The Divine Right and Original of the Civil Magistrate, Chapter 5 · Section 4 · Subsection 6
Subſection 6. CHAP. V. SECT. IV. Subſect. 6.A Solution of ſome Objections made againſt the paſſing of Gods Ordination unto the perſon of the Supreme Magiſtrate by the conſent of the people.
HAving examined thoſe other wayes of conveying over unto perſons the title unto Magiſtracy, and refuted them: It now remains, that we take notice of ſome allegations againſt the peoples conſent, being the ordinary medium of Gods ordination of a perſon unto the ſoveraign power; which ſome, ſeeing they think them fit to be urged, will judge worthy either to be aſſented to, or anſwered.
1. Object.The Anarchy, &c. above cited, pag. 8. If no man have power to take away his own life, without the guilt of being a murderer of himſelf, how can the people confer ſuch a power as they have not themſelves, upon any one man without being acceſſories to their own deaths?
Anſw. This Reaſon ſeems to ground it ſelf upon that common Axiome, Nihil dat quod non habet; whence it argues, the people cannot give the power of capital puniſhment over them unto any perſon, becauſe they have it not, cannot inflict it, each upon himſelf. But it is miſgrounded.
1. Here is ignoratio clenchi. For, as we yeeld it true that the people have not a civill authority every one over his own life, ſo we do not ſay, but here deny, that they can confer it upon another. The conceſſion of a power in the people to nominate, or elect their Soveraign doth not infer ſo much, viz. that they in ſo doing give, or confer upon him the Magiſtratical power. They may be ſubordinate agents, and their vote, or conſent may be the medium, or inſtrument uſed by God to convey that power to the perſon, but they cannot therefore be ſaid to be the Creators, efficients, authors, or donors of that power, for that is the properwork or prerogative of God. When the young Prophet came to Jehu, and poured the oyle upon his head, and ſaid unto him, Thus ſaith the Lord God of Iſrael, I have anointed thee King over the people; can we ſay, that Prophet made Jehu King? That young man was not the author, but the meſſenger only of that buſineſs. It is very clear in the conveyance of this, and of other powers, one may be the vehiculum, the hander over of that power to another, which he is not the poſſeſſor of himſelf. A ſingle woman hath not in her the marital power over her ſelf, yet by her conſent in marriage ſhe conveyes it to her husband. The people of a Chriſtian congregation, or Church have not each the power of a Paſtor, or Miniſter to Preach, adminiſter a Sacrament, or the Keyes of Diſcipline to himſelf, yet by their election they may be inſtrumentall to convey the ſame to another. When the King in whom the power of life, and death is, gives commiſſion to a Judge to have, and execute it ſubordinately from, and for him, and ſends his order to the Keeper of his ſeal (required by the Law to make ſuch a Commiſſion authentick) to paſſe and ſeal the ſaid Commiſſion; we cannot ſay, the Keeper gives the Judge the ſaid Commiſſion, but it is the King …hat conferres it by this Officers hand. That which the peoples conſent doth when they agree that this perſon ſhall be their Supreme Governour, is to determine the general rule (that every Common-wealth ſhall have a Magiſtracy with power of capital puniſhment) to the particular perſon in relation to that people; but it makes them not to be conferrers efficients, or primary cauſes of that Magiſtracy.
When a power or priviledge is by divine inſtitution annexed to the act of the creature, it is not the creatures act properly, or efficiently, but God by his inſtitution that communicates that power, or priviledge.
2. This Objection, in its proper tendency, doth not more argue againſt he peoples capaci…y to c…nfer the power over life upon any perſon (which is a thing we affirme not) then it doth againſt the peoples giving their conſent, that ſuch a one ſhall have the ſaid power over them. For upon the ſame medium it may be argued, if no man have power to take away his own life without the guilt of being a ſelf-murderer, how can any people conſent to ſuch a power in another without being acceſſories to their own deaths? But that the people may very lawfully give their conſent to ſuch a power in another, I hope the Objector will not deny; If he ſhould, I would ſay the people of Iſrael did lawfully give their conſent to ſuch a power in Saul, David, Solomon, and others; yea it is the part of every people to conſent to the Rulers to have it, unleſs we muſt ſay that all Subjects are to be under their Governors againſt their wils.
3. But how then muſt we avoid the Reaſon, If I may not take away or deſtroy mine own life, I may not agree that another ſhall have the power to do it?
I anſwer, This is a very falſe aſſertion, that power which one hath not, and may not himſelf exerciſe, he may not conſent to in another; If by power be meant (as it muſt needs be in the Objection) a power that is in its own nature lawful. Indeed that which is ſimply, or in it ſelf unlawful, (as for inſtance, Murder) becauſe it is ſo unlawful, as I may not do it my ſelf, ſo I may not conſent to anothers doing of it: But that which is lawful in it ſelf, but unlawful to me (as many things are) becauſe though good in it ſelf, yet I am not thereto called, or authorized, of that I cannot ſay, becauſe I cannot do it my ſelf, I may not conſent to it in another. The Apoſtle Paul did give his conſent to the taking away of his own life (conditionally if he deſerved death, and the objection imports no other conſent) when he was in queſtion about it before his Judge*Act. 25.11.. If I be an offender, or have committed any thing worthy of death, I refuſe not to die.
