Treatise of Civil Policy, Treatise · Question 1 – Question 2
QUEST. I. In what ſenſe Government is from God?
I Reduce all that I am to ſpeak of the power of Kings, to the Author or efficient. 2. The matter or ſubject. 3. The form or power. 4. The end and fruit of their Government; And 5. to ſome caſes of reſiſtance. Henc;
Queſt. I. Whether Government be warranted by a divine Law?
The queſtion is, either of Government in generall, or of the particular ſpecies of Government; ſuch as are Government by one only, called Monarchy; the Government by ſome chief leading men, named Ariſtocracie; the Government by the people, going under the name of Democracie. 2. We cannot but put difference betwixt the inſtitution of the Office, to wit, Government, and the deſignation of perſon, or perſons to the Office. 3. What is warranted by the direction of natures light, is warranted by the Law of nature, and conſequently by a divine Law; for who can deny the Law of nature to be a divine Law?
That power of Government in generall muſt be from God: IHow Government is from God. make good, 1. Becauſe, Rom. 13.—1. there is no power but of God; the powers that be, are ordained of God. 2. God commandeth obedience, and ſo ſubjection of conſcience to powers, Rom. 13. 5. Wherefore we muſt be ſubject not onelyonly for wrath (or civill puniſhment) but for conſcience ſake, 1 Pet. 2. 13. Submit your ſelves to every ordinance of man for the Lords ſake, whether it be to the King as Supreme, &c.▪ Now God onelyonly by a divine Law can lay a band of ſubjection on the conſcience, tying men to guilt, and puniſhment, if they tranſgr…ſſe.
2. Concluſ. All civill power is immediately from God in its root.Civill power in the root immediately from God. In that, 1. God hath made man a ſociall creature, and one who inclineth to be governed by man; then certainly he muſt have put this power in mans nature: ſo are we by good reaſon taught by aAriſtot. polit. l. 1. c. 2.Ariſtotle.
2. God and nature intendeth the policie and peace of mankinde, then muſt God and nature have given to mankinde, a power to compaſſe this end; and this muſt be a power of Government. I ſee not then why John Prelate, Maſter Maxwel the excommunicate P. of Roſſe, who ſpeaketh in the name bSacro ſanc. reg. majeſtas, c. 1. p. 1.of I. A…magh, had reaſon to ſay, That he feared that we fancied, that the Government of Superiours was onelyonly for the more perfit, but have no Authoritie over or above the perfit, Nec Rex, nec Lex, juſto poſita. He might have imputed this to the Braſilians, who teach, That every ſingle man hath the power of the ſword to revenge his own injuries, as cMolina to. …. de juſtit. disp. 22.Molina ſaith.
QUEST. II. Whether or not, Government be warranted by the Law of nature.
AS domeſtick ſocietie is by natures inſtinct, ſo is civill ſocietie naturall, in radice, in the root, and voluntary, in modo, in the manner of coaleſcing. Politick power of Government, agreeth not to man, ſingly, as one man, except in that root of reaſonable nature; but ſuppoſing that men be combined in ſocieties, or that one family cannot contain a ſocietie, it is naturall, that they joyn in a civill ſocietie, though the manner of Union in a politick body; as dBodin. de rep. l. 1. c. 6.Bodine ſaith, be voluntary, Gen. 10. 10. Gen. 15. 7. and eSuarez to. 1. delegib. l. 3. c. 3.Suarez ſaith, That a power of making Laws, is given by God as a property flowing from nature, Qui dat formam, dat conſequentia ad formam, Not by any ſpeciall action or grant, different from creation, nor will he have it to reſult from nature, while men be united into one politick body: which Union being made, that power followeth without any new action of the will,
We are to diſtinguiſh betwixt a power of Government, and aCivill ſocietie …ow naturall. power of Government by Magiſtracy. That we defend our ſelves from violence by violence, is a conſequent of unbroken and ſin-leſſe nature; but that we defend our ſelves by devolving our power over in the hands of one, or more Rulers, ſeemeth rather poſitively morall, then naturall, except that it is naturall for the childe to expect help againſt violence, from his father: For which cauſe IPower of Government, and of Government by Magiſtrates different. judge that learned Senator fVaſquez illuſt. quaeſt. l. 1. c. 41. num. 28, 29.Ferdinandus Vaſquius ſaid well, That Princedom, Empire, Kingdom, or Iuriſdiction hath its riſe from a poſitive and ſecundary law of Nations, and not from the law of pure Nature. gL. 2. in