Treatise of Civil Policy, Treatise · Question 21
QUEST. XXI. What power the People and States of Parliament have over the King, and in the State?
IT is true, the King is the head of the Kingdome; but the States of the Kingdome are as the temples of the head, and ſo as eſſentiallyPrincipes ſunt▪ capitis tempora, Rex vertex. parts of the head, as the King is the crown of the head.
Aſſert. 1. Theſe Ordines Regni, the States, have been in famous Nations: ſo there were fathers of families, and Princes of Tribes amongſt the Jewes: The Ephori amongſt the Lacedemonians, Polyb. hiſt. l. 6. The Senate amongſt the Romanes: The forum Superbienſe amongſt the Arragonians: The Parliaments, in Scotland, England, France, Spaine. 2 Sam. 3. 17. Abner communed with the Elders of Iſrael, to bring the King home. And there were Elders in Iſrael, both in the time of the Judges, and in the time of the Kings; who did not only give advice and counſell to the Judges and Kings, but alſo were Iudges, no leſſe then the Kings, and Iudges; which I ſhall make good by theſe places: Deut. 21. 19. The rebellious Son isElders of a land joyntly in Parliament, muſt have as much, if not more, (vis unita fortior)▪ then when they are divided in ſeverall tribes, …ities, ſhires: but, divided, they are as eſſentially. Iudges, as the King. The whole muſt have more power in extenſion, then the part. Jer. 38. 25▪ they had power againſt the Kings will, to put Ieremiah to death. Ieremiah ſaith, Doe whatſoever ſeemeth good to you, v. 10. The power of conveening Parliaments, in the Eſtates, without the King. Pſ. 122. 2, 3. Why are thrones ſet for judgement for all the tribes, if only the King judge. brought to the Elders of the Citie, who had power of life and death, and cauſed to ſtone him. Deut. 22. 18. The Elders of the Citie ſhall take that man, and chaſtiſe him. Ioſh. 20. 4. But beſide the Elders of every Citie, there were the Elders of Iſrael, and the Princes, who had alſo judiciall power of life and death, as the Iudges and King had. Joſh. 22. 30. Even when Ioſhua was Iudge in Iſrael, the Princes of the Congregation, and heads of the Thouſands of Iſrael, did judicially cognoſce whether the Children of Reuben, of Gad, and of halfe the tribe of Manaſſeh, were apoſtates from God, and the Religion of Iſrael. 2 Sam. 5. 3. All the Elders of Iſrael made David King at Hebron: and Num. 11. They are appointed by God not to be the adviſers only and helpers of Moſes, but, v. 14, 17. to beare a part of the burden of ruling and governing the people, that Moſes might be eaſed. Jeremiah is accuſed, c. 26. 10. upon his life, before the Princes, Ioſh. 7 4. The Princes ſit in judgement with Ioſhua, Ioſh. 9. 15. Ioſhua and the Princes of the Congregation ſware to the Gibeonites, that they would not kill them. The Princes of the houſe of Iſrael could not be rebuked for oppreſſion in judgement, Mic. 3. 1, 2, 3. if they had not had power of judgement. So Zeph. 3. 3. And Deut. 1. 17. 2. Chron. 19. 6, 7. They are expreſly made Iudges in the place of God. And 1 Sam. 8. 2. without adviſe or knowledge of Samuel the ſupreme Iudge, they conveene and ask a King: and without any head or ſuperior, when there is no King, they conveene a Parliament, and make David King at Hebron: And when David is baniſhed, they conveen to bring him home againe: when Tyrannous Athalia reigneth, they conveene and make Ioaſh King, and that without any King. And Ioſh. 22. there is a Parliament conveened, and, for any thing we can read, without Ioſhua, to take cogniſance of a new Altar. It had been good that the Parliaments both of Scotland, and of England, had conveened, though the King had not indicted and ſummoned a Parliament; without the King, to take order with the wicked Clergie, who had made many idolatrous Altars: And the P. Prelate ſhould have brought an argument to prove it unlawfull, in foro Dei, to ſet up the Tables and Conventions in our Kingdome, when the Prelates were bringing in the groſſeſt idolatrie into the Church, a ſervice for adoring of Altars, of Bread, the worke of the hand of the Baker; a God more corruptibleTables in Scotland lawfull. then any god of ſilver and gold.
