A treatise of monarchie, containing two parts

PART. I.

CAP. I. Of Politicall Government, and its Distinction into severall Kinds.

GOvernment and Subjection are Relatives, [Sect. 1] so that what is said of the One, may in proportion be said of the other: Which being so, it will be needlesse to treat of both: because it will be easie to apply what is spoken of one to the other. Go∣vernment is Potestatis Exercitium, the ex∣ercise of a Morall Power. One of these is the Root and Measure of the other; which if it exceed, is ex∣orbitant, is not Government, but a Transgression of it. This Power and Government is differenced with respect to the Governed, to wit, a Family, which is called Oeconomicall: or a publike society, which is called Politicall, or Magistracie. Concerning this Magistracie we will treat 1. in generall.

2. Of the principall kind of it.

In generall concerning Magistracie, There are two things about which I find difficultie and difference, viz. the Origi∣nall, and the End.

First for the Originall: There seem to be two extremes in Opinion; while some amplifie the Divinitie therof: Others speak so slightly of it, as if there were little els but Humane Institution in it. I will briefly lay down my apprehensions of the evident truth in this point: and it may be, things being clearly and disctinctly set down, there will be no reall ground for contrariety in this matter. Three things herein must necessarily be distinguished, viz. 1. The Consti∣tution of Power of Magistracie in generall. 2. The Limita∣tion of it to this or that kind. 3. The Determination of it to this or that Individuall Person or Line.

For the first of these, 1. It is Gods expresse Ordinance that in the societies of Mankind, there should be a Magistracie or Government. At first when there were but two, God ordeyned it, Gen. 3.16. S^t. Paul affirmes as much of the Pow∣ers that be, none excepted, Rom. 13 1. 2 This Power where ever placed ought to be respected as a participation of divine Soveraignty, Psal, 82.1.6. and every soule ought to be subject to it for the Lords sake 1 Pet. 2.13. that is, for conscience sake of Gods Ordinance, Rom. 13.5. and under penaltie of Dam∣nation, v. 2. These are Truths against which there is no co∣lour of opposition. Indeed this Power may be claymed by them who have it not; and where there is a limitation of this Power, subjection may be claymed in cases which are without those limits: But to this Ordinance of Power where it is, and when it requires subjection, it must be given; as before.

For the second. 1. In some particular communities the Limitation of it to this or that kind, is an immediate Ordi∣nance of God: so Kingly Power was appointed to the Jewes on their desire, 1 Sam. 8.9. whether they had not a kind of Monarchicall Government before, I will not stand on it: but it is evident that then, on their earnest desire God him∣selfe condescended to an establishment of Regalitie in that

state. 2. But for a generall binding Ordinance, God hath given no word, either to command or commend one kind above another: Men may according to their Relations to the forme they live under, to their affections and judgements in divers respects, preferre this or that form above the rest; but we have no divine limitation: and it were an absurditie to think so; for then we should uncharitably condemne all the Communities which have not that form for violation of Gods Ordinance and pronounce those other Powers unlaw∣full. 3. This then must have another and lower fountain to flow from, which can be no other then Humane. The higher Power is Gods Ordinance: That it resideth in One, or more; in such or such a way is from humane designment: for when God leaves a matter indifferent, the restriction of this indifferencie is left to secondary causes. And I conceive this is S^t. Peters meaning, when he calls Magistracie 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Humane Creature; S. Paul calls it Gods Ordinance, be∣cause the Power is Gods: S. Peter calls it humane Ordinance, because the specification of it to this or that form, is from the societies of Mankind. I confesse it may be called a hu∣mane Creature, in regard of its subject, which is a Man, or Men: or its End which is to rule over Men for the good of Men, but the other seems more naturall and it induces no disparagement to Authority, being so understood. But how ever you take that place, yet the thing affirmed stands good, that God by no word binds any people to this or that form, till they by their own Act bind themselves.

For the third: the same is to be said of it, as of the second: some particular men we find whom God was pleased by his own immediate choise to invest with this his Ordinance of Authority: Moses, Saul, David, yea God by his immediate Ordinance determined the Government of that people to Davids posteritie and made it successive; so that that People after his appointment and word was made known to them, and the room voyd by Sauls death, was as immediately bound by divine Law to have David, and his Sonnes after him to be Magistrates, as to Magistracie it selfe. But God hath not done so for every people: ascriptum est cannot be alledged for

the endowing this or that person or stock with Soveraignty over a community: They alone had the priviledge of an ex∣traordinary Word. All others have the ordinary and medi∣ate hand of God to enthrone them: They attaine this deter∣mination of Authority to their Persons by the tacite and virtuall, or else expresse and formall consent of that Society of men they governe, either in their owne persons, or the root of their succession, as I doubt not, in the sequele it will be made appeare. But let no man thinke that it is any lesse∣ning or weakning of Gods Ordinance in them, to teach that it is annexed to their Persons by a humane Meane: for though it be not so full a title to come to it by them simple Providence of God, as by the expresse Precept of God: yet when by the disposing hand of Gods Providence a Right is conveyed to a person or family, by the meanes of a publique Fundamentall Oath, Contract and Agreement of a State, it is equivalent then to a Divine Word; and within the bounds of that publique Agreement the conveyed Power is as Obli∣gatory, as if an immediate word had designed it. Thus it ap∣pears that they which say there is divinum quiddam in Sover∣aignes, and that they have their power from God, speake in some sence truth; As also they which say that originally Power is in the People, may in a sound sence be understood. And in these things we have Dr. Ferns consent in his late dis∣course upon this subject. Sect. 3.

