The Divine Right and Original of the Civil Magistrate, Chapter 5 · Section 4 · Subsection 4
CHAP. V. SECT. IV. Subſect. 4.Subſection 4. That Gods ordination is conveyed to the particular Magiſtrate by the conſent of the community.
BUt then (perhaps) there will remain one Queſtion, viz. where hath God given out his warrant or rule to any to act, or proceed in this buſineſs? and who are they in every State reſpectively, whom God hath authorized, or qualified to determine the particulars of it?
Unto this my Anſwer is,
1. That the ſaid rule, or the ſpecial way by which men ſhould be called, or attain to the place of Soveraign power, and expreſly defined in Scripture is not neceſſary, or to be, as ſuch, exacted. We all grant that God hath in reference to all the proprietable things of this life, and to all tranſactions about them injoyned a rule of right and equity to be kept, and forbidden the tranſactions about them, injoyned a rule of right, and equity to be kept, and forbidden the tranſgreſſion of it, yet he hath not in his written word particularly ſtated the ſeveral wayes by which the right, or title to a thing ſhall be acquired, nor yet the ſpecial lawes, or rules by which the property of perſons to ſuch things may be determined, or adjudged. This the law and light of nature in mans heart as to many, or moſt things, or caſes, is left to diſcover: and this it hath done, in moſt things indifferent clearly, and equally, in ſo much as the affaires of men about them are ordinarily, and both by vulgar maxims, and cuſtoms, and by publique laws, and judgements regularly compoſed and determined.
2. And yet we are not without ſome Scripturelight in this particular. Even it doth not only preſcribe an orderly call to the adminiſtration of Civill power, and condemn the unorderly and violent aſſumption of it; [Num. 27.26, 27. Luk. 12.14. Hoſ. 8.4. Jer. 30.21. Ezek. 23.16. Amos 6.13.] but doth alſo direct the way how men ſhould be advanced to it, and by whom, in caſe of vacancy of Magiſtracy. This it doth in the particular caſe of that nation to whom God at firſt gave his written law, which may be a pattern to other Nations in this, as in other matters confeſſedly it is. See the direction to them, [Deut. 17.14, 15. & 16.18. & 1.13.] In which places the tranſacting of this affair is by order from God put into the hands of the community, over whom the Magiſtracy is ſet. Judges and Officers ſhalt thou make thee in all thy gates which the Lord thy God giveth thee, throughout thy tribes, and they ſhall judge the people with juſt judgement. And unto this order ſeems the ſpeech of that good man, and wiſe Statiſt to refer, [2 Sam. 16.18.] Nay but whom the Lord and this people, and all the men of Iſrael chooſe, his will I be, and with him will I abide. And according to this preſcript runs the promiſe of God to the people of Iſrael concerning their ſtate after the return of their Babyloniſh captivity, Jer. 30.21. And their Nobles ſhall be of themſelves, and their Governor ſhall proceed from the midſt of them. And anſwerable to this rule we finde inſtances of the people conſtituting their Supreme Governour; as in the advancement of Jeptha, Jud. 10.5, &c. of David, 1 Chron. 11.1, &c. and others. And I would ask them who ſeem willing to deny that in the Bible any commiſſion is given to a prople to chooſe themſelves Governors, to what purpoſe is it that the Lord giveth by Moſes directions, and rules what manner of perſon the Iſraelites ſhould ſet up to be King over them, as it is [Deut. 17.14, 15, &c.] if they had no intereſt, or commiſſion given them to ſet up, or chooſe any for themſelves?
3. Beſides this light of the text, the law of Nature is judged to dictate the ſame thing, to wit, that the right power, or intereſt, to tranſact this buſineſs of the conſtitution of Magiſtrates is in the community, or people of each Countrey, or State in relation to their own Magiſtracy. So that whether we look into the Scriptures, or into the Book of Natures law, the way which God hath chalkt out, the ordinary means he uſeth for the deputation of perſons under himſelf, and over the people in the office of the Supreme Civil power, is the vote, elective act, or conſent of the body politique, or people to be ruled. To teſtifie the latter, viz. that the law of nature dictates this to men,
1. I ſhall in ſtead of many cite a few learned Authors of beſt reſpect that affirm it.
2. I ſhall alledge the original, and primitive practiſe of Nations to have been conform thereto.
1. For the affirmation of it, to be ſo de Jure.
Mr. Richard Hooker.Hooker Eccleſ. pol. l. 1. cap. 10. pag. 26, 27, 29. lib. 8. pag. 150, 151. To take away all ſuch mutual grievance, injuries, and wrongs, there was no way but only by growing upon compoſition, and agreement amongſt themſelves, by ordaining ſome government publique, and by yeelding themſelves ſubject thereunto, that unto whom they granted authority to rule and govern, by them the peace, tranquillity, and happy eſtate of the reſt might be procured, without which conſent there was no reaſon why one man ſhould take upon him to be Lord, or Judge over another. — Over a whole grand multitude, having no ſuch dependency (as is in the family upon the Father) upon any one, and conſiſting of ſo many families, as every politique ſociety in the world doth, impoſſible it is that any ſhould have compleat lawful power, but by conſent of men, or immediate appointment of God; becauſe not having the natural ſuperiority of fathers, their power muſt needs be either uſurped, and then unlawfull, or if lawful, then either granted, or conſented unto by them over whom they exerciſe the ſame, or elſe given extraordinarily from God.— Of this point therefore we are to note that ſith men naturally have no full, and perfect power to command whole politique multitudes of men, therefore utterly without our conſent we could in ſuch ſort be at no mans commandement living.
