The Divine Right and Original of the Civil Magistrate, Chapter 10 · Section 8 – Section 9
CHAP. X. SECT. VIII.SECT. VIII. Three other Enquiries ſpoken to, viZ. Whether the power of a meer poſseſſor may not be made uſe of? whether ſubjection to it be not lawfull, or neceſſary? and if it be, whether the ſubjects conſcience, or practice be at all concerned in the justneſſe, or the unjuſtneſſe of the power that is over him.
IN the eighth place there comes in this threefold queſtion.
1. But may not ſome uſe be made of, and recourſe had to a meer poſſeſſory power for the obtaining of politicall r…dreſſe, and ſafety?
2. Is not ſubjection to him lawfull, or neceſſary?
3. And if ſo, then is it not all one, as to the ſubjects conſcience, or as to his performance of obedience, whether the power be juſt, or unjuſt; be the ordinance of God, or be the preſumption and in…ruſion of man?
I anſwer,
1. For the firſt quaetie. Such is the neceſſity of order, juſtice, and place, and ſuch is every mans title, and intereſt in them, that there is no ſcruple (I know) to be made of accepting, or ſeeking them at the hand of any, who may reach them out to us, though he that conveyes them to us be not intereſted in the umpirage of them, yet are we, and every man is intereſted in the benefit, and uſe of them. And though one may not perſwade, aſſiſt, or conſent to any to take, or appropriate to themſelves the publique place, or office of adminiſtration of them to the community, that is not thereto lawfully called, and authorized, yet of them that have unduly poſſeſſed themſelves of that place, and do exerciſe the ſame, they that are under them may requeſt both in reference to publique concernments, and to private, that the adminiſtrations which they have aſſumed into their hands, and are reſolved to hold, may (for their matter and uſe to others) be juſt, and profitable. This I finde reſolved without diſpute*Cajetan. Summul. Tit. Rempub. Tyran. Navarri Compend. Tit. Tirannus. The Exercitation concer. Ʋſurp. Powers, cap. 3. pag. 23..
2. And for the next, It is alſo eaſily admitted, viz. That ſubmiſſion, and complyance with a meer occupant may, and in divers caſes ought to be. Such may be the warrantableneſſe, or the goodneſſe, either in point of profit, or of morall duty, of the things, that obedience, or complyance with the commands of a ſuperiour in them will heare a commiſſion, either of lawfulneſſe, or of neceſſi y.
3. But then it muſt be ſaid, It is not therefore all one as to the Subjects, either conſcience, or act of obedience, whether the power be juſt, and of Gods ordination, or it be unjuſt, and of mans prevarication. For there is a difference to be put betwixt the ſubmiſſion yieldable to the meer poſſeſſor, and that which is payable to a right authority. And the difference may be obſerved in more reſpects then one.
1. There is a difference in regard of ground, or in the reaſon; or conſideration upon which it is yeelded. We are to render obedience to a reall authority, or to a lawfull power, or potentate, as owing, or due to him. It is his right, and it belongeth to him up n the account of ſtrict juſtice, the people are under that obligation to him which we call Allegiance, and by reaſon of it we call them his Liege people, and him their Liege Lord. Liege is as much as legall, and Allegiance imports a bond of obedience by vertue of the law; and it may referre either to the ordinative law of G…d, or to the conſtitutive law of man. But to the meer occupant there is no ſuch …ye: in acts of ſubmiſſion to him it is the matter preſcribed, and not the precipient that obligeth: or, it is not the commander, or his commanding, but the condition of the commanded which is the riſe, or reaſon of this ſubjection. Or, yet more diſtinctly, people may be led …o obey ſuch by force of other conſiderations beſides Allegiance to them: and thoſe may be either the more generall morall ones, common to this with other caſes, ſuch as are, the lawfulneſſe of the thing to be done in its own nature, or the coincidency of another juſt, and obliging authority, and command with that of the occupants; or,
2. And therewithall, ſuch as are peculiarly ariſing from that ſtate of ſubduedneſſe; as, the neceſſity that is incumbent to do, or part with the thing required for the avoidance of a greater loſs, or ſuffe…ing to come if the ſubject detrect that; or, the greater conveniency, ſafety, or emolument which there is to ones ſelf, to his neighbour, or to the publique, in doing, then in denying, as the circumſtances of the impoſall, lye, though we…e it not ſo impoſed, it would not be eligible. Though we a…e obliged to nothing juſſu ejus, or upon the intuition of his command, yet we may doe many things, ea jubente, he commanding, and ſhou…d doe eo prememe, he enforcing them; and we have many things to doe, ipſo ſeu volente, ſeu nolente, whether he will, or forbid the doing of them.
