The Divine Right and Original of the Civil Magistrate, Chapter 5 · Section 4 · Subsection 5
CHAP. V. SECT. IV. Subſect. 5.Subſection 5. Three other wayes of conveying unto perſons a title to ſoveraign Magiſtracy examined; viz. 1. That of Fatherhood, and Primogeniture. 2. That of Conqueſt. 3. That of voluntary beneficialneſſe by protection.
BUt beſides this I meet with ſome other wayes by ſome held lawful and approved for the entry, and attainment of perſons to Soverainty, and conſequently ſuch as derive the divine ordination to it unto the perſons qualified with them. Of theſe it will happily be expected he that is handling this ſubject ſhould take ſome notice; together with what is ſaid for them.
1. That which I ſhall take notice of, firſt is, the power or right of Fatherhood, which is ſupported or pieced out (by the maintainers of it) with that of primogeniture, or of the firſt born; both of theſe put together they ſtyle (as I underſtand them) by the name of Genarchy. The drift of their opinion that are for this is to make the riſe, and right of Civill Government natural and native, not voluntary, or conventional.
The Queſtion here is not, Whether the Father, and the Firſt-born have not ſome preeminency over their reſpective correlatives, to wit, the Father over his Children, the Firſt-born over his younger brethren? But whether the preeminency be the ſame with Civill Magiſtracy: Or whether the political power in a Common-wealth be not one thing, and that ſuperiority another, and thoſe two be not really and eſſentially different … Neither is the queſtion, whether Fatherhood and primogeniture may not be coincident in regard of the ſubject with Civil Magiſtracy, that is, may not meet in the ſame perſon? Nor is the queſtion, whether Civil Power may not be he…editary, that is, ſetled and kept in one family, and in it deſcend from the Father to his firſt Son, and after that manner ſucceſſively forward? But the queſtion is, whether Fatherhood and primogeniture, either of them apart, or both of them together be the proper title, baſis, or root of Civill Magiſtracy? or, whether a natural, and original right, and title to political rule be in the Father, and firſt-born, without any poſitive voluntary, humane conſtitution, or conſent of the ſtate; ſo that a perſon is in ſoveraign power not by virtue of any ſuch law or paction, but meerly, and originally by his Fatherhood or primogeniture?
Firſt, for the title of Fatherhood to Magiſtracy, there are theſe things that impugne it.
1. Although it is granted there is in the Father a power over his child, yet ever ſince the erection of the publique State, or Comm…n-wealth, as a diſtinct ſociety from that of a houſhold, and compounded of a multitude of families, and where ever theſe two are in being together, the paternal power hath been (and that duly, and neceſſarily) taken to be another, or a diſtinct authority from that of the Civil Magiſtrate, and inferior, or ſubordinate to it.
2. The power of the Father is in every Father over his children: and if from it you will raiſe a Civil Political power, then, either it muſt be ſaid to be in, or to be the right of every Father; and if ſo, as ſoon as one begets a child, or becomes a Father, he becomes a Supreme Civil Power, begins a new Common-wealth, and he, and his children are exempt from his Fathers (if living) and all other Civil ſuperiority; and the Fathers power, and the Common-wealth he is over ſhall be diſſolved by his having Nephews, or by his childrens fatherhood: and this will make every family, though but of two perſons, to be a Civil State, and that no Commonwealth can conſiſt of more then the children of one Father, and for ever prevent or deny the compounding a Common-wealth of many families, and the diſtinction of the Common-wealth from the Family. And by this multiplication of the number, and abridgement of the extent of civil ſocieties you diſappoint mankind of that union, ſtrength, ſecurity, and comfortable commerce that nature hath guided men to ſeek, and the experience of all ages and nations have found in large and populous ſocieties. Or
2. The political power muſt be ſaid to be in, or to be the right of every Father that is not Pater patratus, or that hath no Father; and this doth diſſolve and divide the Common-wealth at the death of ſuch a Father into ſo many parts as there are left perſons fatherleſſe, whether they be Wife, Sons, or Daughters, and into ſo many new Commonwealths as there are left Fathers in it that have not a Father.
3. The right or power of the Father can relate only to the children, and only to his own. Out of the extent then of this dominion, and conſequently out of the Common-wealth it belongeth unto, upon this ſcore you muſt exclude,
1. The Wife, and Servants of this ſuppoſed Monarch, though he be their ſuperiour, and they in a ſubordination to him, yet he is not their Father.
2. All other perſons of any other ſtock; there can be no mixture of races, or linages in this Common-wealth.
4. If Civil power be the right of the Father, then it muſt neceſſarily be in him in reference to all his children, wherever placed, or diſperſed. So that how far ſoever Adams progeny muſt be diſſeminated, or ſpread upon the face of the earth, during his life; or Noahs during his life; or any of the long lived Patriarchs during their reſpective lives, all the poſterity that ſprang from ſuch a head, muſt belong to, and be ſhut up within one Common-wealth while that common parent laſted. And how will this ſtand with that diſtribution of Noahs race into ſeverall Countreys and Nations in his life time, as alſo with that of Shems, he being living? (of which in the 10 and 12 Chapters of Geneſis) and with Abrahams ſending away the ſons he had by his Concubines into another Countrey while he yet lived? Gen. 25.6.
