes of Iſrael: remove violence and ſpoil, and execute judgement and juſtice, take away your exactions from my people, ſaith the Lord, Verſ. 10. Ye ſhall have juſt ballances, and a juſt Ephah, and a juſt bath. If all be the Kings, he is not capable of extortion and rapine, Micah 3. 2. God complaineth of the violence of Kings: Is it not for you to know judgement? Verſ. 3. Who eat the fleſh of my people, and flea their skins from off them, and they break their bones, and chop them in pieces, as for the pot, and as fleſh within the chaldron, Iſai. 3.The anſwer of Hybreas to a extorting Prince Autonius. Argum. 4. Species enim furti est de alieuo largiri, & beneficii debitorem ſihi acquirere, L. ſi pignore, ſect. de furt. 14. Zeph. 3. 3. and was it not an act of tyranny in King Achab, to take the vineyard of Naboth, and in King Saul? 1 Sam. 8. 14. to take the people of Gods fields and vineyards, and olive-yards, and give them to their ſervants? Was it a juſt fault that Hybreas objected to Antonius, exacting two tributes in one yeer, that he ſaid, If thou muſt have two tributes in one yeer, then make for us two Summers and two Harveſts, in one yeer? This cannot be juſt; if all be the Kings, the King taketh but his own.
4. Subjects under a Monarch could not give alms, nor exerciſe works of charity; for charity muſt be my own, Iſai. 58. 7. Is it not to deal thy bread to the hungry? &c. Eccleſ. 11. 1. Caſt thy bread into the waters; and the Law ſaith, It is theft to give of another mans to the poor: yea, the diſtinction of poor and rich, ſhould have no place under a Monarchie, he onelyonly ſhould be rich.
5. When Paul commandeth us to pay tribute to Princes, Rom. 13.Argum. 5. 6. becauſe they are the Miniſters of God, he layeth this ground, That the King hath not all, but that the ſubjects are to give to him of their goods.
6. It is the Kings place, by juſtice to preſerve every man in hisArgum. 6. own right, and under his own fig-tree. Ergo, Its not the Kings houſe.
7. Even Pharaoh could not make all the victuall of the land hisArgum. 7. own, while he had bought it with money: and every thing is preſumed to be free. Allodialis, free land, except the King prove that it is bought or purchaſed. L. actius, C. de ſervit. & aqua. & Joan. And. m. C. F. de ind. & hoſti. in C. minus de jur.
8. If the ſubjects had no proprietie in their own goods, but allArgum. 8. were the Princes due, then the ſubject ſhould not be able to make any contract of buying and ſelling without the King, and every ſubject were in the caſe of a ſlave. Now the Law ſaith, L. 2. F. de Noxali. act. l. 2. F. ad legem aquil. When he maketh any Covenant, he is not obliged civilly to keep it, becauſe the condition of a ſervant, he not being ſui juris, is compared to the ſtate of a beaſt, though he be obliged by a naturall obligation, being a rationall Creature, in regard of the law of nature, L. naturaliter, L. ſi id quod, L. interdum, F. de cond. indebit. cum aliis. 2. The ſubject could not by Solomon be forbidden to be ſuretie for his friend; as King Solomon doth counſell, Prov. 6. 1, 2, 3. he could not be condemned to bring on himſelf poverty by ſluggiſhneſſe, as Prov. 6. 6, 7, 8, 9, 10. nor were he to honour the Lord with his riches, as Prov. 3. 9. nor to keep his Covenant, though to his loſſe, Pſal. 15. 4. nor could he be mercifull and lend, Pſal. 37. 26. nor had he power to borrow; nor could he be guiltie in not paying all again, Pſal. 37. 21. For ſubjects under a Monarch, can neither perform a duty, nor fail in a duty, in the matter of Goods; If all be the Kings, what power or dominion hath the ſubject in diſpoſing of his Princes Goods? See more in Petr. Rebuffus, tract. congruae portionis, num. 225. pag. 109, 110. Sed quoad dominiumrerum, &c.