4. From this antecedent, no man hath power to take away his own life without the guilt of ſelf-murder, the concluſion would as well be, not only (ergo) the people cannot, but (ergo) no man can confer ſuch a power on another, and thus the argument would run, as againſt the peoples, ſo againſt any others conferring, (or conſenting to, as to their ſenſe who make the terms equivalent) ſuch a power in another; ſo that by this it ſhould be unlawfull,
1. For a Prince, or any other Supreme power to tranſmit, reſigne, or put off their Government in their life time to another, which yet the Author of this objection allowes.
2. For one that is a ſubject to no State, to deſire or offer himſelf to, or accept of naturalization, or incorporatien in any Common-wealth, under any civil power.
3. For one that is a member of a Legiſlative aſſembly, and out of it but a ſubject, to give his vote to an act for the puniſhing of a crime with death, by which his own life is concerned, as ſubjected to death by the ſaid act upon his breach of the ſame. Yet I ſuppoſe no man can defend any of theſe to be unlawful. And for the laſt it is very ordinary, and generally allowed, and the reaſon is; Becauſe ſuch a perſons vote, and the ordaining of ſuch a law doth not create a power of life, and death, nor confer it de novo on the Magiſtrate to whom the execution of it is committed. It only doth determine, or apply that power which is already inſtituted by God, and inherent in the Magiſtrate, to its particular matter, ſuch a fact: or, make that power which was in him in actu ſignato, to be in him in actu exercito, in reference to ſuch a crime. As therefore a Parliament mans vote conduceth to determine, or apply that power which was in ſome ſort in being before to its particular matter, this fact; ſo doth the peoples vote determine that power which was in ſome ſort ordained before, that is, inſtituted by God, to its particular ſubject, this perſon. I have thus diſpatched their Herculean argument; let us ſee what more is ſaid.
2 Object.The Anarchy. &c. pag. 11. This ſuppoſed right in the people to chooſe, or conſtitute their Government is a thing which it is not poſſible for them any way lawfully to exerciſe.
To make this objection good, and to ſhew the difficulty, or imp…ſſibility of the ſaid exerciſe they raiſe theſe ſcruples.
1. Sith nature muſt be ſuppoſed to have left mankind looſe, or unreduced into civil, publique ſocieties, how come they diſtributed into diſtinct Common-wealths, ſo as this perſon, family, or people belong to this State, that to another ſeverally?
Anſw. 1. It muſt be ſuppoſed that nature hath ordained (upon ſuppoſal of the multiplication, and ſpreading of men over the ſeveral regions of the earth) a partition of men into divers civil Societies, to be under diſtinct, and peculiar civil Governments. So that in actu ſignato, or in ſpecie mankinde is naturally bound, and is not in that reſpect originally free: but in actu exercito they are naturally free (as to political we mean, not as to paternal ſubjection) that is, originally the reduction of men into this or that Common-wealth diſtinct from others is yet to do, the union of them into one, or diviſion into many civill States is yet unmade; and it is yet in facto undetermined of what ſociety this, or that perſon, family, or people ſhall be, and ſo unto what civil Superiour they belong. This is very apparent. A Common-wealths Society is made by ſome act, conſtitution, or law, which ordinarily is humane, or tranſacted by men according to that of Auguſtine, Auguſt. de libero Arbitr. lib. 1. cap. 6.Ex hominibus una lege ſocietatis populus conſtat: there muſt be men before there can be a family; the being of families is before that of a Common-wealth, the Common-wealth is before the Magiſtrate; and a diſtinction of Common-wealths before a plurality of Supreme Magiſtrates. There muſt be the matter before the forme, the conſtituting parts before the conſtitution, the eſſe abſolutum before the eſſe relativum of theſe reſpective ſocieties, and correlatives; and therefore a natural freedom, or original unengagedneſs of men in actu exercito. Which yet we muſt not ſo underſtand, as if now every ſingle perſon ſtill were born free, and ſo remaineth untill he by his perſonal act contract an engagement; for in the erection of communities, and Governments in them, the Maſter of the family, having the rule thereof, repreſenteth all the perſons of his houſe; and the perſons then actually incorporate involve their poſterity; ſo that only they in this reſpect are free who are not by the act either of themſelves, or of their progenitors, or other repreſenters compacted in ſociety with others. They that think it irrational that the Father ſhould repreſent & involve the family, muſt reſolve us how the Religious and civill covenants of Iſrael, and Judah made in Moſes, Joſuahs, Davids, Aſas, Joaſhes, Hezekiahs, Joſiahs, and Nehemiahs dayes did comprehend, and bind as well the abſent as the preſent, and their poſterity born, and yet unborn; as alſo how the lawes, and contracts continually paſſed by ſome do take in others not perſonally conſenting.
2. Sith the partition of Common-wealths is acknowledged by the Objectors as well as by us, and both muſt ſay it is not determined, or brought to the actus exercitus by nature, it behoves not us, nor toucheth our aſſertion that this query be cleared, more then it doth them, and theirs: and poſſibly if they will reſolve this their own Queſtion, we ſhall accord with them in the Anſwer. And to make it ſomewhat more explicate, if they would pleaſe t… reſolve us, how any one Common-wealth hat… been (without immediatly divine direction, as was that of Iſrael) conſtitute, or raiſed out of a multitude of collateral families deſtitute of one natural Father, common to them all (as doubtleſs moſt, or all that are, or ever were have been) we might (I think) eaſily agree, how the diſtribution of mankind into many civil States hath come) and if I muſt here ſpend mine opinion it is brought to paſſe, or effected,
1. Not by Conſanguinity, or tye of bloud, for this is in ſome degree extenſive to all mankinde: and for a confinement of it within any certain degrees whereby to make a diviſion of Common-wealths,
1. There is no direction from Nature or Scripture, either that any ſuch confinement ſhall make out the bounds of a Common-wealth, or what ſuch degrees are.
