The Duty of Allegiance, Chapter 2
CHAP. II.
Of the nature of Authority, and how convey'd from God.
AS to this Ground of Possession of the Crown carrying Allegiance, though the Possessor has no Legal Right, it has been a Plea very generally used and much set by among the Writers for the new Oath, pressing the dueness of Allegiance to a King de Facto. That Plea, if I mistake not, (and those several Authors I have not now at hand) has run upon Possession of Power, and actual Administration, leaving the other still to have the best Right; making Allegiance only a Tribute for Protection, and the Due of actual Administration, whether by a Person right or wrong. But this Reverend Author goes further, to make Possession carry a better Right along with it, viz. the Right of Providence, which he says, by God's Order, is to take place of any Right by human Laws. Both these Pleas, viz. of De Facto, or Possession, leaving the other the best Right; and of Providence, giving the Possessor a better Right; are made use of to carry the Allegiance in Debate from K. James, supposing him to have the Legal Right. And if the Plea of Providence should fail, in giving the Possessor a better Right, several things are said by this Author, which are used by others, to press Allegiance on score of Possession and actual Administration, though the best Right should lye on the other side. And I shall consider both these Pleas, and examine how fit either of them is to remove the former Difficulties out of the way of the Rufusers.
First then, as for the way of King de Facto, or leaving the Dispossessed Prince the best Right: According to that, his Possession only is gone, but he has still the best Right, either as Proprietor of a great Estate, or as King of the Realm; and both the Property and Authority are allowed still of Right to belong to him. And this leaving him to have the Right, whosoever has the Possession of his Right, I think would leave all the preceding Difficulties untouched.
For, to bind themselves by an Oath of Allegiance, to keep his Competitors in such his supposed Rightful Power and Property, and to keep himself out of it, seems,
1. To carry all the Injustice to him, as a Proprietor, against the Eighth and Tenth Commandments. Grant, as the Plea doth, that what Subjects ingage to keep him out of, is his Right; and it needs no more to make it very unrighteous.
2. All the … to him as a King and Father, against the Fifth Commandment. For if he be allowed to have Right to the Authority, he will have Right to the Obedience. Obedience is due to nothing else but the Authority; and therefore can be due to none else but him that has the Authority; and that is he who has the Right to the Authority. For in all righteous Estimate, the Authority is his, whose of Right it is. This Authority cannot go to both, it can belong but to one, Whose is it then, his that has Right to it, or his who has none? Not his that has no Right; for that is not to judge righteously, or to do Right, and to give every Man his own. He that has Right to the Authority then must have the Autho…ity: and indeed Authority, as I shall note, is a thing which must go by Right. It is a Spiritual thing not subject to Violence; Force cannot take it, but Right must convey it; and God's way of giving it is by giving any one a Right to it. So that having the Right to the Authority, by this Plea, he would be adjudg'd to have the Authority. And then ought he not to have the Duty and Obedience which God makes due to the Authority, if th…y will give him his Due? Having the Authority, he wo…ld be the Fa…her spo…e of in the Precept, to Whom all are required to pay H…nour and Support and Obedience, and to keep Subject; all which are paid contrary; when the Allegiance is transferr'd, as I before noted.
3. All the Breach of the solemn Promises and O…hs: For those were sworn on the account of his having Right to the Crown, and for Defence of it. The Oath of Allegiance expresly recognizes his Legal Right, and engages that Faith and Allegiance to defend him in that Right to the utmost. So, leave him still in that Right, and you leave what it swears to defend; and the Swearers, for ought appears in this Plea to bring them off, are still bound to defend him therein, according as that Oath engaged.
The First of these, viz. Injustice to him as Proprietor, seems plainly left by this Hypothesis; Grant him Right, as it doth; and to oppose Right is plainly unrighteous. And the Third, viz. Breach of the Oath, seems as plainly left too: For the thing recognized, and sworn to be defended in that legal Oath, being the legal Right; Grant that legal Right still to continue, as this Plea doth, and that Oath will have it to defend still, as it had the first day it was made. And to transfer and turn Allegiance to oppose him in that Right, I think is not to bear Allegiance to Defend him therein.