Unleſs it will be ſaid, ſuch a Father hath a faculty, or warrant to ſtrip himſelf of this his paternal Civill Dominion, and to transfer it, or any part of it to others during his life, But
1. Thus you unſettle and change the baſis, and cauſe of civil dominion you had laid in the Fathers natural right, and make it ſeparable from it by humane choice, and will: and if you put it once upon arbitrary conſtitution you make it alienable for ever from that ſubject, and from that bottom.
2. This cannot be ſuppoſed at the confuſion of languages (Gen. 11.6, 7.) when as they were one immediately before it; and the end of their building Babel was to prevent their diſperſion; and upon that confuſion they were ſcattered from thence upon the face of the whole earth; by which confuſion, and diſperſion the conſent, or act of their common head, for the diveſting of himſelf, and for the inveſting of thoſe who ſhould ſucceed him, in being the reſpective Soveraign powers of thoſe ſeveral divided Countries and nations, was prevented.
Secondly, But the inconveniencies of fixing Civil power in the paternal relation alone they endevour to ſalve by eeking it out with that of primogeniture. Unto this I ſay,
1. Primogeniture can never be ſuppoſed to derive any thing to the childe, but what was in the Father; if the Father be a Supreme power, a Monarchy may by it be conveyable to his Son, and not otherwiſe. Thus primogeniture is not the riſe of civil power, but ſuppoſeth it to be in being, and is only the mean of continuation, and tranſmiſſion of it from perſon to perſon.
2. The natural right of the firſt born in ſucceſſion from the Father, as we finde it in Scripture, ſeems only to be a better, or double portion of what was his Fathers, in copartnerſhip with his Brethren. If then you go by that, you muſt upon the death of every royal father, that hath a plurality of Sons divide the Common-wealth among them according to that proportion; whereby it would come to paſſe that a Kingdom by many deſcents probably ſhall be divided into numberleſſe minute principalities, and every of them ſtill new to be divided by every new ſucceſſion. The conveying of a Kingdom whole and entire to one of many Sons is not from the law of the firſt born in Scripture, but is doubtleſs from poſitive inſtitution. And this is to me a ſt…ong argument (and unanſwerable to them that allow the transferring of Kingdoms undivided from Father to Childe) that Supreme power is in a perſon by arbitrary conſtitution, not by natural right as in a Father or firſt-born; for if it were, that right by it ſelf would infer a diviſion of Common-wealths according to the multiplication of the Regal ſtock, and ſo in time an eaſie diſſolution of them.
3. If Primogeniture muſt carry it, then the right of Fatherhood a…ore inſiſted on went on no farther then the firſt man Adam, and was never in any after him; and upon his deceaſe you put an end to, and deſtroy for ever your paternal right to Political power. For upon his death either the power muſt deſcend upon every one of his children diſtributively, as Fathers in reference to their reſpective children as their ſubjects; and then where is that you call the right of primogeniture, and what politicall power is accrewed by it? or, it muſt deſcend upon his firſt-born only, and then what becomes from thenceforth of the right of fatherhood?
4. If you ſet the Civill power upon the firſt born in ſucceſſion from Adam, and ſo downward, then you muſt either ſet it upon every fi…ſt-born of every Father, and this will bring the abſurdities, argued to follow upon ſetting it upon every father, or, you muſt fixe it but on one firſt-born only at once, that is, the eldeſt Son of the eldeſt houſe; and then you make it neceſſary that all men be kept within one Common-wealth, and that there be but one Monarch; for that primogeniture can but be in one race, and in one perſon ſtill, and how oppoſite is this, not only to the practiſe of all ages, even from Noahs time, when the race of mankinde was divided, as into divers regions, ſo into ſeveral. Nations or politique bodies; but to the ſtate of mankind ſo far di…perſed over the whole earth as it is incapable of being one earthly Monarchy.
2. Or you muſt ſay the firſt-b…rn, as he had in him a right to hold the power, ſo he had a power to alienate it to his younger brethren, or kin, and did put into act this power to the diſtribution of the world into many intire States and Principalities; but againſt this it will be ſaid, a right in Adams firſt begotten, and in every firſt begotten of the firſt begotten ſucceſſively to the power, and a right to alienate the power either in whole, or in part, from deſcending to the fi…ſt in ſucceſſion, are inc…nſiſtent; he that alienates and gives away power to any of the younger, unto ſo much as he gives, he cu…s …ff …he right of the eldeſt, and puts an end to this title of primogeniture.
