Treatise of Civil Policy, Treatise · 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 himThe Kings power fiduciarie. immediatly by God in truſt, Royalliſts deny not; but we hold that the t…uſt 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.
1. Aſſertion. The King is more properly a Tutor then a Father,The King a Tutor. 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 theDifference between a father and a Tutor. place of a father, 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, but the pupill may grow to age and wiſedome, ſo as he may be without all Tu…ors, 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, that it can appoint its owneA free Community no pupill or minor. 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 MaritallThe Kings power not properly Maritall or husbandly. and husbandly power, but only Analogically, 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 Anae'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. Aaſ. 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.
Aſſert. 3. The King is more properly a ſort of Patron, to defendThe King a Patron rather then a Lord. 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, becauſe all the KingsThe King an honourable ſervant. 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, and watch-man.Royall power only from God, and only from the people in divers reſpects.
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 regiae 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. 5. and every inſtrument under God, that is properly an inſtrument▪ is a ſort of Vicarious cauſe in Gods room, and ſoThe King the ſervant of the people both objectively & ſubjectively. the people as in Gods roome, applyeth Royall power to David, 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 ou… 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: but 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 …it 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 anointed and King, and obeyed Saul as another ſubject 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 Commonwealth: 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 on… 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, whereinThe King not heire nor proprietor of the Kingdome. 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 betray 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.