Mr. Perkins.Perkins To. 1. pag. 762. A. Treat. of Callings. Every lawful King is placed by God; and by men that are appointed under God to ſet up Princes over them, according the laws and cuſtoms of ſeveral Kingdoms.
Mr. John Selden.Selden de Jure Nat. lib. 1. cap. 8. pag. 106, 107. Among theſe (viz. the acts of the permiſſive law of nature) every man ſeeth that the acts of making conſtitutions, entring into covenants, introducing of Cuſtoms, and forms of Government, and of reſcinding, revoking, or altering all theſe, by the choice of thoſe Societies of men whom it concerned, where likewiſe permitted. — In like manner it hath ſtill been granted that by the ſaid permiſſion whatſoever it by men, joyned in Society, limited, forbidden, or conſtituted, that they are bound to keep who have ſo conſented, according to the conditions, and qualification with which it is preſcribed, even as many as have, and ſo far as they have given their conſent. But whence is it that they are ſo bound? from the authority of a deity, that is of mans ſuperior, even in theſe things, the riſe of the obligation is to be derived, and therefore from ſome heads of the obligative law of nature. For the acts whereof we speak were allowed to men, ſo as either they might uſe them at their pleaſure, or they might by joynt conſent prohibit them, and confine their own liberty in them, either by covenant, naturally plighted, or by Princes conſtituted to govern in thoſe matters; which thing ſeemeth not ſufficiently conceivable how it ſhould be, whilſt we alway lock at right, and owing of duty, unleſſe then joyn this alſo to it, that the obligation to the ſaid inhibition, or confinement of liberty doth accrew from his authority, and command who, as being mans ſuperiour, gives warrant to it.
Mr. Jeremiah Burroughes.Burroughes on Hoſ. 1. Lect. 4. pag. 111. ſee alſo Lect. 3. pa. 65. and on cap. 3. Lect. 2. pag. 704. There is no authority that we are ſubject to now, but according to the laws and conſtitutions of the Countrey where we live. We muſt require whether it be a power: It is not becauſe the man that is in authority commandeth it, except he commandeth it by virtue of that authority which is according to the nature and condition of the foundamental conſtitutions of the Countrey where he liveth.—Otherwiſe we are not bound in conſcience: bound we may be in regard of prudence, and in regard of preventing other diſturbances, but conſcience doth not bind to wils of men, but binds to laws.
The Author of the treatiſe of Monarchy,Treatiſe of Monarchy chap. 1. Sect. 1. & chap. 3. Sect. 2. & 5. Vindication of that Treatiſe chap. 3. Sect. 6. (called by one in print, Mr. Hunton) God by no word binds any people to this or that form, till they by their own act bind themſelves. They (to wit Soveraigns) attain this determination of authority to their perſons by the tacit and virtual, or elſe expreſſe, and formal conſent of that ſociety of men they govern, either in their own perſons, or the root of their ſucceſſion. — I do conceive that in the firſt original all monarchy, yea any individual frame of Government whatſoever is elective, that is, is conſtituted, and draws its force, and right from the conſent, and choice of that community over which it ſwayeth. — My reaſon is, becauſe man being a voluntary agent, and ſubjection being a moral act, it doth eſſentially depend on conſ…nt: ſo that a man may by force, and extremity be brought under the force, and power of another, as unreaſonable creatures are to be diſpoſed of, and trampled on whether they will or no; but a bond of ſubjection cannot be put on him, nor a right to claim obedience, and ſervice acquired, unleſſe a man become bound by ſome act of his own will. I am perſwaded it will appear an uncontrouleable truth in policy, that the conſent of the people, either by themſelves or their anceſtors, is the only mean in ordinary Providence by which Soveraignty is conferred on any perſons or family: neither can Gods ordinance be conveyed, and people engaged in conſcience by any other means.
The author of the fuller anſwer to Dr. Ferns Fuller Anſwer to Dr. Ferne …ag. 17, 18.Treatiſe, &c. The meaning of the place (Rom. 13.) then muſt be this, The powers that be (i. e.) ſo, or ſo eſtabliſhed by conſent of man, are ordained of God to be obeyed; or it is Gods ordinance that men ſhould live under ſome government, and ſubmit without reſiſtance to that kinde of government they have by conſent eſtabliſhed: juſt (as St. Peter follows him) to the ordinance of man for the Lords ſake. — There are two kinds, we uſe to ſay, of Tyranny, regiminis, & uſurpationis; that which is only of government, though never ſo heavy muſt be endured. That other kinde, of uſurpation, it hath no right, no ordination at all, and ſo no ſubjection due to it. In all power of government, Divinity tels us there are four things, the inſtitution, the conſtitution, the acquiſition, and the uſe. The conſtitution alwayes from mans conſent, the inſtitution alwayes from God.