And againſt Achabs will and minde, 1 King 18, 19. Elias cauſeth to kill the Prieſts of Baal, according to Gods expreſſe law. It is true, it was extraordinary; but no otherwiſe extraordinary then it is at this day. When the ſupreme Magiſtrate will not execute the judgement of the Lord, Thoſe who made him ſupreme Magiſtrate under God, who have, under God, ſoveraigne libertie to diſpoſe of crownes and kingdomes, are to execute the judgement of the Lord, when wicked men make the law of God of none effect. 1 Sam. 15. 32. ſo Samuel killed Hagage, whom the Lord expreſly commanded to be killed; becauſe Saul diſobeyed the voyce of the Lord. I deny not but there is neceſſitie of a cleere warrant that the Magiſtrate neglect his duty, either in not conveening the States, or not executing the judgement of the Lord. 3. I ſee not how the conveening of a Parliament is extraordinarie to the States; for none hath power ordinary when the King is dead, or when he is diſtracted, or captive in another land, to conveene the Eſtates and Parliament, but they only; and in their defect, by the law of Nature, the people may conveene. But, 4. If they be eſſentially Iudges no leſſe then the King. as I have demonſtrated to the impartiall Reader, in the former Chapter; I conceive, though the State make a poſitive law, for Orders cauſe, that the King ordinarily conveene Parliaments; Yet, if we diſpute the matter in the court of Conſcience, the Eſtates have intrinſecally (becauſe they are the Eſtates, and eſſentially Iudges of the Land) ordinary power to conveene themſelves: 1. Becauſe when Moſes, by Gods rule, hath appointed ſeventie men to be Catholike Iudges in the Land, Moſes upon his ſole pleaſure and will, hath not power to reſtraine them in the exerciſe of judgment givenThe inferiour Iudges are not ſubject in their conſcience to the King, in their acts of judgement, either, quoad specificationem, to give unjuſt ſentences at his will; nor quoad exercitium, to execute, or not execute judgement for the oppreſſed. them of God: for as God hath given to any one Iudge power to judge righteous judgement, though the King command the contrary; ſo hath he given to him power to ſit down in the gate, or the bench, when and where the neceſſitie of the oppreſſed people calleth for it: For, 1. the expreſſe commandement of God, which ſaith to all Iudges, Execute judgement in the morning; involveth eſſentially a precept to all the Phyſicall actions, without which it is impoſſible to execute judgement: As namely, if by a divine precept the Iudge muſt execute judgement; ergo, he muſt come to ſome publique place, and he muſt cauſe partie and witneſſes come before him, and he muſt conſider, cognoſce, examine in the place of judgement, things, perſons, circumſtances: and ſo God who commandeth poſitive acts of judgeing, commandeth the Iudges locomotive power, and his naturall actions of compelling by the ſword the parties to come before him: even as Chriſt who commandeth his ſervants to preach, commandeth that the Preacher and the People goe to Church, and that he ſtand or ſit in a place where all may heare, and that he give himſelfe to reading and meditating, before he come to preach. And if God command one Iudge to come to the place of judgement, ſo doth he command ſeventie, and ſo all Eſtates to conveen in the place of judgement. It is objected, That the Eſtates are not Iudges ordinary and habitually, but only Iudges at ſome certaine occaſions, when the King, for cogent and weighty cauſes, calleth them, and calleth them not to judge, but to give him adviſe and counſell how to judge. Anſ. 1. They are no leſſe Iudges habitually then the King, when the common affaires of the whole Kingdome neceſſitateth theſe Publique Watchmen to come together: for even the King judgeth not actually, but upon occaſion. 