extrajudiciously notwithstanding he might have absolute knowledge of his Offence This laid down and there is nothing more evident it will be easie to determin how far the Obedience of Subjects is engaged in the various sorts of Government under which they resort As to those Governments or Powers which have no other Law but their own Will whether at first they were raised by way of Conquest which seems to reduce Subjects to the condition of Slaves or whether from lawful Governments they have by degrees degenerated into Tyranny by the Injustice of Sovereigns we ought naturally to distinguish between the use these Powers make of their Authority and their abusing of it by rendring their Authority unlawful and extending it beyond its just limits The Captain of a company of High-way-men that is a Father may exact of his Son the Obedience which a Child owes his Father but his quality of Captain of High-way-men does not give him any right to command his Son to rob or murther And so far is the Son from being obliged to obey such kind of Commands that he becomes Criminal by obeying them It is evident then That in these sorts of Governments as long as the Prince enacts Laws conformable to the fundamental Laws of the State and that he behaves himself as a Father of his Country there lies a necessity upon the People of obeying him and this necessity is founded upon their Relation to the Authority which is just and legal with respect to its Function and Exercise But we must judge otherwise when the Question is of unjust Laws which the Power enacts for the Oppression of his Subjects For then there seems no further necessity of obeying to lye upon the Subjects than what results from a desire of avoiding their own destruction which depends on the Pleasure of the Power that oppresseth them which cannot settle a lawful Right on Tyrants other than such as a Master may have over his Slave or Bondman according to the Laws of Servitude And as to Governments which are bounded by fundamental Laws it is apparent That the Powers having no Authority at all but according to the Laws whereby they are established their Subjects are set free from obeying them as soon as they transgress those Laws If a King who has no Power to make Laws will of his alone Authority undertake to publish any without the concurrence of those who share with him in the Legislative Power none of his Subjects are obliged to obey him If a King who has no right to lay any Taxes on his People undertake to charge them with Impositions the People are not obliged to pay ought of them If the King who has no Power to declare War doth do it without consent of the State the People are not obliged to go to War. Nothing is more visible than that Obedience may yet more justly be refused when Sovereigns undertake to overthrow the State in dispensing with all the Laws and in attempting to rule by an Arbitrary Power whereas the fundamental Laws of the State which are the Bond of the Society do only allow them a limited Power Hitherto our New Divines agree with others That Subjects are dispensed with from giving Obedience to an Illegal Power But forasmuch as a State must necessarily perish when subject to a Power that is resolved to overthrow all the Question is What may be expedient and lawful for People to do in this case There are but Two means imaginable to remedy so urging an Extremity The one is to resist the Power that abuseth his Authority thereby to oblige him for time to come to keep himself within the Bounds that are set him The other is to reject him altogether and to rid themselves of him when there appears no probability of reducing him to the terms of Justice and to the Rules of his Institution 'T is against these Two Articles our New Divines oppose themselves might and main They conceive on the one hand that though the People be not bound to obey unjust Commands yet they never can have any Right to resist the Sovereign Power no not when they make use of Violence to oblige the People to execute their wicked Designs This is the Doctrine of Non-resistance or Passive Obedience which has been so much agitated of late years And as to the other Article they maintain the People have yet less right to cast off their Princes or rid themselves of them how high soever the Abuses may be they commit in exceeding the bounds of their Authority and how Tyrannical or Arbitrary soever their Government may be That Sovereign Powers depend on none but God so that the People cannot without invading the Rights of the Deity undertake to depose or punish them These are the Points we are to consider at present I begin with Non-Rresistance otherwise called Passive-Obedience CHAP. VI. Concerning Non-resistance THis Doctrine of Non-resistance seems to me to be founded upon Three Suppositions which may be easily convinc'd of Falsity First These Gentlemen forge to themselves an Idea of Sovereign Powers and ascribe certain Rights to them which they afterwards look upon as Essential to Government and consequently as Rights inseparable from Sovereignty whatsoever sort of Sovereignty it may be Which Essential Rights according to their account are these First Not to be accountable to any but God. Secondly To have the whole disposal of the Sword. Thirdly To be exempt from all Coercive Power whatsoever Fourthly Not to be liable to suffer Resistance on any pretext Fifthly to be invested with the Legislative Power They conceive that without these Rights a Prince is still but a Subject and consequently that they are all Essential to Sovereign Power and therefore inseparable from it Upon these Premises they with ease establish this Conclusion That forasmuch as the Right of not being liable to Resistance is inseparably annexed to Sovereignty the People can never of Right resist their Princes on any pretext whatsoever If we object against this their Scheme That the Rights they attribute to Sovereignty are such as cannot agree with a Sovereignty limited by Laws which allow of Resistance because there can be no Authority but by Law and according to Law Whence it follows That it is lawful to Resist him who has no Authority They suppose in the Second place That all Limitations whatsoever do only respect the Exercise of the Sovereign Power without being able in the least to derogate from the Essentials of Sovereignty and that after all these Limitations are only the Effects of the consent of Sovereigns which proceeding only from their good will are revocable ipso facto as soon as it pleaseth them so to do The Third Supposition is this They pretend that the Holy Scripture holds to us such a Power inherent in Sovereigns as can never be lawfully resisted and that it exhorts People to submit themselves so absolutely to it that they never undertake to oppose themselves against its unlawful Effects
they were established upon some fundamental Laws or Customes And I very much question whether any such example can be produced no not in the Empire of the Turks which has been always lookt upon as the most Absolute and Despotical Government where the Soverâ—igns have attributed to themselves so vast and unbounded a Power and actually enjoy'd the same I know it is commonly apprehended that Conquerors such as Nimrod and many others did in so absolute a manner possess themselves of all the Rights of Sovereignty that there was nothing left to their Subjâ—cts of what Rank or Order soever But to declare my sense of this matter we are to observe First That Conquerors had no other aim but to rob other Sovereigns of their Power without changing any thing in the Government of the State they had invaded Secondly That those Invasions having no other foundation but a Conquest by force of Arms and Violence contrary to the Law of Nature which made Seneca call this sort of Conquerors Magnos furiosos Latrones great and furious Robbers these Conquerors easily perceived it was necessary for them to trim and rectifie this their unjust Power if they would have their Authority to be lasting whereupon they accordingly took care to moderate it by Conventions and Laws to the Justice of which the People gave their consent Thirdly That these Conventions and these Laws were to speak truly and properly the lawful Title of all the Authority their Subjects owned in them Fourthly That this consent of the Subjects always supposeth that the ends of Government be preserved except we should perswade our selves that there be Subjects Fools enough to consent to a Government whose aim should not be levelled at their Advantage and Prosperity 'T is horribly to delude ones self to found the Idea of an Absolute Government in all respects amongst Men upon a notion of the absolute Empire God has over all his Creatures for is it not evident that this Divine Empire supposeth an immoveable Justice and infinite wisdom and a most tender love for his Creatures which are the Essential Attributes of God and which cannot be found in any mortal Man But some it may be will tell me That I contradict the Stile of Holy Scripture in denying that Tyrants can lawfully enjoy so absolute a Power when the Prophets tell us concerning some Kings That God gave them such absolute Power as we find it exprest in particular concerning Nebuchadnezzar Dan. 5.18 19. But the answer to this Objection is obvious First That which ought to be referred to God's Permission only is not to be attributed to a concession of the Deity which latter is only sufficient to establish a lawful Right for otherwise we must say That God had given a just right to the false Prophets to deceive Ahab by their lying Oracles If this be not the case let any Man answer me these Two Questions First Whether Nebuchadnezzar sinned in using this absolute Power which he had without any consent or concurrence of his Subjects in killing them without cause and contrary to the Laws of Justice and Equity Secondly Whether God could justly punish Nebuchadnezzar as he did for making use of this Tyrannical Power which he had suffered him to invade Nemini injuriam facit qui jure suo utitur He that makes use of his own Right injures no body is a Maxim of Law. Secondly Otherwise we should be fain to suppose That those who at any times have raised themselves against Tyrants had been great Criminals whereas the Holy Scripture doth set them forth for Heroes such as Ehud who have undertaken to rid the World of their unjust oppression by killing them Possibly it may be further objected to me That by these assertions I oppose the Doctrine of the Old and New Testament which equally command all both Jews and Christians to submit themselves to the Powers that had conquered them and particularly to the Power of the Romans who pretended to be absolute over all their Subjects But it will be found that there is nothing at all of any contradiction between that which I maintain and what is here objected The