Touching our Present Impositions of Loyalty and Obedience, Chapter 2
CHAP. II. The Ground upon which all Lawfulness for any People to endeavour the change of Government when it proves grievous to them is Founded, rendered insufficient and dissolute to our State.
NOt that we live without Intelligence from daily History of the lubricity and common mutations of this World, both as to persons and States or Kingdoms; Nor can it be hid from the considerate how deep a root and footing there is in Politicks for the same; which do receive a diverse Measure and Judgment according to the condition of Time, Place, Person and Constitution, where they are made. There is no Authority (it is pleaded) one man could have over another, who by Nature are equall, but he must Cedere de jure suo, and let him have it by consent: so that all Power Originally was given to their Rulers by the people, and to the common good, and if they use it therefore to their hurt, they may take it away again.
For demolishing those strong Towers of Liberty and Insurrection, which have been, or may be built on this Foundation, I am not Ignorant of the more ancient device, promoted afresh by a late great name, that would do it effectually, if the difficulty of that way were not so apparent and inextricable as a man cannot abide by it, and that is, by deriving all Government from Paternity or Genarchy. But besides that, a man can hardly be content to have that made the Basis and proper Title to Magistracy, as will leave us never a Magistrate of the right Stamp in the Universal World, since Noah and his Sons deceased: It is manifest, as Authors do distinguish their Oeconomicks and Politicks, so is the Power of a Father and the Magistrate really different, in the kind, and foundation of the Relation; the one being of Choice, the other of Nature. Quasi vero nihil intersit inter magnam domum, & parvam civitatem, says Aristotle in his Pol. l. 1. at the beginning. Over a Multitude (says Hooker Ec. Pol. l. 1. §. 10.) consisting of many Families having no dependency on one, as the Family or the Father, impossible it is that any should have compleat lawful Power but by consent, of men, or immediate appointment of God. These words (though but a few of many) are directions enough in this point. I am perswaded (says a sober Writer for Monarchy, in the late distractions) it will appear an uncontrollable truth in Policy, that the consent of the people, either by themselves or Ancestors, is the only mean in ordinary Providence, by which Sovereignty is conferred on a person or family. It is not for me therefore, to go here against the Stream of so much light. I must acknowledg that a Community of men are not a Herd, to be driven into Government; but as subjection is a Moral act, and they free agents, they do come into the same by agreement, and that through a kind of Potestative act, as I am apt to conceive of it, unto which, as they are commanded, they must be Authorized by the Will of God.
We must know therefore, where there is a Company of Persons and Families in a Vicinity fitted for receiving a form of Government not yet introduced, this is called a Community; who though they have a propriety of what they possess, and liberty of person, and consequently an equality in respect of one another, yet is there, according to Nature, a Superiority in the Ʋniversal over each Singular person; that the giving place of all distributively, to the good of all collectively, is not free in soro interiori, in regard of Conscience, when it is free from any, in foro exteriori, in regard of Compulsion. It is a question whether a Community (as just now defined) be obliged to enter Society for the common end of Government, or no? That is, whether Sponte adducti, or Dei praecepto they do coire into a Commonwealth? I see what has passed from Grotius, but if it be not a duty from the light of Nature (which is Gods precept) then is not a Commonwealth from Nature (which the Bees teach us) and Government from divine institution, when yet the Text tells us, it is the Ordinance of God. If it be, then must the same Law of Nature, that requires men to enter Societies, require that some should follow, and some lead in the doing. Those that lead are the prevalent part, whether by Wisdom, Riches, Valour, Goodness, or bare Majority. The providence of God that designs the persons in all Governments, designs these to the leading the rest unto Government. These act as they represent the Universal, and in that name they have right. Now a right to lead from God is Potestas. There may be Potestas (as potestas ordinis) which is not coercive. This power in the Community is not to all purposes, but to this purpose. It is their Office to consider and determine what Government is best for them, and so to frame their constitution and appoint their Governour. If they have not Authority from God to do this, how comes the constitution to be binding to Posterity, and have the preheminence over all the Laws that succeed? If no Law can be made but by Authority, can a Constitution be made without any? A right to frame the Constitution, and to bind others, must be Power. If the least Law be from a higher Power, the greatest must be the highest; and Maxima potestas is Sovereignty. What then can be more ingenuous upon this, when in a Community, as a Community, there are no persons yet chosen in whom the Power shall reside, to distinguish with Bisoldus and other Politicks in this manner. There is Majestas duplex, realis and personalis. Real Sovereignty is in the Community for the Constituting a Commonwealth, Personal in the Magistrate to administer it.
