A Holy Commonwealth, Chapter 5
CHAP. V. Of a subordinate Common-wealth in General.
HAving spoken of Gods Universal Kingdom, I am next to speak of the distinct, subordinate Common-wealth which God hath by institution made the parts of it. And here first I shall speak of the NATURE of a Common-wealth in General; and then of those Modal differences which have obtained the name of the divers species of Common-wealths: and that, 1. As the difference is in the number and quality of persons that have the Soveraignty. And, 2. As it is in the gradually or modally diversified Matter, or Object of their power. And having spoken of the Constitutive Causes, I shall speak of the Efficient.
Thes. 45. A Common-wealth is sometime taken for the society Governed, sometime for the Government of that society; sometime it is taken properly in the first signification, and sometime analogically, for that which is a Common-wealth, but of an imperfect kind, or only secundum quid.
Thes. 46. A Common-wealth properly so called, is [A society of Gods Subjects ordered into the Relations of Soveraign and Subjects for the common good, and the pleasing of God their Absolute Soveraign.] Or, [It is the Government of a society of Gods Subjects by a Soveraign subordinate to God, for the common good, and the Glory, and pleasing of God.] Or it is [The order of a Civil body, consisting in the Authority of the Magistrate, especially the supream, and the subjection of the people, for the common good, and the pleasing of God.
Many Definitions you may find in politicks, almost each one having one of his own, though most of them to the same sence. And therefore if I use not any of theirs in all the terms, I am as excusable as they.
Thes. 47. A Common-Wealth secundum quid, or Analogically so called, is [The order of a Civil body, consisting of Governours and Subjects intended for their corporal Wel-fare, but acknowledging not Gods Soveraignty, nor intending spiritual and everlasting …ood, nor the pleasing or honour of God.
As the best actions of Atheists, or any men that have not just Principles or ends, are not simply or properly Morally-good, but only secundum quid, and Anologically, so is it with their Politicks and Common-wealths. The absence of any one of these Essential Ingredients, makes their Government another thing. If it want either Moral-dependance upon God as absolute Soveraign, or the acknowledgement of his great Universal Laws which must be the Fundamentals to their own, or if they intend not any spiritual and everlasting good to the societies, or intend not the honour and pleasing of God, but begin and end their Government with their carnal selves, this is not simply or properly a Common-wealth, but secundum quid, and Analogically; even no more then an Ideot is a reasonable man. Its agreed on by Politicians, that a Company of Robbers that choose them a King, are no Common-wealth, because they deviate from the Universal fundamental Laws; Much less is a Company of Rebels a Common-wealth that seek both the subversion of King and Kingdom: and so want both the necessary Beginning, Means and End. And a Justice of Peace or Judge may as well have Power, when they have renounced their Dependance on the Soveraign, and Loyalty to him, as a King or any other can have just Power when they have renounced their Allegiance or subjection to God. (of which anon)
Thes. 48. The form of a Common-wealth is the Relation of Soveraign and Subjects to each other; The Subject matter is a civil body, or Community of Gods Subjects: The Relate and Correlate are the Soveraign and the Subjects: The fundamentum being the chief controverted point shall be spoken of by it self. The Terminus is actual order, and the common good, and the pleasing of God thereby attained.
The Relate are Heteronyma: the Soveraign is the chief in Honour and Power, the Subjects are the Chief in real worth, and finally preferred. The Aggregate matter must be rational Creatures: for bruits are nor capable, and they must be Gods Subjects, and parts of the Universal Kingdom; as the Members of a Corporation in this Common-wealth, must be members of the Common-wealth and Subjects of the Soveraign. How far they must be subject to God shall be shewed after. The neerest Terminus or end is the good order of the body procured by the Administration. By [Order] here I mean not the Relation it self as I did in the definition, but the orderly state and behaviour of the society, which is the exercise of Government and subjection, and the obedience to God, and just behaviour unto men that is manifested therein. This end is a means to the next end, which is the Common good, and that to the ultimate end, which is the everlasting happiness of man, and the fulfilling, or pleasing of the Will of God.
Thes. 49 The Soveraign of one Common-wealth must be One, and but one Civil person, but one natural person may be the Soveraign of many Common-wealths, and many, yea, many thousand may possibly be the Soveraign of one.
