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. IX. Whether or no Soveraigntie is so from the people, that it remaineth in them in some part, so as they may in case of necessitie resume it?

THe Prelate will have it Babylonish confusion, that we are divided in opinion. Jesuites (saith he) place all Soveraigntie in the com∣munitie. Of the Sectaries; some warrant any one subject to make away his King, and that such a worke is no lesse to be rewarded then when one killeth a wolfe: Some say, this power is in the whole Communitie: some will have it in the collective body, not conveened by warrant or writ of Soveraignty, but when necessitie (which is often fancied) of re∣forming State and Church, calleth them together. Some in the Nobles, and Peeres, some in the three Estates assembled by the Kings writ, some▪ in the inferour Iudges.

I answer: If the Prelate were not a Iesuite himselfe, he would not bid his brethren take the mote out of their eye: but there is no∣thing* 1.1 here said but which Barclaius said better before this Plaga∣rius. To which I answer, We teach that any private man may kill a a Tyrant voyd of all title: and a great Royalist Barclaius saith so also. And if he have not the consent of the people, he is an usurper, for we know no externall lawfull calling that Kings have now, or their familie to the Crown, but only the call of the people; all other calls to us are now invisible and unknown, and God would not command us to obey Kings, and leave us in the darke, that we shall not know who is the King: the Prelate placeth his lawfull calling to the Crown in such an immediate, invisible, and subtile act of omnipoten∣cie, as that whereby God conferreth remission of sinnes by sprink∣ling with water in baptisme, and that whereby God directed Sa∣muel to annoint Saul and David, not Eliab, nor any other brother. It is the Devill in the P. P. not any of us, who teach that any private man may kill a lawfull King, though tyrannous in his government. For the subject of Royall power, we affirme, the first, and ultimate,* 1.2 and native subject of all power is the Communitie, as reasonable men naturally inclining to a societie: but the ethicall and politicall subject, or the legall and positive receptacle of this power is vari∣ous, according to the various constitutions of the policie. In Scot∣land and England, it is the three Estates of Parliament, in other Na∣tions some other Iudges or Peeres of the Land. The Prelate had no more common sense for him to object a confusion of opinions to us,

for this, then to all the Common-wealths on earth, because all have not Parliaments, as Scotland hath; all have not Constables, and Offi∣cials, and Churchmen, Barons, Lords of Councell, Parliaments, &c. as England had. But the truth is, the Communitie orderly convee∣ned, as it includeth all the Estates civill, have hand, and are to act in choosing their Rulers: I see not what priviledge Nobles have above Commons in a Court of Parliament, by Gods law; but as they are Iudges, all are equally Iudges, and all make up one congregation of Gods. But the question now is, if all power of governing (the Prelate, to make all the people Kings, saith, if all Soveraignty) be so in the people, that they retaine power to guard themselves against Ty∣ranny? And, if they reteine some of it, habitu, in habit, and in their power? I am not now unseasonably, according to the Prelates order, to dispute of the power of lawfull defence against tyranny; but I lay down this maxime of Divinitie; Tyranny being a worke of Sa∣than, is not from God, because sinne either habituall or actuall, is not from God, the power that is, must be from God; the Magistrate as Magistrate, is good, in nature of office, and the intrinsecall end of his office, Rom. 13. 4. for he is the Minister of God for thy good; and therefore a power ethicall, politick, or morall, to oppresse, is not from God, and is not a power, but a licentious deviation of a power, and is no more from God, but from sinfull nature, and the old serpent, then a license to sinne: God in Christ giveth pardons of sinne; but the Pope, not God, giveth dispensations to sinne. 2. To this adde, If for nature to defend it selfe be lawfull, no Communitie, without sin, hath power to alienate and give away this power: for as no power given to man to murther his brother, is of God, so no power to suffer his brother to be murthered, is of God; and no power to suffer him∣selfe (à fortiori) far lesse can be from God. Here I speake not of phy∣sicall power, for if free will be the creature of God, a physicall power to acts which in relation to Gods law are sinfull, must be from God.

