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Title page of A treatise of civil policy, London, 1656

A92147:1098

A treatise of civil policy

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

Samuel Rutherford 1600?–1661London, : Printed and are to be sold by Simon Miller at the Star in St Pauls Church-yard near the West end., 1657 i.e. 1656

[34], 438 p. · 210k words · Wing R2396 · ESTC R207911

Title page typeset from the transcription.

Lex, Rex. › Question 39: QUEST. XXXIX. Whether or no any Prerogative at all above the law be due to the King? or…

Modern spelling is a reading aid: the words are the author’s, only the spelling is modernized. Original shows the page as printed, with the transcription marks.

[ Earlier:1095–1110 of 1,374

:1095p. 397

But 1. This law of the King then can be no ground for the Kings absoluteness above Law, and there can be no permissive Law of God here, for that which asserteth the Kings Royal Dominion over persons and things, that must be the Law of Gods approving, not his permitting evil, but this is such a Law as Arnisaeus saith.

But 1. This law of the King then can be no ground for the Kings absolutenesse above Law, and there can be no permissive Law of God here, for that which asserteth the Kings Royall Dominion over persons and things, that must be the Law of Gods approving, not his permiting evil, but this is such a Law as Arnisaeus saith.

:1096p. 397

2. The text speaketh of no Law or lawful power, or of any absoluteness of King Saul; but of his wicked custom, and his rapine and Tyranny, He will take your sons, your daughters, your fields, and your vineyards from you. Saul took not these through any power of dominion by Law, but by mere Tyranny.

2. The text speaketh of no Law or lawful power, or of any absolutenesse of King Saul; but of his wicked custome, and his rapine and Tyranny, He will take your sons, your daughters, your fields, and your vineyards from you. Saul took not these through any power of dominion by Law, but by meere Tyranny.

:1097p. 397

3. I have before cleared that the subjects have a propriety, and an use also, else how could we be obliged by virtue of the fifth commandment to pay tribute to the King, Rom. 13. 7. for that which we pay, was as much the Kings before we payed, as when we have payed it.

3. I have before cleared that the subjects have a propriety, and an use also, else how could we be obliged by vertue of the fift commandement to pay tribute to the King,

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The book

Title as printed: A treatise of civil policy: being a resolution of forty three questions concerning prerogative, right and privilege, in reference to the supreme prince and the people. / By Samuel Rutherford professor of divinity of St Andrews in Scotland.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.
Author: Samuel Rutherford 1600?–1661
Place: London
Year: 1656
Imprint: London, : Printed and are to be sold by Simon Miller at the Star in St Pauls Church-yard near the West end., 1657 [i.e. 1656]
Size: [34], 438 p.
Words: 210,399
Catalogue: Wing R2396 · ESTC R207911
Text: EEBO-TCP A92147

Passages: 1,374
Sections: 50

The author

Samuel Rutherford 1600?–1661

PuritansScotland

Scottish theologian and commissioner to the Westminster Assembly.

:1098p. 397–398

4. Arnisaeus saith all are the Kings in respect of the universal jurisdiction, that the King hath in governing and ordering all to the universal end, the good of the Common-wealth, for as universal nature careth for the conservation of the species and kind, so doth particular nature care for the conservation of individuals, so do men care for their private good, and the King is to refer every mans private goods, to the good of the public, but the truth is, this taketh not away propriety of goods from private men, retaining only the use to private men, and giving the dominion to the King, because this power that the King bath of mens goods, is not power of dominion, that the King hath over the goods of men, as if the King were Dominus, Lord and owner of the fields and monies of the private subject, but it is a power to regulate the goods for a public use, and ⟨p. 398⟩supposeth the abuse of goods, when they are Monopolized to, and for private ends. 2. The power that the King hath over my bread is¹ not a power of dominion, so as he may eat my bread, as if it were his own bread, and he be Lord of my bread as I was sometimes my self, before I abused it, but it is a dominion unproperly, and abusively so called, and is a mere fiduciary, and dispensatory power, because he is set over my bread not to eat it, nor over my houses to dwell in them, but only with a ministerial power as a public, though a honourable servant and watchman appointed by the community, as a mean for an end to regulate my bread, houses, moneys, fields for the good of the public. Dominion is defined a faculty to use a thing as you please, except you be hindered by force, or by Law. Justin. tit. c. de legibus in l. digna vox. &c. So have I a dominion over my own garments, house, money, to use them for uses not forbidden by the Law of God, and man, but I may not lay my corn field wast that it shall neither bear grass• nor corn, the King may hinder that, because it is a hurt to the public: but the King as Lord and Sovereign hath no such dominion over Naboths vineyard. How the King is lord of all goods, ratione jurisdictionis, & tuitionis se. Anton. de paudrill. in l. Altius. n. 5. c. de servit. Hottom. illust. quest. q. 1. ad fin. Conc. 2. Lod. Molin. de just. & jur. dis. 25. Soto. de justitia & jur. l. 4. q. 4. art. 1.