5. Let it be conſidered what is in Scripture the right of the firſt-born, viz. ſome domeſtical preeminency, or ſuperiority of the eldeſt over his Brethren within the family, as Gen. 4.7.Vide Cartwright on Gen. 25.31. The firſtborn were next in honour to their Parents (ſaith Ainſworth on Gen. 25.31.) what ever it was, it appears to be that which Cain might have over Abel during the life of their Father Adam; and was not therefore the Supreme Civil Power. It appears the firſt Son had precedency of place, Gen. 43.33. and a double portion of his Fathers inheritance, Deut. 21.17. but all this, and if there be any thing more, amounts not to a political Power; but in the contrary we finde it plainly diſtinguiſht, and ſeparated from it. The right of Jacobs firſt-born deſcended upon one Son, the right of the Supreme Civil Power upon another, 1 Chron. 5.1, 2. Reuben was Iſraels firſt-born; for his inceſt he loſt the birth-right, and Jacob gave it to Joſeph, but though the birth-right was Joſephs, yet Judah prevailed above his Brethren, and of him came the chief ruler. The bleſſing of Lordſhip over his Brethren which Iſaac unawares b…queathed to Jacob, and the birthright were two diſtinct things in Eſaus repute, Gen. 27.36, 37. Probably in the beginning of mankind, or of a family ere it was inlarged ſo far as to cauſe a full diviſion into diſtinct Nations, and Civil dominions, and while by reaſon of paucity of perſons, and proximity of habitation there was little difference obſerved betwixt a Family and Common-wealth, publique power did reſide in the Father over all that ſprung of him; and after it had ſo gone on for a time, that communities by union might enjoy more ſtrength, and ſecurity, it might by the joynt conſent of many families, and the Fathers and Grandſires of them be divolved to one which was the firſt-born of the eldeſt houſe. But that this was by natural right, or that it was ſet down as a perpetual law, or rule for every Common-wealth, as the only warrantable riſe or title to Supreme Government; and that it was not as free for them, or ſuch as they, who firſt reduced themſelves under the dominion of the firſt-born, by agreement, to have with the ſame agreement conſtituted the power in another, or a younger ſtem, will (I ſuppoſe) never be proved, neither can hold, for the reaſons above given.
6. We finde that in the diſpoſal of Government among Brethren this birth-order was not ſeldom inverted. As when Jacob was preferred before Eſau; Judah before all the elder ſons of Jacob; Ephraim before Manaſſeh; Solomon before Adonijah; 2 King. 23.30, 36. See Divines Annotat. Dio…ate, and Jackſon in loc.Jehoabaz the younger, before Jehojakim the elder ſon of Joſiah; and Judas Maccabeus 1 Maccab. 2.66. with verſ. 2, 3, 4.the third ſon of Mattathias before his other elder brethren. And of Simri the ſon of Hoſah, it it ſaid, though he was not the firſtb…rn, yet his Father made him the chief*1 Chron. 26 10.. Yea it was anteverted by a ſtanding law in the c…ſe of the elder brother dying childeleſs†Whereby the hei…ſhip did not deſcend upon the next Brother who then was his Fathers firſt-born, but was entailed upon a childe to be begotten by him on the widow of the deceaſed, which childe was to inherit his Ʋncles eſtate, and ſo put by his own Father. Deut. 25 5. Mat. 22.24. If primogeniture had been the conſtant law, and channel of Government, why was it pronounced as a peculiar curſe upon Canaan the ſon of Ham the younger ſon of Noah, that he ſhould be a ſervant to his brethren.
7. Laſtly, The preeminence of the firſt-born is ſuppoſed at the firſt to have been as well in matters Religious, as Secular, and to have compriſed the office of Prieſt-hood*See the Chaldee paraphraſe on Gen 49.3 Muſculus and Ainſworth on the ſame, and the latter on cap. 15.31.. Yet that was (after a time) taken away from it perpetually, and was under the law put into one tribe, and family in Iſrael; and ever ſince the Eccleſiaſtical function hath been meerly inſtitutive, and not hereditary. Whereby it may appear that the preeminences yeelded to primogeniture in the beginning were not all of them of the unchangeable law of nature, or any moral, or perpetual inſtitution, but ſome of them (at leaſt) arbitrary, mutable, and temporary.
Having argued firſt the claim of Fatherhood, then that of Primogeniture, I ſhall add this further of them laid both together. Whatſoever reſpect, or reverence either the relation of a Father, or of a firſt-born hath at any time carried any where; and whatſoever power was deferred to them at the beginning, they cannot be imagined to have been intended by God, or ordained by the law of nature as a fixt and conſtant baſis, no nor to be of any permanent uſe ſo much as to give us light, either for the beginning; founding, or raiſing up of a Magiſtracy where it is wanting, or for the legitimating, or deducing, and deriving of an original right, or title to any that is already in being.
1. If we conſider the multiplication, diviſion, confuſion, and extinction of families that hath been.
1. The multiplication: Now that mankind hath for ſo long a time been ſprung forth into a world of families and kindreds, which are every day ſprouting out into more.
2. Diviſion: the ſtock or family of Adam is, and long ſince hath been not only multiplied, and diſſeminated into innumerable families, but thoſe have been parted into a multitude of (yea almoſt innumerable) Nations, and diſtinct politique bodies.
3. Confuſion: every one of thoſe nations is not only conſtituted of numberleſs families, but thoſe are ſo conſounded, and ſhuffled together, that no diſtinction of any one ſtock in a continued deſcent from Adam, or Noah is left; and ſo the priority of geni…ure as reckoned from either of them, to be in one family, and perſon in relation to the reſt of mankind, or of the ſame Common-wealth is utterly unknown, and unconjecturable. Length of time, want of records, removal, and ſhifting of habitations, the identity, variety and change of the names of perſons, and places, and many other things have overwhelmed with darke oblivion all knowledge of ſuch diſtinction, and priority.