Jews being conquered by Nebuchadnezzar were become the Slaves of that Monarch and owed him all manner of obedience which Bondmen do to him who has saved their Lives when it was in his power to kill them And for the rest the Scripture does not determine whether the Tyrannical power they attributed to themselves be lawful or no. Sure it is that an unlawful and Tyrannical Sovereign may rule legally in several respects in which case it imports little to those who are subject to it contrary to their wills whether the Power under which they are be lawful in all respects or not Let this therefore be laid down for a certain truth That every lawful power is necessarily limited by Laws That these Laws are the foundation of the Government from which the Sovereigns cannot depart without overturning the Society for the subsistence of which the Political Government was at first instituted by God. But this is not the only kind of limitation which may be observed in the Powers that govern Societies As God has not prescribed any sort of Government in preference to others the Wisdom of Men have diversly limited the way and constitution thereof Most People finding by Experience That Monarchy though it have many advantages before other Governments is apt to degenerate to Arbitrary Power thought it fitting that the greatest Lords of the Community should concur with the King in the exercise of his Authority others again were of Opinion That the People ought to have the chiefest share in the Government forasmuch as the main end of the Government is to make them happy These different apprehensions of Men have established the several forms of Government the aim of those who contrived those different forms being only to prevent oppression and injustice which directly cross the end of Government CHAP. V. Concerning the Extent of the Power of Sovereigns WHat I have here set down concerning the Nature of Governments the most Absolute of which are not unbounded by the Laws of God by the Laws which constitute the Right of Nations by the fundamental Laws of the State and more particularly by Bounds prescribed to the Authority of Sovereigns sufficiently shews what is the just extent of Sovereign Power and how far Men are obliged to yield Obedience to it Indeed forasmuch as Authority and Obedience are relative terms which reciprocally establish or overthrow one another it is easie to judge That Obedience cannot be due to Authority but in proportion to the extent of the Authority Paternal Authority in the manner as God had established it under the Law could not inflict Death upon a Son but in the presence of the Judges and upon the hearing of Witnesses The Authority of a Judge cannot be discharged but in the due Forms of Judicature and according to the Laws he cannot punish a Criminal
otherwise than by Patience when they are convinced in Conscience of the Injustice of the Laws and Commands enjoyned 'T is an easie matter to overthrow the First of these Suppositions First I would fain know who has given these Gentlemen the Power of determining as they do what is Essential to Sovereignty Do they derive these their Notions from Revelation or from Reason which is common to all Men If they say they derive the definition they give us of Sovereignty from Revelation they will do well to point us to the places of Scripture where this Notion is set down If they draw it from Reason then I cannot but wonder that so many Statesmen and Writers of Civil Matters have fail'd of stumbling on the same Notion and it seems to me an inextricable thing that so many Nations should agree to reject what they approve and to approve what they reject To say here That they draw this definition from the Idea of Sovereignty which loseth its nature when divested of these Characters shews they are willing either to abuse themselves or others by a pitiful Equivocation The word Sovereign imports a relation to Inferiors and as the relation has a certain foundation so it is likewise evident that it hath its bounds set proportionable to its foundation Where there is no Authority neither is there any foundation for Obedience Now there is no Authority but in proportion to the Laws which establish the Authority wherefore it incontestably follows There can be no Authority where the Law is so far from allowing any that it opposes it It will never cease to be true That the Authority is Sovereign though it be not so in all respects The Consuls of Rome were Sovereign Magistrates though the People had Power to oppose themselves against their Authority when they abused the Power they were intrusted with for the good of the Commonwealth In France they give their Parliaments the Name of Sovereign Courts though their Sentence be not always irrevocable The Second Supposition is only founded upon this Notion That Conquerors having invaded the Liberty and Privileges of the People were afterwards so kind to restore some part thereof to them again by their Concessions but that these Acts of Grace do not at all divest them of the Right of Acting whenever it shall please them as if their Power was altogether Unlimited and Arbitrary This Notion is much the same with that of the Partisans of the Court of Rome who maintain That the Liberties of the Gallican Church are only Acts of Grace and Favour granted to that Church whereas the French pretend That they are common Rights and Franchises which their Ancestors have constantly maintained according to what P. Pithou declares concerning them But indeed to speak truly this Supposition cannot be admitted with respect to conquered States at least for the most part Ordinarily a Conquest is made upon the Power that governs the State so that the State only changes its Master the fundamental Laws of the Land receiving no Alteration from this Change. Of this we have an Instance in England when King William conquered it who at his Coronation sware to keep the Laws of St. Edward and his Successors were fain to swear the same Now one of these Laws c. 15. T. 1. Spelm. p. 622. imports That a Prince that abuseth the Power he is intrusted with does lose the Title of King From whence it follows That his Subjects need not own or obey him and that consequently it is lawful to resist him To maintain That a King whose Power is limited by the fundamental Laws of a State and which he is invested with upon that condition when at his Coronation he swears to the People is indeed obliged to keep the said Oath for fear of God but that he is not at all engaged by this his Oath to the People is rather a piece of Raillery than Reasoning What Does not the Oath the People swear to the King oblige them in Allegiance to him and how can we then suppose that the reciprocal Oath of the King should not as well oblige him to his People Surely if we well weigh the case 't is impossible but we must discern a palpable falsity in this Opinion of Passive Obedience in the way these Gentlemen propose it First They grant a Right unto Sovereignty which is diametrically opposite to the end of Sovereignty according to the Divine Destination For the good of the Society and its Subsistence was God's End in insticuting of the Sovereign Power whereas by their Hypothesis the Sovereignty may become an instrument of the utter ruin of the Society whensoever it shall please the Sovereign his Subjects in the mean time having no means to attain the said End or being in any condition to hinder their being deprived of it Secondly They suppose That God in allowing a lawful Right to Sovereigns has subjected the People to a necessity of groaning under an Illegal Right and which God has never bestowed upon them and for the Usurpation of which he will condemn those who do arrogate the same to themselves which is much to the same purpose as if I should say That because God has established Judges he has thereby obliged the People to suffer Robbery when the Judges shall think fit to turn Robbers Thirdly They make the condition of a Civil Society more unhappy than was the condition of Families in the state of Nature before Societies were formed For the liberty of defending one's self is permitted to every one by Nature but after the Society is once formed it would follow That the whole Society would be obliged by a Principle of Conscience to suffer their Throats to be cut by a Prince of the humour of a Nero or a Caligula Fourthly They turn to meer Chymera's and Visions whatsoever the wisdom of Men have been able to find out to make States happy by securing them against Tyranny I speak of Laws and Oaths the Laws are the bands and cement of the Society and the foundation as well as the measure of the Obedience we owe to Princes The Oaths are the Seal of the Contract by which the Subjects are obliged to obey them upon condition that they govern according to Law. But all this is to no purpose and is of no use to the People as soon as the Tyrant thinks fit to overturn the Laws and to mâ—ke a Scoff at his Oaths Forasmuch as the Third Supposition viz. That the Scripture maintains Non-resistance with regard to Sovereigns whether they act according to or against Law is of greater importance it will be convenient to examine the same more heedfully and the rather because Men of Abilities and Learning have endeavoured strongly to assert it and to make it pass current with others and that with all their might CHAP. VII That the Scripture doth not assert the point of Non-resistance FOrasmuch as the Doctrine of Non-resistance directly thwarts a natural Principle to wit that of our