But I now follow the P. Prelate. Some of the adversaries, as Bu∣chanan,* 1.3 say that the Parliament hath no power to make a law, but on∣ly a 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 without the approbation of the Communitie. Others, as the the Observator, say, that the right of the Gentry and Commu∣nalty is intirely in the Knights and Burgesses of the House of Com∣mons, and will have their Orders irrevocable. If then the common* 1.4 people cannot resume their power, and oppose the Parliament, how can Tables and Parliaments resume their power, and resist the King?

Answ. The ignorant man should have thanked Barclaius for this Argument, and yet Barclaius need not thanke him, for it hath not the nerves that Barclaius gave it. But I answer, 1. if the Par∣liament should have been corrupted by fair hopes (as in our age we have seene the like) the people did well to resist the Prelates ob∣truding the Masse Booke, when the Lords of the Counsell pressed it against all Law of God and man, upon the Kingdome of Scotland, and therefore it is denyed that the Acts of Parliament are irrevoca∣ble, the observator said they were irrevocable by the King, he be∣ing but one man, the P. Prelate wrongeth him, for he said onely,* 1.5 they have the power of a Law, and the King is obliged to con∣fent, by his Royall Office to all good Lawes, and neither King nor people may oppose them. Buchanan said Acts of Parliament are not Lawes obliging the people till they be promulgated, and the peo∣ples silence when they are promulgated is their approbation, and maketh them obligatory Lawes to them; but if the people speak against unjust Lawes, they are not Lawes at all, and Buchannan knew the power of the Scottish Parliament, better then this ignorant Sta∣tist. 2. There is not like reason to grant so much to the King, as to Parliaments, because certainly Parliaments who make Kings under God, or above any one man, and they must have more authority and wisedome then any one King, except Solomon (as base flatte∣rers* 1.6 say) should returne to the thrones of the earth. And as the power to make just Lawes is all in the Parliament, only the people have power to resist tyrannicall Lawes, the power of all the Parlia∣ment was never given to the King, by God, the Parliament are as essentially Iudges as the King, and therefore the Kings deed may well be revoked, because he acteth nothing as King; but united with his great or lesser Councell, no more then the eye can see, be∣ing separated from the body. The Peeres and Members of Parlia∣ment have more then the King, because they have both their owne power, being parts and speciall Members of the people, and also they have their high places in Parliament, either from the peoples ex∣presse, or tacite consent. 3. We allow no Arbitrary power to the Parliament, because their just Lawes are irrevocable, for the irre∣vocable power of making just Lawes doth argue a legall, not an ir∣reovocable Arbitrary power; nor is there any arbitrary power in the people, or in any mortall man, but of the Covenant betwixt King and people hereafter.

P. Prelate, If Soveraigne power be habitually in the community so,* 1.7 as they may resume it at their pleasure, then nothing is given to the King but an empty title, for at the same instant he receiveth Empire and Soveraignty, and layeth downe the power to rule or determine in matters which concerne either private or publick good, and so he is both a King and a Subject. Ans. This naked consequence the Prelate sayeth, and proveth not, and we deny it, and give this reason, the King receiveth Royall power with the States to make good Lawes, and 2. power by his royalty to execute those Lawes, and this power the community hath devolved in the hands of the King, and States of Parliament, but the community keepeth to themselves a power to resist tyranny, and to coerce it, and eatenus in so far is Saul sub∣ject, that David is not to compeare before him, nor to lay downe Goliahes sword, nor disband his Army of defence, though the King should command him so to doe.

P. Prelate. By all Polititians, Kings, and enferiour Magistrates* 1.8 are differenced by their different specifice entity, but by this they are not differenced; nay a Magistrate is in a better condition then a King, for the Magistrate is to judge by a knowne Statute and Law, and cannot be censured and punished but by Law. But the King is censurable, yea disabled by the multitude, yea the basest of sub∣jects may cite, and convent the King, before the underived Majesty of the community, and he may be judged by the Arbitrary Law thut is in the closet of their heart, not only for reall misdemeanour, but for fancied jealousies—It will be said, good Kings are in no danger—the contrary appeareth this day, and ordinarily the best are in greatest danger; no Government except Plato'es Republick wanteth incommodities, subtile spirits may make them, apprehend them. The poore people bewitched, fol∣low Absolom in his treason, they strike not at Royalty at first, but labour to make the Prince, naked of the good counsell of great Statesmen, &c.