2. There is no ordinary means left, or poſſibility of knowing what perſons (of any number neer to that of a Common-wealth) are within ſuch degrees, and what without.
3. It is contingent to a Common-wealth (and rarely if ever known) to conſiſt of one diſtinct kindred, or ſtock: and it is contingent to ſuch a kindred to be compriſed within one Common-wealth: collateral linages being ordinarily, either diſſociated into ſeverall republiques, or but intermixed with, and parcels of one.
2. Not by Cohabitation; for though that be convenient to be amongſt them that are one Common-wealth: yet,
1. It is not alwayes ſo, one part of a Common-wealth ſometimes lying from another beyond the Seas, or beyond another, or divers other Nations, yea ſome imes one part in Europe, another in Eaſt-India or America.
2. How far that cohabitation muſt go, or to what compaſſe to be the boundaries of a Common-wealth incluſively, and extenſively, is not by any generall rule, much leſſe by any dictate of nature defined, or otherwiſe determined then by humane choice; and ſo it is not uniformely, or by one conſtant proportion, but variouſly, and unequally; every Common-wealth being of a different latitude of place from others; and one, and the ſame Republique often varying from it ſelf by viciſſitudinary contraction, and extenſion.
3. Naturalization, or Deniſonſhip is not tyed to habitation, but ordinarily, ſome that live among are not of, and ſome that are of live not among this, or that Nation, or State.
3. Not by mens appertaining, or ſubjection to one Soveraign, or Civil head. For
1. A Common-wealth being ens aggregatum, and the term unto which a Magiſtrate is immediately referred being not a multitude of perſons in their individual, or ſingle beings, but as aggregate, and formed into one body politique, the Magiſtrate cannot be, either in nature, or time, before the aggregation, or the republique union, and relation of the people one to another as one State, and therefore cannot be the procreant, or efficient cauſe thereof.
2. The ſame perſon we know may be the Civil head or Soveraign Lord of divers politique bodies, they under him ſtill remaining divers.
4. It remains therefore to be done (as far as my imagination reacheth) only by conſent; and this conſent to be the conſent of all that are intereſſed in the aſſociation, viz. of the parties themſelves to be incorporate, and of thoſe whether ſuperiors, or people they are diſſociated, or ſevered from.
It is moſt congruous to ſay the diſtinction of politique ſocieties, or diſtributing one into many cometh by the ſame means, or hath the ſame efficient, which the firſt contract, or entring into politique ſociety hath: but that is the voluntary accord of the aſſociated: as not only the learned agree*Boterus de Origin. urbium lib. 1. cap. 1. Bodin de Repub. lib. 1. cap. 6. Althuſius polit. cap. 4. pag. 24. Grot. de Jure lib. 2. cap. 6. Sect. 4. Dithmars Polit. lib. 1. pag. 20., but plain reaſon dictates. It is a common principle, which not only Scripture, and humane Authors tell, but our own experience ſuggeſts to us, That man is a ſociable creature, fitted for, and affected to mutual converſe, and is by his natural inſtinct, and bent led to ſeek acquaintance, cohabitation, and communion with his kinde. To this we may add his neceſſity in mans vitiated ſtate, of diſtributive Juſtice, and defence againſt occurrent injuries†Dum enim haec amittere timent, tenent in his utendis quendum modam aptum, vinculo civitatis, qualis ex hujuſmodi hominibus conſtitui poteſt. Auguſt. de liber. Arbitr. lib. 1. cap. 15.. By theſe two inducements men were betimes, and ſtill are moved to cloſe together in large, and populous ſocieties; and then to erect Government for the upholding of them in union, order, equity and ſafety; And beginning firſt with the aggregation of one politique body, when that, by multiplication of mankind, was grown over numerous, and unwieldy to its ſelf and its ſuperiors, if no diſtemper could have ariſen to have made a violent breach; no ſuch immediate, and miraculous hand of God ſhould have interpoſed as was that of the confuſion of tongues; yet meer populouſneſs, and diſtance of habitation thence enſuing would have perſwaded to a partition into more Common-wealths.
It is very probable that the diviſion of the earth made in the dayes of Peleg *Gen. 10.25.was a diſtribution, and alotment thereof unto ſeveral Nations, and Kingdoms, into which mankinde were then ſevered; and that the firſt partition of Common-wealths (at leaſt after the floud) was then made: and that it was occaſioned by the confuſion of Languages at Babel: for immediately before that it is ſaid, the people were one. Occaſioned (I ſay) for that occaſion did but prepare men for that reduction into divers communities, in that it did diſſolve their union, and parcel, and diſperſe them abroad upon the face of the earth, by making them uncapable of converſing together (and ſome of the Hebrew Doctors ſay, it did ſet them at oddes and embroyled them in fight, and bloud-ſhed:Vide Cartwright. in Gen. 11.7.) but it did not mould, of incorporate the ſeveral parties ſo divided aſunded into ſeveral communities; no, that was the effect of ſome other cauſe, and what ſhould that be but the joynt will and conſpiration of the ſeverally languaged, and ſevered parties each among and for themſelves immediately acted? and therefore we read both of the ſons of Japhet, and of all the ſons of Noah, that they were divided by families, tongues, and lands into diſtinct nations*Gen. 10.5, 31, 32..