There must be one Head to every Civil governed body, and but one; that one Natural may be ten Civil persons, and so the Head of ten Common-wealths is evident in that there is more necessary to individuate Common-wealths, then the Unity of the Head; and the Natural Unity of the Head is not necessary. One natural Subject may have many Relations: As the same man may be a King, a Generall, a Husband, a Master, &c. so he may be a King of many Kingdoms, The Kingdom of Scotland was not the same with the Kingdom of England. Many Kingdoms may have different Constitutions, one of them have an Emperor, another a limitted King, another a more limitted, and yet all have the same man. And as he is the Emperor, Duke or Prince of one Common wealth, he is not the same Civil person, as he is, as King of another: And that many natural persons may be one Civil person, shall be further shewed when we come to the species of Government.
Thes. 50. Though the Soveraign and subjects are always civilly distinct, yet the same natural persons that are Soveraigns in one respect and degree, may be Subjects in another, and è contra.
But this belonging to the species, we shall say more of it in the Differences of Goverments.
Thes. 51. The people as people are not the Soveraign Power, neither as natural persons aggregate, nor as having the chief Propriety and strength, nor as any way endowed by God with governing Authority: And therefore the distinction of some Politicians (Papists and Protestants) of Majestas realis & personalis, and the Assertion of the Popular, that the People are the real Soveraign, or have the Majestatem Realem, (unless the constitution of that individual Common-wealth shall give it them) is false, and not to be endured.
If the people any otherwise then by particular Constitutions, (by fundamental Contracts) be the Soveraigns, or have any Governing civil power, it must be either by nature, by accident, or by divine Institution: But none of these wayes: therefore not at all.
That they have none by nature is plain, in that they are not by nature a Community or Aggregate Body. And when they are so, they have naturally no Soveraignty, as I prove.
1. Where there is no Common-wealth, there is no Soveraignty: but in a meer Community or Aggregation of men before any Contracts, or voluntary Constitution, there is no Common-wealth: therefore there is no Soveraignty.
2. if a meer Aggregation of natural men did make a Common-wealth and Soveraignty, then a Fare or Market might be a Common wealth: or a ship laden with Passengers or a Prison full of Captives, or an invading Army of enemies. But the Consequent is confessed a falshood, therefore, &c.
If meer nature make an Aggregate body of men to be a Common-wealth, or to have a real Majesty, (or Soveraignty) then every aggregate Body of men are a Commonwealth, and have that Soveraignty, but the consequent is false: for there are Schools, Colledges, Societies of Merchants, and many other Corporations and Societies that are no Commonwealth; therefore, &c.
3. If nature make a meer Aggregation or Community of men to be a Commonwealth, or to have Real Majesty, then men may be a Common-wealth, and have such Majesty without, yea, and against their own consent: (For there may be a Community of Men that consent not to be a Common-wealth.) But the Consequent is false, therefore so is the Antecedent.
4. It will follow also, that no End intended by the people is necessary to the being of a Commonwealth; (For men may meet, or cohabit, or associate, and combine for severall ends.) But the Consequent is false against the nature of all such Relations and Associations, therfore, &c.
5. If nature make the people Soveraignes, then either all conjunctly, or a M…jor Vote: But neither all, nor a Major Vote: therefore none.
1. Not All: For, 1. Where there is no Subject, there is no Soveraign: But if all conjunctly are feigned to be the Soveraign, there would be no Subject: therefore, &c. The Relate cannot be without its Correlate. 2. If all must be conjunct in the Soveraignty, no one would be punished, nor any righted: for every man would be judge in his own cause, and every Delinquent would have a negative voice in his own sentence, and no Murderer would suffer, till he, and all his friends consent.
2. If it be the Major Vote that is affirmed to have the Soveraignty; I answer, 1. Nature giveth no such Power: There is nothing in nature to tell us that 1001 should have Power of Governing (and so of the lives) of 999. 2. Nature giveth them not so much as an Aptitude, much less Authority and Right. 1. The Aptitude is in a Supereminency of Wisdom, Goodness and Power: but nature giveth none of these, much less all to the Major Vote; therefore it gives not to the Major Vote so much as an Aptitude for Government. 1. The world knows that knowledge followeth not the Major Vote. A few Learned experienced men, may be wiser then a thousand times as many of the Vulgar. 2. And their Vertue will be defective as their Wisdom is. 3. And (though Power be more for execution then for proper Government, yet) it is known that ten strong men may beat twenty weak ones, and that an Army of 30000 doth often beat an Army of 40000.