Ans. Whether the King and the under Magistrate differ essenti∣ally,* 1.9 we shall see. The P. Prelate saith all Polititians grant it, but he saith untruth; he bringeth Moses, and the Iudges, their power to prove the power of Kings; and so either the Iudges of Israel and the Kings differ not essentially, or then the Prelate must correct the spirit of God tearming one booke of Scripture 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Kings, and another 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Iudges, and make the booke of Kings the booke of Iudges. 2. The Magistrates condition is not better then the Kings, because the Magistrate is to judge by an knowne Statute and

Law, and the King not so. God moulded the first King, Deut. 17. 18. when he sitteth judging on his Throne, to looke to a written Cop∣py of the Law of God, as his rule. Now a power to follow Gods Law is better then a power to follow mans sinfull will: so the Prelate putteth the King in a worse condition then the Magistrate, not we, who will have the King to judge according to just statutes and lawes. 3. Whether the King be censurable and deposable by the multitude, he cannot determine out of our writings. 4. The com∣munities law is the law of nature, not their arbitrary lust. 5. The Prelates treasonable raylings, I cannot follow; he first saith, that we agree not ten of us to a positive faith, and that our faith is nega∣tive, but his faith is Privative, Popish, Socinian, Arminian, Pelagi∣an and worse, for he was once of that same faith that we are of. 2. Our Confession of Faith is positive, as the confession of all the reformed Churches, but I judge he thinketh the Protestant Faith of all the reformed Churches but negative. 3. The incommodities of Government before our reformation were not fancied, but prin∣ted by Authority, all the body of Popery was printed, and avowed as the Doctrine of the Church of Scotland and England, as the lear∣ned Author, and my much respected brother evidenceth in his Ludensium, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, The Canterburian selfe conviction. 4. The Parliament of England was never yet found guilty of Trea∣son. 5. The good Counsellers of great States-men, that Parliaments of both Kingdomes would take from the Kings Majesty, are a faction of perjured Papists, Prelates, Iesuites, Irish cut-throates, Strafords, and Apostate subverters of all Lawes divine, humane, of God, of Church, of State.

P. Prelate. In whom so ever this power of Government be, it is the* 1.10 onely remedy to supply all defects, and to set right what ever is disjoyn∣ted in Church and State, and the subject of this super-intending power must be free from all errour in Iudgement and Practice, and so we have a Pope in temporalibus; and if the Parliament erre, the people must take order with them, else God hath left Church and State reme∣dilesse. Ans. This is stollen from Barolaius also; 1. but the same Bar∣claius* 1.11 saith, Si Rex regnum suum alien•• ditioni manciparit, regno ca∣dit. If the King shall sell his Kingdome, or inslave it to a forraigne power, he falleth from all right to his Kingdome: but who shall exe∣cute any such Law against him, not the people, not the Peeres, not the Parliament; for this Mancipium ventris & aulae, this slave

saith, p. 147. I know no power in any to punish or curbe Soveraignty, but in Almighty God. 2. We see no super-intending power on earth in King or people infallible, nor is the last power of taking order with a Prince who inslaveth his Kingdome to a forraigne power* 1.12 placed by us in the people, because they cannot erre; Court flatte∣rer••▪ who teach that the will of the Prince is the measure of all right and wrong, of Law and no Law; and above all Law must hold that the King is a temporall Pope, both in Ecclesiasticall and Civill mat∣ters; but because they cannot so readily destroy themselves, (the law of Nature having given to them a contrary internall principle of selfe preservation) as a Tyrant who doth care for himselfe, and not for the people. 3. And because Extremis morbis extrema re∣media in an extraordinary exigent, when Achab and Iezabell did undoe the Church of God, and Tyrannize▪over both the bodies and consciences of Priest, Prophet, and people, Elias procured the con∣vention of the States, and Elias with the peoples helpe killed all Baals Priests, the King looking on, and no question, against his heart. In this case I thinke its more then evident that the people resumed their power. 4. We teach not that people should supply all defects in Government, nor that they should use their power when any thing is done amisse by the King, no more then the King is to cut off the whole people of God, when they refuse an Idolatrous service obtruded upon them against all Law; the people is to suf∣fer much before they resume their power, but this Court slave will have the people to doe what he did not himselfe, for when King and Parliament summoned him, was he not obliged to appeare? Non-compearance when lawfull, royall, and Parliamentory power summoneth, is no lesse resistance, then taking of Forts and Castles.