But as to the Second, viz. Undutifulness to him, as a King and Father, allowing him still to have the Right; several (and this reverend Person among the rest) will be apt to dispute that: Not but that Obedience must follow the Authority; but because, as they fancy, he may have the Authority that wants Right; and on the other side, he that has the Right may want the Authority. Authority goes not by Right, as he thinks, but by Advancement to the Throne by whatever means: So that he who has Right, if disposs…ssed, has not God…s Authority, or, as he says, p. 21. is out of Authority; and he that has Possession, though against Right, has God's Authority: which is the Notion that runs through his whole Book.
To clear this therefore I shall here enquire into the Nature of Authority, and into the way of coming by it, which will shew the way of losing of it: A right Understanding whereof will be of great use to clear up his most fundamental Mistakes, as I conceive, and answer the main of what he has alledged on this Subject.
I. First, I shall say something to the Nature of Civil Authority, or shew what it is, that we may know what to seek for in one, when we seek after Authority. There is the more need of this, because I sind Men are very apt to take External Might and Strength, which they see in Persons of Authority for their Authority: And to conclude, When they see one possessed of this External Strength, that he is possessed of Authority; but if he loses this External Strength, that he loses his Authority.
Civil Authority speaks a Right or Liberty in one to order, or do a thing in Civil Matters, laying an Obligation on others to follow or submit to him; as particularly in a Prince to give Order and Commands, for a Rule of Practice, to judge and determine Disputes about Rights or Properties, to use the Sword, (which God has allowed him alone the Liberty of) for Defence or Punishment: And all with an Obligation to these under him, to obey or acquiesce in, or submit to them. The most Essential Property of this, and of all other Authority, is to lay Obligation, or a Conscientious and Internal Bond on those who are subject to it: And some Authority has no other Inforcement, being furnish'd with no External Compulsory, nor using Force over the Bodies of those who are subject thereto, as the Ministerial Authority; which yet is a good Authority and God's Authority, as truly as Civil Authority it self is.
But since the generality make so little of this Internal Obligation, and can so easily break it; External Strength and Might is added to this Authority, to be a tye upon the Bodies, as the other is upon the Spirits of Men, and to make them observant out of fear of Wrath, as St. Paul says, Rom. 13. 4, 5. who would not otherwise be so out of the true Obligation of Authority, that is the Bond of Conscience. And this External Strength lyes in a Princes having the Command of Courts and Officers, Prisons and Executions, in being possessed of Armies, Ordinances, Magazines, Navies, Treasures, and Strong-holds of a Nation, and the like.
But now this External Force and Strength is not the Prince's Authority it self, but a Means and Instrument, to exercise, to back, and inforce his Authority. The Authority, as I noted, lies in Rightor Licence of Ordering, with effect of Obligation; and all this is a Spiritual Thing, as Right, Licence, and Obligation, and other Moral Things are: So that Authority is a Moral Quality; but this External Strength is no Moral Quality, but a bodily Thing. The ins…p…rable effect of Authority is to lay an Internal Obligation; this an External; that a Power of affecting the Conscience; this only the Bodies of Subjects: For what External Strength has Power over, is only our Bodies; bodily Force can take away bodily Things; but mere External Force lays no such Internal Bond of Submission upon the Conscience. If a Man falls into the Hands of Thieves, or Pyrates; or, in time of War, if he and all he has in the Power of the Enemies; their Ezternal Strength will give them Power over his Body, but his Spirit is free: And such Men, for all they are under the Power of External Strength, may refuse all they require with safety enough to their Consciences, if they can with safety enough to their Persons. There must be Authority, as I say, to bind the Conscience, when this External Might, that is only the means to exercise, back, and inforce Authority, binds us in fear for External Interests. And both these distinct Effects St. Paul distinctly Marks in the Higher Powers, whose Authority which (as being God's Authority) binds the Conscience, is backed with Strength for present Wrath upon the Bodies of Subjects: Ye must needs be subject not only for Wrath, but for Conscience sake, Rom. 135.