3. Yea, Nature usually denyeth the Aptitude for Government to the Major Vote. For, 1. They are ordinarily most imprudent, wanting the natural and acquired parts that others have. 2. They are uusally most vicious: The most are seldom the best, in the Best Countreys of the world. 3. They are commonly divided, and hardly kept in Unity among themselves; and therefore are unfit to be the Center of Unity to the rest.
6. If Nature place the Soveraignty in an aggregate body of the people, then either in a certain number, or an uncertain. Not on a Certain Number: for nature limiteth it not to such a number, nor doth any affirm it: Not to an uncertaine number, for then every member that is added to the Common-wealth may possibly alter the bent of the whole Soveraignty. E. G. If it be half Protestants, and half Papists, and one Papist be admitted into the company, he will give the Papists the Major Vote. And thus the enemies may at any time subvert them, and the society will wheel about like the Weather-cock, one party making Laws, and the next Repealing them, as each can get the Major Vote.
7. If Nature do make the people the real Majesty, or give them any Governing power, then it is either because they are the wisest, the best, or the strongest: But it is by none of these: For, 1. It is proved, that ordinarily they are void of the two first and oft of the last. 2. If not, yet they are but an Aptitude, and not a Title. 3. Else if one Nation be wiser or better then the rest, all should be subject to them; or if an enemy stronger then we set footing on our soil, they are naturally our Governors. And 4. Then there can be no Injustice, if strength or wit may carry it: for he that cheats or beats another that hath Right to all he hath, or if any man can prove too hard for the Prince, his strength would be his Title.
8. If Nature had given the chief Governing Power to the people, then God would not have gone contrary to this in the institution mentioned in his word: But he hath gone contrary to it, (as shall be shewn) therefore, &c.
9. Nor would the commonest Governments of …he Nations of the earth be contrary to it: for that which is of nature, is most common to naturall men. But no men that I hear of, are Governed by the people as set over them by meer nature: And few take them to have a naturall aptitude: and therefore most places have Monarchy or Aristocracy.
10. The Power of Governing a Common-wealth is not a natural thing, but a Right that must come by Commission from a Superior; therefore it is nor directly conveyed by meer nature: therefore the multitude have it not by nature.
2. And if they have it not by nature, then either by some supervenient Accident, or by Contract: If by Accident, either by Propriety in Riches, or by acquired Prudence or by Conquest. But none of these ways can it belong to the Community, or Major Vote, as such.
For. 1. A few men many be richer then many, and have Dominion of more Lands and Cattle. 2. And this giveth no man Right to be the Governour of others.
2. Acquired Prudence is but an Aptitude, and not a Title; and yet it is such as the multitude are void of.
3. They cannot be said to be Conquerors of themselves, or of the minor part.
3. Nothing therefore remaineth to be pleaded for the popular Soveraignty, but Contract, or Divine Institution. And if Contract do the deed, it is either a Contract about this very form and end in question, or about some other. 1. If about another, it cannot give them Power in this. … If a society Contract about Merchandize, Physick, Literature, or other subjects and ends, this makes them not a Common-wealth. 2. And if it be a Contract to this special End, then it is not by Nature, and then it belongs not to a Major Vote as such, but followeth the consent of various Republicks as each are constituted by that consent.
4. And immediate Divine Institution cannot be pretended for it, as shall be shewn.
In all this dispute I mean by [Majestas realis] what the Politicians themselves profess to meane, whom I dispute against, which is not a meer splendor or honour, &c. but as they call it themselves, Realis Imperij Majestas, the chief radicall power of Government, by vertue of which they say, that [Majestas personalis a reali Majestate judicari potest] and that [personalis Majestas a reali originem ducit] and that [Ubi contra leges fundamentales agit ideo annihilatur & exspirat, & realis vivificatur & in eandem armatur.] There is not the least degree of Governing Power in the people as such. This Doctrine hath been guilty of Rebellion and confusion in Church and State: it hath overthrown the very nature of Churches and Common-wealths; by turning the Governed into the Governours; and confounding the Rulers and the Subjects. It crosseth the Orders of Gods own Institution that require the Governours to Rule well, and the Subjects to obey them in the Lord, and not to be the Rulers of their Rulers.