P. Prelate. Then this super-intending power in people, may call a King to accompt, and punish him for any misdemeanour, or act of in∣justice. Why might not the people of Israels Peeres, or Sanedrin have convented David before them, judged and punished him for his▪ Adul∣tery with Bathsheba, and his murther of Uriah; but it is holden by all, that Tyranny should be an intended universall, totall, manifest destruction of the whole Common-wealth, which cannot fall in the thoughts of any but a mad man. What is recorded in the Story of Nero his wish in this kind, may be rather judged the expression of transpor∣ted passion, then a fixed resolution.

Ans. The P. Prelate contrary to the scope of his booke, which is

all for the subject and seat of Soveraigne power, against all order hath plunged himselfe in the deep of Defensive armes, and yet hath no new thing. 1. Our law of Scotland will warrant any subject, if the King take from him his heritage, or invade his possession against Law, to resist the invaders, and to summon the Kings intruders before the Lords of Session for that act of injustice: Is this against Gods Word, or Conscience? 2. The Sanc∣drim did not punish David; Ergo, it is not lawfull to chal∣lenge a King for any one act of injustice: from the practice of the Sanedrim, to conclude a thing lawfull or unlawfull, is logick; we may resist. 3. By the P. Prelates doctrine, the law might not put Bathshebah to death, nor yet Joab the neerest agent of the mur∣thering* 1.13 of innocent Ʋriah, because Bathshebaes adulterie was the Kings adulterie, she did it in obedience to King David: Joabs mur∣ther was Royall murther, as the murther of all the Cavaliers; for he had the Kings hand-writing for it. Murther is Murther, and the murtherer is to dye, though the King by a secret Let alone, a private and illegall warrant command it. Ergo, the Sanedrim might have taken Bathshebaes life, and Joabs head also: and consequently the Parliament of England, if they be Judges (as I conceive God and the Law of that ancient and renowned Kingdome maketh them) may take the head of many Joabs and Jermines, for murther; ••or the command of a King cannot legitimate murther. 4. David himselfe, as King, speaketh more for us then for the Prelate, 2 Sam. 12. 7. And Davids anger was greatly kindled against the man, (the man was himselfe, v. 7. Thou art the man) and he said to Nathan, as the Lord liveth, the man that hath done this, shall surely dye. 5. Every act of injustice doth not un-King a Prince before God, as every act of uncleannesse doth not make a wife no wife before God. 6. The Pre∣late excuseth Nero, and would not have him resisted, if all Rome were one neck, that he might cut it off with one stroke (I read it of Cali∣gula; If the Prelate see more in Historie then I doe, I yield.) 7. He saith, the thoughts of totall eversion of a Kingdome, must only fall on a mad man. The King of Britaine was not mad, when he declared the Scots Traytors, because they resisted the service of the Masse; and raised an Army of Prelaticall cut-throats to destroy them, if all the Kingdome should resist Idolatry, (as all are obliged.) The King sleeped upon this Prelaticall resolution many moneths: passions in servor have not a dayes raigne upon a man. And this was not so

cleare as the sun, but it was as cleare as written printed Proclama∣tions, and the pressing of Souldiers, and the visible marching of Cut-throats, and the blocking of Scotland up by sea and land could be visible to men having five senses.