4. Extinction of families: as the perſons, ſo the ſtocks and linages of men have a mortality upon them, and in time divers of them are worn out, and come to a period.
Now then, when mankind is looked upon as at preſent, and for ſome thouſands of years it hath been drawn out into ſo many lines, and races, and thoſe ſome broken off, others tranſverſed, interwoven, and mingled both in bloud, and dwelling without any pale or difference of ſtock, or precedency of birth deduced from primitive antiquity, though the Father, and firſt-begotten, though both in the houſe, and in the Common-wealth as far as they are known, retain ſtill a right, and reſpect at their hands, who ſtand in the relation of children, and younger brethren to them, and in the latter the title of dominion being once fixed in a ſtock or family, the paternal, and protogenial relations are of uſe to keep it on in ſucceſſion, and to convey it from perſon to perſon, yet they are of no force to bottom, or raiſe a title to Civil Soveraignty upon, over, or in reference to thoſe who ſtand not in any known relation of children, or younger brethren, or any juniority of deſcent to them. This may confidently enough be affirmed, It cannot be ſaid of any perſon, or family in the world, nor could have been for theſe many ages, that he, or it claimeth, or holdeth the throne in ſuch a nation by a right of Fatherhood, or Primogeniture derived from the firſt father, or firſt eldeſt ſon.
2. But if none of theſe obſcurities were, but diſtinction of families, and their order of precedency, and ſubſequency of deſcent from the firſt head of mankind were clear; ſo that in every nation, or State, one family or race could be pointed out as the eldeſt, and firſt of the Nation in deſcent from Adam, or Noah, yet there ſhall lie difficulties incident to the pretence of ſucceſſion by birth-priviledge, even within any one family, not to be extricated by the evidence of a natural pedegree, or any otherwiſe then by poſitive conſtitution. How many queſtions do Civilians agitate about the right of ſucceſſion where the linage is known? and what different rules and methods of ſucceſſion do they obſerve in ſeveral Nations and Kingdoms? He that ſhall but read one Chapter in Grotius (viz. de Jure belli lib. 2. cap. 7.) may diſcover that variety of opinion, and practiſe in this point of ſucceſſion that may ſatisfie him of the entangledneſs and intricacy of it.
There is one way of ſucceſſion which they call hereditary, and another lineal, and of the lineal there is one which they term agnatical, wherein males only are admitted, another cognatical in which females are included. There are ſome queſtions concerning what children ſhall ſucceed their Father, as, whether begotten only, or alſo adopted; and whether Legitimate only, or the natural, or baſtard childe alſo. There is a queſtion about the matter into which the ſucceſſion is to be; to wit, whether if a man have a plurality of iſſue, the dominion ſhall paſſe undivided to one, or be diſtributed into many portions, that is, to every childe a ſhare. There is ſome queſtion of ſucceſſion to him that hath iſſue; as, whether a mans firſt-born dying before him, and leaving iſſue, the iſſue of that ſon, or his own ſecond-born ſhall inherit. But there are many queſtions of ſucc…ſſion to him that hath not iſſue of his body; as whether his dominion ſhall go to his own brethren, and their iſſue in order, or to the brethren of his Father, or to any other of his anceſtors upwards; whether his Brothers childe, or his Uncle: whether his Brothers daughter, or his ſiſters ſon; whether his younger Brother, or the ſon of his elder Brother; whether the Daughter of his elder Brother, or his own younger Brother be to be preferred.
Theſe queſtions, and ſuch like, the poſitive lawes, conſtitutions, or cuſtoms of Nations do determine ſeveral wayes, each in reference to their own territories; ſo that by virtue of them ſucceſſions may be carryed clearly and quietly. But the paternal, or protogenial right by it ſelf, abſtracted from thoſe arbitrary conſtitutions, and as only laid upon the law of nature, or lookt into by the light thereof, is as to theſe particulars indeterminate.
The reſult of all this is, that the authors of this title of Government muſt be driven to confeſs it now out of uſe, and to be an impoſſible thing, to build any ſoveraign power that now is, or can be expected to be, or for moſt of the ages of mankinde paſt, hath been in the world, upon it. Hence is it that after all their diſcourſes upon it they tell us, in relation to all Governments that have been ſince the confuſion of families, of an elective primogeniture (a contradiction in adjecto:) and that thoſe Supreme Magiſtrates the world hath now, or can have, ſucceed in the place of the Father and firſt-born.