Suppose a company of Families together under no mans jurisdiction. Frame we our Politicks. What are these people here to do? The Natural answer I think is, they are to do what is best for them. There are some of them think it best for them to remain Independent, but if it be not best for the generality to enter Society, Society shall not be of Nature, for therefore it is of God and Nature because it is best. Here the first thing that appears in Policy, is this, that there is a Good arising from their being or living together, unto which they all of them have right. If Society be not best to some of them, as they think, in regard of their particular interest, there does appear next a right in the Ʋniversal that must take place of that right in the Singulars, as to the aforesaid good. This good however lies in the mutual help and assistance which by God they are bound, and able, to yield one another, if they do their Duty. To fetch this good out it is necessary they agree to an order of Superiority and Inferiority (which is a Commonwealth) wherein some may be appointed to see that men do this duty by compelling the refractory, and encouraging the willing, that the good be obtained, which they as a Community, while the Families are equal, are not capable to do. And these are Gods Ministers (says the Apostle) attending continually upon this very thing. Here then appears these two Powers, the real and the personal; a Power to constitute a Governour, and a Power to Govern. The right vntounto the good, which is the end of the Government and Governour, belongs not to any one, but to every one, not to the Governour, but Community, and to him as one of them only. The Sovereignty then radically is in the Community, but the life and activity of it cannot be exerted but by a personal Sovereign, whose power begins where theirs stops, to the attainment of the same very thing in their behalf for them. There is power therefore in the Community to its proper purpose, and there is power in the Governour. The power of the Community is not Governing as the Magistrates is, and the Governours power is not to make the Constitution, as is that of the Community. These powers mingle not, nor hurt one another.
The jura Regalia or prerogatives indicate a Sovereign; The prime Regalia are making Laws, and constituting Officers: the Community makes the constitution & constitutes the Governour. Is not that real Sovereignty? The Universality is the end of the commonwealth, the finis cui for whose good it is framed, and the efficient under God that frames it, and in this respect it is foreign a humane creature; what title then can be attributed less hereunto then Sovereignty on that account? Suppose me in a Community where I have propriety of Goods and Liberty of Person, Does not the law of Nature bind me to consent to my own loss in particular for the benefit of the many? Charity I know barely, requires me not to mind my own things onelyonly, but the things of others, but doth Charity bind me to prefer other mens? Charity begins at home, and requires me to love my Neighbour as my self, not above my self, and how then could this really be, unless the Ʋniversi did virtually & eminenter praeesse singulis, and the singuli a Deo & Natura universis subderentur? In the collective body (says Hooker) that hath not derived as yet the principality of power into some one, or few, the whole of necessity must be head over each part, otherwise it could not have power possibly to make any one certain head; inasmuch as the power of making a head, belongeth unto head-ship. If there be not potestas in the Community, then is the constitution of a Nation no Law, the grand Law, the very Law of the Land no Law, which methinks is ill. If it be not Law before, but made so by the Princes subsequent act, then may he by a Sovereign act reverse it again, which will be worse. If it be no Law, then it is a Covenant, or Contract, but how shall that be a Contract which is made by one party, to wit, the Community about a Sovereign, while yet they have none? Nay what if the constitution be to have their Sovereign by Vote or Lot, how shall that be a contract between the Sovereign and Subject, when the Sovereign is not yet chose? A contract, I think farther, binds not a Successour, but by virtue of its being Law. And that which is yet worst to the main business, if one party breaks a meer Covenant, the other is disobliged.
After this unto the great Plea in hand, I shall put in my doubt, and answer.