princ. F. de inſt. & jur. & in princ. Inſt. Cod. tit. c. jus nat. 1. disp.The Law ſaith, there is no law of Nature agreeing to all living creatures for ſuperiority; for by no reaſon in Nature, hath a Boar dominion over a Boar, a Lyon over a Lyon, a Dragon over a Dragon, a Bull over a Bull: And if all Men be born equally free (as I hope to prove) there is no reaſon in Nature, why one Man ſhould be King and Lord over another; therefore while I be otherwiſe taught by the forecaſten Prelate Maxwell, I conceive all juriſdiction of Man over Man, to be as it were Artificiall and Poſitive, and that it inferreth ſome ſervitude, whereof Nature from the womb hath freed us, if you except that ſubjection of children to parents, and the wife to the husband; and the hDominium eſt jus quoddam. l. ſin. ad med. C. de long. temp. preſt. l. qui uſum fert. Civil ſubjection formally not natures Law.Law ſaith, De jure gentium ſecundarius eſt omnis principatus. 2. This alſo the Scripture proveth, while as the exalting of Saul or David above their Brethren to be Kings, and Captains of the Lords people, is aſcribed, not to Nature, (for King and Beggar ſpring of one clay-mettall) but to an act of Divine bounty and grace, above Nature, ſo Pſal. 78. 70, 71. He took David from following the Ewes, and made him King and feeder of his people, 1 Sam. 13. 13.
There is no cauſe why Royalliſts ſhould deny Government to be naturall, but to be altogether from God, and that the Kingly power is immediatly and only from God; becauſe it is not naturall to us to ſubject to Government, but againſt Nature, and againſt the hair for us to reſign our liberty to a King, or any Ruler or Rulers; for this is much for us, and proveth not but Government is naturall; it concludeth that a power of Government tali modo, by Magiſtracy, is not naturall, but this is but a Sophiſme; a foreign, ad illud quod eſt dictum foreign, this ſpeciall of Government, by reſignation of our liberty, is not naturall; Ergo, power of Government is not naturall; it followeth not, a negatione speciei non ſequitur negatio generis, non eſt homo, Our conſent to Laws not antecedently naturall.ergo non eſt animal. And by the ſame reaſon I may by an antecedent will, agree to a Magiſtrate and a Law, that I may be ruled in a politick Society, and by a conſequent will onelyonly, yea and conditionally onelyonly agree to the penalty and puniſhment of the Law; and it is moſt true, no man by the inſtinct of Nature giveth conſent to Penall Laws as Penall, for Nature doth not teach a man, nor incline his ſpirit to yeeld that his life ſhall be taken away by the ſword, and his blood ſhed, except in this remote ground, a man hath a diſpoſition, that a veine be cutt by the Phyſitian, or a Member of his body cut off, rather then the whole body and life periſh by ſome contagious diſeaſe; but here reaſon in cold blood, not a naturall diſpoſition is the neereſt prevalent cauſe, and diſpoſer of the buſineſſe▪ When therefore a communitie by natures inſtinct and guidance, incline to Government, and to defend themſelves from violence; they do not by that inſtinct formally agree to Government by Magiſtrates; and when a naturall conſcience giveth a deliberate conſent to good Laws, as to this, He that doth violence to the life of a man, by man ſhall his blood be ſhed, Gen. 9. 6. He doth tacitely conſent that his own blood ſhall be ſhed; but this he conſenteth unto conſequently, tacitely, and conditionally. If he ſhall do violence to the life of his brother: Yet ſo as this conſent proceedeth not from a diſpoſition every way purely naturall. I grant, reaſon may be neceſſitated to aſſent to the concluſion, being as it were forced by the prevalent power of the evidence of an inſuperable and invincible light in the premiſes, yet from naturall affections there reſulteth an act of ſelf-love, for ſelf-preſervation. So David ſhall condemn another rich man who hath many Lambs, and robbeth his poor brother of his one Lamb, and yet not condemn himſelf, though he be moſt deep in that fault, 1 Sam. 12. 5, 6. yet all this doth not hinder, butGovernment by Rulers a ſecondary Law of nature. Government even by Rulers hath its ground in a ſecondary Law of nature, which Lawyers call, ſecundariò jus naturale, or jus gentium ſecundarium; a ſecondary Law of nature, which is granted by Plato, and denied by none of ſound judgement in a ſound ſenſe, and that is this, Licet vim virepellere, It is lawfull to repeal violence by violence, and this is a ſpeciall act of the Magiſtrate.