But if they come into their place, and not by their title, I ask then quo jure? by this it is yeelded that Fatherhood and Primogeniture make out no title to them. And why then are theſe ſo much urged as the only original, riſe, and claim of all ordinary dominion; and that excluſively, and in oppoſition to any other title, and ſpecially againſt that which is by the vote, conſent, and conſtitution of the people? They that hold theſe to be the ſole reſt and baſis of Civil Government, and confeſs that no Governours now extant can be ſaid, or demonſtrated to grow, or be built upon theſe, bring themſelves to this reſolution, that there neither is nor can be by any ordinary means, any known, lawful Government in the earth. And accordingly one of them is thus expreſſe*Obſervations of the original of Government, in the Anarchy of a limited, and mixed Monarchy pag. 12.; All Kings that now are, or ever were, are or were either fathers of their people, or the heirs of ſuch fathers, or the uſurpers of the right of ſuch fathers. But before he involve all the Princes of the earth that either are, or have been ſince the earth was divided (about a hundred years as I take it after Noahs flood) under this brand of uſurpation, or a ſuſpicion of it ſo ſtrong as it layes every one of them under the odds of ten thouſand to one to be deſerving of it, I would deſire his title of Fatherhood and Primogeniture, both, or either of them might be cleared of the incongruities and incapacities not only of being an evident, and knowable, but of being a practicab…e, and poſſibly ex…ſtent way of carrying on a courſe, and ſucceſſion of Government in the ſeveral ſtates of the world from age to age, the which have been above in this paper imputed, and argued to attend them. I will only take a little notice of the main and cornerſtone, which the friends of this opinion lay to found it upon, and ſo paſſe from it. This is the univerſal Monarchy which they preſuppoſe Adam had from God; and which, or any part whereof none of his poſterity could have, but by grant, or ſucceſſion from him.
But let this be ſuppoſed, what will be gained by it to their purpoſe?
1. Touching the univerſal Monarchy of Adam, it will be queſtioned how he had, or received it? Whether by natural right, as the Father of all, or by an immediate expreſſe and poſitive grant from God.
2. Beſides the way of immediate and expreſſe grant from God, which it may be ſuppoſed▪ Adam, and after him ſome other ſpecial perſons (as Moſes, Saul, David had) there muſt be acknowledged a mediate, and ordinary way of Gods advancing of perſons to authority, and power, which is ſtanding, general and common to all times, and places. And of this our controverſie is. I enquire therefore how this univerſal Monarchy of Adam paſſed from him unto others.
1. Whether diſtributively, and piecemeal to many, that is to his ſons, cach a ſhare, or whole, and ſolid to one?
2. Whether it paſſed from him to them, or any of them by his arbitrary and poſitive aſſignement, or by order, or law of nature, as to the heir, or heirs general.
3. If by his voluntary aſſignement it paſſed to whom, and in what proportion he pleaſed, then the natural right of Fatherhood or Primogeniture took no place at his death, carryed not the Civil power from him, and ſo cannot challenge to convey it downwards.
4. If by order or law of nature it paſſed from him, then the queſtion will be,
1. Whether they that ſucceeded to him had it by right of Progenitorſhip, that is, by reaſon of the Fatherhood which was in them in relation to their poſterity, who were therefore their ſubjects, ſo that upon that title, every ſon of Adam was ſoveraign to the iſſue that came of him. But then it will be ſaid, this courſe of deriving Supreme Magiſtracy could be but temporary, and muſt needs have a ſtop, for otherwiſe it would multiply Common-wealths in infinitum, according to the multiplication of Fathers, and confine Common-wealths to extend no further, then to compriſe a Father and his children, which (as was argued before) is neither agreeable to the practiſe of men, even from the time of Noah, nor to the end of a Common-wealth, which is union of a multitude of houſeholds for ſtrength, and ſecurity. When therefore this courſe of Genarchy ceaſed, what was the way of continuing Government?
2. Or it paſſed from Adam by right of inherence, to Adams ſons, as his ſons, and ſo as heirs of their Father. And this is a way different from that of Progenitorſhip, and upon this point the right of Fatherhood and that of Primogeniture are at odds, and prove (as to the purpoſe of conveying power from Adam) inconſiſtible. For if the Civil power went by Fatherhood, then were all Adams ſons joynt ſucceſſors in it (as was before ſaid) every one in relation to his poſterity: if it went by primogeniture, but one of them could by that claim the power, and this will run as upon the neceſſi y of having but one Monarchy over all mankind, throughout all ages, which was above diſproved. Unleſs we muſt ſay the firſt-begotten could but claim a double portion of power, and then the reſt of the ſons had each a ſingle part in proportion to his double. But this,
1. Fals again upon the abſurdity even now alleadged of multiplying Common-wealths by the endleſſe number of Fathers.
2. Out of what, or whom would you make the eldeſt ſon a double portion? without depriving ſome other of the ſons of his ſingle part, and ſo deſtroying the right of inheritance, to it you could make no addition to the ſingle ſhare of the firſt born, or give him dominion over more then he was ſuperiour to by virtue of his own Fatherhood.