I doubt here, that those golden days which Writers of Politicks have Fancied in all Nations, supposing them to have Model'd their own Government (as a body at first without a form) and chose their Governours according to it, may deceive us: seeing the first Lords and Rulers of the Earth (as Nimrod) got their Dominions by violence, and the people we may conceive after obtained such exemptions and liberties they could from them, in their Successions. Let us distinguish therefore between these two questions, what is de jure in Politicks, and what hath been, or is de facto? We discourse ordinarily on this Subject, and I think ought to do, as we conceive of things de jure, when if we enquire thereof strictly de facto, we shall find some little matter that is near or like to what our Politicians do write, and that is virtually to go for the same. The more solemn though, a Government is in forming, and the nearer to such principles it comes, the more desirable is it by man, and the more approved by God. In that Government therefore wherein God hath been himself an Author to us in Politicks (who knows the best Rules to go by) when the people would have a King, and set up another Government, he directs this course. Samuel is to tell them first the Manner of their King, or Kingdom (so it is express'd in two places) that is, the Constitution of their Government, unto which they consent, and then is their King introduced, and this constitution wrote in a Book, and laid up before the Lord. There is but a resemblance of this happily in the constitution of most Kingdoms in the World, yet is the agreement of the people mediate or immediate, tacite or express, so necessary, that a people who are Conquered cannot be Governed as men by the Victor, without their consent; and his Victory tends only to give him a right by inducing them to a dedition, which being done upon saving their lives, his grace and protection, there remains some shaddow yet of a Constitution.
I answer then, if the supposition were true, that the power of the Ruler was given by the people, as well as their consent is required to it, and it came indeed Originally from them, then were the consequence perhaps not irrational. But our Text tells us otherwise, The Powers that be, are ordained of God. Let me understand my own answer. If when a Community set up Government and made them a Ruler, they were at their own liberty, and might choose whether they would or no, so that the Will alone of the people was the Original of the Rulers Power, and that be a Foundation to bear it, then would this double consequence I take it be good. The one, that They who were willing before to have such a one for their Governour, to the end of Government, that is, for the common good, and he abuses his Authority to their hurt, must needs be willing no longer; for, the End which was the reason of their Will failing, their Will must cease also. The other is, that they ceasing to be willing, and their Will being the prime cause and fountain of the Power, the Cause ceasing, the Power, which is the Effect, must cease with it. But the matter is not indeed so, There are no people I apprehend are at their own liberty, but under the command of God to enter Society, and yield to government for his glory; so that it is not the Will of the people but the Sovereign Will of Almighty God that is the Original of Power, and can be alone a Basis sufficient for it. For Dominion being founded in propriety, and God alone being the proper Lord of his creatures (as hath been expressed in the former chapter) there is no mortal can have right to use, or rule over, any of them, but by a grant of his. This grant, I have said farther, does lie in an Act of his Will, which is passed in his Word, and the light of Nature. I add now, this Note. Government in the Ruler may be look'd upon as his Office and Duty, and so this Act of Gods Will may be called his Precept; or as a Right and Dignity, and so it is to be styled a Grant or Commission: But whether you call it one or the other name, this Will of God is the thing from whence all Power in the World is derived and owed. It follows not therefore that when a Governour abuses his Power, and the people cease their consent, that his Authority ceases: because the Authority which is not received without their consent, does not depend upon that consent as the cause and root of it, but on the standing Will of God.
I will borrow a Simile from a late Writer, whereby he would shew how the Ministerial power does not flow from man in Orders, but immediately from Christ. It is applicable as well here. In Cities or Corporate Towns they have a Charter, which does allow them to choose such or such a person, to swear him, and perform such ceremonies; but when these things are done as appointed, the Power or Authority he hath to be Mayor for that year, flows immediately from the Charter, or grant of the King. Thus it is with the Supreme Power, in reference to its Original. There is an institution or Charter from God, writ in the Law of Nature and the Word, that there shall be Authority in some, and Subjection in others, which allows men liberty to form what Government is best for them: but when the Constitution is made, and the designation of the person or persons to govern according to that constitution, the power of the Supremacy flows immediately not from that Constitution, Election, Coronation (though by the Constitution it is qualified 'tis true,) but from that Charter which is Divine. And that this is indeed so, it may appear from those titles God takes of King of Kings, and Lord of Lords. By me Kings reign, and the like. That is, a Universal Sovereignty is attributed to him, of whom the whole Family in Earth and Heaven is named; so that as there is no Subject can have any Rule in a Land (as in the instance before mentioned) but he must derive it from the King or the Supreme there: so is there no King or Potentate in the Earth can hold his Supreme Authority over any one single Nation, but he must hold it both from and under him who is the Sovereign of the World. And hence it is that Gods representation they bear, I have said, ye are Gods, and it is recorded, They worshipped God, and their King.