St. Austin speaks lib. 3. confess c. 8. yet it is no less notorious that this Compact doth not respect Tyrants Accordingly we see that the wisest of the Emperors did so little believe that it was lawful for them to govern arbitrarily that Trajan in favour of whom the Royal Law was renewed at the time of his exaltation to the Empire addresseth himself in these words to the Prefect of the Praetorium Accipe hunc gladium pro me si rectè agam sin aliter in me magis quod moderatorem omnium errare minus fas sit Take this Sword and use it for me in case I rule well but if not rather against me because it less becomes him that rules over all than it does others to commit an Error Dion Aurel. Victor 2ly That the Emperors who were most renowned for Vertue did never affect to publish any Laws of their own Heads till after they had got them approved by the Senate This is that which Lampridius records concerning Alexander Severus and we see the same practis'd by Theodosius l. Humanum C. de F. But whatever this Royal Law may have been sure it is 1st That the same was abolished together with the Roman Empire which ended in the West with Augustulus 2ly That it ceased in the East with the Emperors of Constantinople 3ly It is certain that they who ruin'd the Empire in the West did never adopt this Royal Law to govern their Subjects by that Arbitrary Rule 4ly It is also certain that the Princes who since the Year 800 have succeeded Charles the Great and who have taken to themselves the Names of Roman Emperors did not govern according to this Law nor ever pretended that that Law ought to be observed in favour of them under pretence of their bearing the Title of Roman Emperors This is that which I believe it will be of use solidly to evince though I intend to do it very compendiously that I may not tire the Reader CHAP. XI That the States of the West and of the North never knew this Royal Law. THough the People of the West allow'd their Princes the Title of King yet it may be averr'd that the most part of those Kingdoms which had their Rise from the Ruins of the Roman Empire never owned this Royal Law. The Power of their Kings was originally limited as Caesar witnesseth in his Commentaries concerning the German Kings which were to speak properly only Commanders or Generals I make particular mention of the Germans because for the most part they were the Founders of the Northern and Western Kingdoms Germany having been as it were the Nursery from whence have proceeded most of those Nations who at this Day have any Name in Europe See what Tacitus asserts concerning the German Kings Nec Germanorum Regibus infinita aut libera potestas est de minoribus rebus Principes consultant de majoribus omnes Rex aut Princeps auditur Authoritate suadendi magis quam jubendi potestate si displicuit sententia fremitu aspernantur Neither is the Power of the German Kings altogether free or unbounded Matters of lesser Moment are left to the Advice of the Princes but those of greater Concern are debated by the whole Society they hear the King as one having Authority to persuade rather than any Power to command them and if his Sentiments displease them they are rejected with boldness Caesar gives us much the same portraicture of the Kings of the Gauls And that their Successors who tore the Roman Empire to pieces have retained this Form of a Limited Monarchy is Matter of incontestable Evidence to every one that will take a little pains to peruse the Histories of those Nations to run over their Laws and take notice how they have carried it towards their Kings when-ever they fell to Tyranny They who would be informed how far the Power of the Gothick Kings in Spain was limited need only to cast their Eyes upon the account which Gregory of Tours gives us Lib. 2. cap. 31. concerning this Matter and upon their History in the Chronicle of St. Isidorus We have the fundamental Laws of their Kingdom set down by Molina de Hispan Primogenit Cap. 2. N. 13. But this appears yet more clearly from the Body of their Laws which is still extant and published by Lindenberg 1st It appears that their Laws were enacted ex universali consensu Civium Populi by the universal Consent of the Citizens and People Lib. 1. Tit. 7. 2ly It appears that the Kings were no less obnoxious to the Laws than the Subjects themselves Lib. 2. Tit. 2. 3ly It appears not that the Romans Laws and much less their Royal Law had any Authority amongst them Lib. 2. Tit. 9. 4ly It appears that their Kings had not so much as the Power to pardon Crimes without the consent of the Bishops and chief Lords Lib. 6. Tit. 7. Lastly It is evident from their History that their Kings were liable to be deposed by the States when ever they went about to transgress their Bounds and tyrannize over their Subjects I confess that the Council of Toledo IV. in their last Canon thus express themselves Quicunque amodo ex nobis vel totius Hispaniae populis qualibet conjuratione vel studio sacramentum fidei suae quod pro Patriae Gentisve Gothorum statu vel conservatione Regiae salutis vel incolumitate Regiae Potestatis pollicitus est temeraverit aut potestate Regni exuerit aut praesumptione Tyrannicâ Regni fastigium occupaverit Anathema in conspectu Dei Patris Angelorum atque ab Ecclesia Catholica quam perjurio profanaverit efficiatur extraneus ab omni Coetu Christianorum alienus cum omnibus impietatis suae fociis quia oportet ut una poena teneat obnoxios quos similis error invenerit implicatos Whosoever from this time forwards either of us or of any of the People of Spain shall by any Conspiracy or Attempt break the Oath of his Fidelity he has taken for the welfare of his Country and the Gothick Nation the conservation of the King's Life and maintenance of the Royal Power or who shall deprive him of his Kingdom or by a Tyrannical Presumption usurp the Throne let him be Anathema in the sight of God the Father and the Angels and be cast out from the Catholick Church which he has profaned by his Perjury and be turn'd out of all Christian Assemblies with all the Complices and Associates of his Wickedness because it is but fit that all they should be liable to the same Punishment who are involved in the same Crime The same is repeated in the Council of Toledo V. cap. 1. and in the Council of Toledo X. Cap. 2. But we may affirm with truth that those who have worn this Canon threadbare by their frequent citing of it did either not understand it or changed the sense of it to impose upon and delude others Wherefore let those that read these words well observe
therefore is the Magistrates Authority become necessary And how great soever we may conceive this Authority to be yet we must acknowledge that God never instituted it till after the Deluge as appears from Gen. 9.6 We read in the Scripture that Cain when he had kill'd his Brother Abel told God That he feared that every one that met him would kill him but do not find that he did in the least apprehend that his Father as his Natural Sovereign should sentence him for that Murther This Impunity of Cain prov'd an encouragement to Lamech as we see Gen. 4.24 It seem'd indeed that the Authority of Adam their common Father together with that of the Patriarchs might have been sufficient to contain Men within the Bounds of their Duty as well as the near Relation and Alliance that was between them But this Paternal Authority having by the space of fifteen Ages been found incapabâ—e to restrain the licentiousness of Men and too weak to put a stop to their Debaucheries and Murthers which at last drew down the Deluge upon them we find that God afterwards instituted Magistracy as a stronger Curb to stop the impetuosity of Mens exorbitant Passions Moreover Men being obliged to separate themselves from one another in order to their peopling of the whole Earth consequently could not observe the same Principles of Communion which linked them together under the Patriarchs wherefore it was Natural to substitute to that Patriarchal Authority a Government more accommodated to the state of Men in their different and dispersed Habitations Wherefore because Men had learnt from the Example of those who were drowned by the Flood to make small account of the remonstrances of their Parents as well as of the Divine Denunciations God thought fit to lay a more strong Curb in their Mouths and to restrain them by making temporal Death the Reward of those who would not be contain'd within the Bounds of their Duty by the fear of Eternal Sufferings in these words Whosoever sheddeth Man's Blood by Man shall his Blood be shed This being the sense and full import of this Declaration according as the Jews unanimously agree Now this granted it is evident that since Soveraign Power was instituted by God for a Curb to sin we must suppose that there be Laws which serve for a foundation of Society and for the conservation of which Soveraignty was introduced at first 't is to make these Laws inviolable and by punishments to restrain the unruliness and exhorbitance of the passions of Men from transgressing of those Laws that the Sword at first was put into the Soveraign's Hand and power given him to punish Criminals or utterly to cut them off as destructive to Society it self From these two Principles we very naturally deduce a third viz. That the Character of a Soveraign consequently requires That he who is clothed therewith be one of the most perfect of the Society that is one at the greatest distance from a disposition to violate the Laws for if he encourages others by his Example to violate them and if by this means he subvert the foundations on which the Society subsists directly crossing the design and aim for which he was made a Soveraign it is evident to a demonstration that he possesses the Soveraignty contrary to the intention of God and the natural end of Society Nothing is more evident than what I have here laid down but it respects only the Society considered with regard to those of whom it consists for if we look upon it with respect to those who are strangers and who may destroy it by invading it by force of Arms it appears clearly that the Soveraign being the defender of Justice at home finds himself naturally obliged to protect the Society by Force so that together with Justice he ought also to be qualified with the Character of Valiant that he may oppose himself with Success to all Enemies from abroad and hinder them from destroying the Society And lastly the Character of Wâ—se is particularly required in a Soveraign for neither Justice nor Valour are of any great use as loâ—g as they are separate from Wisdom and Prudence Wisdom is useful in Peace and no less in time of War is necessary with respect to Subjects as well as Enemies she shines forth in Treaties as well as Ruptures she is of use in the prosecuting of injuries as well as in the choice of means to obtain reparation she finds out Expedients against the greatest difficulties and in a word we may say that without her the Political Government is as a Body without a Soul and a Ship without a Pilot or Helm which is abandoned to the Winds to be tossed at pleasure and which at last perisheth infallibly by dashing it self against the first Rock it meets with If we attentively heed what hath been here advanced we shall find that this has served as a common Principle to all the different forms of Government that have at any time obtained amongst Men. Indeed it is not easie to determine what form of Government God instituted by that Law mentioned in the Ninth of Genesis whether he by those words determined the Authority to one or more Magistrates because the word Man is often taken collectively to express many so that the words are too general to decide this question they conclude only that Murther is to be punished with Death From whence we infer that the Magistrate has power to punish Murtherers and other Criminals that destroy the Laws whereby the Society subsists It is manifest therefore that by reason and experience Men came to prefer one kind of Government before another and variously to divide the Authority amongst many according to the different acts to which it ought to be extended It seems that force was at first only made use of as a refuge for the weak either to destroy the wild Beasts that devoured their Cattle and some times Men too or to put a stop to the injustice of those whose bodily strength inspired them with designs to rob the weaker sort of their possessions And it is very probable that forasmuch as soon after they observed that the force which protected them might as well oppress the Society for whose defence and protection it was armed they found that Magistracy could not be lookt upon as an advantage if it were not committed to the wise conduct of the most antient of the Society who seem to have been the Judges Magistrates and Counsellors of State among all Governments that were ever instituted with any prudence Those who considered the great parts that are necessary for the governing of a Society preferred the way of choosing their Governours Those who had experienced the ill effects of corrupt Elections by Bribes or other ways followed the way of taking for their Governours the Children of those who had ruled them with Prudence They who observed that one person is rarely capable of resisting and moderating so many different passions as may
