The Divine Right and Original of the Civil Magistrate, Chapter 5 · Section 5
SECT. V. That diſtinction which ſome give betwixt the Power and the Acquiſition, or Aſſumption of the Power; and its aptneſs to reſolve the Queſtion [Whether a violent intruder into Dominion be among the Powers in this Text that are of God, ordained of God] conſidered.
THe ſequel of the laſt Section, as of ſome others before it, is that in this Text there can be no room or footing for Uſurped Powers. Howbeit, I meet with ſome Commentators, and others that deal with the text, when the Queſtion cometh in their way (whether the Apoſtle in aſſerring the powers that be to of God, ordained of God, taketh in Uſurpers;) that which they afford to aſſoil the difficulty is, a diſtinction betwixt the Power which they ſay is of God, is the ordinance of God, and the aſſumption or acquiſition of the Power, which they ſay is not of God,CHAP. V. SECT. IV. but is of the Devil, as being by diſhoneſt wayes, fraud, violence, and the like. And upon this diſtinction thus …ven, ſome of them ſeem to affirm the Queſtion [Seem, I ſay, for they do not all ſpeak very clearly either way.]
That theſe two, the Power which is ordained of God, and a violent another uſurpati…e entry, and holding of the power, are two different things, not to be confounded, I ſhall eaſily grant; but that the diſtinguiſhing betwixt the power, and the acquiſition, or aſſumption of power makes any thing to the anſwering of the Queſtion, or if it do, that it tendeth to confi…, or clear that the t…xt is incluſive of a Uſurper, I can by no means underſtand, & therefore crave leave to ſhow my reaſon for my refuſal of that diſtinction ſo uſed.
1. Whereas they diſtinguiſh betwixt the Power, and the aſſumption of the Power, and tell us the former is of God, is his Ordinance; the latter in the Uſurper is not of God, nor ordained of God, but being by unlawful means, is of the Devil; I ſuppoſe they muſt either mean that the power in the general notion, nature, or conception of the thing is of God, his ordinance, but this Power in particular that is pretended, this Uſurper is not of God: and thus ſaying they reſolve the Queſtion negatively, and quite exclude the Uſurper from ground in this text: and with this ſenſe I have no diſpute; only I think they might as well omit their diſtinguiſhing, and flatly deny the Queſtion.
Or, 2. They muſt mean that this individual power, this Uſurper, or this Magiſtracy in particular which he pretends to, is of God, and his ordinance, but his uſurpations or this his way of coming into, and holding of the Power, to wit, Uſurpatively, is not of God, is not Gods ordinance. But if this be the ſenſe of their diſtinction, it, as ſo applyed, can by no means with me be admitted.
If it be asked, Whether unjuſt Judgement, Theft, Drunkeneſs, Whoredom, or any ſuch lewd practiſe be of God, or the ordinance of God, CHAP. V. SECT. V.I ſhould ſimply deny it; and it were an abſurd thing for one in defence of any of theſe to ſay, I can diſtinguiſh betwixt the Judiciary ſentence, which is of God, the ordinance of God, and wrong judgement, which is not of God, and in like manner I can diſtinguiſh betwixt poſſeſſion, and theeviſh poſſeſſion, betwixt drinking, and drunkenneſſe, betwixt carnall, and whoriſh copulation; the former in each of theſe diſtinctions is of God, is ordained of God, but not the latter. For in thus diſtinguiſhing I ſhould only acknowledge thoſe acts of judgement, poſſeſſion, drinking, copulation in ſpecie, or in their univerſall an abſtract conceipt to be of God, not by any means that this act in particular wherein the judgement is unjuſt, the poſſeſſion is theeviſh, the drinking is exceſſive, the copulation is adulterous, is of God (in this ſenſe wherein we now ſpeak) or ordained of God. So in that diſtinction betwixt the power, and the aſſumption of the power all that can be meant, with any favor of truth, is, that power in generall is of God, is the ordinance of God, but of this the queſtion is not; not that it may be ſaid the Uſurper, or the power which he aſſumeth, and uſurpeth is of God, is ordained by him, but not the uſurpation, or his way of aſſuming power: no more then it may be ſaid, this wrong judgement, this theeviſh poſſeſſion, this exceſſive drinking is of God, as his ordinance, but not the injuſtice, the robbery, the drunkenneſſe, the whoredome, or not the way wherein the agents act thoſe things.
