A92147:739
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.
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
Title page typeset from the transcription.
Lex, Rex. › Question 26: QUEST. XXVI. Whether the King be above the Law or no?
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.
3. What ever the King doth as King, that he doth by a power ⟨p. 233⟩borrowed from, (or by a fiduciary power which is his by trust) the Estates, who made him King. He must then be nothing but an eminent servant of the State, in the punishing of others. If therefore he be unpunishable, it is not so much because his Royal power is above all Law-coaction, as because one & the same man cannot be both the punisher and the punished, and this is a Physical incongruity rather then a Moral absurdity. So the Law of God layeth a duty on the inferior Magistrate, to use the sword against the murderer, and that by virtue of his Office, but I much doubt if for that, he is to use the sword against himself in the case of Murder, for this is a truth I purpose to make good; that suffering as suffering according1 to the substance and essence of passion, is not commanded by any Law of God or nature to the sufferer, but only the manner of suffering: I doubt if it be not, by the Law of Nature, lawful even to the ill doer who hath deserved death by Gods Law, to fly from the sword of the lawful Magistrate; only the manner of suffering with patience is commanded of God. I know the Law saith here, That the Magistrate is both Judge, and the Executor of the sentence against himself, in his own cause, for the excellency of his Office. Therefore these are to be distinguished, whether the King Ratione demeriti & jure, by Law be punishable, or if the King can actually be punished corporally by a Law of man, he remaining King; and since he must be a punisher himself, and that by virtue of his Office. In matters of goods the King may be both Judge and punisher of himself, as our Law provideth that any subject may plead his own heritage from the King before the inferior Judges, and if the King be a violent possessor, and in Mala fide for many years, by Law he is obliged upon a Decree of the Lords, to execute the sentence against himselfe, Ex officio, and to restore the Lands, and repay the damage to the just owner, and this the King is to do against himselfe, ex officio. I grant here the King as King punisheth himself as an unjust man, but because bodily suffering is mere violence to nature, I doubt if the King ex officio, is to do or inflict any bodily punishment on himselfe: Nemo potest a seipso cogi. l. ille a quo. 13. §.2