trouble a Society thought good to divide the command amongst many Those who took notice that this equality produced dissensions amongst many Governors placed the power in one person only Those that were aware that a single person might overturn the Laws and set up his will as the only rule of his conduct found it necessary to preserve to the People their share in the Government In a word every Nation chose that way they thought most sure and proper to obtain the true ends of an happy Government in order to secure and preserve the Society What I have said in general concerning the original of Soveraignty or Magistracy amongst Men shews that it cannot be denied but that the institution thereof is Divine though God did not think fit to determine it to any certain form of Magistracy whether of Monarchy Aristocrasie or Democrasie but left it to the Peoples free choice to pitch upon that form they should judge most convenient for them But to procure a farther light to this matter we must consider the Judgment of Philosophers and Divines concerning this point CHAP. II. The different Opinions of Philosophers and Divines concerning this matter IT may be said That there are three Opinions concerning the original of Soveraign Magistracy Cicero in his Books of the Commonwealth was of Opinion as appears from the definition he sets down That Governments were at first formed by an effect of pure necessity St. August de civit D. which forced the weaker to seek for aid and succour from those that were stronger to secure themselves from oppression This was also the Opinion of the famous Archbishop of Burgos in the Council of Basil Fascic Fol. 7. The Body of Christian Divines maintains that the Authority of the Sword was instituted by God as may be seen Gen. 9. And it appears that whereas before the Deluge the Patriarchs were the only Masters of their Families which gave occasion to abundance of Crimes Justice not being executed with vigour enough to put a stop to the course of exorbitances as long as it was in the hands of a common Father God was pleased to enact a Law whereby the Sword should no longer be bound up to each head of a Family but committed to one who should be particularly charged therewith by the common consent of the Society The Third Opinion is that of some new Divines and other flatterers of the unbridled power of Princes who maintain that Kings derive their Authority immediately from God and not mediately from the consent of the People Thus Peter de Marca declares himself on this point de concord lib. 2. c. 2. v. 1 2 3. following therein the sentiments of Victoria and Duval the one a Spaniard and the other a Frenchman We need not wonder if Cicero was mistaken in the deciding of this matter as being destitute of that light which Moses furnisheth Divines with He determines this point only as a natural Philosopher However we must observe that Cicero himself and the most wise amongst the Heathens have sufficiently given to understand that they conceived Magistracy without which it is impossible for a Society to subsist to be of Divine Original as well as all other good and profitable institutions for the benefit of Mankind But not to insist upon this forasmuch as all Divines agree that the original of Magistracy is from God our business only is to enquire which is the truer Opinion theirs who acknowledging the Divine institution of Magistracy maintain that this Authority is communicated to the Powers and Magistrates by the People or of those who pretend that God immediately communicates the same to the Magistrates that are invested therewith In order to the resolving of which before we pass any further we are to observe 1st That the Body of Divines who defend the former of these Opinions do agree That the Authority of Magistrates is not to be accounted less Divine because it does not immediately come down from God. They own these Two things 1st That God has ordered there should be Sovereign Magistrates to regulate and govern Societies 2ly That God having divested private Persons of the right of doing themselves Justice in case of Offences given them has ordained that the Magistrates should have the Sword put into their Hands by Capital and other Punishments to stop the violence of those who disturb the Peace of the Society and violate the Rules of Justice And in this respect they acknowledge Magistracy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a divine Settlement and Institution Secondly We are to observe That when on the other hand they maintain That the Power of the Magistrates is conferred by consent of the People in which respect they pretend That St. Peter calls them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that doth not in the least diminish the Authority of this Divine Institution of Magistrates which they refer solely and immediately to God. Thirdly That whatsoever Notion we may frame of the Power of Magistrates whether we suppose it conferr'd upon them immediately by God as M. de Marca pretends or whether it be only mediately derived to them from God by the intervening consent of the People the thing is still the same because it is evident that this Power is not communicated to them but for the subsistence of the Society the Preservation whereof is the natural End of Government and Sovereignty Fourthly That they do not oppose this Notion of the immediate Collation of the Sovereign Power by God save only that they might express themselves more exactly and distinguish the ordinary Governments of the World from the Kingdom of Israel For the same Divines generally own That the Institution of the Royal Power in Israel was an immediate Act of God but withal maintain That the same cannot be said of other Sovereigns This laid down I say That nothing can be imagined more vain than the second of these Opinions and it is enough only to understand the terms which those Divines make use of to express their Sentiment concerning the Original of Sovereign Magistrates in every State and to consider the Proofs they alledge to evidence the falseness of it which Opinion accordingly I shall refute in the following Third Chapter CHAP. III. That Sovereigns do not receive their Power immediately from God. I Say then That it is false That Sovereigns receive their Power immediately from God. This is a Truth may be easily made out Indeed though the Power of Magistrates of what sort soever they be be of Divine Institution which of all the present Sovereign Powers whether Monarchs Commonwealths or any other Form of State was instituted immediately by God And who are the Persons invested therewith whom God has immediately called to that sort of Power All States are formed either by Conquest or by Consent of the People which intervenes in the Election at the first Founding of a State and which is renewed in every subsequent Election of Princes or which is perpetuated in successive Kingdoms
Was there any thing like to this in the advancement of David to the Royal Dignity Secondly Is it not visible that in order to an immediate Establishment from God there is required an express Revelation such as may be equivalent at least to a publick declaration of his Will in favour of him whom he will set on the Throne Thus things were carried with respect both to Saul and David and who will affirm there is any King now in the World that has attain'd the Regal Power after this manner If there be any let them acquaint us with his Name and the manner of God's revealing himself to the People to make them know that he immediately made choice of such a Person to supply that Place Thirdly Who sees not that the whole Discourse of these Divines is nothing but a continual Equivocation An Office is instituted immediately by God wherefore all that are called by ordinary ways and methods are immediately established in it by God. I had as lief they should tell me That because Marriage derives its first institution and beginning from God in the Person of Adam and Eve whom God joyned to Adam That therefore all Marriages are made immediately by God and that he is the immediate Author of them The one is every whit as reasonable as the other and in the mean time the second is absolutely false The Author of Ecclesiasticus saith Chap. 7.16 That the Art of Tilling the Ground was created by God Doth it follow from thence that God hath immediately setled such and such a one in the Calling of Husbandry Fourthly If all Sovereign Magistrates desire their Institution immediately from God how is it that we find so great a diversity in the Form of these Sovereign Governments In some States we find Kings in others Aristocrasies or Democrasies Doth not this variety make it evident that though God indeed have instituted Magistracy in general yet he hath left it to the People to determin the Form of it according to their Need their Inclinations and the Circumstances wherein they find themselves Fifthly Doth it not most evidently appear That if the Person were immediately instituted by God it would be great folly for any Society to trouble themselves about enacting Laws for a Free Election at every Change or to establish it by way of Succession in Monarchies If God establisheth all Sovereign Magistrates immediately to what purpose are all those Rules and Limitations which by their variety afford us a sufficient demonstration that this Institution is not an immediate effect of the Deity The Philosophers were fully of this Opinion as we may see in the Books of Aristotle's Policy where he makes out That the cause of the various sorts of Governments that are in the World is nothing else but the different Judgments of the People concerning the several sorts and manners of