You may say what does this inferr, The Power of the Magistrate which is Temporary, or Pactionary, is from God and immediately, as much as that of any Hereditary absolute Prince, Does it follow therefore that his Power cannot be taken away again? I answer, it follows that it cannot be taken away but on the terms it was received. If a Government be Pactionary, and the Magistrate breaks with the people, it is true that he must forfeit notwithstanding his Power is immediately from God: But if it be not so, the deriving the Power from God immediately, does render it inviolable from that consent that was yet at first required to its possession. The reason of both being, because the Power passes from God with the Qualification it hath put on it by man in the Constitution, if that hath rendered it conditional, so God will have it to pass: if there be no such Qualification put on it thereby at the passing, it once being passed, cannot be revoked by man to be qualified otherwise, because it is not from him that it comes.
Unto Government there goes something of Divine and something of Humane institution. That which is Divine flows from God immediatly that which is Humane mediately. To flow immediately from God is to flow so from him as that nothing comes as a cause between his Will and the Effect. To flow from him mediately is when there are second causes concurr to the same. The Quailfication of all Government is from God mediately, because he hath referred that to mans liberty for good reasons regarding humane Nature and consent, and the will of man comes between God and it, so that, that is immediately according to Mans will, and mediately according to Gods. But the Power it self is from God immediateiy, because there is nothing comes between the grant or warrant, and the right, as any cause of it else; there is only a disposition of the Subject, which being put, the form flows as into the matter immediately from that Will. From whomsoever the form of any Government and the qualification of the Power according to that form does arise, the Power it self comes from above. Aliud est imperium (says Grotius) aliud habendi modus. Power in the Community is Native, or belongs to the universal over the singulars without Concession. Power personal in Commonwealths orderly framed is Conventional, upon consent, but that consent comes between only as Conditio, that is, Causa sine qua non (the Constitution must first be framed) but it concurrs not per modum causae efficaciter operantis, to conferr or give the same. It is Gods Will, not Mans does that. They are Gods Ministers says the Text. You could have no Power unless it were given you of God.
You may say if there be a real Sovereignty in the people, and they may choose what Commonwealth they please, and have what Supreme Governour they please; and he shall have no more Power, nor no otherwise then they allow and appoint, nay and he shall keep his Power no longer, and be lyable to be turned out of Power for mal-administration, if they at first so agree (all which is certain in their liberty only to frame their own Constitution): how shall we deny but the people give the Power, or how shall we say he derives the same from God? I answer, In the first place, when I call that right in the Community to frame their Constitution real Sovereignty, this expression makes nor marrs any thing as to the main business, only in regard the Constitution is the highest Law, and Legislation is the chief Right of Majesty, and the Community have that right from God to make their Constitution, here is that thing I count certainly which Sovereignty is, and to give it that name hereupon that others have done, will, I hope, offend no body: But as for the substance of the Objection, it is forelaid and prevented already. There is the Power it self, and the Qualification of it. The qualification, ordering, or disposition of the Power in what form of Government or Governours, as it may conduce best to the end appointed of God, that is, the Common good, is left to the liberty of man, and so is immediately from him, or as he appoints, but the Power it self, I say, is immediately from God. I have likewise presented you my understanding hereof. There is one and the same Charter or Institution of God in Nature, whereby he commands or wills a double Power, in a double Subject, and as two distinct rights in those two Subjects, the one is a right or Power to constitute a Commonwealth, the other is to Govern it. The Constitution is one thing, the Administration another. To argue that the Power of the Community is not such a Power as the personal Sovereign's is, which is coercive, therefore there is no Potestas in a Community, is all one as to say, there is no Power in the Prince to make the Constitution, and that being the highest point of Law-making, and Legislation makes a