No man (I think) ever yet ſaid that the act, and vitioſity of the act may be ſo abſtracted, or diſtinguiſhed from each other, as to ſay, the one in individuo may be morally good, and ſo of God, as his ordinance, and the other morally evill. It is eaſie to ſee that in an act whoſe matter is in ſpecie good, or lawfull, but other Ingredients which conſtitute its moral individual ſtate, are evill, I cannot excuſe the act in individuo, or entitle it to the Divine warrant or ordinance from the goodneſſe, or allowableneſſe of the matter in ſpecie. And it is as plain that the abſtract, and the concrete, the act, or habit, and the ſubject wherein it muſt needs have the ſame, and cannot have a contrary moral predicate, or denomination, if lying, or murder be a ſin, and of the Devil, the lyar, the murderer is ſinfull, and of the Devil too*Jo. 8.44., and you cannot ſay the one is of the Devil, the other of God. In like manner of the Uſurper, and of uſurpation; if you condemn the one, you muſt condemn the other alſo, and you cannot entitle the one to the ordination of God, the other to the will, and work of Satan.
2. When they ſay (if ſo they intend to ſay) this power, the Uſurp…r, or the authority which he arrogates to himſelf is of God, but not his acquiſition of the power. I would deſire to underſtand of them, how is he, or it of God? Can he be a power, or a power be in him of God any other wayes, then by his acquiring or receiving his power from God? yet this is that which they deny in the latter branch of their diſtinction, where they ſay, His acquiſition, or his way of having his power is not of God, but is of the Devill. Let the owners of this diſtinction bethink themſelves how they can diſtinguiſh betwixt the being of the power from God, and the acquiſition of the power from God, ſo as to affirm the one, and deny the other. In my dull conceit, the acquiſition of a thing is no more, nor no other thing but the way whereby that thing is had, or received; and if the queſtion be, how ſuch a thing is acquired, and it be ſaid it is of ſuch a perſon, or ſuch an author; this is to deſcribe the acquiſition of it. To me then, in thoſe two propoſitions (whereby the diſtinction is applyed) the power is of God, the acquiſition of the power is not of God, but of the Devil, the ſubject of them is one and the ſame in ſenſe, and …e, and the predicates are contradictory, and ſo they praedicate contradictories de eodem, of the ſame thing.
If they again make a refuge from this abſurdity of the generall inſtitution; and ſay in the former propoſition they mean the Uſurper is of God, his power is of God, in as much as God hath ordained Magiſtracy, and Magiſtrates to be; I anſwer; What is the Uſurper the neerer for this, that God hath ordained Magiſtrates to be? if he receive not his power from God, can it be ſaid nevertheleſſe his power is of God by vertue of that generall inſtitution? We have foreſtalled this plea in our laſt Section, and ſay again, there is no conſequence, or dependency of the one of theſe upon the other. Gods ordaining Magiſtrates to be, inferres not this, or that man that is in the place of command (whether juſtly or unjuſtly) to be a Magiſtrate, of God. Nothing can be more weakly or groundleſly ſaid, then to argue this or that man is a power of Gods ordaining, becauſe God hath ordained that there ſhall be a power, and that ſome body or other ſhall be it. We have (I take it) proved before that to the making of a Magiſtrate to be of God, and to be his ordinance, in actu exercito, there goes, not only the law of God appointing Government to be in each community, but that a perſon, or perſons for his or their particular, be put into that office of God, that is in Gods way, or by his warrant; and this is to ſay, the perſons acquiſition of the power muſt be of God; It muſt be ſaid of them as Adonijah ſaid of Solomons Kingdom, it was his from the Lord.