Government Some of which have chosen one Form to avoid the Inconveniencies they foresaw and apprehended from another and others again being induced to embrace that Form by the advantages they discerned in it rather than another This is a matter we ought to mind very carefully that we may not put a ridiculous sense upon some Expressions of the Antients when they speak of Magistracy as founded in the Law of Nature The Lawyers agree with the Philosophers in this Point Vlpian and Justinian both of them tell us That the People of Rome bestowed upon the Emperor Augustus by the Royal Law all the Right and Empire by which they were subjected unto that Emperor lib. 1. ff de Constit Princip Theophilus explains what properly a Prince is in these terms A Prince saith he is a Person who has received from the People the Power of Commanding and Ruling over them § 6. de Jure Natur. Gent. The Canonists of the Church of Rome are no less express in this Matter than the Philosophers and Lawyers Cardinal Bertrandi lays it down for his Foundation in his Treatise of the Civil and Ecclesiastical Power Bibliotheca Patrum which was copied by an English Monk and is found among the Manuscripts The Divines of that Communion make a Principle of it as appears by the Discourse of the Archbishop of Burgos which I have before cited And Soto saith lib. 4. de Just Jure Regalem potestatem Populi naturali lumine erexerunt That the People by the Light of Nature established Kingly Power M. de Marca owns That the Canonists of his School do not favour his Opinion but withal maintains That they have fallen upon the Opinion contrary to his that they might make a greater difference between the Civil and Ecclesiastical Power than there is indeed and to depress the Civil Power below the Ecclesiastical He might also have alledged against the Divines of his School That in this Question they relied too much on the Judgment of Aristotle who was their St. Paul until the times of the Reformation However that which M. de Marca declares as his Judgment concerning this Matter is too generally spoken For we see Marsilius of Padoua following the same Principles in his Defensorium Pacis though he undertook the Defence of the Emperor Lewis of Bavaria against the Enterprises of the Pope but however he pretends That the Scripture and Antiquity furnish us with quite other Notions about this Matter which we shall next make it our business to enquire into CHAP. IV. An Examination of the Arguments which are alledged for the Proof of this Opinion HE alledges only two places of Scripture the one is that of St. Paul Rom. 13. and the other is taken from the Sixth Chapter of the Wisdom of Solomon which is an Apocryphal Book but neither the one nor the other proves the thing he pretends It appears by the former of these Texts That the Apostle endeavours to oppose the Opinion of those among the Jews who pretended That because the Monarchies or States of the Heathens had not an immediate Institution from God as that of Israel to which God had in a particular manner subjected the Jews that therefore they were not obliged to submit themselves to the Authority of Heathen Magistrates Wherefore he points them from that immediate Institution made in favour of the Kings of Judea to that common and more ancient Institution of Magistracy among the Posterity of Noah which Moses sets down Gen. 9. as being sufficient to make the Authority of Magistrates respected whatsoever Nation or Religion they might be of whether they deriv'd their Power from the Consent of the People or whether they had obtained it by Robbing the lawful Sovereigns of their Authority as the Romans had done with respect to the Kings of Judea In a word the Apostle in that place intends nothing else but to authorize the Maxim of the Essenians as it is related by Josephus lib. 2. de Bello Jud. cap. 12. Fidem omnibus servare maxime verò principibus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be faithful and true to all Men
but more especially to Princes because the Sovereign Command never befel any one without the Divine Providence These Essenians maintained against the Sect of the Pharisees that they might lawfully submit themselves to a Heathen Conqueror without always fostering a Spirit of Rebellion against him and without disputing or questioning his Authority under pretext that the Jewish Government had been established immediately by God. But doth this Text of St. Paul in the least prove that every Pagan Prince was immediately set upon the Throne by God The Passage quoted from the Sixth Chapter of the Wisdom of Solomon is nothing at all to their purpose because the Author of that Book addresses himself in all appearance to the Kings of Judea who as all agree deriv'd their Accession to the Throne immediately from God so that it might well be said to them Power is given you of the Lord and Sovereignty from the Highest True it is That Jesus Christ expresseth himself in words much to the same purpose John 19. speaking to Pilate the Governor of Judea Thou couldest have no power at all against me except it were given thee from above But it is visible that he speaks this only with respect to the Order of the Divine Providence which had suffered the Throne of Judea to be overthrown by the Romans so that instead of her Natural Magistrates she was now subject to Strangers The Empire of Nimrod was founded in the same manner with that of the Romans and yet I scarce think any Man will pretend that God committed the Sovereign Power to him in the same manner that he did vouchsafe it to David True it is That the Scripture gives Cyrus the Kâ—ng of Persia the Title of the Lord 's Anointed which seems to import as if God had in an immediate manner raised him to the Throne like David But this is no due consequence for the Notion of the Lord 's Anointed signifies only his particular Destination of him to be the Instrument of the Jews deliverance from their Captivity I freely own That a Divine Providence may ordinarily be observed in the Elevation of Kings and that the same may be taken notice of as intervening in a more especial manner in the raising of those Kings whom God designs to make use of for the good of his Church which is linked with the Civil Society But I do not conceive that from thence it will follow either that the acts of ordinary Providence manifesting themselves upon occasions are sufficient to make an immediate divine Institution of Princes no more than other Events wherein Providence intervenes can properly be called immediate Effects of the Deity nor that the extraordinary Acts of Divine Providence as were those that respected Cyrus ought to be alledged as an Argument in common Events The words we find in the Eighth Chapter of the Proverbs are also commonly quoted to this purpose By me Kings Reign and Princes decree Justice but it is manifest that this is said with regard to Wisdom of which he was speaking before and which displays it self in the management of Humane Affairs without intimating any immediate Act of the Deity Moreover we are carefully to observe That though the Scriptures attribute to God the Institution of Magistrates in which respect also they call them a Divine Institution and ascribe to God the Exaltation of Princes in particular yet they never express themselves but in a very general manner as when they set forth to us the part God bears in all Events Thus God is said to overturn Thrones in like manner as he is said to erect them he is said to settle Tyrants as well as the most lawful Kings All which Expressions relating to his Providence which does or permits things by the intervening ministry of Second Causes can have no influence upon the Judgments we are to make concerning the Authority of Princes with regard to their Divine institution M. de Marca makes use of some Passages out of the Fathers to confirm his Opinion But First they infer nothing but what we are ready to grant viz. That God having ordained Magistracy those who are invested therewith ought to be considered as the Ministers of God which is sufficient for a foundation of their Authority without any necessity of supposing that God immediately endows every King with the Royal Power wherewith he is invested This is the Opinion of Theophilus Bishop of Antioch ad Autol Lib. 1. where he saith That the Prince has received in some sort from God the administration of the Government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which expression doth visibly respect a mediate institution but doth not at all express an immediate institution as M. de Marca conceives Secondly They distinctly lay down That Magistracy is a humane institution as St. Peter qualifies it because all Magistrates and Kings themselves are ordained and established by Men as Oecumenius explains that place 1 Pet. 1.2 St. Irenaeus says no more lib. 5. contr Haer. C. 24. He refutes the Opinion of the Gnosticks who would have Magistrates to be an institution of the Devil and he makes it appear that both the Old and New Testament confirm That Magistrates are one of the means which Providence has judged necessary to put a stop to the Current of Wickedness and Crimes which had deluged the Heathen World whom the fear of God alone was not able to keep within the bounds of Justice To which purpose he saith Cujus jussu homines nascuntur hujus jussu Reges instituuntur by whose command Men are born by his command Kings are ordained Neither doth Epiphanius advance any thing more than this Haeresi 40. contra Archontic Tertullian expresseth himself to the same purpose in his Apologet. cap. 30. Inde est Imperator unde homo antequam Imperator inde potestas illi unde Spiritus Thence is the Emperor from whence Man is before he was Emperor thence he has his power from whence he has his Breath St. Chrysostom exactly follows their footsteps as well as St. Isidore Bishop of Pelusium Lib. 2. Epist 206. Indeed how could St. Chrysostom teach any other Doctrine who in his 23. Hom. upon the Epistle to the Rom. plainly asserts That Jesus Christ never gave his Laws with design to overturn the received forms of Government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and expresly denies that those words in the 13. Chap. of the Epistle to the Romans for there is no power but what is of God must be understood concerning Government in general and not of those who are invested therewith Quid dicis Omnis ergo Princeps à Deo constitutus est Istud inquit non dico Neque enim de quovis Principe sermo mihi nunc est sed de ipsa â—re Quod enim principatus sunt quod isti quidem imperant isti vero subjecti sunt quodque non simpliciter ac temere cuncta feruntur .... divina sapientiae opus esse dicit Propterea non dicit Non enim