Sovereign, Ergo, he has not Maximam Potestatem, which is Sovereignty, These are two rights then distinct, yet as they agree sub eodem genere and are both Power, they equally flow from the same institution of God. God wills that a Community should frame their constitution, this gives them right to do it; A right of making any law or laws to bind others (even the governour and governed) is not Power only, I take it, but Sovereign Power. It is Gods will also, that according to the Constitution made, a Commonwealth should be Defended from enemies, by making Warand Peace: and Governed in making Lawsand Officers for the administration, and doing Justice to the Subjects, in rewards and punishments. This gives the Governour his right, and from thence he will derive it. It is true also that the Constitution puts an extension or limits upon these rights of the Governour according to the consent of the Community, because it is Gods Will also it should be so, that no man may lift up himself above his Bretheren but for their good: Yet is the Power in the abstract (when the Qualification thereof, I say still, is from man) only and immediately from God. I will renew the Simile before. Suppose a Prince should grant a Charter to any City not only to choose them a Magistrate which he hath appointed, but to appoint what Magistrate they please for themselves, to prescribe Laws and Rules for him to Act by, and that they may choose him absolutely for his time, or conditionally, and upon his Misdemeanour actually depose him, and then being in statu quo, constitute another kind of Governour, and other rules which they judg better, holding still under the King, who is there will not say this is Authority? and yet if they do not put him down, or choose him conditionally, the jus or right from the Charter (seeing they might if they would) is the same thing. If they shall choose him absolutely, and he break their Rules and his own Engagements, they may repent they chose him not conditionally at first, and they may complain to the King, they may cry to him, and he may punish him or remove him, but they themselves cannot, the remedy now is out of their hands. The reason is (what has been given) because that neither the Power by which they acted in constituting of him was their own, nor that Power he received upon that constitution, theirs, but both of them derived to them from that Charter of the King. I need make no application, only I would here shew that there is Potestas in a Community, and that this Potestas, when a Government is absolute, can do the Governour no hurt. In Marriage the consent of the Man and the Woman makes the Husband and Wife, but their consent will not dissolve the Marriage again, because the authority the Husband has over the Wife, flows not from that consent, but from the Law and Institution of God. So may there be in some Commonwealths a consent of the people peculiar to them, that is, necessary to their making the Supreme Magistrate, but the authority flowing from God and not them, it is not in their power to reverse what they have done. Provided though, it be not fore-agreed to the contrary in the fundamental coagulation of any State, for when the imperium ipsum is aliunde, the modus habendi must follow that agreement. Indeed if a Marriage-contract be broken, and a Woman become an Adulteress, the Man may withdraw his consent and put her away: when if the Prince who is absolute break his promise, the people cannot depose him for all that. The reason I would assign is, because that Marriage is in the nature of a Contract only, and so one party breaking it, the other is loosed: but the constitution of a Land which makes the Prince and Subject, is a Law, and if one person neglect to perform his duty which a Law requires of him, that does not priviledge another under the same to do so also.
Whither this drives then, you may begin now to conjecture. You are ready to say perhaps, But is not this notion of Real Sovereignty in the Community, that, that should be Law which they at first agree and conclude upon, something dangerous to Anointed Majesty? And why do you not fall in with those that oppose it, rather then with Hooker and the Stream that runs ordinarily in the sense or purport of it? I answer, you may judg by the sequel as to the one, and I will offer you a reason why, as to the other. I do apprehend by some opposition which is made against this notion (wherein there is little fear of what was done so many hundred or thousand years ago) that those who leave the light and benefit of this, must receive other notions, which if they be not more dangerous to Government, they are more irrefragably destructive to the Doctrine here undertaken. The Constitution is that which makes the King, Lex facit Regem say the Lawyers. What Law? not that Law which he makes, for that cannot make