4. Arnisaeus saith all are the Kings in respect of the universall jurisdiction, that the King hath in governing and ordering all to the universall end, the good of the Common-wealth, for as universall nature careth for the conservation of the spece and kind, so doth particular nature care for the conservation of individuals, so do men care for their private good, and the King is to refer every mans private goods, to the good of the publick, but the truth is, this taketh not away propriety of goods from private men, retaining onely the use to private men, and giving the dominion to the King, because this power that the King bath of mens goods, is not power of dominion, that the King hath over the goods of men, as if the King were Dominus, Lord and owner of the fields and monyes of the private subject, but it is a power to regulate the goods for a publique use, and ⟨p. 398⟩supposeth the abuse of goods, when they are Monopolized to, and for private ends. 2. The power that the King hath over my bread is¹ not a power of dominion, so as he may eat my bread, as if it were his own bread, and he be Lord of my bread as I was sometimes my self, before I abused it, but it is a dominion unproperly, and abusively so called, and is a meere fiduciary, and dispensatory power, because he is set over my bread not to eat it, nor over my houses to dwel in them, but onely with a ministeriall power as a publique, though a honourable servant and watchman appointed by the community, as a mean for an end to regulate my bread, houses, moneys, fields for the good of the publique. Dominion is defined a faculty to use a thing as you please, except you be hindered by force, or by Law. Iustin. tit. c. de legibus in l. digna vox. &c. So have I a dominion over my own garments, house, money, to use them for uses not forbidden by the Law of God, and man, but I may not lay my corne field wast that it shall neither bear grass• nor corne, the King may hinder that, because it is a hurt to the publique: but the King as Lord and Soveraigne hath no such dominion over Naboths vi•eyard. How the King is lord of all goods, ratione jurisdictionis, & tuitionis se. Anton. de paudrill. in l. Altius. n. 5. c. de servit. Hottom. illust. quest. q. 1. ad fin. Conc. 2. Lod. Molin. de just. & jur. dis. 25. Soto. de justitia & jur. l. 4. q. 4. art. 1.

1What dominion the King hath over the goods of the subject.

:1100p. 398–399

Aristotle saith, Ethic. 8. c. 12. [Greek or Hebrew]. A Tyrant seeketh his own, a King the good of the Subjects, for he is no King who is not content, and excelleth in goodness. The former part of these words distinguish¹ essentially the King by his office, from the Tyrant. Now every office requireth essentially a duty to be performed by him that is in office; and where there is a duty required, there is some obligation; if it be a politic duty, it is a politic obligation. Now amongst politic duties betwixt equal and equal, superior and inferior, that is not, de facto, required coaction for the performance thereof, but de jure, there is, for two neighbour Kings and two neighbour Nations, both being equal and independent, the one toward the other, the one owe a duty to the other, and if the Ammonites do • ⟨p. 399⟩wrong to David and Israel, as they are equall de facto, the one cannot punish the other, though the Ammonites do a disgrace to Davids messengers, yet de jure, David and Israel may compel them to politic duties of politic consociation; (for betwixt independent kingdoms there must be some politic government, and some politic and civil Laws, for two or three making a society, cannot dwell together without some policy) and David and Israel as by² the Law of nature they may repel violence with violence, so if the laws of neighbour-hood and nations be broken, the one may punish the other, though there be no relation of superiority and inferiority betwixt them. 2. Where ever there is a covenant and oath betwixt equals, yea or superiors and inferiors, the one hath some coactive power over the other; if the father give his bond to pay to his son ten thousand pounds, as his patrimony to him, though before the giving of the bond the father was not obliged, but only by the Law of nature to give a patrimony to his son, yet now by a politic obligation of promise, covenant and writ he is obliged so to his son to pay ten thousand pounds, that by the Law of Nations and the civil Law, the son hath now a coactive power by Law to compel his father, though his superior, to pay him no less then ten thousand pounds of patrimony. Though therefore the King should stand simply superior to his kingdom and estates (which I shall never grant) •t if the King come under covenant with his kingdom, as I have proved at length c. 13.