The former puts not any Government, or Governors in being, makes no man actually either a Prince, or a Subject; notwithſtanding it all the Common-wealths in the world may be headleſſe, or without Ruler. If a man ſhould ſtart up in the midſt of a Kingdome, or a City, or of a Senate, or Parliament, and proclaim himſelf to be the Supreme power over that community, and being asked upon what he grounds his claim, he ſhould alledge but this, God hath ordained a Supreme power to be in every State, and that ſome be Rulers, and now I actually challenge it; how ridiculous would this man and his claim be?
In the time when prophecy and prophets were ſent out of God into the world, and into his Church, there were true Prophets, and there were falſe: the difference betwixt them was, that the one were Prophets indeed, were of God, ordained of God; the other indeed were no Prophets, were not of God. [Zech. 23.5. Jer. 23.16, 21, 26.] It would have been a ſenſeleſſe plea for the latter to have ſaid for themſelves, We are Prophets of God, becauſe God hath ordained prophecy, and hath ſet in his Church ſome to be Prophets; And as reaſonleſſe an allegation it is to ſay, the Uſurper, or the Uſurpers power is of God, becauſe God hath inſtituted powers to be in the Common-wealth. Suppoſe a couple be ſuſpected to live together in whoredome, and being brought before the Magiſtrate under that accuſation, they ſhall pretend, for their defence, that they are in a marryed eſtate, and being required to prove their marriage, they ſhould alleadge that marriage is Gods ordinance, God hath ordained men and women to marry, and they cohabite together as man and wife. Would this paſſe for truth, that theſe two are in the ſtate and relation they pretend to?
Much leſſe would it ſerve if the one of the parties only ſhould make this pretence, and plea, and the other quite diſclaim it; and what's the reaſon this allegation would not paſſe, but becauſe there is required, beſides the generall rule ordaining marriage to be, and the exerciſe of conjugall acts, that there be an entrance into this eſtate, and admittance unto theſe matrimoniall acts, by ſuch a covenant, or conſent of the parties, as God hath appointed to be the way, and means of contracting this Relation?
But ſome of the Authors of this diſtinction thus argue. Riches gotten by uſury, extortion, &c. ceaſe not to be good in themſelves, yea and the gifts of God: and as the owner of theſe unjuſtly procured riches may be ſaid to be a rich man, and he that hath Learning, though procured by unlawfull means, may be ſaid to be a Learned man; ſo the poſſeſſor of a moſt juſtly obtained authority may be ſaid to be a Magiſtrate, and in authority.
Unto this Reaſoning I have this to ſay. 1. Riches gotten by uſury, and extortion, ceaſe not to be good in themſelves; Say they, It's true, but what is this to the uſurer, or extortioner, or to his poſſeſſion of them, or to his denomination of being rich by them? Let it be diſtinctly obſerv'd, what the goodneſſe of thoſe riches is which ceaſeth not by their ill getting. That goodneſſe which is in them as conſidered abſolutely, and in themſelves, without reſpect to this, or that owner, or getter, and which was therefore attributable to them before they came into the uſurers or extortioners hands, they ſtill retain, that is a goodneſſe in genere entis, or as Creatures, and a goodneſſe in genere utilis, which is an aptneſſe to ſerve unto a naturally, or civilly profitable uſe; but thoſe Goods which taken apart from ſuch, or any other particular owners poſſeſſion have that goodneſſe inherent in them, are moreover ſuſceptible, by way of relative denomination, of another goodneſſe, which is not inherent in them, or in their nature, or neceſſary, and fixed to them, but is to them adventitious, or extrinſecall, and therefore is mutable, ſo that they are as well capable of an evilneſſe oppoſite to it, as of that goodneſſe.