Thes. 52. Though the people have not any SOveraignty or Governing Authority as people, yet have they a certain Right to that Common good which is the End of Government, and each man hath that propriety in his life and faculties, and Children, and Estate, and Honour, that no Rulers may unjustly take these from him; which Right as it is secured partly by the Law of Nature, partly by other Laws or Institutions of God, and partly by the specifying Fundamental Contracts of the Common-wealth, and commonly called [The Liberties of the People] and the just security of these Liberties, is it that some Authours have mistaken for Majestas Realis and a popular Authority to Government
Thes. 53. Majesty or Soveraignty is the Highest Power of Governing the Common-wealth, and the Fountain of all inferiour Power.
Thes. 54. As Power or Authority is Jus Regendi, a Right to Govern, so the Soveraigns power in special consisteth in the Only Right of making the Universal Laws of the Common-wealth, and conveying Authority to inferiour Governours, and having the Highest Power of Judgement from which there is no appeal to any but God.
1. Authority is oft taken in other senses: especially for the effective Interest that any man hath in the esteem of another, either for his Learning, Wisdom, Goodness, and Fidelity, Riches or Strength. And so there is Authoritas Affirmantis, Docentis, Suadentis, Testantis, Minantis, Promittentis, &c. according to mens several Interests. And Power is oft taken for meere strength. But it is Civil Power or Authority that we are here to speak of, which is nothing else but [Jus Regendi] A Right to Govern with an obligation thereto: (except in God the Absolute Soveraign who can be obliged by none) As Government is an Honour and Dignity, and demandeth obedience from Inferiours, so it is [A Right:] But as it is an act of obedience it self to a Superiour Power that commandeth it as his work, so it is from an Obligation of that Superiour which is God.
2. If any of the aforesaid Power of Legislation and Judgement be reserved to the people, they have it not as people, but as participating in the Supremacie.
And if the King shall by Law or Custome have the sole Title or name of Soveraigne or Supream, and yet either Lords, or Senate, or people shall participate in the said Legislation, or Highest Judgement, they so far participate in the Soveraignty. For it is not the Honorary names, but the thing that we enquire after.
Yet quoad exercitium a Soveraigne may refuse to exercise his highest Judgement, and cause it constantly to be done by Judges, and the people may limit him therein. Legislation therefore is the chiefest work of Soveraignty; (of which more anon.)
When a Soveraign giveth power to Corporations to make Laws they are but By-Laws, subordinate to the Laws of the Common-wealth, & are about particular matters, and therefore are not Common-wealth Laws, but Corporation-Laws: And yet they are Originally the Soveraignes Laws, in that the Power came from him, though Proximately they are their Laws that made them. But if he should Depute another to the power of making Common-wealth-Laws, he should depute him to an act of Soveraignty.
Thes. 55. Soveraignes are some perpetual, that is for life, and some temporary, or for a limited time; And therefore Politicians should not make it Essential to Soveraignty to be perpetual.
Time here cannot alter the general Nature of the Power. It is really the Right of Chief or Soveraign Rule, if it be but for a year or day. As the Major or Bayliff of a Corporation is truly a Magistrate though but for a year, as well as those that have the place for life, so is a Soveraign. The Duration is not essential to the Power. As he is a King that may be cut off by Death the next week after he is Crowned, so is he that receiveth the Crown but for a limited time. If he take it for two hundred years, (which is above the usual life of man) if he should so long live, he is as truly King, as if no years were named. And if so, then no man can fix a term between two hundred years, and two hundred dayes, or two days, which must make our essential difference. And therefore a Dictator is a temporary Monarch.
Thes. 56. The Soveraign is above all the Humane Laws of the Common-wealth; that is, he hath power to make Laws and to repeale them, correct them, adde to them, dispense with them, and pardon the breach of them to particular persons, and as a Soveraign is not bound to keep them by obedience himself, nor to suffer by them.