ARistotle saith, Ethic. 8. c. 12. 〈non-Latin alphabet〉. A Tyrant seeketh his owne, a King the good of the Subjects, for he is no King who is not content, and excelleth in goodnesse. The former part of these words distinguish¹ essentially the King by his office, from the Tyrant. Now every office requireth essentially a duty to be performed by him that is in office; and where there is a duty required, there is some obligation; if it be a politique duty, it is a politique obligation. Now amongst politique duties betwixt equall and equall, superiour and inferiour, that is not, de facto, required coaction for the performance thereof, but de jure, there is, for two neighbour Kings and two neighbour Nations, both being equall and independent, the one toward the other, the one owe a duty to the other, and if the Ammonites do • ⟨p. 399⟩wrong to David and Israel, as they are equall de facto, the one cannot punish the other, though the Ammonites do a disgrace to Davids messengers, yet de jure, David and Israel may compell them to politique duties of politique consociation; (for betwixt independent kingdomes there must be some politique government, and some politique and civil Lawes, for two or three making a society, cannot dwell together without some policy) and David and Israel as by² the Law of nature they may repell violence with violence, so if the lawes of neighbour-hood and nations be broken, the one may punish the other, though there be no relation of superiority and inferiority betwixt them. 2. Where ever there is a covenant and oath betwixt equals, yea or superiours and inferiours, the one hath some coactive power over the other; if the father give his bond to pay to his son ten thousand pounds, as his patrimony to him, though before the giving of the bond the father was not obliged, but onely by the Law of nature to give a patrimony to his son, yet now by a politique obligation of promise, covenant and writ he is obliged so to his son to pay ten thousand pounds, that by the Law of Nations and the civil Law, the son hath now a coactive power by Law to compell his father, though his superiour, to pay him no lesse then ten thousand pounds of patrimony. Though therefore the King should stand simply superiour to his kingdom and estates (which I shall never grant) •t if the King come under covenant with his kingdom, as I have proved at length c. 13.

1The peoples power over the King by reason of the Coronation▪ covenant.
2Mutual punishments may be, where there be no mutual relations of superiority and inferiority.Mutuall punishments may be, where there be no mutuall relations of superiority and inferiority.

:1103p. 400

2. This is proved from the nature of a promise or covenant, for Solomon saith, Prov. 6. 1. My son, if thou be surety for thy friend, if thou hast stricken thy hand with a stranger, 2. Thou art snared with the words of thy mouth, & art taken with the words of thy mouth. But whence is it that a man free is now snared as a beast in a gin or trap? Certainly Solomon saith it is by a word and striking of hands, by a word of promise and covenant. Now the Creditor hath coactive power, though he be an equal or an inferior to the man who is surety, even by Law to force him to pay, and the Judge is obliged to give his coactive power to the Creditor, that he may force the surety to pay. Hence it is clear that a Covenant maketh a free man under the coactive power of law to an equal and to weaker, and the stronger is by the law of fraternity to help the weaker, with his coactive power, to cause the superior fulfil his covenant. If then the King (giving, and not granting, he were superior to his whole Kingdom) come under a covenant to them, to seek their good, not his own, to defend true Protestant Religion, they have power to compel him to keep his covenant, and Scotland (if the King be stronger then England, and break his covenant to them) is obliged by Gods law, Prov. 24. 11. to add their forces and coactive power to help their brethren of England.