But though that were the occaſion of the diviſion then made, yet many after diviſions in every age (almoſt) there have been of nations into new Common-wealths; as alſo unitings of more Republiques into one: of which diviſions though confuſion, and diſcord, not of tongues, but of minds (even as a modern Author would have that at Babel to have been no more†Tho Anglus. Inſtit. peripat. Append. cap. 19. Sect. 5, 6.) hath been as oft as any other thing the occaſion, yet ſuch diſcord could be but the introduction unto, not the former, or founder of new Common-wealths; the aſſociating of them could only be accompliſhed by the will, and conſent of the incorporated.
As for the diſtinction of property in Lands and other poſſibles which muſt needs accompany this partition of Common-wealths when the firſt diviſions after the flood, or any ſince were made, whereby the prrties diſtributed, left unto thoſe they parted from the Countrey wherein they were, and entred into void regions, there could be no entrenchment upon the common right of mankinde by ſuch entry; there being a ſufficient conſent given to it by all others, in that the places were left, and expoſed empty in regard both of occupation, and claim. The firſt property whether National, or perſonal unto Land or goods accruing, if not by an Expreſſe declared conſent, and agreement of the firſt multitude in whom a common-right promiſcuouſly, or indiſcriminately reſided, yet doubleſs by their reall accord, ſignified by their act of ceſſion, permiſſion, or giving way unto the ſeiſure and enjoyment of the firſt occupant.Vide Grotium de Jure Belli. lib. 2. cap. 2. Sect. 3.
2. This doubt being paſſed, the next is, Common-wealths being diſtinguiſhed, how come theſe, each to ſet up their Supreme Rulers? In this matter, 1. It is Objected, That either it muſt be done by a univerſal conſent, even to a man nemine contradicente,The ſame Author and Book, pag. 9. and this is impoſſible to be; or the major part muſt conclude the reſt: and againſt this they ſay, The major part bindes not the whole, unleſs either men firſt agree to be ſo bound, or a higher power ſo commands.
Unto this I anſwer, It may be ſuppoſed that each community at their firſt coalition, either judge themſelves bound by the law of nature (which is a ſuperiours command) to ſtand to the vote of the major part, or are ſo wiſe as either to conſtitute that, or ſome other way of bringing their matters of publique intereſt unto a reſult obligatory to the whole. Common reaſon will guide them to the one at leaſt of theſe, or rather to both, for if it dictate the former, it muſt be preſumed to bring on the latter, viz. either by tacite, or expreſſe conſent. The dictate of right reaſon, in materia morali, I ſuppoſe muſt be yielded to be the appointment of nature. But that the major part doth conclude the whole in thoſe affairs the determination of which doth neceſſarily concern the whole, untill ſu… time as they have ſetled the determination of ſuch affaires to be by other perſons, or means, ſeems to be the plain dictate of right reaſon. For in this caſe, the very end of a multitudes aſſociating, and becoming one Common-wealth, and the being, and intereſt of them as ſuch is concerned that ſo it be.
1. From a peoples becoming one ſociety, there doth reſult in them a faculty, and intereſt to act ſome things politically: all being is in order to action, and every actus primus is for an actus ſecundus; and a Political being is for Political operation; and although ſuch a body may put off its affairs to be acted not perſe totum, immediately, but vicariouſly by particular organs, or members, yet ſome acts it muſt needs put forth immediately, viz. ſuch as conduce to the organizing of it ſelf, and ſuch alſo as are neceſſary to its own preſervation, and cannot be, or are not tranſected by others; as ſuppoſe a common engine, or other calamity be ſeiſing on a people deſtitute of, or neglected by particular ſubſidiaries.
2. In thoſe matters that are to be acted immediately by the whole community, there muſt be ſome way for them to come to a reſolution and concluſion about …hem. If the concurrence of the whole multitude (very numerous and vaſt) to a ſingle perſon be not at all, or not ordinarily poſſible, or likely, then cannot that he the way of determination: and if not that, then ſome other there muſt be: and what more obvious, natural, and congruous to reaſon then this, that the leſſer part be ſwayed, and obliged by the greater?
3. Yea what other expedient can common ſenſe ſuggeſt but this? When a thing is propoſed to the determination of a multitude which requires a concluſion by them either poſitive or negative, and there is foreſeen likely, or found to be a diverſity of ſenſe, and vote among them,
1. In caſe the major part conſent, and the minor deny the thing, either the major part muſt carry it for the whole, or the negative of the minor by their diſſent carries it againſt the major; which is againſt all Reaſon.
2. And if the major be for the negative, and the minor for the affirmative, either the minor muſt be overruled by the negative of the major, or ſtanding to their affirmative they muſt ſecede, and be ſevered into another Common wealth: for to the nature of a community it is required that there be communio juris: and this ſeceſſion, as it is unreaſonable to be made by a leſſer party without the others conſent, ſo it, and the occaſion of it admitted tends to the making void, and ruining of ſocieties.
This courſe then, of the minor parts obliging the whole, appearing ſo neceſſary to the acting, and to the ſubſiſtence of a community, why may we not conclude it in the caſes, and matter above ſpecified to be the dictate of nature*Vide Grotium lib. 2. cap. 5. Sect. 17.?
2. If the major part be allowed to conclude the whole; it is next asked,Idem pag. 10. How ſhall the whole people be aſſembled? Here are two difficulties;
1. Where all are equally intereſted, and authorized what one or more, leſſe then the whole hath power to appoint time, or place, or give ſummons to the reſt; without which appointment it is unjuſt to binde the abſent?