Accordingly we find this External Stength separate from Authority; and that shews plainly, that External Strength is not Authority. If a Man is in the Hands of Thieves, or Pyrates, or of Enem…es in time of War, as I said, he is the subject of External Strength; but yet he is not there the subject of Authority. For no Man pretends, as this Author says, p. 34. That Theives and Pyrates have God's Authority; nay, not although they proceed upon him in Form of Law, and Judically as the High Court of Justice did upon the Blessed Martyr; who, for all in that Court, he was the subject of External Strength, yet, I think, no wise Man will say he was the subject of Authority.
And, on the other hand, we find Civil Authority separate from External Strength; and yet for all that it is Authority. As it was in Saul, when on Mount Gilboa he fled before the Pursuers, 2 Sam. 1. 6. 9. and 1 Sam. 31. 4.and Sought Death, for the Anguish of his Wounds, and that he might not fall alive into the Hands of his Enemies: For all which Discomfiture and Desperate State, David tells! the Amalakite, he ought still to have looked upon v. 1416.him as having the Inviolableness of God's Anointed. And as it was in David when he fled out of the Land for fear of Absalom; notwithstanding which Flight and Dispossession, Shimei was still to have owned him as the Anointed of the Lord, and was guilty of Treason against the Regal Authority in his Carriage 2 Sam. 16.towards him. Thus also our Law owns this Authority in a Dispossessed King, and under any Breach or Interruption of Possession. Thus the Statute says of Q. Mary, that for all the Interruption of 1 Mar. Sess. 2. c 4.her Possession by the Possession of Q. Jane, the Crown with all Authorities thereunto belonging, was all the time, immediately from the Death of K Edward, invested, and by Law adjudged to be in her Royal Person. And in Case of any of the Heirs of Henry VIII. usurping the Crown Stat. 28. H. 8. c. 7. and 35. H. 8. c. 1. and 1. Ed. 6. c. 12.before their time, one taking Possession whilst another had the legal Right to the Throne, every such Offence is made High Treason. And the Dispossessed Heir, I think, has Authority, if Treason can be committed against him. King Charles the First was intirely Dispossessed of all the External Strength of the Nation, when he stood Arraigned before the High Court of Justice; but yet he was not Dispossessed of his Authority, because all the Proceeding was Treason, and is confessed by all so to be, against his Authority. And all the time of his Exile, King Charles the Seond was under like Dispossession; but yet he had the Regal Authority all that time, else how came his Reign to commence immediately from his Fathers Death, and all that was done against him in the interim of his Dispossession, to need an Act of Oblivion. Not to mention, moreover, how Richard the Second was not judged in Law to have lost his Authority, whilst Henry the Fourth was possess'd of his Crown. Whereof, I think, this is a very good Proof; because the Statute of 1 Ed. 4. as it is in the Rolls says, That Henry Rot. 1 Ed. 4. n. 9. &c. as cited in the true and exact Hist. of Success. of the Crown of Eng. p. 30.himself, who was unjustly Possessed thereof, ought Allegiance to him all that time, As his most Sovereign Lord in Earth, and acted against God's Law, Man's Ligiance, and Oath of Fidelity, when at last he Murdered him. Nor the several Attaindors that might be produced for acting against the Right Heirs, seeking to get Possession. These Attaindors suppose Authority; for an Attaindor cannot ly against any, but for acting against the Royal Authority. And this Authority was whilst they had no Possession; yea, for acting for the unjust Possessor himself against them.