This difference in the ground the Reader may finde ſet down by H. Grotius de Jure B. lib. 1. cap. 4. Sect. 15. And by the paper of Dr. Sanderſon printed by a Replyer to it, in defence of Mr. Aſcams Diſcourſe. And by Mr. Burroughs upon Hoſea, Chap. 1. Lect. 3. pag. 65. and Lect. 4 pag. 111. And by the Author of the Obſervations upon Ariſtotles Politiques, pag. 46, ad ſin. And by the Exercitation conc. uſurp. powers, cap. 3. pag. 22.
2. There is alſo a difference in regard of the extent of the ſubj…ction; and that,
1. In relation to the acts, or attributions which the ſubjection reacheth to. Whatſoever duty we owe immediately to G…d; whatſoever is due from us to the publique ſafety, or weal; whatever act of juſtice, or of charity is owed to another; whatſoever is an office of our ſtation, or place, or which we have any other way a call unto; whatſoever is within the rule of the vertuous culture of our ſelves, or may make for our own honeſt intereſt, without the wrong of any other, that we may, or muſt doe in concurrence with ſuch a poſſeſſors command, yea, and if a neceſſity of precept lie upon it, though it be to his advantage in his unjuſt occupancy: a good and neceſſary action being not to be declined for ſuch an ill effect as is accidentall to it, and ariſeth from the uſe which another makes of it.
But there are ſundry, not only perſonall, but politicall acts that may come to be the matter of a civil ſuperiors command, which build not themſelves upon any of theſe conſiderations; and there are actions which not only are deſtitute of ſuch a ground to make them good, and neceſſary, but if done to a meer poſſeſſor, they have in them an acceſſ rineſſe to his unlawfull occupancy: and there may be ſome things then only to be done when there is for them the warrant, and injunction of a reall authority: and ſome acts are lawfull, or neceſſary to be put forth towards, or for a juſtly entitled Magiſtrate, which are warrantleſſe, or ſinfull towards another, as being derogatory to the ſaid Magiſtrates, or to the Communities right, or an entrenchment upon the divine inſtitution of Magiſtracy, or a bringing of the agent into a participation of another mans ſin. He that ſhall take a view of the juſt prerogatives of the civil M…giſtrate, and of the particulars of the ſubjects duty to him, may finde that ſuch there are*See before Chap. 8. Sect. 1.. In things of this ſort there will lie a reſtriction upon the yieldance of that ſubjection to a meer poſſeſſor which is redditable to a lawfull Soveraign.
Without particularizing what things are of this nature, that it is ſo may eaſily appear, if we but make a compariſon by inverting the caſe, and putting the action on the Magiſtrates part. Let two perſons come before a lawfull Magiſtrate, each with his cauſe, or ſuit, the one being a deniſon of the Countrey, the other being a foreiner; or, ſuppoſe them both alike for that, but the one having a juſt cauſe, or ſuit, the others being bad. The Magiſtrate in hearing, and handling theſe diverſe cauſes, or the cauſe of theſe diverſly qualified perſons, may, and is to doe in ſome kinde the ſame things for them all, and to treat them all alike: but in ſome kindes again he is to obſerve a difference, and his proceſſe may not be altogether the ſame towards the ſeveralls of them reſpectively, his duty will require him in ſundry things to put a difference betwixt the deniſon and the foreiner; betwixt him that hath a juſt cauſe, and him that hath a bad. And thus is it on the ſubjects part, and in his actings: there is in many things a diverſity to be found in the rule of his proceedings in relation to thoſe two ſorts of ſuperiors, the juſt, and the unjuſt; or the authoriſed power, and the intruder.