him, that was made by him, but the fundamental Law, or Laws of the Constitution, and the Law in our Books, as declarative of that. Now if the Constitution of a Nation do not proceed from Power in the Community, that is, from such an authority from God, given at first to them for this purpose, as shall be obligatory as a Law, then must it have the virtue of a Contract only, which must be supposed originally to be made between the people not yet Subjects, but free, and the Sovereign; And then whatsoever rights are found to be exempted in the fundamental Laws of this Contract from the Princes power, they must be kept inviolable to the people, or else the Constitution is dissolv'd, and they shall be free from their Allegiance. Thus shall the Cause in the late Wars, and those of the Barons be full Stated. Thus can there no right orderly framed Government in the Earth, be an absolute Government. Thus must there be no fundamental liberties of the people of this Land, or of one, above others, but the King must be Pactionary, and the Prince no absolute Prince. Thus the Parliament representing the people as Trustees to secure their liberties upon the violation of any of them, shall be justified if they raise a new Warr to our endless confusion. But if we make the Constitution of a Land an Act of the highest Sovereignty (which we call real, as virtually being such) that being Authorized by God, does therefore become the standing Law to Posterity, (as the ancient Land-marks set by the Elders,) never to be removed, then must the Power which is absolutely derived on any person and his Successors, continue inviolable against this assault, which is the strongest I suppose that can be made at any time for Rebellion. For seeing it pleased Almighty God at first to leave the Real Sovereign (who goes down I will account when the Personal ariscs, leaving us but one Sun in our State at once) at perfect liberty to its proper Power (to wit the Qualification of the Government) so that the Community might make what Laws for the Constitution they pleased, and put a condition on them if they would, to wit that if the Prince broke them, or any of them, he should forfeit and loose his Dignity, but they thought best that their Prince should be absolute and his Oath only taken, leaving him, if he break it, to the Almighty: this Constitution being made, and the Power flowing to him from God immediately with no other qualifications then is put on it by the Costitution, it must remain irrevokeable, against all future contradiction. I am therefore very little offended with the Politica of Mr. Lawson, that dexterous person in this sort of Learning, whose book considering the time it came out, both for its Light into Civil Government, and his peculiar notion of Ecclesiastical, as Nationally Independent, whereby in his capacity he strewed the way at that season, for return of King and Bishop, is not to be envied its due praise, and cautious use to be made of it.
There is a question or two, you may yet ask me. The Power of a Commonwealth lies in its Sovereign; The Commonwealth virtually is in the Community, The Power consequently must virtually be there also; Yet is not the Power of the Sovereign the same with the Communities, yea, nor conferred by it, but given of God. How will you make these agree? How is it then? Ans. Why thus. All Power is from above, That which is from above, is Gods Will, a grant, passed in the divine Law concerning Man. The grant is not to the Sovereign but to the Community: The Charter in the Simile before, is the Cities Charter not the Mayors. If there be something granted then to the Community that the Sovereign has not, and to the Sovereign, that which the Community is not capable of, then is there distinct Powers; And the Powers being so, it appears that, although what is done by the Community in order to the Power of the personal Sovereign be acts of a preceding Power in them, that power of theirs does not make them Donours or intermediate causes of the personal Power, because his and theirs doth both flow, as hath been said, from the same grant. Indeed they are causes of the qualification (as is inculcated) which comprizes the Manner of their Kingdom with the particular person or persons Reigning, and upon that account are the people said truly to make their King, but as for the Power it self (the qualification being put) nothing is able to come between it and God. De Regum authoritate, quod ex jure Divino non sit, quod immediate a Deo non descendat—sed mediante corpore collectivo— Tortus probat; Asseri enim Scriptorum sententia communi—De regno etiam in Rempublicam interdum mutato apponit—Acutus Homo non distinguit inter f…rmam, at{que} Authoritatem Regiminis. Forma de hominibus esse potest, de Caelo semper Authoritas. Bishop Andrews. Ad M. Torti librum Responsio. p. 384, 385.