R. It is to be preſumed this ſcruple is practically precluded, by the peoples proceeding when they agree to become one people; for, who can imagine but that then they have the end, and immediate neceſſary acts, for which they joyne to be a community, before them, and in order to them, either they forthwith make choiſe of the Government they ſhall be under, and provide for a ſucceſſion in it, and the means by which it ſhall be continued; or if that be not at the firſt inſtant diſpatched, they appoint how they ſhall come together, or p…ſſe their reſolutions on that, or the like publique occaſion. We ſee there is a courſe to be taken for ſuch aſſemblies in the polarchies that now are, as in the united Provinces of the Netherlands, in Venice, Genoa, and the reſt. Yea the many diſtinct Republiques of Germany confederate in one general intereſt, and band as one great community have their order how to aſſemble, and hold their publique diets; as likewiſe have the thirteen united Common-wealths of the Switzers; who upon any occaſion of univerſal concernment have referred it to the Burgomaſters of Zurich to give notice to all the Cantons to meet at Baden. And in the ancient State of Rome, the Conſuls ſummoned the Senate, the Senate the Aſſembly of the Centuries; and the Tribunes the Aſſembly of the Tribes. 2. But ſuppoſe this uncertainty ſetled, and a diet orderly called, with time, and place appointed; another difficulty there is, which may be ſubdivided into two;
Idem ibid.1. All cannot be preſent, one is ſick, another is lame, a third is aged, a fourth under age: beſides many are women, ſome are Virgins, all theſe are of the people, and how ſhall the conſent of them be paſſed, or included?
R. 1. Theſe natural or perſonal defects are common to all mankind, and apt to incapacitate perſons as much, or more for other humane affaires as for this, which yet are not therefore argued into a fr…ſtration. This occaſion of a peoples agreement about politique Government but rarely occurreth, but when a Government is ſetled, whether by our, or by the Objectors means, the dayly management of it is much more obnoxious to theſe impediments in the perſon, or perſons in whom it is ſeated; and when one of them ſeiſeth on ſuch a ſubject, it is prone to make a greater interruption in publique concernments then all of them are wont to do in this, yet are Salvos in thoſe caſes ordinarily found out.
2. We have already ſeen that ſome acts at ſome time muſt needs be admitted to flow from a politique body immediately; now this objection doth not more lie againſt this of their agreement of Government then againſt any other. I ſay therefore a civill ſociety having in it perſons lying under all thoſe occaſions of abſence, or non acting, and add to them one more, viz. that ſome liſt not to come, 'tis not thereby rendred actionleſſe to this, or other purpoſes. But how are the exceptions removed?
3. Thus.
1. They that are abſent are either incapable of giving a conſent to any thing that concernes them, as are infants, and ſuch as want the uſe of reaſon, or they are capable.
2. Of theſe latter, ſome are not perſonally intereſted in paſſing, or giving a vote in matters political, but are involved (as to theſe) in their Husbands, Parents, Maſters, or Guardians; others have an intereſt perſonally to concurre in them.
3. Of theſe ſome may be neceſſarily abſent, as the ſick, lame, decrepit, others are away volun arily.
1. For the neceſſarily abſent. This is the caſe ordinarily, but of a few ſingle perſons in a great body, upon whom nature it ſelf laying a preſent impediment, muſt needs be taken to lay a preſent ſuſpenſe upon their intereſt of perſonal preſence, and conſent in the publique buſineſs, and rather to will the divolving of it upon the other that can meet, then that they, and the whole community ſhould be ſuſpended from attaining, or effecting the diſpatch of their publique neceſſary affaires. As they to whom nature denies the uſe of reaſon, ſo they from ſhe withholds the opportunity of bringing it to political exerciſe for want of bodily integrity may be comprehended by her in the actings of others in thoſe things that appertain to the whole community they are of.
2. For the voluntarily abſent, if ſome, yea many that may and ſhould concur will not come, this muſt not prevent the whole, or the priviledge of others; but rather by their default they put off their right as to the preſent act, and inveſt it in the reſt*Vide Grot. de Jure lib. 2. cap. 5. Sect. 20.. We account (and juſtly) that a countrey-meeting a… which we chooſe our Parliament men, to which the people therein are called, though the twentieth part of them that are called do not appear.
2. Suppoſe all preſent, or the abſence of thoſe that are not, diſpenſed with, how can mary thouſ nds, or ſome millions of peopl…, ſo m…et in one place as to communicate their minds to one another, and joyntly deliberate, and come to a reſolution in any thing?
R. 1. Common-wealths are uſually very ſmall at their beginning, which is the time of ſetling their Government for ſucceſſion.
2. When they are come to growth they have another way of acting beſides perſonal preſence, and cogniſance, viz. that of meeting, and tranſacting their concernments in, and by their Deputies, or repreſentees.
3. As it is not very convenient, ſo it is not altogether impoſſible for the collective body (I mean thoſe who make a collective aſſembly, to wit, grown men, and Maſters of families, and eſpecially ſo many of them as are diſpoſed to come) to meet, and treat in an aſſembly. We have divers inſtances for it in the nation of Iſrael, and among the reſt, one that was upon occaſion of the Levites Concubine, mentioned in the hiſtory of the book of Judges Cap. 20, & 21. for the numerouſneſs of, and univerſal accurrence to which aſſembly, let the Text be obſerved, Cap. 20. v. 1, 2, 12. Cap. 21. v. 5, 8. And the people of Rome, when come to a very large, and populous Common-wealth, had their meetings of this nature often in campo Martio.