This, I think, may be sufficient to shew that the Authority of a King doth not lye in possession of External Strength, but in such a Right of Ordering, as lays an Internal Obligation, which may stay by him when all his External Strength is gone; and which they may want who have got all his External Strength from him. And therefore this Reverend Person should not think it enough to prove one Prince out of Authority, because he is out of Possession; or another to be in his Authority because he has got into Possession. To know who has and who wants the Authority, we must look who has, or who wants that which carries and and conveys Authority; which is not having of External Strength, but having Right thereto, as I shall endeavour to shew by and by.
II. Secondly, It may be fit to inquire Whence have they this Authority? Now that is from God, as he pag. 10.observes, Who is the Supream Lord of the World, and the Fountain of all Authority; he is Lord of our Spirits, as well as of our Bodies; and his Authority can bind us in Conscience, as well as in External Interests; and this Authority in them, coming from him, can do so too: and therefore St. Paul speaking of the Obligation laid upon us, by Civil Authority (foreign) in the Higher Powers, says. It calls for our being subject thereunto not only for Wrath, but also for Conscience sake, Rom. 13. 1, 5. To force the Body may be in the Power of Men, but to reach the Conscience is not to be done, but by the Authority of God.
But if this be God's Authority, it is next to be inquired.
III. Thirdly, How come they by it, or where has he conferred on them this Authority? This, I think, is in the Commandment. The Fifth Commandment empowers all Authority, and so do those other Precepts, that require us to be subject to the Higher Powers, to Honour the King, to Obey Magistrates, and the like. That, I think, empowers him to Command, which requires us to Obey, and is a Charter both of his Authority, and of our Duty, since this Duty is only due to Authority. I know no other way whereby God speaks either to Governours, or Subjects, but by the Commandment, which empowers one and obliges the other; and on this Foot St. Paul seems to put the Guilt of all that is done against Authority. He that resisteth the Power, or Authority, foreign.resisteth the Ordinance of God. foreign, i. e. says the Aethop. and Syr. The Divine Mandate, or the Constitution and Law of God; foreign and foreign being the In …oc.Names, as Grotius notes, which the Emperors were wont to give to their Imperial Constitution; so implying them to be Empower'd, or Authoriz'd by the Commandment; and making resistance of Authority to be a resistance of the foreign, or Commandment, which carries and conveys the Authority, Rom. 13. 2.
This annexing of Authority by the Commandment, is immediately to the State or Dignity, and only by means of that to the Person. The Authority the Commandment places in the Father, and the Subjection it requires to the Higher Power, the Obedience to the Magistrate, and the like in all other Authorities; and this is all that Laws can do, for Laws are general Sayings; and general Sayings can only authorize States in general, but must leave it to Men to make the particular Applications.
The State and Relation then of a Prince, or Parent, &c. is what God, and the Command, immediately authorizes: But this State, authorized by a general Commandment, is a general Thing. And it will be asked further, How comes this to be such a Man's Authority, or to be fixed in such a Person? Now that is by the same way that he comes into the State or Relation; and that is not by any immediate Act of God, but by an Act of Men. 'Tis the Law of the Land, for instance, that makes any particular Man a King; and that Law is not the Act of God, but the Act of Men; and so in every other State and Relation. The comming into these States, God and his Laws, have left to human Ways; and these Ways are very well known, none need be Ignorant of the way of coming in to be a Father, a Magistrate, a Master, an Husband, &c. Which State, when once by such Ways, they see any Person, in the Command of God takes Place, giving him Authority, and calling for Duty from the Subjects towards him.
This, the Learned Authour seems to think, is not enough: p. 10, 11, 36.But as the Power, or Authority, is annexed to the State; so must the Person be called to that State and Power by God himself. And therefore he says, this empowering, p. 12, 23, 24.or authorizing of the parcular Person is by Providence, which is God's doing; and which he thinks a good Grant of God to an Usurping Possessor, who, according to him, is a good providential King.