This goodneſſe and evilneſſe is morall, and it comes, or is imputable to them by means of their adjacency, or relation to their poſſeſſor. In this reſpect riches are ſaid to be ſometimes juſt, ſometimes unjuſt, or to be honeſt, or diſhoneſt according as they are gotten well, or ill, in this morall, or relative conſideration of riches (wherein alone the ſimilitude betwixt them and the matter in hand is pertinent) it is not true that riches gotten by uſury and ex ortion are good.Ez…k. 22.13. Prov. 10.2. The H. Ghoſt calls them diſhoneſt gain, and treaſures of wickedneſſe.
2. Neither are unjuſtly gotten goods the gifts of God, if you mean by the phraſe ſuch a gift as conveyes a title, or right to the Donee, or receiver, which alone, can be ſtrictly and properly called a gift, and can be parallel to the having of a thing of God, as by his ordinance. For, as for that larger acception, wherein things may be ſaid by God to be given into the hands of men, when they are expoſed by his providence to them, as their ſpoyl, or the matter of other their acts of cruelty, or fraud, it is not of any collaterall affinity with that kind of being of God, which the Text (as hath been proved) ſpeaketh of; neither doth it import a deed of gift, ſuch as makes over a property in the thing given to the Donee.Iſai. 42.24. Job 12.6. God gave Jacob for a ſpoyl, and Iſrael to the Robbers: and Job (whoſe goods were ſo given up to the Sabeans and Chaldeans, ſaith of the tabernacle of Robbers, that God brings into their hands abundantly. Shall we compare theſe mens havings (in reſpect of the being of them of God) with the being of the power of God, as his ordinance, intended in this Text?
3. It is evident the Authors of the diſtinction take the being of the power of God in theſe words in a ſtricter ſenſe then is that wherein wealth diſhoneſtly gotten can be called the gift of God, whileſt in the application of their diſtinction they tell us, the uſurpers acquiſition of the power is not of God, they would not (doubtleſſe) deny it to be the gift of God (and conſequently its acquiſition to be of God) In the ſame acception wherein they affirm the gain of uſury, and extortion to be the gift of God. Certainly it is not their meaning to make the uſurers, and extortioners way, and title to their riches (by ſo much as the gift of God comes to) better then the uſurpers way, and his Title to his power, whileſt they ſay their goods are the gifts of God, but his power is not acquired of God.
4. But then they argue, As the owner of theſe unjuſtly procured riches may be ſaid to be a rich man, and he that hath Learning, though procured by unlawfull means, may be ſaid to be a learned man, ſo the poſſeſſor of a moſt unjuſtly obtained authority may be ſaid to be a Magiſtrate, and in authority.
I anſwer each of theſe ſentences ſeverally.
1. The owner of theſe unjuſtly procured riches may be ſaid to be a rich man, ſay they, but contrarily I ſay,
1. An unjuſt procurer and poſſeſſor is no owner.
2. Neither do riches denominate their unjuſt poſſeſſor rich.
1. An unjuſt poſſeſſor properly is no owner. There is in truth no propriety in an unjuſt tenure: for propriety is nothing but a ſeparate right, and right and unjuſt poſſeſſion are incompetible. There a…e many caſes wherein one may have ſuch a poſſeſſion as the law of man in a ſort protects him in, that is, it takes no cognizance of the injuriouſneſſe of his holding,Vide Auguſtinum de lib. Arbitr. lib. 1. cap. 5. Greg. Tholos. Syntag. Juris. lib. 21. cap. 3. Grotium de Jure, lib. 3. cap. 4. Sect, 2. et cap. 10. Sect. 1. & lib. 2. cap. 23. Sect. 13. & lib. 3. cap. 7. Sect. 6. & lib. 3. cap. 20. Sect. 48. but this notwithſtanding, the poſſeſſi…n being wrongfull, neither it, nor its humane impunity, or indulgence, can create a right, or property in the p ſſeſſor. There is a difference betwixt a preſumed, or ſuppoſititious, and a true owner. Civilians confeſſe, humane, poſitive lawes do not take notice of all that is juſt by the law of nature, ſcripture, and conſcience, either to eſtabliſh it, or to correct the contrary. Hence thoſe diſtinctions betwixt that licet, quod caret vitio, and that quod impune fit; betwixt licentiam interi…rem & exteriorem. That is, a lawfulneſſe which is free from fault, and the lawfulneſſe which is free from puniſhment: a lawfulneſſe which is internall appertaining to the conſcience, that is; and that which is externall, or in reſpect of the Court of man. And in thoſe things wherein the law of man interpoſeth, there are alſo many caſes, wherein one holding a thing againſt all right, his poſſeſſion is therefore irritable, or ejectable, and yet becauſe the title muſt be firſt tried, and evicted, the law allowes effectum quendam juris, where there is nullum jus; a kind of priviledge of right without right: and for the preſent looks at him as (titular) proprieter, that is, no morall reall, or warrantable proprieter, but only fictitious, and therefore upon eviction, it ejects him.