To make an end therefore with this point, if the inſiſting on the meer natural right either of Fatherhood, or Primogeniture will not beat us out a clear path for the derivation of Government from Adam, or carrying it on with ſome juſtifiableneſs of title among men, then we muſt return to that of voluntary agreement, and grant; unto which the true natural right of Fatherhood is not repugnant, but may very well be reconciled, yea, and aſſiſtant unto the founding, and continuing Civil Government. Some of them that inſiſt on the Fathers power as the only Civil Power in the world, do yet place in him a right to transfer it from himſelf, unto whom he pleaſeth. If this be granted then I will ſay the way of ſetling Civil authority by the agreement, or conſent of the governed, might thus come in. Suppoſe we Adam to have ruled as ſole Monarch during his life; afterward ſome one of his ſons in ſucceſſion to him, or all his ſons each over their own progeny as diſtinct ſocieties; after by the confuſion of languages they being forced to ſever; or when thoſe diſtinct races of Adam became ſo numerous, and diſperſive over many countries that they were too vaſt to be continued in one ſociety, they may be ſuppoſed each of them voluntarily to withdraw, or part themſelves into ſeveral Common-wealths, and the Fathers of the families in every of theſe new erected Common-wealths having in them the intereſt of power each in relation to his children, and family, and agreeing together for themſelves, and theirs to ſome one as their publique civil-head, or King; and thus cometh in Magiſtracy to be voluntarily conſtituted in that way wherein the right of Fatherhood is preſerved, and continued in ſubordination to the Civil publique power; and this put in ſuch a way, as both it, and politique ſocieties of convenient amplitude might be kept up, and new ones (as need ſhould require) might be erected; whereas by the meer right of Fatherhood, holding, and exerciſing the power it had in relation to thoſe only who were natural children to it, it could not be, no not with the ſupplement of Primogeniture, as was before ſhewed. And with this the Aſſertors of the ſole right of Fatherhood are driven in a ſort to comply*See the Anarchy, &c. p. 11..
2. I come to the ſecond way of attaining a title to Government above propoſed to conſideration, which is, that of Conqueſt. The jus gladii as it is underſtood, and qualified by many Grave, Learned, and approved Authors, I ſhall not here call into queſtion; But that the Sword, and ſucceſſe of it unto victory, ſimply, and by it ſelf, whatſoever the cauſe, or quarrel purſued by it be, or taken, as it may be, ſeparate from, or contradictory to the choice, or conſent of the people, can be a ſufficient and juſtificatory title to Civil Government, I cannot yield. We know how Auguſtine Auguſt. de Civ. Dei. lib. 4. cap. 4.hath branded this claim with the ſtyle of Magnum Latrocinium. In ſupply of the halts, and defects which at every turn are detected to occurre in the title of Fatherhood, and Primogeniture, an Author of that way (I even now quoted) findeth this ſhift, The obedience which all Subjects yeeld to Kings is but the paying of that duty, which is due to the ſupreme Fatherhood. Many times by the act either of uſurper himſelf, or of thoſe that ſet him up, the true heir of a Crown is diſpoſſeſſed. In ſuch caſes the ſubjects obedience to the Fatherly power muſt go along and wait upon Gods providence, who only hath right to give, and to take away Kingdoms, and thereby to adopt ſubjects into the obedience of another Fatherly power †The Anarchy, &c. pag. 12.. Hereby the Fatherly right, and power are made a meer Equivocum, or to ſignifie power entitled, or coming in any way whatſoever, though it do not only not derive from the right of Fatherhood, but be privatively oppoſed to, or deſtructive of it: and thus he confounds, and makes to meet together in one name, and title, the thing that he had argued againſt, with the thing that he had aſſerted. And the ſaying that Providence in diſpoſſeſſing of a Crown, him that is the true heir (and ſo hath the right) and diſpoſing it to the hands of an unjuſt invader, doth put a fatherly power in that invader, and adopt the ſubjects to an obligation to it; is to deny the right both of paternity and birth-right, and of the conſent of the people, and of every other ſpecial way of conveying a title to Government, and to make the right thereof only to follow, come by, and conſiſt in poſſeſſion, and to die forthwith in the Father, and heir upon diſpoſſeſſion. And to what purpoſe then is all his plea for Fatherhood, and primogeniture, or any other mans for any other title? what a void diſtinction is that of his when he diſtinguiſheth of a natural, and an a uſurped right? According to him now there is no Power, but Fatherhood, no Fatherhood, but poſſeſſion.
But let us paſſe by this laxe, and wide claim to dominion by the ſword, which ſwalloweth up all other titles, and look into that which I noted to be qualified, and cautioned (and ſo admitted by learned authors ancient and modern) as it is diſtinguiſhable from this, and reconcileable with that of the conſent of the ruled.
Two wayes I obſerve the Sword is admitted to conduce, or have influence into the diſpoſal, or placing of Government, but by neither is it made the ſole, or the immediate ground, or cauſe of a right or title to it, or any otherwayes then as concordant with that political conſtitution I have aſſerted.
1. Conqueſt (or the Conquerour rather) is admitted to be intereſted in Government where it is the effect of a reall and juſt war. And ſo it makes no exception againſt my aſſertion. That Victory which is acknowledged juſtly to lay claim to a Crown is the iſſue of ſuch a war as ſuppoſeth the equity and neceſſity of the war to be on the victors part, and the default and provocation to be on the part of the conquered; and moreover that the default of the conquered is ſo high as either to detain from the Conqueror his right, or to forfeit into his hands by wrong offered their power, or liberty in the enjoyment, or diſpoſal of the throne, and that there is a neceſſity on the part of the Conqueror in reference to his attaining and enjoying of his own right, and juſt ſecurity therein, that he take and uſe that forfeiture*Vide Gro…a Jure …elli. lib. 3. ca. 15. Sect. 1..
In this caſe conqueſt is only a means to the conquerers ſeiſing and holding of that power, or rule, which was his own before he prevailed, and which the cauſe, and ſtate of the war (before the ſucceſſe obtained) entitled him unto. By which it is evident that his right is not founded on his victory, but was in being before it, and had its riſe from an antecedent inveſture or treſpaſs.