4. And beſides the Roman ſtate found out wayes of accommodating the difficulties of ſo veſt an aſſemblies treating in one, by diſtributing themſelves one way into diſtinct claſſes, and centuries; another way into ſeveral tribes, and giving their votes in thoſe diſtinct partitions*Vide Tullium de legibus lib. 3. prope finem..
3. Object. It's ſaid, In caſe of a Common-wealths want of a ſupreme Magiſtracy, Idem qui ſupra, pag. 11, 12.as when a King dies without heir, the power ſhall not eſcheat to the whole people, but to the ſupreme heads, and fathers of families, not as they are the people, but quatenus they are Fathers of people, over whom they have a Supreme power divolved unto them after the death of their Soveraign Anceſtor; and if any have a right to chooſe a King it muſt be theſe Fathers by conferring their diſtinct Fatherly powers upon one man alone. Reſp. It is well he acknowledgeth thus much, and we are ſo far agreed, that in caſe of a Kingdoms deſtituteneſs of a head there is an eſcheature of the power to ſome, and that it is to the heads, and Fathers of families, ſo as the right is in them to chooſe a King: only then upon this he thinks good to caſt a thin ſhadow, or miſt to make it ſeem, as if this were not the ſame with our tenent, & as it were to ſuborne another different way of introducing of Magiſtracy, which in truth hath no reality in it, but what is borrowed from, and built upon that our poſition. But
1. What means he by that Epithet Supreme, added to the heads, and fathers of families, as if he meant that all heads, and families are not intereſted in that Eſcheature, and election, but ſome only, diſtinguiſh by that title: And if this be his ſenſe, I leave him to clear firſt how he differenceth thoſe he cals Supreme from other heads, and Fathers.
2. Why he makes ſuch a diſtinction, and limits the ſaid power to ſome only of the Fathers under that notion of Supreme.
2. When he ſaith, The power eſcheates to the heads, and fathers of families. I ask, what power? the power which was before in the King, viz. a politicall, Supreme, Regall power? and how eſcheates, or deſcends it upon them, unitedly, or conjunctly, as copartners, and joint heirs of that whole, ſolid power in relation to the Community, or body politick? This indeed is the power of which the Queſtion is, and which wants a lineal heir, or ſubject to bear it, upon the ſuppoſed death of the King: And if that deſcend upon them, it muſt either be in that manner ſpecified, or elſe ſo as each perſon of them is the adequate poſſeſſor of the whole, and ſolid power, which I ſuppoſe will not be ſaid: If that then be his meaning, lo here a Democracy yielded, and ſet up by him who elſewhere holds there is no ground for any ſuch or any other polarchical forme of Government, and that Monarchy is the only warranted form. Or,In his obſervations on Ariſtotles Polit. doth be mean a private, Domeſtical, paternall power of each of thoſe heads, and Fathers, not over the Common-wealth, but over their families ſeverally, and reſpectively? But for this,
1. This is not the power which was in the King, and now by his deceaſe without Lineal heir can be ſaid to Eſcheat, or paſſe from him to any.
2. This cannot be ſaid to come anew to them then, but muſt be acknowledged to have been in them whileſt they had their King, to remain in them after they have choſen another in his place.
3 Where's he ſeems as if he would explain how there comes in this ſenſe a ſupremeneſs into thoſe perſons, viz. They have a Supreme Power divolved unto them after the death of their Soveraign. Still it remains that he tell us what was above asked, viz. what that power is, whether Political, or Oeconomical, and how the power of either of thoſe ſorts can accrue De novo to them by ſuch death. Indeed that domeſtical power which was in each of them before in relation to his particular, and private family they being left deſtitute of a Superior, or Political head, hath another habitude then it had before, being become negatively Supreme, that is, it hath none actually above it, but it is the ſame power ſtill; or, if we ſhall ſay the power of the Pater familias in this vacancy may be put forth unto ſome acts in relation to the perſons in his houſe, which he might not exerciſe while the Common-wealth had a Magiſtrate, I ſhall not diſpute that, but only ſay, though the Oeconomicall power be ſomewhat larger, in actu exercito, when unſubordinate to a Political Soveraign then it is being ſubordinate, yet it is within the compaſſe of Oeconomical ſtill, and the ſame it was in actu ſignato. And that which he cals a Power divolved upon the head of the family by the Soveraigns death, is but the drawing forth into act of that which was in him before, but was ſuſpended by the politicall relation, and ſubjection. That which then can be ſaid to Eſcheat to the heads of families by ſuch death of their King is a power to diſpoſe of themſelves in ſubjection to another, and of their votes for the election of him to be their Soveraign together (if you will, with a larger compaſs for the exerciſe of their paternal power in their families) during their want of Magiſtracy.
3. Whereas he ſaith, This power accrues to the heads and fathers of families not as they are the people, but quatenus, they are Fathers of people.
1. They are not Fathers, neither is any one of them a Father of a people, that is a Common-wealth, or body politique, but they are Fathers only of their reſpective families, and of the perſons therein reſpectively; what power therefore is in them as in that relation can be but Domeſtical, and that which is in every Father.
2. What if thoſe perſons where no Fathers, but were ſingle, and unſociate as to ſuch a relation, that is, what if they were not over any other, or if they had no families, or children ſprung from, or belonging to them, would not then the ſaid power in the ſaid caſe Eſchear, or belong to them? If he ſay no, I demand his reaſon: if he ſay it would, then he muſt ſay it doth not Eſcheate to them as they are Fathers of people, but as perſons and people of that Common-wealth.