1. But First, As for such Grant of God to a Person, if he means, as I suppose he doth, a more immediate way of Granting, than that by human Rights, I know no way of doing that, but by particular Revelation, or God's immediate Nomination. If God please to name the Person, he gives the Authority particularly to that Person, and not only by the general Grant of giving it to him, whosoever should come into such Relation or State of a Parent, suppose, or King. And thus, in the First Marriage, God fixed the Person, viz. Eve, who should be Wife to Adam. And sometimes among the Jews named the Man, as Saul and David, who should have the Royal Authority, and be their King. But these are Rarities, and out of the ordinary and constant Course of God's empowering either Kings or Husbands; and yet all that come into these States otherwise, are as much empowered by God as these; so his way of empowering the Person must not be tyed to Revelation and particular Nomination. And how God can immediately fix the Person, otherwise than by himself immediately naming him, which is by a particular Revelation about that Person, I do not see; for, I think, if God immediately fix the Person, he must immediately say, this shall be the Person.
2. Secondly, As for the Authors way of Providence, it is no more an immediate way of God's empowering the particular Person, than this other of empowering him by means of human Ways and Rights. For when Providence sets up any particular Person among Men, it is by means of Men; and, I think, by a much worse means; for setting up by human Titles, is setting up by means of Men acting Regularly by Right and Justice. But his way of setting up by human Successes, is by means of Men too, but acting wickedly in Ways of Undutifulness and Unjust Violence. And why God cannot as well be thought to put a particular Person into his Authority by Men keeping to their Duty, as well as by the same Men breaking their Duty, I do not understand.
3. Thirdly, the Survey of all Powers plainly shows, That God's usual way of putting Men into the Authority of any State, is not by giving it immediately to the Persons, but by means of human Acts and Methods.
The State and Relation of a Prince, a Parent, a Pastor, an Husband, or Master, are all States Divinely empower'd: For God is the Fountain of all Authority; and each of these, in their respective States and Relations, have God's Authority; and there is a Command for each, requiring Obedience to them; which Command doth authorize each of them. The States are of God's Institution, and the several Authorities belonging to them are of God's and his Commands Conferring.
But if we look how any particular Person usually comes into any of these Divinely authorized States and Relations, we shall find all come into them by means of human Acts, and are not immediately fixed upon, and placed therein, by God himself. To give Authority, for Instance, to the State and Relation of an Husband, is the Act and Command of God; but to make any particular Person an Husband, whom God has thus Divinely authorized, is left to his own Act, or to his and his Wives joynt Consent and Matrimonial Agreement. Thus the Relation of a Father comes to have Authority by the Law of God: But Abraham becomes the Father hereby authorized, by natural Generation of Isaac, which is not a Divine, but Human Act. The State of a Master God has empower'd; but to become a Master, if it be not over a Captive, there is need of his and his Servant's voluntary Contract And the Relation of a Pastor has God's Authority, and is to be obeyed by Divine Precept: But since Pastors ceased to be immediately called of God, as the Apostles were, and those they ordained foreign or by the particular Direction of the Holy Ghost, as St. Clement says; every particular Pastor becomes such, not by personal Clem. Ro. 1. Ep. ad Cor. c. 42. p. 89. Ed. Ox.Nomination of God, but by means of human Choice. And answerable to all these is God's way of fixing any particular Person in the State and Relation of a King. The Estate is authorized by the Commandment; and the Authority, which the Command annexes to it, is God's Authority, as it is in all the other Authorities here mentioned. But where he doth not interpose by special Nomination, God leaves every particular Person to be advanced to this State by human Right and Method. For how do Princes, ever since the Government of the ancient Patriarchs, claim to be admitted to the Regal State, which the Command has Divinely authorized, but by human Laws and Rights? and the Laws of Men are the Acts of Men: So an human Act must place a Person in the State, and then the Law of God vests him with God's Authority to act therein.