One thing more and that is the last. But what if a man cannot distinguish between the Concrete and the Abstract, the Qualification and the Power, and so holds only in grosse that God is the prime Cause, and Men the second Causes or Instruments (which is a Cause) of the Power of the Magistrate. Suppose their conceptions thus. Pilate's Power (says Christ) was given him of God, yet did he hold it by Commission from Caesar. Gods Will is, that Caesar should be Emperour, Caesar's Will is, that Pilate should be Governour of the Jews; Thus Pilate hath his Power from God. Real Sovereignty in a Community is Native and Immediate from God; The personal Sovereign is constituted by the Community; Under Officers by the Prince; Thus all Power is of God. It may be ask'd then, What prejudice is it, would come to our Cause in hand by this? I answer, I think the Nail is driven closer by more blows, but if it have no more. I suppose it will, hold so long only as we resolve Civil Power into the Will Institutive of God, and not into the Will of Man. Indeed we cannot (I think) do that cleerly but by this distinction, something being left to Mans Will in it, and something not; but if any list to confound them, and hold the same thing more confusedly, or to disprove this, and be contentious, I am no Dogmatical Opinatour in my conceptions. There is this benefit (I will add rather) may arise upon their supposition, that the Original of Magistracy will lie more easy for the common understanding then it does. Civil Power hereby shall be Potestas a naturali Orta, though not Naturalis; Neither shall there need be for any in the deriving the Power of a Prince from God to Sweat so much as to make him a pedigree from Noah, that holds only the Community have Potestatem in what they do. God empowers the Community to make the Constitution; The Constitution empowers (they may say, designs I say) the Magistrate; Thus the Power is of God. Deus Author, Populus instrumentum says Barclay. Dicitur etiam constituere Regem Deus cum a populo fieri praecipit, quod potentiam dominationis instituto regi delatam ita confirmat, ut infringi a populo, aut infirmari amplius, nulla ratione possit. l. 2. c. 2. As there is no more certain argument that Lands are held under any as Lords, then if we see that such Lands in defect of Heirs fall unto them by …scheat: In like manner it doth follow rightly, that seeing Dominion when there is none to inherit returneth to the Body; therefore they which before were Inheritors thereof did hold it with dependency on the Body, so that by comparing the Body with the Head as touching Power, it seemeth always to reside in both; Fundamentally and Radically in the one, in the other Derivatively; in the one the Habit, in the other the act of Power, says Mr. Hooker, aptly well I take it according to other Political Writers, but not perfectly well I think, according as it ought.
It is certain (to summ up all this) that this great person and others that write on Politicks and Laws as well as he, do seem …o give too much to the people when they make the Power which the Magistrate hath, to flow from them, and revert to them. Dicendum est Potestatem leges condendi ex sola rei natura in nullo singulari homine existere, sed in hominum collectione. Conclusio est communis & certa. Suarez. De Legibus. l. 3. c. 2. Again, c. 24. Cum immediate sit in Communitate per illam derivata est ad Reges. But we must be allowed here to distinguish in their behalf. And that first (as I have done) between the Power it self, and the Manner of the Government. Licet haec potestas absolute sit de jure naturae, determinatio ejus ad certum modum potestatis & regiminis est ex arbitrio humano, says the same Author. For the Manner of the Government they are in the right then, That is, from the people undoubtedly. For the Power it self, Distinguish next, between the Cause of it: and the Means through which, or Condition upon which, it flows. That the peoples consent or agreement is the Condition which must be first put before the Power is given, or that there is no ordinary Means else, whereby Power is conveyed to a person who has no right before, I do hold also for undeniable: but that the peoples Will is therefore the Cause efficient or Author of the Magistrates Authority we deny. By me Kings reign. The Powers that be, are of God. When the Power does then flow immediately from Gods Institution upon the consent of the people being put as the condition, Distinguish we again of this consent or agreement, which we may suppose to be made by way of Contract with the Prince: or between themselves by way of Constitution. I do apprehend it no less dangerous in Politicks to suppose the Power of the Prince derived to him by way of Contract, than to make the people the Original of it. For if Power concredited to these and these individuals be the Ordinance of men upon such conditions, then the Prince breaking those conditions looses his Power, or the Obligation of our Subjection must cease. Pacta conventa legibus Dei & naturae nituntur, a quibus nemo sanus unquam reges exemit says Serravia himself, l. 4. c. 9. The only thing therefore which is safe and agreeable, is, to suppose this consent among themselves, and to be, that the Government shall be Absolute. And so distinguish we lastly between a Power Constitutive, and Governing; a Power of making Laws for the Administration, or the Constitution. The people have no Power which is Governing Power, they can make no Laws to Govern, or for the Administration of the Government, in rewards and punishments: but they have Power and Liberty to choose their Government, and Governour, and their agreement herein is the Constitution. If they agree that the Governour shall not be accountable to any for his actions, the Authority coming immediately from God according to their Constitution, it must be inviolable, and who can have a word to say for Resistance, Non-Subjection, or Rebellion?