Mr. Thomas Hobs.Hobs Elements part. 1. chap. 6. Sect. 6, 7. part. 2. chap. 10. Sect. 3. That this may be done (viz. the erection of a common power) there is no way imaginable, but only union, which is the involving, or including the wils of many in the will of one man, or of one counſel. — The making of union conſiſteth in this, that every man by covenant oblige himſelf to ſome one, and the ſame man, or to ſome one, and the ſame counſel by them all named and determined.
Laſtly, Polybius, as cited by Gregory Tholoſanus.Greg. Tholoſ. Syntag. Juris lib. 47. cap. 15. Sect. 22. Neither yet ought every Government of one be preſently called a kingdom, but that only which is granted by the ſubjects conſent.
2. Beſides theſe teſtimonies to confirm that of right, and by the law and light of nature ſo it is, viz. that the Supreme power be derived by conſent of the people. I promiſed to ſhew the matter of fact, viz. that ſo it was in the beginning of the erection of Government. For this I have the teſtimonies of Ariſtotle, Cicero, Juſtin, Ludovicus Vives, Polydor Virgil, and Calvin, ſpeaking in general of all nations, and of Livy, Plutarch, and Juvenal, in reference to the Roman.
Ariſtotle (polit. lib. 3. chap. 10. num. 89.) ſaith, For when thoſe firſt heroes had obliged the people with great benefits, as by their invention of arts, or warlike powers, or bringings of men into ſociety, and commerce or inlargement of their territo…ies, theſe were created Kings by the free conſent of the people.
Cicero (de legibus lib. 3. pag. 452.) tels us, all the ancient nations in times paſt ſubjected themſelves unto Kings, the which kinde of Government was firſt conveyed, and given unto the juſteſt and wiſeſt men. But thoſe who were not pleaſed with kingly Government, refuſe they did not to ſubmit themſelves to any at all, but they were not willing to ſubject alwayes to one.
Juſtin. (lib. 1.) informes that, in the beginning the rule of nations was in the hand of Kings, whom not popular ambition, but their moderate carriage approved of the good advanced to that height of honour.
Upon which words of Juſtin, Ludovicus Vives (in Auguſtin. de Civit. Dei. lib. 4. cap. 5, 6.) hath this note. In the beginning every family had its King, either the wiſeſt, or the juſteſt of the houſe; a little after that Kings began to rule over many families, and ſometimes there were to one family divers Kings, whom the people elected to themſelves as to be guides, governours, and overſeers of the publique intereſt; and they were not compelled to take ſuch a one as happened any way to them: neither did nobility, or the ſeeking of the party carry it: every mans own private good with the good of the publique was ſo dear and near to him, that it made him to make choice of none but the beſt.
Pol. Virgil. de Invent. Rer. lib. 2. cap. 2.Polydore Virgil followeth, and builde…h his relation upon Juſtin. And for the Roman ſtate in particular, it is very evident in Livy, Florus, Stadna upon him, and Plutarch, that their five firſt Kings, Romulus, Numa Pompilius, Tullus Hoſtilius, Ancus Martius, and Tarquinius Priſcus, were choſen by the Senate, and People; and that their ſeventh King Tarquinius Superbus was by them removed for his evident uſurpation. Neque enim ad jus Regni quicquam praeter vim habebat, ut qui neque populi juſſu, neque patribus autoribus regnavit; ſaith Livy.
Unto whoſe teſtimonies I may add that of Juvenal, exprobrating the ſloath and degeneracy of the Roman people in falling off from their ancient manners, and policy.
— Nam qui dabat olim
Imperium, faſces, legiones, omnia, Juvenal Satyr 10. pag. 94.nunc ſe
Continet, atque duas tantum res anxius optat,
Panem, & circenſes.—
At firſt the peoples vote ſwaid all, the Crown,
The rule of Court, and camp; now they ſit down,
For thoſe not troubled, only grant, they ſay,
To us but ſtomachs fill'd, and leave to play.
Unto all theſe aſtipulateth that of Calvin (in Geneſ. 10.) Notandum in nepotibu… Noah tantum recenſeri qui Gentium fuerunt principes. Nam ut quiſque inter fratres ingenio, virtute, induſtria vel aliis dotibus excelluit, ſibi peperit nomen, & potentiam, ut alii ſub eorum umbrâ quieſcentes primatum illis libenter concederent. It is to be obſerved that of the Grand children of Noah they only are recited who were Princes of the Nations. For as any excelled among his brethren in wiſdom, virtue, induſtry, or other qualities, he purchaſed to himſelf name, and power; ſo that the reſt voluntarily granted him the Soveraignty, and reſted under his protection.