Covaruv. a▪ great Lawyer, saith, 1. that all Civill power is penes* 1.14 remp. in the hands of the Common-wealth. 1. Because Nature hath given to man to be a sociall creature, and impossible he can preserve himselfe in a societie, except he being in communitie, transforme his power to an head. 2. He saith; Hujus vero civilis societatis & resp. rector ab alio quam ab ipsamet repub. constitui non potest justè & abs{que} Tyrannide. Siquidem ab ipso Deo constitutus non est, ••ec electus cui∣libet civili societati immediatè Rex aut Princeps. Arist. polit. 3. c. 10. saith, It is better that Kings got by election then by birth; because Kingdomes by succession are verè regia, truly Kingly: these by birth are more Tyrannicall, masterly, and proper to Barbarous Nations. And Covarruvias, tom. 2. pract. quest. de jurisd. Castellan. Reip. c. 1. n. 4. faith, Hereditary Kings are also made hereditary by the tacit con∣sent of the people, and so by law and consuetude.

Spalato. Let us grant (saith he) that a societie shall refuse to have a Governour over them, shall they be for that free? in no sort: but* 1.15 there be many wayes by which a people may be compelled to admit a governour; for then no man might rule over a Communitie against their will. But nature hath otherwise disposed, ut quod singuli nollent, universi vellent, that which every one will not have, a Commnnitie naturally desireth. And the P. Prelate saith, God is no lesse the author* 1.16 of Order, then he is the author of Being; for the Lord who createth all, conserveth all; and without government all humane societies should be dissolved and goe to ruine: Then government must be naturall, and not depend upon a voluntary & arbitrary constitution of men. In nature, the liveles creatures inferior give a tacit consent & silent obedience to their superiour, and the superiour have a powerfull influence on the inferiour. In the subordination of creatures, we ascend from one superior to ano∣ther, till at last we come to one supreme, which by the way pleadeth for the excellencie of Monarchie. Amongst Angels there is an order: how can it then be supposed that God hath left it to the simple consent of man to establish a heraldrie of sub & supra, of one above another, which nei∣ther nature nor the Gospel doth warrant? To leave it thus arbitrary, that upon this supposed principle, Mankind may be without government at all, is vain; which paradox cannot be maintained. In nature God hath

established a superiority inherent in superior creatures, which is no ways derived from the inferior by communication, in what proportion it will, and resumeable upon such exigents as the inferior listeth: therefore neither hath God left to the multitude, the communitie, the collective, the representative or virtuall body, to derive from it selfe, and commu∣nicate s••veraigntie, whether in one or few, or more, in that measure and proportion pleaseth them, which they resume at pleasure.

Answ. 1. To answer Spalato: No societie hath liberty to be without all government, for God hath given to every societie (saith a 1.17 Covarruvias) a faculty of preserving themselves, and warding off violence and injuries; and this they could not doe, except they gave their power to one or many Rulers. But all that the Prelate buildeth on this false supposition, which is his fiction and calumnie, not our doctrine, to wit, that it is voluntary to man to be without all govern∣ment, because it is voluntarie to them to give away their power to on••* 1.18 or moc Rulers, is a meere non-consequence. 1. We teach that Go∣vernment is naturall, not voluntary; but the way and manner of Go∣vernment is voluntarie: All societies should be quickly ruined, if there were no Government: but it followeth not therefore, God hath made some Kings, and that immediately, without the intervee∣ning consent of the people, and ergo, it is not arbitrary to the people to choose one supreme Ruler, and to erect a Monarchie, or to choose moe Rulers, and to erect an Aristocracie. It followeth no way. It is naturall to men to expresse their minde by humane voyces; Is not speaking of this or that language, Greeke rather then Latine, (as A∣ristotle saith) 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 by humane institution? It is naturall for men to eat; ergo, election of this or that meat is not in their choise. What reason is in this consequence? and so its a poore con∣sequence also; Power of Soveraigntie is in the people naturally; ergo it is not in their power to give it out in that measure that pleaseth them, and to resume it at pleasure. It followeth no way. Because the inherencie of Soveraigntie is naturall, and not arbitary, ergo, the alienation and giving out of the power to one, not to three, thus much, not thus much, conditionally, not absolutely and irrevocably, must be also arbitrary. It is as if you should say, a father having six children, naturally loveth them all, ergo, he hath not freedome of will in ex∣pressing his affection to give so much of his goods to this sonne, and that conditionally, if he use these goods well; and not more or lesse of his goods, at his pleasure. 2. There is a naturall subordination