The reason of this, is evident from the nature of Soveraignty and of Laws. He that is highest hath no Higher to obey: Laws are but the significations of the Law-givers will, and therefore can go no further then his will. He commandeth others and not himselfe. It is proper to a Subject to be obliged to obedience by a propet Law. And therefore if King, Lords, and Commons that had the Reall Soveraignty here among us, had broken a Law that threatneth death, they had not forfeited their lives by it: nor is there any Superiour to be their Legall Judge.
Thes. 57. Yet is not the Soveraign free from the Obligation of the Laws of God, nor from the Obligation of the Fundamental contracts of the Common-wealth, nor of any of his publick promises: nor may he dispense with his own Laws, (much less make Laws) against Gods Laws or the Common-good.
But for violating these, he hath none to judge him as Governour but God: if the people question him as violating the constitution, and destroying the Common-wealth, it must not be as Subjects, nor as his Soveraign: For Subjects as such, must obey, and not Rule: and Soveraignty they have none. But if they do it, it must be as Parties in the Contract, vindicating the violated Contracts upon natural self presuming grounds, as men kill their Enemies in Wars or Duells, for their own defence: which is not as Rulers of the Enemies where they kill. But whether this may be done, or in what cases, must be spoken of more distinctly by it selfe anon.
Thes. 58. But it is possible (how fit I dispute not) that the same natural person that hath the chief part of the Soveraign Power, may be both Soveraign and subject in severall respects, and so have several civil capacities, and then he may as subject be obliged by the same Laws which as Soveraign he makes, and may be punished accordingly; that is, If by the Constitution and by his own consent (in receiving a power on such terms) he be thus subjected.
A Prince may by the Constitution be obliged to be responsible in his Courts of Justice, for Debts, or Wrongs, or Crimes and subjected to more or lesse penalties. But he is not thus obliged to duty, or suffering as soveraign, but as subject: and therefore it is supposed that he have not the total soveraignty; but in point of Judgment, so much of it be committed to the highest Judicature as shall put them in a capacity to judge him. And if the same person (natural) might not be subject that hath part in the Soveraignty, then in Aristocracies and Democracies, many would be from under Laws. But though this be possible, yet is it unusuall and dangerous to the Common-wealth, that any Judicature should have power to behead the Common-wealth: and that the Highest Judgement be in the hands of any that have not the Highest Legislative Power, and that to be exercised on the Legislators: and that a Subject (in all other respects) should have power to judge his Soveraign to death; To be responsible about matters of propriety is not so unfit. But that the Honour or Life of the Soveraign (whether a single Monarch, or a Senate, or both in mixt Governments) should be in the power of inferiour Judges, is unmeet and unsafe to the Common-wealth.
Thes. 59. The existence of the Natural Person of the Soveraign is not necessary to the existence of a Common-wealth.
And therefore its said that Rex non moritur. For when the person is dead, (e. g. in an Elective Monarchy) the Species lives in the Constitution, and in the minds and wills of all the people, who therefore will choose a successor.
Thes. 60. But the natural existence of Subjects is necessary to the existence of a Common-wealth. Because it is not a Body capable of living in a meere constitution, or the mindes of men, nor to be revived presently by mans determinations.
Thes. 61. Subjects are either Imperfect, and only such by Obligation and not consent, (as are Rebels) or plenary by consent. Obligation is for Duty: Consent is the condition of the benefit, and the necessary cause of Duty it self.
Thes. 62. Consenting Subjects are either such as have only the benefits of Protection and Justice for their Lives, Honours, Estates, &c. or such as also are Burgesses of the Common-wealth, and are capable of bearing Office, and choosing Governours.
The reason of the difference is sometimes from the difference of expressions of consent, but usually from personall differences of Aptitude and Capacity: some being children, Idiots, servants, poor, and so depending upon others, and unfit to have a hand in Government.
Thes. 63. It is not the defect of secret intentions of the Ends of Government, that can nullifie the being of a Common-wealth; but if the Common good be not the professed end, it is null.
Thes. 64. It is no further true Government then it is a means to the Ends of Government, which are better then the means; nor may it be set up against its Ends.