The Divine Right and Original of the Civil Magistrate, Chapter 5 · Section 4 · Subsection 1 – Subsection 2
Subſection 1. Ordination contains Inſtitution, and Conſtitution; and what each of theſe ſignifies.
THis ordination or creation of the power muſt needs, I conceive, have in it two things.
The firſt is inſtitution, or the ordaining of Magiſtracy to be in the ſtate, or civil ſociety. It is Gods preceptive ordinance that men in every politique body ſhould have, and live under a Government. In this act of inſtitution may be contained not only the ſimple appointment of Magiſtracy to be, but the defining alſo of the office, or the preſcribing what ſhall be the end, and what the meaſure, compaſs, or bounds of its authority; how the Soveraign power ſhall rule, and be obeyed, what ſhall be neceſſary or allowable for him to do, and what to have.
The other is Conſtitution, which is the bringing of that Inſtitution into act, and execution in particular ſtates. And this may have aſcribed to it two parts.
1. Specification, or the determining of the ſpecial kind of Government, comprehenſible under that general inſtitution, or the ſetting down, which ſhall be the form… of policy pro bic & nunc, or here and now, in this or that ſtate; whether Monarchy, Ariſtocracy, or another. And unto this Specification may be reducible the deſignment of the proportion, or latitude which this or that magiſtrate ſhall have. I ſhall not here enter into the diſpute, whether the ſupreme power be limitable otherwiſe then the general inſtitution it ſelf confines him. But I will ſuppoſe (the which is to me the more probable opinion) that there is a latitude in the allotment of power by that general inſtitution, and as ſome things are neceſſary, and of the eſſence of ſupreme power, ſo other things are allowable or lawful; and being ſo, are left arbitrary, and referred to the choice and agreement of the parties concerned in the conſtitution: and theſe may be the ſubject of that deſignation, or apportionating; as may be alſo the ſeveral ſhares or meaſures of power which each party ſhall have, where the ſupreme power is either mixt, or compounded of ſeveral ſimple formes, or is diſtributed into ſeveral hands.
2. Individuation; or the inveſture of the power, or the aſſignation of it to the perſon, or perſons that ſhall ſuſtain it, or the concrediting, and committing of it to this or that man, or number of men, or to one living, or ſtock of perſons in whom the deſigned fram of Government ſhall reſide.
That theſe acts muſt neceſſarily go to the creating or putting of the particular power in being, I think will not be queſtioned. It remains then to ſhew that they are, and how they are every one of them from God, and by his ordination, underſtanding ordination in this ſenſe in which we have before conſtrued it.
Subſection 2. CHAP. V. SECT. IV. Subſect. 2.That Inſtitution of the Power is of God, and whether by the law of Nature in mans Innocency.
FIrſt, The inſtitution of the Power; the ordaining in general, that Magiſtracy ſhall be, and what ſhall be the office, power, and preeminencies of the Magiſtrate, this is, with one conſent acknowledged to be of God. Whether its inſtitution by God was in mans innocency, or it was ſince his; whether Magiſtracy be of God, by the law of nature; or by a poſitive or poſtnate law, is not agreed upon by all learned men: but moſt Divines, (as far as I obſerve) both antient and modern, Proteſtants, and of the Scools conclude it to have been inſtituted of God in the ſtate of mans innocency, and to be from the light and law of nature*Vide Aquin. part. 1. qu. 97 art. 4. Durand. in Sentent. lib. 2. Diſt. 44. qu. 2. fol. 157. A. P. Martyr loc. com. claſ. 4. cap. 13. Sect. 5. Bucan. loc. 49. qu. 16. Pareus in hunc loc. Scharp. Symph. Epo. 1. pag. 39. Eſtium & Willet in loc. Ariſtot. pol. lib. 1. num. 8, & 17.. And to their authority I may add that of the Prince of Philoſophers, and alſo that of the Jewiſh Doctors. Theſe (as Mr. Selden tels us†Selden de Jure Natur. lib. 1. cap. 10. p. 118, 119, 127. & lib. 7. cap. 4. p. 804. Dr. Hammond of Reſol. centrov. Quaer. 1. Sect. 7. pag. 6..) deliver ſeven principal heads of the law of nature, which they call the ſeven precepts of the Noachidae, and the ſixth of them is concerning the being of Civill Government, and of obedience to it, and this tenent of the original of the law of Magiſtracy may be confirmed.
1. By this that we finde the duty of all inferiors to their ſuperiors injoyned in the Fifth commandement of the moral law (as it is generally expounded: by which it muſt needs be preſuppoſed that the being of ſuperiority, in every ſtate is enacted.
2. In that all nations, and people that are, or have been, and have owned reaſon, and morality, as they have inclined to entertain civill ſociety, and communion, ſo they have been guided to eſteem it neceſſary to have a Government in every ſociety, and accordingly have erected, and ſubmitted to it.
3. God hath (as is evident by Scripture) by his law of creation ſet other reaſonable creatures (as ſpirits) in a diſtinction of order and ſuperiority of ſome over others; and there can be no reaſon given why it ſhould not be ſo in mankind, by the ſame original law.
4. Though there appear not what uſe the ſtate of integrity could have, of puniſhment, or a coercive ſword; yet it is not to me conceivable how there could be either diſtinction or communion in humane ſocieties, or actions without the commanding and leading power of ſome over others.