in nature, in creatures superior and inferior, without any freedome* 1.19 of election: the earth made not the heavens more excellent then the earth, and the earth by no freedome of will made the heavens superior in excellencie to it selfe. Man gave no superioritie of ex∣cellencie to Angels above himselfe: the Creator of all Beings did both immediately without freedome of election in the creature, cre∣ate the being of all creatures, and their essentiall degrees of superio∣rity and inferiority, but God created not Saul by nature King over Israel; nor is David by the act of creation, by which he is made a man, created also a King over Israel; for then David should from the wombe and by nature be a King, and not by Gods free gift. Here both the free gift of God, and the free consent of the people inter∣veene: indeed God made the office and royaltie of a King above the dignitie of the people; but God by the interveening consent of the people maketh David a King, not Eliab; and the people maketh a covenant at Davids inauguration, that David shall have so much power, to wit, power to be a Father, not power to be a Tyrant; power to fight for the people, but no power to waste and destroy them. The inferior creatures in nature give no power to the superi∣our, and therefore they cannot give in such a proportion power. The deniall of the positive degree, is a deniall of the comparative and superlative, and so they cannot resume any power: But the desig∣ning of such a man, or such men to be Kings or Rulers, is a rationall voluntary action, not an action of nature, such as is Gods act of cre∣ating an Angell a nobler creature then a man, and the creating of man a more excellent creature then a beast: and for this cause the argument is vaine and foolish: for inferior creatures are inferior to the more noble and superior by nature, not by voluntary desig∣nation, or, as Royalists say, by naked approbation, which yet must be an arbitrary and voluntary action. 3. The P. Prelate commen∣deth order, while we come to the most supreme: hence he com∣mendeth Monarchie above all governments, because it is Gods go∣vernment. I am not against it, that Monarchie well tempered is the best government, though the question to me is most problema∣tick; but because God is a Monarch, who cannot erre or deny him∣selfe, therefore that sinfull Man be a Monarch, is miserable logick: and he must argue solidly forsooth by this, because there is order (as he saith) amongst Angels, will he make a Monarch and a King-Angell? His argument, if it have any weight in it, driveth at that,

even that there be crowned Kings amongst the Angels.

Notes

• * 1.1

  Barclaius contr. Monarch. l. 4. c. 10. p. 268. ut hostes publicos non solù ab uni∣verso populo, sed •• singulis etiam impeti oaedi{que} jure optimo posse tota Antiquitas censuit.
• * 1.2

  How the peo∣ple is the sub∣ject of Sove∣raigntie.
• * 1.3

  Sac. Reg. Maj. The sacred and royall prero∣gative of Kings c. 9. p. 101. 102.
• * 1.4

  Stollen from Barclaius.
• * 1.5

  The power of Parliaments.
• * 1.6

  The Parlia∣ment hath more power then the King.
• * 1.7

  C. 10. pag. 105.
• * 1.8

  C. 16. 105, 106, 107.
• * 1.9

  Iudges and Kings differ.
• * 1.10

  Cap. ••5. p. 147 148.
• * 1.11

  Barclaius contra Monarchum. l. 5. c. 12. Idem. l. 3 c. ult pag. 2, 3.
• * 1.12

  People may resume their power in some cases, not be∣cause they are infallable, but because they cannot so ea••i∣ly erre as one man.
• * 1.13

  That the San∣edrim puni∣shed not David, Bathsheha, Ioab, proveth no∣thing in law, as a fact or non fact is not law.
• * 1.14

  (a) Covarruvi∣as, tom. 2. pract. quest.▪ c. 1. n. 2. 3. 4.
• * 1.15

  Spalato de rep. eccles. l. 6. c. 2. n. 32.
• * 1.16

  Sa. sa. maj. The sacred and royall prero∣gative of Kings c. 7. p. 82, 83, 84.
• a 1.17

  Covarr. to. 4 pract. quest. c. 1. ••. 2.
• * 1.18

  Government how both na∣turall, and also voluntary.
• * 1.19

  There is a sub∣ordination of creatures natu∣rall, and go∣verment must be naturall, and yet this or that forme is voluntary.