2. But there is no reaſon, why we may not defend by good reaſons, that politick Societies, Rulers, Cities, and Incorporations, have their riſe and ſpring from the ſecundary Law of nature: 1. Becauſe by Natures Law, Family-Government hath its warrant; and Adam though there had never been any poſitive Law, had a power of governing his own family, and puniſhing malefactors; but as aAd Tannerus, m. 12. tom. 2. disp. 5. de peccatis, q. 5. dub. 1. num. 22.Tannerus ſaith well, and as I ſhall prove God willing, this was not properly a Royall or Monarchicall power; and I judge by the reaſoning of bSotus 4. de juſtit. q. 4▪ ar. 1.Sotus, cLod. Molina, to. 1. de juſt. disp. 22.Molina, and dVictoria in relect. de potest. civil. q. 4. art. …. Family Government and civil different.Victoria. By what reaſon a Family hath a power of Government, and of puniſhing Malefactors, that ſame power muſt be in a ſocietie o… men, Suppoſe that ſoci…tie were not made up of Families, but of ſingle perſons; for the power of puniſhing ill-doers doth not reſide in one ſingle man of a familie, or in them all, as they are ſingle private perſons, but as they are in a familie. But this argument holdeth not but by proportion; for paternall government, or a fatherly power of parents over their families, and a politick power of a Magiſtrate over many families, are powers different in nature, the one being warranted by natures law even in its ſpecies, the other being in its ſpece and kind warranted by a poſitive law, and in the generall only warranted by a law of nature.
2. If we once lay the ſuppoſition, that God hath immediately byCivill government, by conſequent, naturall. the law of nature appointed there ſhould be a Government; and mediately defined by the dictate of naturall light in a communitie, that there ſhall be one, or many Rulers to governe the Communitie; then the Scriptures arguments may well be drawn out of the ſchoolRom. 13. of nature: as, 1. The powers that are, be of God; therefore natures light teacheth, that we ſhould be ſubject to theſe powers. 2. It is againſt natures light to reſiſt the ordinance of God. 3. Not to feare him to whom God hath committed the ſword, for the terror of evill doers. 4. Not to honour the publike rewarder of well-doing. 5. Not to pay tribute to him for his worke. Therefore I ſee not but eG…rruvias, tr. 2. pract. queſt. 1. n 2, 3, 4Govarruvias, fSoto lo…. …t.Soto, gSuarez de Reg. lib. 3. c. 4. n. 1, 2.Suarez, have rightly ſaid, that power of Government is immediately from God, and this or this definite power is mediately from God, proceeding from God by the mediation of the conſent of a Communitie, which reſigneth their power to one or moe Rulers: and to me hBarclaius con. Monarchoma, l. 3. c. 2.Barclaius ſaith the ſame: quamvis populus potentiae largitor videatur, &c.