Upon this ground it is, that the title of the ſword is alledged not by it ſelf alone, but in ſubjunction to another title. A late Hiſtorian tels us that our King Henry the ſeven…h at his coronation was proclaimed with theſe titles, Hen…icus Rex Angliae, Buckes Hiſtory of Richard the Third, lib. 2. pag. 54, 55.Jure Divino, Jure Humano, & Jure belli. And that the Pope (Innocent the 8.) in his bull to the ſaid King, Anno 1486. hath the… words, Hic Rex Angliae de domo Lancaſtriae originem trahens, ac qui notorio Jure, & indubitato proximo ſucceſſionis Titulo, & praelatorum, & procerum Angliae electione, & ſucceſſione, &c. etiam de Jure belli eſt Rex Angliae.
And this way of ingreſſe into the ſeat of Authority as it is not grounded on conqueſt as its title, ſo it is not privative of, or altogether another from that which was before affirmed to be the only ordinary way, viz. the conſent of the people. Forfeiture as it is a ſingular exception that lies in many caſes, ſo it preſuppoſeth a law, or conſtitution that ordains it, and ſo in a ſort involveth their conſent of whom it is taken. Though there be no explicite, and preſent act of will in the conquered that the Conquerer ſhall reign over them, but an utter averſeneſs, and all poſſible reluctancy againſt, and that brings the war: yet it is ſo allowed to be (when that caſe is put which is preſuppoſed as the cauſe of the war) by the law of Nations, yea, of Nature: and being ſo, their wils have antecedently, originally, and implicitely ſubſcribed to it, as ſuch, and are therefore in this manner concluded in it. In like manner as we account that to be by a mans will, or conſent, which his Predeceſſors (in whom he is virtually included) have willed, or himſelf hath formerly granted, though now he be quite of another minde. He that gives his vote, perſonally, or by proxie, to any penal law, or act to be binding to the community of which he is, though he do not formally, and abſolutely will his own puniſhment, yet he doth it interpretatively, conſequentially, and conditionally, if he himſelf ſhall fall under the proviſion of that Act: and his will ſo paſſed is, upon his offending after it, ſufficient to make his puniſhment not only juſt in it ſelf, but juſt ex ore proprio, and to have his own conſent.
2. As Conqueſt may intereſt a perſon in Government by being an attainment of poſſeſſion in purſuance of an antecedent right, ſo the other ſort of conqueſt, to wit, that which is a ſeaſing of anothers right, or the ſetting of a man in meet poſſeſſion, may have ſome tendency thereto, though not ſo directly, and that is thus; It may be an inducement to the conquered (if they be indeed free, and unengaged to any other) to a ſubmiſſion, and delivery up of themſelves to be the ſubjects of the victor, and to take him for their Soveraign. The former way conqueſt is poſtnate and ſubſequent to the right of the Conquerer, and ſo doth not give him his title, but only introduce his poſſeſſion; this latter way it is antecedaneous, previous, and preparatory to his title, but is not productive or conſtitutive of it. Of this latter way of conqueſts leading to a title to dominion, I have ſpoken before, and refer my Reader thither*Chap. 3. Sect. 3. Subſect. 5. Propoſition 5..
Only, whereas ſome object, that the title of the Sword, or Conqueſt hath been the uſuall beginning of the Kingdoms, and principalities which now are, or have been in the world.
I anſwer,
1. A facto ad jus non valet argumentum. We do not ask, neither is it to the pu…poſe, what hath been done in the getting of rule, but what ought to be, and what is the riſe of that power which can truly derive from God, as his ordinance.
2. I take this aſſertion to be too broad, that this hath been the uſuall beginning of Dominions. Though many unjuſt inv…ſions have been, yet that hath not been the conſtant birth of Soverainty. I have before alledged humane teſtimony of the beſt authority to the contrary.
3. And where unlicentiate intruſion into the throne hath been, it hath commonly not continued, but the dominion hath been ſhortly, either diſpoſſeſſed, or ſetled upon a better ground-work, by the conſent of the intereſted, ſufficiently valid (in point of conſcience) to ſuch an act.
3. But if the ſword by it ſelf cannot create a title, Let us ſee what the third fore-named way will help,Non enim ſi quid alicui eſt utile, id ſtatim mihi licet ei per vim imponere. Nam his qui Rationis habent uſum, libera debet eſſe utilium, & inutilium electio, niſi al… ri jus quoddam in eos quaeſitum ſit. G…otius de Jure lib. 2. cap. 22. Sect. 12. either added to it, or alone, viz. that of voluntary beneficialneſs by protection. There are ſome who would build a kinde of claim to rule upon the conſideration of the good, or benefit which the Governing may be ſaid to bring to the governed; which they will ſuppoſe it equal for him to obtrude upon them, though againſt their wils, and in recompence of it to exact their obedience to him. But ſuch pretences of benefit, beſides that they are often withou… reality, and are made the viſour of proceedings of a q…ite contrary tenor; were they never ſo real, cannot reach to ſuch an effect. The intention, promiſe, or actual collation of a good …urn doth not create a right in the promiſer over him, or any thing of his to whom the ſame is done, witho…t his conſent, or acceptance of it with ſuch a condition.