own preservation and that of the Society whereof we are Members we may easily judge That in case the Scripture does assert it we must suppose it has done it with all possible clearness and distinction but we do not find any such thing I find but one place in the Old Testament which can be wrested to this purpose with any probability 't is the Description of the behaviour of a King set down 1 Sam. 8. 10. where the vulgar Translation interprets Mispath by the Word Right hoc est Jus Regis But I am astonished how any could be mistaken in this case For First It appears that God in that place gives us the Description of a Tyrant and not of a King for indeed we find nothing like to it in the Description he gives us of a King by Moses Deut. 17. Which appears to be so because Samuel held forth this Looking-glass to them to make them quit their demand of having a King set over them as the rest of the Nations about them Secondly It is apparent that what he saith of their crying to the Lord when oppressed by their King would have been most ridiculous supposing the King to have these Rights from God and by his Concession When Moses tells the Jews That they should cry unto the Lord when they should be oppressed by their Neighbours waging War against them because of their forsaking of the Lord Does he not plainly suppose That they would do this to obtain his Protection against the injustice of those Tyrants And can any one be supposed Fool enough to imagine that according to God's Intention it was unlawful for the Israelites to defend themselves against the Moabites Philistims and other Nations that oppressed them Thirdly It is evident that this supposed God could not in Justice punish a Tyrant or if he did it would be for making use of a Right himself had conferred upon him This reason made R. Juda to oppose R. Jose as Kimki observes upon this Text. The same is also acknowledged by the wisest of Divines Marchat in horte Pastorum Lib. 3. Tr. 4. Lect. 13. explains himself thus Hoc est jus Regis idem est ac si diceret Haec est consuetudo Regum This is the Right of a King is the same as if he had said This is the Custom of a King Jus Regum Jus non legitimum sed usurpatum Estius Samuel speaks there not of a lawful Right of Kings but of an usurped and arrogated Right and the same is the Opinion of Cornel. à Lapid and the Jansenists of Port Royal. After all that has been said it is natural to observe That forasmuch as all the several kinds of Government are no less founded on Divine Authority than the Kingly yet according to this Hypothesis none of them would be invested with this Right so fatal to Society but Kings only which certainly is the worst Argument they could have lighted on to recommend a Government which God by his own institution has constituted a true Tyranny The second place is that of St. Paul Rom. 13. where the Apostle forbids resisting of the Powers for fear we should resist the Ordinance of God. But we are to take notice that the Apostle in that place does not in the least touch this Question Whether it be lawful to resist the Poâ—ers when they endeavour to overthrow the Government First He considers the Powers in the lawful use of their Authority punishing the Evil and protecting the Good. Now it is ridiculous to suppose that the same Priviledge that appertains to him who makes a lawful use of his Authority is every whit as applicable to him who has lost his Title by the abuse of his Power Rex saith St. Isidore à recte agendo dicitur si enim piè justè misericorditer agit merito Rex appellatur si his caruerit non Rex sed Tyrannus est A King has his name from acting right and well for if he acts piously justly and mercifully he is deservedly called a King but if he want these qualifications he is no King but a Tyrant Addit 2. ad capit Carol Magn. cap. 21. Secondly This would suppose the Powers that act under Sovereigns to be every whit as irresistible as the Sovereigns themselves which is an extravagant position in the sense of all Modern Divines Besides we are to observe that Sovereigns with their Power are only the Organical chiefs of the Society the true head or chief is the Principality with its Members which are the integral parts of it This is the same that was acknowledged by Charles Moulin the Prince of French Lawyers and the great defender of the Kings of France and their Authority Upon this account it is that the People have right to prosecute the misdemeanours of the King's Attornies and Ministers and to punish them which would be strangely ridiculous if the State were not perswaded that all the Power they have is a power received from the State thô the King have the Power to elect and raise them to those Employments It is apparent therefore That these words of St. Paul only have an eye to the repugnance the Christian Jews had to submit themselves to the Dominion of Heathens This was the Opinion of the Pharisees who tempted Jesus Christ upon occasion of the Tribute which the Emperor levied in Judea Josephus shews that the Essenians opposed them in this point and St. Paul here takes the Part of the Essenians And indeed we do'nt find that the Christians did any way oppose the Decree of the Senate when they declared Nero The Enemy of all Mankind We find also that the Christians of Tertullian's time and those that followed after did very well agree with the Sentiment of Heathen Authors about the Justice of the People's or Senate's resistance against such Tyrants as is apparent from Lactantius de Montibus Persecutorum and the like may be seen in Eusebius Orosius and in St. Augustine de Civit. Dei. But I can say more than this viz. That the Scripture is so far from teaching the Doctrine of Non-resistance to an unjust Power and that violates the Laws that she represents to us contrary Examples with commendation and sufficiently intimates that we rather sin in not resisting For don't we see David taking up Arms to defend himself against Saul Don't we see him offering Achish to fight for him against Saul notwithstanding he was his Father-in Law Don't we see the Ten Tribes opposing themselves against Rehoboam upon his declaring for Tyranny and Arbitrary Government Let us take the pains heedfully to consider the carriage of the High-Priest and his Collegues when King Vzziah presumed to exercise the Functions of the Priesthood in offering Incense and it will plainly appear they did not think it unlawful to resist Sovereign Authority when it goes beyond its bounds 2 Chron. 26.17 Azariah the High-Priest follows him with fourscore Priests all valiant men drives him out of the Temple
and afterwards he is deprived of his Government and his Son placed on his Throne It cannot be alledged by these Gentlemen that this happened to him because of his Leprosie because they suppose that a Prince cannot be resisted whatever his behaviour may be or devested of the right of Governing for any reason whatsoever After all Let us consider how severely God punished Israel for the sin of Saul in breaking the Troth plighted to the Gibeonites and we shall find they were enveloped in the punishment of his sin because they had not opposed themselves against Saul's breach of Faith. And we make the same Reflection about the punishment God inflicted on the People for their consenting to David's numbring of them which God had forbid And why so but because they did not oppose themselves against this enterprize of David as they ought to have done We do not fiâ—d the People engaged in the punishment of David's Adultery with Bathsheba because indeed the People had no share in that sin We see the inhabitants of Libna rejecting Joram because he had forsaken the Lord his God 2 Chron. 21.10 Lastly I desire that those who talk so much of Passive Obedience would be pleased attentively to consider the behaviour of the Maccabees when they shut the Gates of Modin against the Envoys of Antiochus and afterwards took up Arms for the defence of their Liberty and Religion 1 Mac. 2. As also that of Matthias who shut the Gates of Modin in exhorting his Children to continue in their resistance and does the same at the hour of his Death without believing that he was guilty of any sin in taking up Arms and his Children follow his Exhortations with an extraordinary Courage and Piety I own that the Books which have preserved this History are not Canonical no more than Josephus who has followed them But I must observe First That it sufficiently appears what the Opinion of the Jewish Church was in this point who still retains an Abridgment of these Books in her Books of Prayers highly praising the Maccabees for their Virtue and Piety Secondly That the Christian Church has allowed the publick reading of them notwithstanding they were not Canonical and that with great esteem too which would have been extravagant and impious in case the resistance of the Maccabees had been a true Rebellion Thirdly I have still more to say viz. That the Apostle St. Paul in the Eleventh of the Hebrews makes an Encomium of the Maccabees and approves the War they undertook This is that which is acknowledged by the learned Thorndike in his Right of the Church Page 306. by St. Chrysostome Hom. 27. in Epist ad Hebr. and by Haymon Bishop of Halbarstad as also by Menochius and Estius in their Commentaries Fourthly That Lucifer de Cagliari in his Book De non parcendo in Deum delinquentibus a Book approved by St Athanasius who calls this Lucifer a New Elias Page 1068. openly sets down not only that he believed it was lawful to resist Kings under the Old Testament but also to put them to Death in case of Idolatry which he maintains the Arrians were guilty of Si veteris Testamenti temporibus vixisset Constantius Imperator gladio potuisset extingui defuncti ossa igne absumpta fuissent If Constantius the Emperour had lived in the times of the Old Testament he might have been killed with the Sword or at least his Bones after his Death would have been burnt CHAP. VIII Whether the States can deprive Sovereigns of their Authority when they abuse it THEY who maintain it is not in the Power of the Subject justly to resist the Authority that is once established though it abuse the Power committed to it believe also consequently That it is not lawful for a State to reject their Sovereign nor to deprive him of his Authority though he make use of it to overthrow the Government but forasmuch as the former Opinion is wholly contrary to all good Sense and Justice the lesser cannot be less so I own it is unjust to deprive a Sovereign of the Power he enjoys as long as he useth it lawfully and in this regard it is we must not attempt any thing against the Authority of Kings or other Sovereign Magistrates I acknowledge also that the People may not rise up against their Superiors for the first Fault they commit in matter of Government Kings being no more infallible than other Men we cannot with justice expect from them that they should commit no faults at all in their managing of the Government