3. Men that are Fathers of families cannot as ſuch be in a capacity of chooſing a King over them, they muſt beſides that relation be moreover united, and confederate in one Common-wealth, or elſe they cannot put forth that act of election. Perſons that are either non cives, or extraneae civitatis, have nothing to do in it. Whereby it is very manifeſt the reaſon why men have that power of Election of a Magiſtracy to this, or that Common-wealth is not becauſe they are Fathers, but becauſe they are Deniſons, or freemen of that Common-wealth, and not comprehended or repreſented by any Domeſtical Superior, but immediately concerned to act for themſelves in the common intereſts of the people of that Common-wealth.
4. Where he ſaith, The Power ſhall not eſcheat to the whole people, but to the Supreme heads, and Fathers of families.
I ſay, in that it eſcheats, to them (who are every one a part in his own family the Supreme head, or Father, that is, having none in this caſe above him in the Civil State) and to ſuch as, being without Domeſtical head, are capable of heading a family, whom I think he will not exclude, it eſcheates to the whole people; for who are the whole people to this effect, but they that are Maſters of families with them who are Maſters of themſelves? As was before ſhewed in anſwer to the ſecond Objection, and the latter branch of it: and they chooſing, the whole people chooſe their Soveraign, they being all the people, either perſonally, or repreſentatively.
5. In that he ſayes, Theſe Fathers chooſe a King by conferring their diſtinct, fatherly power upon one;
This is quite miſtaken, for
1. They do not put off, or part with their Fatherly powers, but retain each their own ſtill, when they have choſen their King.
2. The power which upon their election paſſeth into the hands of the Elected King, is more then all their Fatherly powers laid together, that is, a Supreme, Political, Civil, or Common-wealth power; which is a power of a higher Sphere, and differs not only in meaſure, but toto genere, or in kinde from that of the Fathers, and unto which the paternall ſtill continuing in the Maſters of families is ſubordinate.
6. Laſtly, As this Author cannot exempt theſe his words (if they muſt bear any ſound ſenſe) from a confeſſion of that which he contends againſt, both in this Treatiſe againſt Mr. Hunton, (and in his other of Obſervations upon Ariſtotles Politicks) viz. the riſe of Government from the peoples conſent; ſo can he not excuſe himſelf think) from down right ſelf-contradiction in ſome other particulars. As
1. How will his arguing againſt the peoples capacity to chooſe their Soveraign by this Argument, That no man hath power to take away his own life, and therefore the people cannot confer this power upon another, conſiſt with the right of the Fathers of families to chooſe their King, whereas the power to take away their lives is a part of the power to which they chooſe him?
2. How will this Eſcheature of the power to the heads of families, and their right thereby to chooſe their King, ſtand with what he ſaith preſently after? viz. That all Kings are either Fathers of the people, or heirs of ſuch Fathers or uſurpers of the right of ſuch Fathers: And that, when the true heir of a crown is diſpoſſeſſed by a uſurper, the ſubjects obedience of the Fatherly power muſt go along, and wait upon Gods Providence who only hath right to give, and take away Kingdoms, and thereby to adopt ſubjects to the obedience of another fatherly power. For if the power (in defect of a right heir) eſcheat to the Fathers of families, then it paſſeth not to an uſurper; and if thoſe have a right to chooſe their King, he that is choſen by them hath the right to be their King, and not the Uſurper; neither can the ſubjects be adopted to the obedience of another fatherly power ſuppoſed to be in him; neither is he that is choſen upon the fail of an ancient Royal line, or ſtock truly reducible to any of theſe three ſorts, viz. Either a Father of the people, or an heir of ſuch a Father, or an Ʋſurper of the right of ſuch a Father.
4. Object. The laſt objection I ſhall hold up, being the remainder of what I meet with is, But this way of ſetling Government by the peoples conſent cannot be proved ever to have been held, or practiſed. All powers that have reigned, have entred by the ſword, or rule by virtue of ſuch entrance.
Reſp. This is a very broad allegation, and the prejudice therein c…ſt upon all powers ſeems to proceed from partiality to ſ…me. But
1. The way of ſubjects election of their Government to have been practiſed and that antiently, or from the firſt, I have above brought teſtimonies unto from Authors of the beſt note, to wit, Ariſtotle, Cicero, Juſtin, Juvenal, Ludovicus Vives, Polydore Virgil, and Mr. Calvin Viz in this Sect. Subſect. 4.. To theſe I ſhall only here add the witneſs of one of our Engliſh Hiſtorians, giving a threefold inſtance of the ſubjects choice of their Soveraign, to wit, of three Kings. One of the antient Britiſh, another of the Saxon, another of the Norman race.
Mr. Speed Speed Hyſtory, Book 5. Chap. 6. Sect. 2. Book 6. Chap. 2. Sect. 6. Book 8. Chap. 6. Sect. 1. Book 9. Chap. 2. Sect. 54. Chap. 3. Sect. 1, 2.tels us that when Julius Caeſar firſt enterpriſed the conqu…ſt of this land, among the many Reguli, or petty Kings that then ruled in the ſeveral parts thereof Caſſibilan was by a univerſal vote choſen the Chieftain and ſupreme. That upon the death of Hardicanute the third Daniſh King, Edward the Confeſſor, was by a general conſent elected King. And that William the Conquerour appointing no heir at his death, his ſon William Rufus was by the conſent and voices of the States made King.
