A treatise of civil policy: being a resolution of forty three questions concerning prerogative, right and priviledge, in reference to the supream prince and the people. / By Samuel Rutherford professor of divintiy of St Andrews in Scotland.

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 domini∣on* 1.1 over his subjects: his dominion is rather fiduciary and mi∣nisteriall, 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 Is∣rael 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 peo∣ple, 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 un∣der* 1.2 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 un∣der 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 peo∣ple: 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••i∣mo. 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 natu∣ram, 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 subje∣ction 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 ab∣solute 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 un∣der a Law, and so his will and lust cannot be the rule of his power* 1.3 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 sub∣jects exercise acts of reason, not because good and honest, but be∣cause 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. Gro∣tius,* 1.4 (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 prime∣ly and only for the Subjects good: for some are by God and Nature appointed for the mutuall and inseperable good of the superiour and in∣feriour, 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 in∣tended, 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 inter∣nall 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 propositi∣on, 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 Willi∣am 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 peo∣ple 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 of* 1.5 him, and his posterity to that lord. Tacitus sheweth us it was so anci∣ently amongst the Germans, and the Campanians surrendered them∣selves 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 Conque∣rour 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 poste∣ritie 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 speci∣all 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 con∣servation of the Kingdom, and is abused for the destruction there∣of, for a power to destruction was never given, nor can it by rati∣onall 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 Shew∣bread 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 be∣stowed 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 all* 1.6 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 involun∣tarium: 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 justificabi∣tur liberatio.

Assert. 20. All the Goods of the Subjects belongeth not to the* 1.7 King: I presuppose, that the division of Goods doth not necessa∣rily 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 physi∣cally incommunicable to any * 1.8. But I hasten to prove the Propo∣sition: 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 mean∣ing, 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 * 1.9. 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 con∣fiscation of Goods for a fault; but confiscated Goods are to help the interessed Common-wealth, and the King, not as a man (to be∣stow 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.* 1.10

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 Ma∣gistrate. 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 com∣eth 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 the* 1.11 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 oppressing* 1.12 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.* 1.13 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 ob∣jected 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 onely should be rich.

5. When Paul commandeth us to pay tribute to Princes, Rom. 13.* 1.14 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 his* 1.15 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 his* 1.16 own, while he had bought it with money: and every thing is pre∣sumed 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 all* 1.17 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. in∣terdum, 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.

Notes

• * 1.1

  The King as King, hath no masterly domi∣on over the people, but on∣ly fiduciarie.
• * 1.2

  To be a King, is by office, and actu primo, to defend, save, feed, and not to hurt or inthral.
• * 1.3

  A King not o∣ver men as rea∣sonable men.
• * 1.4

  Prelat••. Sacr. sanct. mas. c. 16. p. 15. Hugo Grotius hath the same de jur. bel. & pacis, l. 1. c. 3.
• * 1.5

  A compelled surrender of liberty tyeth not.
• * 1.6

  A surrender of ignorance and mistake, is some way un∣voluntary and obligeth not.
• * 1.7

  The Goods of the Subjects not the Kings.
• * 1.8

  Quod jure gentium dici∣tur. F. de justi tia & jure. l. ex hee. Quod partim jure civili. Iu∣sti. de rerum divisio. sect. singulorum.
• * 1.9

  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 noti∣on, but not in propriety.
• * 1.10

  Subjects are propriators of their own Goods. Argum. 1.
• * 1.11

  Argum. 2.
• * 1.12

  Argum. 3.
• * 1.13

  The answer of Hybreas to a extorting Prince Autoni∣us. Argum. 4. Species enim furti est de ali∣euo largiri, & beneficii debito∣rem sihi acqui∣rere, L. si pig∣nore, sect. de furt.
• * 1.14

  Argum. 5.
• * 1.15

  Argum. 6.
• * 1.16

  Argum. 7.
• * 1.17

  Argum. 8.