2. This is proved from the nature of a promise or covenant, for Solomon saith, Prov. 6. 1. My son, if thou be surety for thy friend, if thou hast stricken thy hand with a stranger, 2. Thou art snared with the words of thy mouth, & art taken with the words of thy mouth. But whence is it that a man free is now snared as a beast in a gin or trap? Certainly Solomon saith it is by a word and striking of hands, by a word of promise and covenant. Now the Creditor hath coactive power, though he be an equall or an inferiour to the man who is surety, even by Law to force him to pay, and the Judge is obliged to give his coactive power to the Creditor, that he may force the surety to pay. Hence it is cleare that a Covenant maketh a free man under the coactive power of law to an equall and to weaker, and the stronger is by the law of fraternity to help the weaker, with his coactive power, to cause the superiour fulfill his covenant. If then the King (giving, and not granting, he were superiour to his whole Kingdome) come under a covenant to them, to seek their good, not his owne, to defend true Protestant Religion, they have power to compell him to keep his covenant, and Scotland (if the King be stronger then England, and break his covenant to them) is obliged by Gods law, Prov. 24. 11. to adde their forces and coactive power to help their brethren of England.

:1108p. 401

Answ. 1. Arnisaeus divideth oaths that are to be conjoined, we read not that Kings swear to defend Religion in one oath, and to administrate judgement and justice in another: for David made not two Covenants, but only one with all Israel. 2. The King was not King while he did swear this oath, and therefore it must be a pactional oath between him and the Kingdom, and it is true the King receiveth not a Crown from the Church, yet David received a Crown from the Church, for this end, to feed the Lords people, and so conditionally. Papir Mass l. 3. Chron. Gal. saith, The king¹ was not king before the oath. 2. That he did swear to be a keeper not only of the first, but also of the second Table of the Law. Ego N. Dei gratia, mox futur as rex Francorum, in die ordinationis meae coram Deo, & sanctis ejus polliceor, quod servabo privilegia canonica, justitiamque & jus unicuique Praelato debitum, vosque defendam, Deo juvante, quantum potero, quemadmodum Rex ex officio in suo regno defendere debet, unumquemque Episcopum ac Ecclesiam, & administrabo populo justitiam & leges, uti jus postulat. And so is it ordained in the Council of Tolet 6. c. 6. Quisquis deinceps regni sortitus fuerit apicem, non ante conscendat Regiam sedem, quam inter reliquas conditions sacramento policitus fuerit, quod non sinet in regno suo degere •um qui non sit Catholicus. All these by Scripture are oaths of Covenant, Deut. 17. ver. 17, 18. 2 Sam. 5. 1, 2, 3, 4. 2 Kings 11. 17, 18.

Answ. 1. Arnisaeus divideth oathes that are to be conjoyned, we read not that Kings sweare to defend Religion in one oath, and to administrate judgement and justice in another: for David made not two Covenants, but onely one with all Israel. 2. The King was not King while he did swear this oath, and therefore it must be a pactionall oath between him and the Kingdom, and it is true the King receiveth not a Crown from the Church, yet David received a Crowne from the Church, for this end, to feed the Lords people, and so conditionally. Papir Masse l. 3. Chron. Gal. saith, The king¹ was not king before the oath. 2. That he did sweare to be a keeper not onely of the first, but also of the second Table of the Law. Ego N. Dei gratia, mox futur as rex Francorum, in die ordinationis meae coram Deo, & sanctis ejus polliceor, quod servabo privilegia canonica, justitiamque & jus unicuique Praelato debitum, vosque defendam, Deo juvante, quantum potero, quemadmodum Rex ex officio in suo regno defendere debet, unumquemque Episcopum ac Ecclesiam, & administrabo populo justitiam & leges, uti jus postulat. And so is it ordained in the Councel of Tolet 6. c. 6. Quisquis deinceps regni sortitus fuerit apicem, non ante conscendat Regiam sedem, quam inter reliquas conditiones sacramento policitus fuerit, quod non sinet in regno suo degere •um qui non sit Catholicus. All these by Scripture are oathes of Covenant, Deut. 17. ver. 17, 18. 2 Sam. 5. 1, 2, 3, 4. 2 Kings 11. 17, 18.

1The King not King […] •• first •wear the o••h.The King not King 〈…〉 •• first •wear the o••h.