2. When learned Authors tell us of fundamentall laws, and conſtitutions of nations; and when the late Parliament ſo often mentioned …nd inſiſted on the fundamental laws, and the antient fundamental conſtitution, frame, aad government of this Kingdom, in oppoſition to an arbitrary, and Tyrannical government, in their publique votes, declarations and remonſtrances, particularly in their preamble to the Proteſtation taken by them, and the whole Kingdom, of May the 3. 1641. and in the Declaration of the Houſe of Commons of April 17. 1616. ordered to be publiſhed, ſet up and fix…d in every Pariſh Chu…ch, what other thing do they mean thereby but this, to wit, the o…igi…al eſtabliſhment of policy and government by the mutual contention,CHAP. V. SECT. V. Subſect. 6. capitulation, and agreement of Governours and people. Ariſtotle Ariſtotelis Polit. lib. 3. num. 87. lib. 5. num. 112.often in his Politicks delivers it as the difference betwixt a King, and a Tyrant, a Kingdom, and a Tyranny; that the one is founded upon the will of the Subj…cts, the other is againſt their wils, and held over them by force. Mr. Gregory of C. C. obſerves upon thoſe words, Act. 11.26. And the Diſciples were called Chriſtians firſt at Antioch; that the word foreign, were called, is borrowed from a Roman cuſtom, viz. when the Provinces ſubmitted themſelves to the imperial Government, the uſe was to cauſe a foreign, or publique edict to be drawn up, and proclaimed upon the place. And particularly there was ſuch an one at Antioch, when the City yeelded up it ſelf into the ſubjection of the Roman Empire, in the time of Julius Ceſar: In memory whereof that City fixed their aera or reckoning of time upon the date of that action; which they therefore called foreign, becauſe the Emperour did then foreign, publiquely entitle them to all the priviledges, immunities, &c. Here is a famous inſtance which the ſaid Author brings out of Johannes Antiochenus, of the mutual agreement, and cloſe betwixt Prince and People, at the firſt entrance into that relation.
And I would aske further how it could be otherwayes, then by mutuall conſent, that Government was erected in the ſeveral Nations at the confuſion of languages; when the ſeveral parties were in an inſtant rent aſunder from that one community they were of, and from under that one head which perhaps had been untill then over them, and left to themſelves to aſſociate each party into a diſtinct community, and under a new Government as they were ſeverally languaged: there being no reaſon, or ground to conclude that to each of them there was ſtill appropriate one natural Grandſire, and that he was by natural right to be the Soveraign, or that in defect thereof there was one eldeſt houſe,CHAP. V. SECT. IV. Subſect. 6. and one Parent thereof that was entitled to the regiment of all the other collateral, and younger branches of the ſame ſtock. The which ſuppoſals have been above refuted? And again, how can it be otherwiſe at the plantation of a new Colonie, at the extinction of a Royall race, or at the Ceſſion of Kings or States, that is, when a people are deſerted of their former Supreme Governors? as the Britains of this Iſland ſometime were by the Roman State, to wit, then when their prefect Aetius withdrew himſelf, and his legions from this Countrey, upon the decay of the Roman greatneſs, and expoſed the rule of it unto who ſo might get it*See Speeds Hiſtory Book 7. Chap. 1. Sect. 1, 2, 3.. And thus it was (ſome authors tell us) at the tranſlation of the Roman Empire to Germany†Widdringtons Theolog. Diſput. in Admon. to his Reader Sect. 4..
3. The Governments that either now are, or heretofore have been,
1. Many of them are known to have been eſtabliſhed by the peoples conſent, as was even now ſhewed.
2. Of many of them the original, firſt riſe, or bottom, like the head of Nilus, is not known. Of theſe becauſe nothing to the contrary appears, we have no juſt reaſon to think but they ſtand upon this baſis: In all matters of tenure immemorial poſſeſion inculpably held, leads men to take the beginning to have been right.
3. Many are known to have a violent, and unjuſt beginning: Of theſe,
1. Some, though the entrance of them was ſuch, yet they have after, come to be ſetled upon a better foundation. Thus it was (ſaith Fr. Junius Junius Animadv, in Bellarminum Controv. 3. lib. 5. cap. 8. Sect. 18. & ca 9. Sect. 20. Mr. Perkins To. 1. Tract. of Callings, pa. 762. A.) in the Empire of Charles the firſt, as alſo in that of Julius Caeſar, Ex poſt facto jus invaluit, cujus non ita fuerunt principia juſta. Accordingly ſaith Mr. Perkins, A Prince enters into a Kingdom by war and bloudſhed. Now by the bad entrance be is no lawful King—Yet if the people do willingly ſubmit themſelves to this uſurper, and be content to yield ſubjection, and the King likewiſe to rule them by good and wholeſome laws, CHAP. V. SECT. V.he is now become a Lawful Prince, though his entrance was but Tyrannical. And to the ſame ſenſe, Chamier, Chamier To. 2. lib. 15. cap. 16. Sect. 9.Grotius, Grotius de Jure B. lib. 2. cap. 4. Sect. 14. Arniſaeus de Authoritate principis cap. 4. Sect. 14.and Arniſeus ſpeak.
2. Some as they come into power by meer force, and intruſion, ſo by it they ſtill continue. But the number of theſe is not great, much leſſe ſo great, as to give violent occupation of Dominion the plea of a univerſall practiſe and cuſtome.