2. Neither do riches denominate their unjuſt poſſeſſor rich. This follows upon the former. For ſeeing the haver of unjuſtly gotten goods is a bare poſſeſſor, or a meer holder, and uſer of goods, and not the true owner or proprietor of them, he cannot from ſuch riches, be truly termed a rich man. A poſſeſſor in fact, (or, in reſpect of that poſſeſſion, which the Civilian calls a naturall) deſerves not to be called rich, neither is he in many caſes vulgarly ſo eſteemed. A thief may by robbery have gotten into his hands a great treaſure; yea, a man may be a juſt occupant of a wealthy eſtate, he may be a depoſitary, a mutuary, or an uſufructuary thereof, that is, he may have it in his cuſtody, and uſe by way of truſt, hire, or tenantry, yet ſuch a one if he be wiſe, counts not himſelf a rich man in any ſuch reſpect, neither doth the world (underſtanding how he hath it) ſo repute him. A meer occupancy that is eftſoon voidable by law, or that is determinable by a little time, or that is accountable, for to another proprietor, is not wont to denominate the occupant rich. But to make both theſe points a little clearer, we are to diſtinguiſh of injuſtice, or evil dealing in the getting of wealth. There is ſome wrong in getting, which is ſo deep, and intrinſecall to the ſubſtance of the title, as that it doth vitiate and deſtroy its being, and the contract, or other way of procuring the goods by means thereof is null as to the producing of a property to the procurer. And there is ſome injuſtice that reacheth not ſo far as to evacuate the title. Every ſlip, or deviation from the path of uprightneſſe doth not make void a bargain, or title about which it is uſed. Caſuiſts diſtinguiſh therefore betwixt that dolus malus, that evil dealing, which gives cauſe to the contract, and that which is only incident or circumſtantiall to it, and ſay, the former doth nullifie a contract, but not the latter*Vide Bonacinam, To. 2. Tractat. de Reſtitut. & Contract. Diſput. 3. qu 1. punct. 2. Sect. 2. Emanuel Sa Tit. Dolus. Alſted Caſ. Conſc. Cap. 20. Reg. 9. Bp. Halls Reſolut. Decas. 1. Caſ. 6.; and hence we muſt ſay riches gotten with ſome failing of the latter ſort may truly denominate a man an owner, and a rich man; becauſe notwithſtanding ſuch an error, or tincture he, and the perſon of whom he receives them may have made a lawfull contract, or agreement about the property of them, and that bonâ fide, or really; and which is therefore for ſubſtance valid. But wealth attained in the former way of injuſtice cannot entitle a man rich, becauſe the tranſaction ſo qualified, doth not truly cauſe, or make a property: he that hath them but ſo hath no title to them, conveyed unto him.
