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. 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 essenti∣ally* 1.1 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 Superbi∣ense amongst the Arragonians: The Parliaments, in Scotland, Eng∣land, France, Spaine. 2 Sam. 3. 17. Abner communed with the El∣ders of Israel, to bring the King home. And there were Elders in Is∣rael, 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 is* 1.2 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 al∣so 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 Prin∣ces,

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 Parlia∣ment, and make David King at Hebron: And when David is ba∣nished, 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 Scot∣land, and of England, had conveened, though the King had not in∣dicted and summoned a Parliament; without the King, to take or∣der 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 Conventi∣ons in our Kingdome, when the Prelates were bringing in the gros∣sest idolatrie into the Church, a service for adoring of Altars, of Bread, the worke of the hand of the Baker; a God more corrupti∣ble* 1.3 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 judge∣ment 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 Parli∣ament is extraordinarie to the States; for none hath power ordi∣nary when the King is dead, or when he is distracted, or captive in

another land, to conveene the Estates and Parliament, but they on∣ly; and in their defect, by the law of Nature, the people may con∣veene. 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 Ca∣tholike Iudges in the Land, Moses upon his sole pleasure and will, hath not power to restraine them in the exercise of judgment gi∣ven* 1.4 them of God: for as God hath given to any one Iudge power to judge righteous judgement, though the King command the contra∣ry; 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 cal∣leth for it: For, 1. the expresse commandement of God, which saith to all Iudges, Execute judgement in the morning; involveth essenti∣ally a precept to all the Physicall actions, without which it is im∣possible 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 judge∣ment, things, persons, circumstances: and so God who comman∣deth positive acts of judgeing, commandeth the Iudges locomotive power, and his naturall actions of compelling by the sword the par∣ties to come before him: even as Christ who commandeth his ser∣vants 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 con∣veen 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 necessita∣teth these Publique Watchmen to come together: for even the King

judgeth not actually, but upon occasion. 2. This is to beg the que∣stion, to say that the Estates are not Iudges, but when the King cal∣leth 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 e∣vening 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 such* 1.5 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 selfe∣preservation 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 the* 1.6 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 mee∣ting 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 sole* 1.7 Iudge: 1. The King is, by that same reason, the sole Iudge, in re∣lation 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,* 1.8 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 Parlia∣ment 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 Com∣mission, for the King may send the Iudge to judge in generall accor∣ding 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 appro∣bative 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 Da∣vid exhort the Princes of Israel to helpe King Solomon in governing* 1.9 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 thou∣sands, 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 to∣gether the States of Israel, in a matter that nearely concerned Reli∣gion. 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 Re∣cords of Scripture, ergo, so is the latter.

8. The men of Ephraim complaine that Iephtah had gone to* 1.10 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 pub∣lick 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 him* 1.11 in the case of Tyranny, must be above the King in power of Go∣vernment; 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.* 1.12 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 ab∣solute* 1.13 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 mi∣nisteriall, 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 Parlia∣ment 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 po∣wer to the King, but to execute Lawes, and his convening of them is an Act of Royall Duty, which he oweth to the Palia∣ment 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 concen∣tricated 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 ad∣vice 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 them∣selves 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 pre∣servation out of a Parliament, and a power of convening in Parlia∣ment for that effect, that they may by Common Counsell defend themselves.

Notes

• * 1.1

  Principes sunt▪ capitis tempora, Rex vertex.
• * 1.2

  Elders of a land joyntly in Parliament, must have as much, if not more, (vis uni∣ta fortior)▪ then when they are divided in se∣verall tribes, ••ities, shires: but, divided, they are as es∣sentially. Iudg∣es, as the King. The whole must have more power in extension, then the part. Jer. 38. 25▪ they had power a∣gainst the Kings will, to put Ieremiah to death. Iere∣miah saith, Doe whatsoever see∣meth 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.
• * 1.3

  Tables in Scot∣land lawfull.
• * 1.4

  The inferiour Iudges are not subject in their conscience to the King, in their acts of judgement, ei∣ther, quoad spe∣cificationem, to give unjust sentences at his will; nor quo∣ad exercitium, to execute, or not execute judgement for the oppressed.
• * 1.5

  Vnjust judge∣ing, and no judging at all, are sinnes in the States.
• * 1.6

  Junius Brut. q. 2. p. 51. vind. contr. Tyran.
• * 1.7

  The Parlia∣ment Iudges not advisers only.
• * 1.8

  Ieferiour Iudges not the Legats, or Ser∣vants, or Mes∣sengers of the King.
• * 1.9

  Publick Go∣vernment be∣longeth to the States, and El∣ders as to the King.
• * 1.10

  Arg. 8.
• * 1.11

  Arg. 9.
• * 1.12

  Arg, 10.
• * 1.13

  Arg. 11.