And this is not to fetch the Authority of Kings, or other Superiours, from the People, as the Author fears, p. 25. For the Authority is God's Authority, not the Peoples; and that which carries his Authority is God's own Command. But this Authority the Command carries to such a particular State, which God doth not fully put Men into, but leaves something to be done towards it by themselves. And therefore what Part they act, is only to place the particular Person in that State which not they, but God, has authorized; yea and that with such Powers both of Life and Death, and laying Obligation as to Conscience, as they had not in themselves to give. And this has nothing strange, for the Consent of People (which I think is evidently carried in human Laws, to set up legal Monarchs, and in Elections in Elective Kingdoms, and in Submissions to Conquerors) to put Men into a State, wherein, not their Consent, but something else, must give them Authority to act. The Choice of the Corporation must put a Man into the State of Mayoralty; but what he acts by, when once in that State, is not the Corporation's, but the King's Authority. And the Consent of a Wife, or Servant, &c. must put one into the State of an Husband or Master; but when once in that State, the Authority of God, carried in his Command, is to authorize and empower them, as I observed before.
But this way, how is such a Mans power of God, if God doth not immediately vest his Person with it? Can Civil Authority be any otherwise of God, than as he gives it to some particular Person? says the Author, p. 10. prop. 2. Yes, otherwise than by such a Gift as your way of arguing doth suppose and seem to build on, that is, by giving it immediately. Power, I grant, must be in some Person, for only a Person can be empower'd: and if that be God's Power, as all Power is, it must be given by God; for no one can take God's Power out of his hand, or have it otherwise than by his own Gift. And Power being not a material thing, but a Moral Quality, there is no taking it by mere Violence out of any Mans hand, it not being one of those things which can be forcibly taken away. But God gives what he doth not give immediately: and thus he gives all sorts of Authority to Men, as I have shewn, by means of human acts and ways; that is where he doth not immediately interpose to give it by a Prophetical or Personal Nomination: For then he leaves it to go to any Person by human ways, and gives it to those who came to it by such human ways, and owns their Persons to be as truly authorized and empowred by him, as if they had been personally nominated by himself; as St. Paul notes (Rom. 13. 1, 2.) of the Roman Emperors, against those Jews who thought that God's Authority did not go by Heathen and Human Titles.
Now from this, That God's Authority carried in his Command, comes to any particular person by means of human ways, it is obvious for any to conclude that those ways must be ways of human Right. So that he who has the human Right will have all the Authority and Obedience of the Commandment.
For ways of Right ('tis plain) there are among Men of coming into these authorized States; particularly, as to Crowns, among every People, and in every place, there is a way of Right, according to their own Laws, of accession to them. And all Men that make any pretence to Crowns, pretend a Right thereto; Crowns being claimed and held by Titles, or pretence of Titles, as all other Estates are.
And if God doth not interpose by immediate Revelation, he leaves Authority to go by these human and Legal Rights. God's own Grant of Authority, by immediate Revelation, is agreed on all hands to be the best Right, and to set aside any human or Legal Right to it. But when he doth not thus interpose by immediate and personal Nomination, but leaves Authority to go in the ordinary Course, it must go by human and legal Right: For in absence of Revelation, Legal Right is the best Right, and human Right is the only Right; for, as for the Author's Right of mere Providence, that, as I shall show hereafter, is no Right at all.
But Two Things the Learned Author opposes in this Point, which, together with that of the Providential Right are the main Foundations of his Book. One is, That Authority doth not go by human Right. And the other, That Allegiance doth not go, or is not due merely to Authority, but is tyed to the exercise of Authority, or Administration of Government. Which Two, with the Right of Providence to be added for a Third, are his Grounds in this Question about transferring Allegiance, and what we have from him to remove the foresaid Difficulties. And these Three Principles are next to be considered and examined in the succeeding Chapters.