The Divine Right and Original of the Civil Magistrate, Chapter 10 · Section 3
SECT. III. The prejudice which the requiring a good title to the making one a power ordained of God may caſt upon all Governments (in as much as their beginning is ordinarily either unknown, or known to have been vioolent) objected, and anſwered.
Object. 1. BUt if to the making of one a power of God, ordained of God, there muſt goe, not only poſſeſſion, or actuall rule, but a Divine authorization by a juſt title, or orderly calling to the place; conſequently to the acknowledging, or owning of one, or more to be ſuch a power, there will be neceſſary a knowledge, or evidence of his, or th…ir juſt title, or orderly call. But this may ſuſpend, or bring in queſtion the owning of any civill power that is ordinarily to be found, to be of God, as his ordinance, and will make it a very hard matter to avow, or take any to be ſuch. For,
1. It cannot be expected that the common people ſh…uld be able, nor requiſite that they ſhould buſie their be…ds, to look into the juſtneſſe, or legality of their Soveraigns title, entry, or tenure of his power, or ſhould be perfectly acquainted with the ancient Lawes, or Hiſtories, yea, or the preſent tranſactions which concern the diſpoſall of Crowns, and Scepters.
2. Divers governments are of a ſucceſſion, or deſcent ſo ancient, that their firſt root, or riſe cannot at all, or can but dubiouſly be diſcovered, or determined by the learnedſt Antiquaries. Beſides the certainty of the doings of former ages will be ſtill (in regard of the imperfection, and partiality of Authors of ſtory) dubitable. Yea, the truth, equity, and reaſon of what is but emergent, and acted in our own time is often in State-affairs of a dark, and intricate appearance.
3. Moſt, or many governments that now are in being, are by Hiſtories tainted with violence, or other indirect meanes of getting up at their firſt erection, and yet they are accounted, and paſſe for powers truly authorized, and to be of God as his Ordinance.
Anſw. This objection raiſeth difficulties of ſome ſhew, but little ſtrength. It is in this reſpect in the holding of Thrones, and publique authority, as it is in private poſſeſſions, and patrimonies. There are few, or none holders of lands; or hereditaments that can make out an originall title to them. The uſuall titles by which the preſent owners of them do ſtand upon (deſcent, purchaſe, or gift) are but derivative; they do not as ſuch properly bottom a title, but convey, or transferre it. They cannot create a right, or conſtitute a thing juſt; onelyonly they tranſfer or convey the ſame title, which the Anceſtor, ſeller, or donor had; the which, what it was in it ſelfe in point of juſtice is, notwithſtanding the conveyance, or change of the perſon poſſeſſing, ſtill q…eſtionable; and is to be determined by ſome other way. And the wayes of ſtating the juſtneſſe of p…ivate p ſſ ſſions, whether moveable, or immoveable, eſpecially if of any durable, and ancient tenur… ſeem to be altogether under as great obſcurities, intricacies, and diſpu…ableneſſe, as are thoſe by the objection attr…buted to publique places; yea, to ſome more obſcurity, in as much as the originall ſeiſures of theſe have not the memorials, and recognitions taken of them which the publique have. But though this be generally the ſtate, and account which can be given of mens titles to their poſſeſſions now adayes, and ſo hath been of others before, time out of mind; yet no man ſcruples his ancient patrimony, or his late purchaſe, or grant upon this ſcore: and, on the other ſide, neither may therefore any ſay, there is no ſuch thing as honeſty, or juſtice in the concernment of a mans tenure; actuall poſſeſſion, or occupancy is enough; nothing is to be regarded as requiſite to ones becoming, or diſcovering the true owner of an eſtate, or goods, but preſent poſſeſſion. No, this would make mad work both in the conſciences, and in the dealings of men. But notwithſtanding all the darkneſſe that is upon the originall of titles, and all the inevidence, or diſputeableneſs of ſubſequent contracts, or conveyances, every man is bound to ſee to his juſt, and righteous holding of his eſtate, and goods;Micah 2.1. and, woe to them that practiſe iniquity, becauſe it is in the power of their hand. Tell me then how you will ex…ricate an honeſt-meaning conſcience from the pinch of the obligation to equity on the one hand, and the obſcurity of the matter of fact on the other, in the caſe of a private poſſeſſion: and this will facilitate the clearing of moſt that is in the objection.