2. This is to beg the queſtion, to ſay that the Eſtates are not Iudges, but when the King calleth them, at ſuch and ſuch occaſions: for the Elders, Princes and Heads of families and Tribes, were Iudges ordinarie, becauſe they made the King. And 2. the Kingdome, by God, yea, and Church, Iuſtice and Religion, ſo far as they concerne the whole Kingdome, are committed not to the keeping of the King only, but to all the Iudges, Elders, and Princes of the Land: And they are rebuked as evening wolves, lyons, oppreſſors, Ezech. 22. 27. Zaca. 3. 3. Eſa. 3. 14, 15. Mic. 3. 1, 2, 3. when they oppreſſe the people in judgement, So are they, Deut. 1. 15, 16, 17. 2 Chron. 19. 6, 7. made Iudges, and therefore they are no more to be reſtrained not to conveene, by the Kings power, (which is in this, accumulative and auxiliarie, not privative) then they can be reſtrained in judgement, and in pronouncing ſuchVnjuſt judgeing, and no judging at all, are ſinnes in the States. a ſentence, as the King pleaſed, and not ſuch a ſentence: Becauſe as they are to anſwer to God for unjuſt ſentences, ſo alſo for no juſt ſentences, and for not conveening to judge, when Religion and Iuſtice, which are fallen in the ſtreets, calleth for them. 3. As God in a law of nature, hath given to every man the keeping and ſelfepreſervation of himſelfe, and of his brother; Ca…n ought in his place to be the keeper of Abel his brother. So hath God committed the keeping of the Commonwealth, by a poſitive law, not to theJunius Brut. q. 2. p. 51. vind. contr. Tyran. King only, becauſe that is impoſſible, Num. 11. 14, 17. 2 Chron. 19. 1, 2, 3, 4, 5, 6. 1 Chron. 27. 4. If the King had ſuch a power as King, and ſo from God, he ſhould have power to breake up the meeting of all Courts of Parliament, Secret Councell, and all inferior Iudicatures: And when the Congregation of gods, as Pſ. 82. in the midſt of which the Lord ſtandeth, were about to pronounce juſt judgement for the oppreſſed and poere, they might be hindred by the King; and ſo they ſhould be as juſt as the King maketh them, and might pervert judgement, and take away the righteouſneſſe of the righteous from him, Eſa. 5. 23. becauſe the King commandeth: And the cauſe of the poore ſhould not come before the Iudge, when the King ſo commandeth. And ſhall it excuſe the Eſtates, to ſay, We could not judge the cauſe of the poore, nor cruſh the Prieſts of Baal, and the idolatrous Maſſe-Preltes, becauſe the King forbad us. So might the King breake up the meeting of the Lords of Seſſion, when they were to decerne that Naboths vineyard ſhould be reſtored to him; and hinder the States to repreſſe Tyranny: And this were as much as if the States ſhould ſay, We made this man our King, and with our good will we agree, he ſhall be a Tyrant. For if God gave it to him as a King, we are to conſent that he enjoy it. 5. If Barclay and other flatterers have leave to make the Parliament but Counſellers and Adviſers of the King; and the King to be the only and ſoleThe Parliament Iudges not adviſers only. Iudge: 1. The King is, by that ſame reaſon, the ſole Iudge, in relation to all Iudges; the contrary whereof is cleere, Num. 11. 16. Deut, 1. 15, 16, 17. 2 Chron. 19. 6. Rom. 13. 1, 2. 1 Pet. 2. 13, 14. Yea but (ſay they) the King, when he ſendeth an Ambaſſadour, he may tye him to a written Commiſſion; and in ſo far as he exceedeth that, he is not an Ambaſſadour: and cleare it is, that all inferiour Iudges, 1 Pet. 2. 13, 14. are but ſent by the King, ergo, they are ſo Iudges, as they are but meſſengers, and are to adhere to the Royall pleaſure of the Prince that ſent them.