2. They ſay, He that hath learning, though procured by unlawfull means, may be ſaid to be a learned man. Here I ſay,
1. Learning is no morall habit, and therefore the denomination by it is not concerned by the manner, or means of its acquiſition: but a morall habit, as is the having of riches, and the having of civil power, muſt have a morall conſtitution. The difference betwixt theſe two in this matter will eaſily appear by comparing the naturall relation of father and ſon, with the morall relation of husband and wife. He is truly ſaid to be a father that begets a child, though it be in whoredome, and a baſtard is truly called a ſon. But two cannot be called husband and wife from naturall copulation, but there muſt be betwixt them, beſides that, a conſent, or contract for ſubſtance valid, and lawfull to ſet them in that relation. The reaſon of this difference is, becauſe the former, that of father and ſon, is a naturall relation, in regard of its riſe, or the act by which it is founded: the other is a morall relation as to the way of its production, and therefore muſt reſult from a morall act.
2. Our Philoſophy will tell us, it is not every having that doth really denominate, but that only which is properly intended by the denominative, or concrete. We ſay, a man that is full of wine is drunk; but a Veſſel, or Celler being filled is not ſaid to be drunk with wine. A Purſe full of gold is not called golden, but we call it golden, if it be wrought with gold*Ad regulam iſtam, cui ineſt abſtractum de eo praedicatur concretum, requiritur ut abſtractum eo modo infit quem importat concretum. Marſupium non dicitur aureum, quavis in Marſupio ſit aurum. Sthalii Axiomata, Tit. 6. Reg. 4. Sect. 11. pag. 163.. He that hath the arts, and ſciences in his ſtudy, or in a book in his hand, or meerly in his memory, ſo as he is able to rehearſe the ſyſtemes of them by roar, is not ſaid to be a learned man; but he that hath them in his underſtanding: and he that hath morall vertues not only in his ſtudy, book, or memory, but in his underſtanding, yet is not ſaid to be vertuous, unleſs he have the habits (not the docentes, but the utentes) of them alſo ſubjected in his will. In like manner the having of command, or rule over a civil State meerly in ones hand, doth not truely denominate one a Magiſtrate, or in authority.
Having thus diſcovered the unſutableneſſe of the premiſes to inferre that concluſion, that the poſſeſſor of a moſt unjuſtly obtained authority may be ſaid to be a Magiſtrate, and in authority; that concluſion as to ſupport by them, falls of it ſelf: But I may adde, as to the tearms of it, as I ſaid, and ſhewed before that the unjuſt poſſeſſor of riches cannot be called the owner of them; ſo may I here reply, thoſe words, [the poſſeſſor of a moſt unjuſtly obtain'd authority] are a contradiction in adjecto. A moſt unjuſtly obtained authority there can properly be none: a man cannot be a poſſeſſor of authority, that is authority indeed, but by lawfull means. He that holdeth, and exerciſeth command, rule, or ſway moſt unjuſtly, (as to title) may pretend to authority, but the command he aſſumes cannot (but abuſively and equivocally) be called authority. Authority (as hath been before made good) conſiſteth in a right, or call to rule, and is formally, and eſſentially contradiſtinct to unjuſtly obtained authority. I ſpeak of that which is held, or ſtandeth meerly by unjuſt means: for, (as was before noted of injuſtice in the acquiſition of Goods) there may be a miſcarriage incident to, which is not of the ſubſtance of the Magiſtrates ingreſſe into, or tenure of authority. There is a faultineſſe in the very nature, or eſſence, and conſtitution; and a faultineſſe in ſome circumſtances of the acquiſition of authority. A man may come into, or hold the throne by a juſt title of perſonal election, or hereditary ſucceſſion, and yet ſome indirect, or undue paſſage may be interwoven in the election, or the actuating of that ſucceſſion; which notwithſtanding, the election, or ſucceſſion, being for ſubſtance lawfull, there is a true Magiſtracy, or reall authority deſcending on that perſon. But where the place of power is meerly uſurped, (or as are the words of that concluſion we are refelling, moſt unjuſtly obtained) there is a Magiſtrate but verbo te…us; a ſtyle without truth; a barely pretended, nominal, equivocall authority; and therefore no reall denomination.