It is also evident enough that the People must not oppose themselves against every thing that seems to have some air of severity or hard usage in the Government as St. Paul also orders Servants to suffer patiently the hard usage of a too severe Master Good sense alone is sufficient to inform People That they must not expose the publick Tranquillity to danger for some severity or for some interest which respects only some particular persons And indeed with this respect we may say that private persons are obliged to sacrifice their particular interest to the publick Good and Peace But there is a vast difference between a King that governs justly or that falls into some error which he is willing to retract and amend upon a remonstrance from his Subjects and a Tyrant who overturns the Laws of the State and the end of the Government designedly and of deliberate purpose It would be a strange delusion for us to attribute to a Tyrant the Priviledges of a King or to suppose as otherwise we must That there is no means to distinguish them both which Extreams are equally ridiculous For First All wise Men that ever were have declared That it is easie to know the difference between a King and a Tyrant Aristotle gives us an exact Idea of a Tyrant Polit. lib. 4. cap. 10. Pol. 6. Hist lib. 5. gives us the Character of a Tyrant in opposition to that of a King. Synesius also gives us a very lively Portraiture of one de Reigno Isidorus gives us this description of Tyrants Origin lib. 9. cap. 3. Jam postea in usum accidit Tyrannos vocari pessimos atque improbos Reges luxuriosae Dominationis cupiditatem crudelissimam Dominationem in Populis exercentes Now it is become customary to call bad and wicked Kings Tyrants who are ambitious of Arbitrary Power and oppress their Subjects by a most cruel Dominion A King saith the Scholiast of Aristophanes differs from a Tyrant in that a King possesseth his Kingdom certis sumens conditionibus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 receiving it on certain conditions whereas a Tyrant enters upon it by force and violence Bartholus among the Lawyers gives us a Description of a Tyrant and the Characters wherewith he sets him forth are infinitely different from those that ought to be in every King. Wherefore we cannot imagin that the difference between a King and a Tyrant should be none
at all or imperceptible Secondly Heathens as well as Christians Papists as well as Protestants equally agree That it is lawful for a State to rid themselves of a Tyrant by wholly casting him off This is a constant Maxim among Heathens whereof we may see the Proofs in Thucydides lib. in Pausanias in Attic. in Polyb. lib 2. in Cicero lib. 3. de Offic. Orat. pro Milone lib. 2. de Invent. in Seneca lib. 2. de Benefic cap. 20. in Seneca the Tragedian in Hercule Furente in Pliny lib. 3â— cap. 4. in Valerius Maximus lib. 2. cap. 10. in Plutarch in vita B uti and in Themistius Orat. 14. The Jews have reduced this Maxim into practice as we may see in the History of the Maccabees who took up Arms against the Authority of Antiochus Epiphanes As for Christians we find this Sentiment confirmed by Lucifer de Cagliari and approved by St. Athanasius We find that St. Austin * August libro contra Adim c. 17. Nec tamen hoc secerunt justi homines nisi authoritate divina ne quis arbitretur passim sibi esse permissum necare quem velit aut judicio persequi aut poenis quihussibet afficere Aliquando autem aperte ponitur in scripturis ipsa divina authoritas aliquando autem occultatur ut manifestis lector instruatur exerceâ—tur obscuris Certè inimicum persecutorem suum nimis ingratum nimis infestum Saul Regem accepit David in potestatem ut ei faceret quod vellet elegit parere potius quam occidere Non enim erat jussus occidere sed neque prohibitus imo etiam divinitus audierat se impune facere quicquid vellet inimico tamen tantam potestatem ad mansuetudinem contulit Dicatur mihi quem timuit cum interficere noluit Nec hominem possumus dicere timuisse quem acceperat in potestatem nec Deum qui dederat Vbi ergo nec difficultas fuit occidendi nec timor dilectio profuit inimico Ecce David ille bellatur implevit praeceptum Christi quod accepimus ut diligamus inimicos maintains against Adimant cap 17. That though David did not kill Saul yet he had right to do it Brontius agrees with this Judgment of St. Austin And Sozomenus lib. 6. proves That if the Roman Soldier who was suspected to have killed Julian the Apostate had done it indeed that he had done it justly and of right We find the same thing asserted by Englishmen as by Joannes Sarisbur Polycrat de nug curial lib. 7. cap. 17 18 19 by Matthew Puris ad An. 1233 in the business of the Bishop of Winchester The Church of Rome has always been of this Opinion before the Reformation as appears by the Judgement of Thomas Aquinas 22. qu. 24. art 2. of Aureolus and all the Schoolmen In a word we can affirm That this was received as an indubitable Opinion in the Council of Basil who laid it down as a Principle whereupon they grounded their right of Deposing the Pope This has always been the Opinion of Popish Lawyers and Canonists as we may see in L. decerminus de Sacrosanct Eccles in Bartholus in tractatu de Tyrannia in Paris de Puteo in Syndic where he puts the Question Whether it be lawful to kill a King that is a Tyrant In Andreas Iserus institut quae sint Regalia In Mar. Laudun in tractatu de Princip § 3. in Angelus de Clavasio in Summa voce Seditio Quaest ultima in St. Antonin in summa 2. par tit 4. c. 8. § 1. Neither do the Protestants differ from them in this point as is evident from the Writings of Zuinglius Luther Calvin Paraeus Bilson Abbot c. Conringius lays it down as an indubitable truth ad Lampadium de Imp. Rom. 119. And the Papists since the Reformation are of the same judgement as will appear if we consult Gregor de Valentia Tit. 3. disp 5. qu. 6. Tolet. in summa l. 5. c. 8. Mariana de Rege Lib. 1. Cap. 3. 6. Lessius de Jure Justitia Lib. 2. cap. 9. dub 4. Molina tr 3. disp 6. de Justitia jure Eman. sa in Aphor. verbo Tyrannus Suarez in defens fidei lib. 6. cap. 4. Neither let any one imagine That this is only a Doctrine of the Jesuites We may see the contrary in those who have written concerning the Deposition of Henry the Third and who have maintained the Justice of that Deposition And we may affirm That among so many French Authors who have writ against Baronius and Bellarmine who attribute the Deposing of Childeric to Pope Zachary and the placing Pepin on the Throne in his stead there is scarce any to be found who whilest they dispute the Pope's Right to Depose Kings do not acknowledge That it is a Right inherent in the States of the Kingdom And indeed to weigh the thing in it self it is evident That when a Prince is become the Enemy of his People and endeavours to destroy them he thereby loseth the Right of Governing them If we take the Sword out of the hand of a Madman that he may do no hurt with it who doubts but we have the same right to take away that Power from a Prince which he makes use of as if he were a Madman The History of Portugal fully sets forth to us the Judgement of that Nation with respect to King Alphonsus III. This Prince minding nothing but hunting his Council represented to him That if he did not apply himself to the business of State they would Depose him and place another on the Thone What would not they have said think we had they seen him Murthering his Subjects in cold Blood as their last King whom they banished because of a like madness I acknowledge That the Commonwealth has put its rights into the hands of the Prince by which she seems to have deprived her self of that Power But it is a strange and uncouth imagination to suppose that a State should deprive it self of the right of resisting injustice and violence which is a right that Nature communicates to every Creature together with its Being Besides it is certain That if a State be limited by Laws and that the People are the Authors of them so that they share and exercise the Sovereign Power in this case they are naturally supposed to possess and hold the Authority which is necessary to preserves the Right that belongs to them Let Men Philosophise as long as they please they shall never be able to make out either that a Prince can pretend to a Power of destroying the Society without any danger of being called to an account for it or that a People can ever be esteemed to have granted him a Right tending to their own Ruine and Destruction But some may say That the Title of a King ought to secure a Tyrant against any resistance he might be liable to from his Subjects even as the name of a Father
invested with part of the Soveraign Authority that Lewis the Good solemnly avows the same Lib. 2. Capitul c. 2 c. 12. We find also that the Clergy of France was so far convinced that the States of the Kingdom had right to dispose of the Crown for the good of the State that when Charles the Bald was chosen by the Kingdom of Lorrain in Prejudice of the Children of the King his Brother and that Pope Adrian II. wrote to them thereupon by Hincmar Archbishop of Rheims threatning to excommunicate them they sent back this Answer to him by the said Hincmar Petite Dominum Apostolicum ut quia Rex Episcopus simul esse non potest sui Antecessores Ecclesiasticum ordinem quod suum est non Rempublicam quod Regum est disposuerunt non praecipiat nobis habere Regem qui nos in sic longinquis partibus adjuvare non posset contra subitaneos frequentes Paganorum impetus nos Francos non jubeat servire cui nolumus servire quia istud jugum sui Antecessores nostris Antecessoribus non imposuerunt nos illud portare non possumus qui scriptum esse in sanctis libris audimus ut pro libertate haereditate nostra usque ad mortem certare debeamus Desire the Apostolical Lord that forasmuch as he cannot be King and Bishop both together and that his Ancestors have concerned themselves with the Ecclesiastical Order which is their particular Province and not with the Common-wealth which is the Office of Kings not to command us to take such a one for our King who at so great a distance is not able to help us against the sudden and frequent Assaults of Heathens and to require us Francs to serve him whom we will not serve because his Ancestors never offer'd to impose this Yoke upon our Ancestors neither can we bear it who find it written in the Holy Books That we ought to fight for our Liberties and our Inheritance even unto Death We see also that he who was the Head of the Third Race viz. Hugh Capet was chosen King of France notwithstanding the apparent Rights of Charles of Lorrain who was the next Heir of Lewis V. by reason that the said Charles seemed too much linked to the Interests of the Germans who at that time were Enemies to France Guil. de Nangis ad An. 987. and others in du Chesne Who does