2. In relation to the caſe wherein ſubjection is performable, the extent of it may be to be diverſified in reference to thoſe two. A lawfull, authorized Magiſtrate, one is required to ſubject himſelfe unto voluntarily, frankly, and out of the caſe of terror, or externall compulſorineſſe, and though he had ability to conteſt, ſtand our, and make good a refuſall; but not ſo to the meer poſſeſſor. It is then only neceſſary to comply, and ſometimes doth a thing then only come to be lawfull in reference to him, when matter of awe or menace is caſt into one of the ſcales of the ſubjects conſultation*See Dr. Sanderion, and Grotius as above cited..
SECT. IX. CHAP. X. SECT. IX.The concluſion is with a ſhort view of the queſtion, what kinde of conſent of the community it is which is requiſite to the conveying of Gods ordination to the power.
HAving thus diſpatched anſwer to theſe objections, and queries, I intend to proceed no further: but think it time now to cloſe up this Chapter, and with it this Treatiſe.
There is but one query more that occurred to my obſervation as for anſwer here, viz. Seeing we have found the only ordinary mean of conveyance of Gods ordination to the perſon who is by that ordination the power of God, to be the conſent of the Community *As it is layed down Chap. 5. Sect. 4. Subſect. 4. before., what kinde of conſent is that to be?
This queſtion ariſeth from the diverſity of wayes whereof the giving of conſent ſeemeth to be capable of: as,
1. Touching the perſons giving, conſent may be either of the whole; or of a part; and that whole may, either contain all, and ſingular the perſons united in one minde, or be the major part, admitted in virtue to be the whole.
2. Touching the manner wherein conſent is ſignified; Civilians do deliver ſeverall wayes of conſent giving, as by word, by action, and by non-acting; and under theſe are reduced ſundry particulars.
3. As to the time, the conſent may either fore-run, or follow actuall inveſture.
4. As to truth, and reality, the conſent may be either re…ll, or preſumed, and pretended.
5. As to the freedome, and conſequently as to the valid ty, it is ſuſceptible of differences more then one:
1. There is a naturall, or phyſicall freedom; and oppoſite to it a naturall reſtraint, or confinement. The naturall freedome is a remotion or clearneſs of outward coaction; and this reſpecteth,
1. Either the body by actual ſtop, or impediment,
2. Or the minde, and this relateth to fear, from the menace, or danger of harm, or loſſe.
2. There is a morall freedome, or a freedome of conſcience (…ruly ſo called). And oppoſite to it there is a morall reſtraint, to wit, by a preobligation, tye, or duty of conſcience.
The requiſiteneſſe of freedom, as the very formal reaſon, or conſtitutive eſſence of conſent, and the requiſiteneſſe of both thoſe freedomes, that i…, both the naturall, and the morall; a freedom both f om outward force, and terror, and from preobligation of conſcience, are much inſiſted on.
There is not much materiall difficulty in the poſitive determination of any of theſe differences except it be the laſt, the point of freedome: and for it I had rather ſuppoſe my intelligent Reader apprehenſive of what is right therein, then intangle him or my ſelf here in the diſpute of it.
The truth is, we commonly ſay Leave is light, and this proverb may be underſtood to hold, not onelyonly of the eaſineſſe either of the obtaining or of the carriage of it ordinarily; but of the diſcernableneſs, clearneſs, and apparency, which for the moſt part is in that leave, or conſent which is unfeigned, and reall. But if there be any whoſe intereſt, or will inclines them to pretend to a conſent which is not, or to a freeneſs of conſent where it is not, I ſhall not for their uſe enter into a debate of it; doubting them to be of the number of thoſe who are condemned of themſelves; and for that I cannot aſſume either that freedome to deal, or that hope to prevail with them, which I ſhould promiſe my ſelf in the undertaking.
Deo laus omnis.
FINIS.