Anſ. 1. The Ambaſſadour is not to accept an unjuſt Ambaſſage,Ieferiour Iudges not the Legats, or Servants, or Meſſengers of the King. that fighteth with the Law of nature. 2. The Ambaſſadour and the Iudge differ, the Ambaſſadour is the King and States Deputy, both in his call to the Ambaſſage, and alſo in the matter of the Ambaſſage; for which cauſe he is not to tranſgreſſe what is given to him in Writ, as a Rule; but the inferiour Iudges, and the high Court of Parliament, though they were the Kings Deputies (as the Parliament is in no ſort his Deputy, but he their Deputy Royall) yet it is only in reſpect of their call, not in reſpect of the matter of their Commiſſion, for the King may ſend the Iudge to judge in generall according to the Law, and Iuſtice and Religion, but he cannot depute the ſentence, and command the conſcience of the Judge to prononnce ſuch a ſentence, not ſuch, the inferiour Iudge in the act of judging is as independent, and his conſcience as immediatly ſubject to God, as the King, therefore the King owes to every ſentence his approbative ſuffrage as King, but not his either directive ſuffrage, nor his imperative ſuffrage of abſolute pleaſure, 6. If the King ſhould ſell his Country▪ and bring in a forraigne Army, the eſtates are to convene, to take courſe for the ſafety of the Kingdome. 7. If David exhort the Princes of Iſrael to helpe King Solomon in governingPublick Government belongeth to the States, and Elders as to the King. the Kingdome, in building the Temple, 2 Chron. 32. 3. Ezechiah tooke counſell with his Princes, and his mighty men in the matter of holding off the Aſſyrians, who were to invade the Land, if David 1 Chron. 13. 1, 2, 3, 4. conſult with the Captaines of thouſands, and hundreds to bring the Arke of God to Kireath jearim, if Solomon 1 King. 8. 1. Aſſemble the Elders of Iſrael, and all the Heads of the Tribes, and the chief of the fathers to bring the Arke of the Tabernacle, to the congregation of the Lord. And Achab gather together the States of Iſrael, in a matter that nearely concerned Religion. If the Elders and people, 1 King. 20. 8. counſell and decree, that King Achab ſhould hearken to Benhadad King of Syria, and if Ahaſuerus make no Decrees, but with conſent of his Princes, Eſter, 1. 21. nor Darius any Act without his Nobles and Princes, if Hamor and Schechem, Geneſ. 34. 20. would not make a Covenant with Iacobs Sons, without the conſent of the men of the City, and Ephron the Hittite would not ſell Abraham a buriall place in his Land without the conſent of the children of Heth, Gen. 23. 10. Then muſt the eſtates have a power of judging with the King or Prince in matters of Religion, Iuſtice, and Government, which concerne the whole Kingdome; but the former is true by the Records of Scripture, ergo, ſo is the latter.
8. The men of Ephraim complaine that Iephtah had gone toArg. 8. warre againſt the children of Ammon without them, and hence roſe warre betwixt the men of Ephraim, and the men of Gilead, Iud. 12. 1, 2, 3. and the men of Iſrael …iercely contend with the men of Iudah, becauſe they brought King▪ David home againe without them, pleading that they were therein diſpiſed, 2 Sam. 19. 41, 42, 43. which evinceth that the whole States have hand in matters of publick government, that concerne all the Kingdome; and when there is no King, Iudg. 20. The chiefe of the people, and of all the Tribes goe out in battell, againſt the children of Benjamin.
9. Theſe who make the King▪ and ſo have power to unmake himArg. 9. in the caſe of Tyranny, muſt be above the King in power of Government; but the Elders and Princes made both David and Saul Kings.