not know the History of Henry III. who having been deposed in Poland for deserting that Kingdom was afterwards deposed in France by advice of the Sorbonn and of the greatest part of the States We may easily judg from these two Characters that Frenchmen never were infected with the Doctrine of Non-resistance The one is because they look'd upon this Doctrine as an Error See what Gerson the famous Chancellor of the University of Paris saith of it Error est dicere terrenum Principem in nullo suis subditis dominio durante obligari quia secundum jus Divinum Naturalem aequitatem verum Dominii finem quemadmodum subditi debent fidem subsidium servitium Domino sic etiam Dominus subditis suis fidem debet protectionem Et si eos manifeste cum obstinatione in injuria de facto prosequatur Princeps tunc Regula haec Naturalis vim vi repellere licet locum habet Opusc adversus Adulat consid 7. It is an Error saith he to assert that an Earthly Prince as long as his Dominion lasts does not stand engaged to his Subjects in any thing because according to the Divine Law Natural Equity and the true End of Dominion as the Subjects owe to their Prince Faithfulness Subsidy and Service so their Prince owes them Faithfulness and Protection and in case he doth publickly and with obstinacy imperiously oppress them then that natural Rule takes place That it is lawful to repel Force by Force The second is that they have always with horror rejected the Abuse that has been made of the Expression in 1 Sam. 8. Hoc est Jus Regis for to maintain the Tyranny of Princes If we will believe the Laws amongst you Princes saith Claudius d' Epense to King Henry II. you are Lord of our Body and Goods or to speak more like Christians we and ours are at your command Your Majesty ought to abhor that Right nothing less than Royal and nothing more than Tyrannical which God by the Mouth of Samuel did not allow to Kings but only threatned the People with telling them This shall be the Right of the King c. And then adds Go to now ye Dogs and Flatterers of the Court go to and alledg hence-forward this Right not Regal but Barbarous but Turkish but Scythian or if any worse Epithet can be invented I acknowledg that the Face of Affairs is very much changed since these hundred Years The States General have not been assembled almost these Seventy Years The Parliaments themselves which were established by the Kings and the States General to preserve the Rights of the States have been forced by the present King to verify without any Debate all manner of Edicts for the Imposition of Mony. But yet after all this Change is of so late standing that there is little appearance it should be look'd upon as a sufficient Prescription against the Interest of the State. Those French-men who have any knowledg of the Laws of the State and its Constitution set down the Epocha or Date of this Change of the Ancient Maxims of the Kingdom to wit the time which followed the Cessation of the Holding of the Estates General or the Minority of Lewis XIII and the Reign of Lewis XIV Let no Body imagine that the Ancient Idea of the Government of France is quite effaced out of the Spirit of the Nation I own that Lewis XIV by a Reign both very long and very violent has made the French lose a great deal of their Courage The Clergy of that Kingdom have above all endeavoured to support his Tyranny by Maxims advanc'd and contriv'd by them for the ruin of the Protestants with as little regard for their Country as they have shewed Conscience in their base Panegyricks pronounced to his Honour But however there are still in being a great number of honest Men who adhere to those Ancient Maxims I can at this present produce one of these from amongst the Clergy the Learned and illustrious M. Joly Canon of the Church of Paris who in the Year 1663 publish'd a Book with this title Important Maxims for the Education of a King. This Man alone may suffice to prove my assertion for he very vigorously confirms these Maxims by the Testimony of Kings themselves Chancellors Ministers of State Lawyers and Historians of France that they were always of Opinion in that Kingdom That the King holds his Authority from the People That the Power of Kings is Limited That the French Monarchy is a Monarchy allay'd and temper'd with
〈◊〉 〈◊〉 Kings or Emperors believing that the Name of Kings left them in some dependence upon the Empire of the East this obliged the Emperors of the West to take upon them the Title of Emperor to intimate their independency upon the Princes of the East Which Title the Emperors of the West having afterwards made use of as a pretence to raise themselves above the rest of the Princes of Europe the Western Kings did the same which the Emperors of the West had done before to assert their Independency For not only the Kings of England but some other Western Kings have taken upon them the Title of Emperors Alphonsus VI King of Spain took upon him this Title by a Concession from Pope Vrban II because he had suppressed the Mosorabick-Office Alphonsus VII and VIII assum'd the same Titles and Alphonsus VIII was Crowned in that quality by Raymond Arch-Bishop of Toledo in the Church of Lions with the consent of Pope Innocent II as is reported by Garibay lib. 8. hist cap. 4. We find that Peter de Clugny writes to this Alphonsus as Emperor of Spain Epist 8. And long time before these Princes it is certain that the Kings of the Goths since Richaredus had taken to themselves the Title of Flavians in imitation of the Roman Emperors as may be seen in the Councils of Toledo Yet Philip II having demanded this Title in 1564 of Pope Pius IV it was refused him The Kings of Lombardy had assum'd the Title of Flavians even since Autlaric according to the Account given us by Paul Diacon lib. 3. cap. 8 which they did to shew that they were Emperors in their own Lands and Territories and that they acknowledged no Soveraign or Superior And it seems that in Process of Time some Western Kings affected that Title for the same reason and were the rather perswaded so to do because some Canonists and Lawyers have impudently maintained That the Kings of Spain France and England were Subjects of the Emperors of the West Glossa in cap. Venerabil de Elect. in verbo transtulit in caput Venerabil qui filii sint legitimi Bartolus in caput hostes ff de captivis Alciat lib. 2 disjunct c. 22. Baldus in cap. 1 de Pace juramento fervando in usibus Feudorum Tho he contradict himself by asserting elsewhere That the King of France is not subject to the Emperor And thus much for the first Illusion some make use of to perswade us that the Kings of England possess the same Rights as the Emperors A second which seems to have some more Ground is this They say that as the Emperors that were after Vespasian had the Right to divide the Empire and to settle it by their Wills on their Heirs the Kings of England having done the like it appears thereby they were in Possession of the same Right the Emperors had to this purpose they alledge the last Will of William the Conqueror in favor of his Son William Rufus But nothing can be more vain than this Objection 1. We cannot deny but that the Election of Kings took Place during the Reign of the Saxons not that they did it with that Freeness as to prefer the Uncle before his Nephew that was under Age ' tho the Kings Son and the youngest Brother before the Eldest 2ly It is true that William the Conqueror did act in an extraordinary manner in disposing of his Kingdom in Favor of William Rufus in the same way as one disposeth of a Conquest and this in prejudice to Robert his Eldest Son as was also done by William Rufus But these two Princes dying without Heirs Henry who had Married the Daughter of King Alexander of Scotland who had the Rights of the Saxon Kings and who in Consideration of that Marriage renounced the Rights he might pretend to England as heir Presumptive of the Saxon Kings having obtain'd the Government by the Right of his Wife the Laws recovered their Strength and Things returned to their antient Channel as they were in the time of the Saxons So that it appears that it is Folly for any one to imagine that the Kings of England may alienate their Estates as a private Person can alienate his Inheritance This was evident in the case of King John who was opposed by the whole State for pretending to subject the Crown of England to Pope Innocent III. And indeed if we consider the Thing in it self and according to the unanimous Opinion of all Lawyers these last Wills can really be of no Force without the consent of the States to authorize them as we find that the same did intervene in both the fore-mentioned Cases The reason whereof is invincible forasmuch as all States do not consider their Kings as Proprietors of their Kingdoms but only as publick Ministers who are intrusted with a Jurisdiction and Administration for the Good of the publick And this is the Title by which even Conquerors themselves are at last obliged to hold their Authority They tell us in the 3d place that the Kings of England entitling themselves Kings by the Grace of God it appears that their Power being come from God cannot be limited by their Subjects over whom God has set them A wonderful way of arguing and never known till these our Times at least it is evident that he who has defended Nicholas de Lyra against Burgensis hath made a very different use of these words Dei Gratia by the Grace of God wherewith the Kings of the North prefac◠their Titles from what some now a days make of it For he maintains that it is the Character of a limited and temper'd Government see how he expresseth himself upon the 8. ch of the 1 Book of Kings Titulus Imperatoris modo regendi vitiato that is to say illimitato as he expresses himself before contradicit nam titulus ejus est N. Dei gratia Romanorum Rex semper Augustus hoc est Reipublicae non privatae accommodus Ita aliorum Regum Protestationes sunt sub Dei gratia quae vitiatum Principatum non admittit The very Title of the Emperor saith he is a Contradiction to an Arbitrary and Unlimited kind of Government for his Title is N. by the Grace of God King of the Romans always Augustus that is enlarger of the Empire which implies that his Government is accommodate to the Common good and not his Private Interest So likewise we find that the Protestations of other Kings are under Dei Gratia the Grace of God which doth not admit of Arbitrary Government There remain but two difficulties more the first is this Several Members of the Church of England having perswaded the People that a necessity was laid upon them to suffer all from the Hands of their Kings The Kings of England have accordingly usurped those Rights and were actually in possession of them when the same began to oppose themselves to King James this is that they call a right of Prescription They consider the