Thus the caſe (as I take it) is commonly to be reſolved. It was a true M…xime, Quod non diſprobatur, praeſumitur. Where no wrong appears, we may ordinarily take it to be right. And again, In re dubiâ potior eſt conditio poſſidentis. Continued poſſeſſion is a title, when it cannot be evicted, or where the beginning is unc…rtain. There is ſecurity enough in holding that which comes to my hand, and continues in it without detection of injury. If a poſſeſſion have run in a right current as farre as the notice of him whoſe conſcience is concerned in it can reach, there is uſually a ſatisfactory, or acquieſcive title: and he that hath a thing ſo is called bona fidei poſſeſſor, an honeſt owner.
The truth is, that which the Civilians call Ʋſucapio, or praeſcriptio, to wit, an immemor… l uſage, or an occupancy good as farre as humane knowledge in looking back can goe, ſtands up in ſtead …f an originall title, where that is out of ken. Not becauſe ſuch a poſſeſſion may ever be poſitively concluded to have been originally right, but becauſe nothing to the contrary doth appear, and therefore reaſon dictates, if any thing, this muſt paſſe for right. It being to be ſuppoſed that the thing poſſeſſed either hath come down from the firſt Proprietor to this hand by a clear tranſmiſſion, or if any diverſion hath been (unwitting to this occupant) the right owner letting it paſſe ſo long unclaimed, hath laid aſide his title, and given his conſent to that alienation of it.
And thus I conceive the aforeſaid uncertainties which are uſually attendant upon the diſcovery of the poſitive ground, or riſe of civill right, whether publique, or private, are ordinarily avoydable; ſo as, on the one hand they ſhall not impoſe any reall cauſe of perplexity to the conſcience; on the other, they may not be drawn to patronize the neglect, or overthrow of juſtice, or order in preſent tranſactions, or to ſhelter what is manifeſtly, and evincibly wrong. The errour of an act, or poſſeſſion which lyes hid, and buried in ignorance, or oblivion, Caſuiſts, with one conſent, abſolve, as being involuntary, and therefore inculpable. Concerning this I ſhall onelyonly relate the reſolution of a Caſuiſt of our own, and well approved; and the rather becauſe his words touch the ſpecial matter we are upon, as to the objection. It is Ameſius *Si quis rem aliquam ſuam eſſe bonâ fide judicet, cum ſit aliena, conſcienti â dictante, poteſt, ac debet eâdem uti ut ſuâ. Si quis bonâ fide eum judicet eſſe ſuum Magiſtratum qui eſt Tyrannus, vel eum eſſe legitimum magistratum qui titulum illum falſo ſibi vendicat, obedientiam deb…tam tenetur ipſi praeſtare. Ameſ. de conſc. lib. 1. cap. 4. ſect. 7. Vide etiam Grot. de jure Bel. lib 2. cap. 4. ſect. 5, &c..
CHAP. X. SECT. IV.If a man without colluſion, or in ſimplicity of heart, judge a thing to be his owne, when it is not, upon the dictate of his conſcience he may, and ought to enjoy it as his owne. If a man, in the ſame manner, judge one to be his Soveraign who is a Tyrant, or him to be the lawfull Magiſtrate, who falſly claimes that title to himſelf, he is bound to yeeld him due obedience.
To the laſt branch of the objection, the tainture of moſt ancient Governments by hiſtory, with violence at their firſt erection, and yet that they may well now be accounted the ordinance of God, I have returned anſwer ſufficient above*Chap. 5. ſect. 4. ſubſect. 6. in Anſwer to objection the laſt., and ſhall therefore, to ſpare my Reader, forbear repetition here.