10. There is not any who ſay that the Princes and people, 1 Sam.Arg, 10. 14. did not right in reſcuing innocent Ionathan from death, againſt the Kings Will, and his Law.
11. The ſpeciall ground of Royaliſts is to make the King the abſoluteArg. 11. ſupreame, giving all life and power to the Parliament and States, and of meere grace convening them. So Ferne, the Author of Oſſorianum, p. 69. but this ground is falſe, becauſe the Kings power is fiduciary, and put in his hand upon truſt, and muſt be miniſteriall, and borrowed from theſe who put him in truſt, and ſo his power muſt be leſſe, and derived from the Parliament: but the Parliament hath no power in truſt from the King, becauſe the time was, when the man who is the King, had no power, and the Parliament had the ſame power that they now have; and now when the King hath received power from them, they have the whole power that they had before. That is, to make Lawes, and reſigned no power to the King, but to execute Lawes, and his convening of them is an Act of Royall Duty, which he oweth to the Paliament by vertue of his Office, and is not an act of grace, for an act of grace is an act of free Will, and what the King doth of free Will, he may not doe, and ſo he may never convene a Parliament. But when David, Salomon, Aſa, Ezekiah, Iehoſaphat, Achas convened Parliaments, they convened Parliaments as Kings, and ſo Ex debito & virtute officii, out of debt and Royall Obligation, and if the King as the King, be Lex animata, a breathing and living Law, the King as King muſt doe by obligation of Law, what he doth as King, and not from ſpontaneous and Arbitrary grace. 2. If the Scripture holds forth to us a King in Jſrael, and two Princés and Elders who made the King, and had power of life and death, as we have ſeene; then is there in Iſrael Monarchy tempered with Ariſtocracy; and if there were Elders and Rulers in every City, as the Scripture ſaith, here was alſo Ariſtocracy and Democracy. And for the warrant of the power of the Eſtates I appeale to Iuriſts, and to approved Authors. Argu. l. aliud. 160. §. 1. De Iur. Reg. l. 22. Mortuo de fidei. l. 11. 14. ad Mum. l. 3. 1. 4. Sigonius De Rep. Iudaeor. l. 6. c. 7. Cornelius Bertramo, c. 12. Iunius Brutus Vindic. contra. Tyran. §. 2. Author Libelli de jur Magiſtrat. in ſubd. q. 6. Althuſ. Politic. c. 18. Calvin Inſtitut. l. 4. c. 20. Pareus Coment. in Rom. 13. Pet. Martyr in Lib. Iudic. c. 3. Ioan. Marianus de rege Lib. 1. c. 7. Hottoman de jure Antiq. Regni Gallici l. 1. c. 12. Buchanan De jure Regni apud Scotos.
Obj. The King after a more noble way repreſenteth the people, then the Eſtates doth; for the Princes and Commiſſioners of Parliament have all their power from the people, and the peoples power is concentricated in the King.
Anſ. The Eſtates taken collectively doe repreſent the people both in reſpect of Office, and of perſons, becauſe they ſtand Iudges for them; for many repreſent many, ratione numeri & officii, better then one doeth. The King doth unproperly repreſent the people, though the power for actuall execution of Lawes, be more in the King, yet a legiſlative power is more in the Eſtates. Neither will it follow, that if the Eſtates of a Kingdome doe any thing but counſell a King, they muſt then command him; for a legall and judiciall advice hath influence in the effect to make it a Law, not on the Kings Will, to cauſe him give the being of a Law to that, which without his Will is no Law, for this ſupponeth that he is only Iudge.
Obj. What power the people reſerveth, they reſerve it to themſelves in unitate, as united in a Parliament; and therefore what they doe out of a Parliament is tumultous.
Anſ. I deny the conſequence, they reſerve the power of ſelfe preſervation out of a Parliament, and a power of convening in Parliament for that effect, that they may by Common Counſell defend themſelves.