To bring ſome colour for this claim of Dominion, there are by an Author alledged ſome caſes out of the Civill law; they are contained under that head of obligations which they call, ex quaſi contracta, and particularly they are of thoſe, ex negotiis geſtis. There is, ſaith that law, an obligation, debt, or duty upon a man, when ones buſineſs is done, without his conſent to his benefit. In this caſe the obligation is upon the owner of the buſineſs done, unto the Geſtor or doer of it. The ſaid Author,
1. Urges the caſe de neg…tiorum geſtione, in general.
2. Inſiſts on that particular one of the minor to his guardian, which, ſaith he, is the caſe of the Common-wealth, according to that maxim, Res publica ſemper eſt in curâ, & tutelâ *A R ply to Dr. Sanderſons Letter, pag. 5..
1. To the caſe in general, ex negotiis geſtis, I ſay, there is a wide diſparity betwixt it, as ſtated by the Civilian, and this, for which it is alledged.
1. In that caſe the ground of the obligation, and compenſation awarded is becauſe the thing done is behooveful, for the party obliged, to be done, and yet no conſent can be poſſibly given, the perſon whoſe buſineſs it is being ſuppoſed by reaſon of abſence, death, nonage, madneſs, or ſuch like impediment incapable of giving conſent. There is no ſuch ground here where the parties he would have ob…iged are extant, preſent, and of age to declare their minde, and do either declare their diſſent, or not declare their aſſent.
2. What is the extent, or matter of the obligation in that, ex negotiis geſtis? not the paſſing of the beneficiary into the dominion of the benefactor, but only an obligation of debt to the repayment of ſuch neceſſary charges, as the geſtor hath been at; it being all reaſon that in doing anothers buſineſs commodiouſly to that other, the doer ſhould be indemnified. But no obligation here to a new perſonal ſtate of ſubjection. By the law a Tutor, or Curator may oblige them under his charge without their conſent in their goods to defray his layings out for them, but he cannot without their conſent oblige them in a perſonal relation, as in marriage, or ſervitude, which are obligations of ſtate.
3. The law acknowledgeth ſuch an obligation as is ſpecified but under thoſe cautions as do exclude, and contradict the concluſion for which they are here brought. As
1. It denies that obligation if a man handle another mans buſineſs as his own.
2. If a man act anothers occaſions after that other hath forbidden, or diſclaimed his acting.
3. If they be acted, no neceſſity requiring it*Vide Greg. Thol… ſa…i Syntag. …u…i…, lib. …9. cap. … Sect. … 2. Sect. 8, 9, 11..
2. To that of the Minor, or Pupil in particular.
1. Though the Law allowes the Guardian his charges out of the Minor, yet it allwes not any one to be a Curator that will undertake it. That's againſt the very nature and end of Curatorſhip, which is to defend the minor from invaſors. He that is a Tutor (that is a Guardian of one under the age of 14. years) muſt be either jure civili datus, or permiſſus; he muſt either be T…ſtamentary, that is, aſſigned by the decaſeds will; or Dative, that is appointed by the law, or magiſtrate. And he that is a Curator, (that is, over one above 14 but under 25 years old) muſt be choſen by the Minor, and conſtituted by the Law. The Civill Law expreſly provides that they ſhall not be Tutors of Pupils who put themſelves upon, or offer to buy or make ſuit for the employment, and leſt this office ſhould ſeem arbitrarily taken up, or by force put upon the Pupil or Minor, it ordains that military men be excepted from it. It gives both the Pupil, and the right Guardian an action againſt him that takes upon him that charge, being not lawfully ordained to it; yea, and againſt thoſe that aſſiſt him in poſſeſſing, or exerciſing that place, and condemnes the falſe Guardian in as much as the value of that wherein he deals amounts unto†Idem cap. 7. Sect. 2. lib. 13. cap. 1. Sect. 4. cap. 3. Sect. 1. cap. 10. Sect. 6, 16, 37, 38, 39. lib. 12. cap. 4. Sect 6.. Let theſe rules of the ſaw about Tutorſhip to a Pupil take place in the caſe of the Common-wealth, and its Guardian, and this title by arbitrary beneficialneſs will gain little by this parallel.
2. Whereas he ſaith, the Common-wealth is alwayes in pupillage. It is but an alluſive, or comparative ſpeech; and is therefore unapt to be argumentative. A ſimilitude muſt not be made run of all four. It can only import ſomethings appertaining to a Pupill may be in way of reſemblance attributed to the Common-wealth. But it were eaſie to ſhew divers things wherein there is alſo a diſſimilitude,*Idem lib. 12. cap. 2. Sect. 2. lib. 13. cap. 10. Sect. 1. A Pupil cannot chooſe his Tutor, cannot call him to an account during his pupillage. But its generally confeſt, the Common-wealth may elect its Governours. And it's a publiquely declared principle (I aſſert it not) the Supreme Power is accountable to the people. And himſelf breaks the correſpondency moſt of all, in ſaying, the Common-wealth pupillage is everlaſting, whereas the Pupill comes to puberty, and out of his pupillage at 14 years old.