[Sect. 2] For the end of Magistracie; to set out that is no hard matter, if we consider what was looked at when God ordey∣ned it. That was the Good of the society of men over which it is set: So Saint Paul, Rom. 13.4. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. God aymed at it in the Institution of Government: and so do all men in the choice of it, where they may be choosers: such a Government, and such persons to sway it, as may most con∣duce to publique Weale. Also it is the measure of all the Acts of the Governour: and he is good or bad according as he uses his Power to the good of the State wherewith he is intrusted. That is the end: but not the sole end; The preservation of the Power and Honour of the Governour

is an end too: but I thinke not co-ordinate, but subordinate to the other: because doubtles in the Constitution of Govern∣ment, that is first thought on, and this in congruity to that; Also the reason why the Power and Honour of the Magi∣strate must be preserved, is for the publique societies sake be∣cause its welfare depends thereon: And if it fall out that one of them must suffer: every good Magistrate will descend something from his greatnes be it for the good of the Com∣munity: On the other side, though every subject ought for the honour and good of the Magistrate to give up his private; yet none ought to advance the greatnes of his Soveraign with the publique detriment. Whence in my apprehension the end of Magistracie is the good of the whole Body, Head, and Members conjunctly: but if we speak divisim, then the good of the Society is the Ultime end: and next to that, as con∣ducent to that, the Governours Greatnes and Prerogative. And herein also accordeth Dr. Fern with us. Sect. 3. Where he sayes, That the people are the end of the governing Pow∣er. There is another question of mainer concernment, here in our generall discourse of Authority fitly to be handled. viz. How farre subjection is due to it? but because it hath a great dependance on the kinds and States of Power, and can∣not be so well conceived without the Precognition there∣of: I will referre it to after opportunities.

For the division of this Power of Magistracie. It cannot [Sect. 3] be well divided into several species; for it is one simple thing an indivisible bcame of Divine Perfection; yet for our more distinct conceaving thereof. Men have framed severall di∣stinctions of it. So with respect of its measure, it is absolute or limited: In respect of its manner. It is as St. Peter divides it, Supreame, or Subordinate. In respect of its Meane of ac∣quiring it is Elective, or successive; for I conceive that of Conquest, and Prescription of usuage are reducible to one of these, as will appeare afterwards. In respect of its degrees it is Nomotheticall or Architectonicall and Gubernative or Exe∣cutive. And in respect of the subject of its residence there is an ancient and usuall distinction of it into Monarchicall, Ari∣stocraticall

and Democraticall. These either simple or mixt of two, or all three together, of which the Predominant gives the denomination. These are not accurate specificative, Divi∣sions of Power, for it admits none such, but partitions of it according to divers respects. The course of my intention di∣rects me to speak only of Monarchicall Power, which is the chiefe and most usuall forme of Government in the world; The other two being apt to resolve into this, but this not so apt to dissolve into them.

CHAP. II. Of the Division of Monarchy into absolute and limited.

[Sect. 1] NOW we must know that most of those distinctions which were applyed to Power in generall are applia∣ble to Monarchy: because the respects on which they arise are to be found in it. But I will insist on the three main divisions: for the handling of them will bring us to a cleare understanding of what is needfull to be known about Monar∣chicall Power.

First, of the distinction of Monarchy into Absolute and Limited. Absolute Monarchy is when the Soveraignty is so fully in one, that it hath no Limits or Bounds under God, but his owne Will. It is when a people are absolutely resig∣ned up or resigne up themselves to be governed by the will of one man. Such were the ancient Easterne Monarchies, and that of the Persian and Turke at this day, as farre as we know. This is a lawfull Government and therefore where men put themselves into this utmost degree of subjection by Oath and Contract, or are borne and brought unto it by Gods Provi∣dence, it binds them and they must abide it▪ because an Oath to a lawfull thing is Obligatory. This in Scripture is very evi∣dent as Ezek. 17 16.18.19. Where Iudgement is denoun∣ced against the King of Iudah for breaking the Oath made to

the King of Babylon; and it is called Gods Oath, yet doubtles this was an Oath of absolute subjection. And Rom. 13. the power which then was, was absolute; yet the Apostle not excluding it; calls it Gods ordinance, and commands subjecti∣on to it: so Christ commands tribute to be paid, and payes it himselfe; yet it was an arbitrary taxe, the production of an absolute power. Also the soveraignty of masters over ser∣vants was absolute, and the same in Oeconomy as absolute Monarchy is in policie, yet the Apostle enjoynes not ma∣sters called to Christianity to renounce that title as too great and rigid to be kept but exhorts them to moderation in the exercise of it; and servants to remaine contented in the con∣dition of their servitude. More might be said to legitimate this kinde of governement, but it needs not in so plaine a case.

This absolute Monarchy hath three degrees, yet all with∣in [Sect. 2] the state of absolutenesse. The first, when the Monarch, whose will is the peoples Law, doth set himselfe no stated Rule or Law to rule by, but by immediate Edicts and com∣mands of his owne will governes them, as in his owne and Councels judgement he thinks fit. Secondly, when he sets downe a Rule and Law by which he will ordinarily govern, reserving to himselfe liberty to vary from it, wherein, and as oft as in his discretion he judges fit: and in this the Sove∣raigne is as free as the former, onely the people are at a more certainty what he expects from them in ordinary. Thirdly, when he not onely sets downe an expresse Rule and Law to governe by, but also promiseth and engages himself in many cases not to alter that rule: but this engagement is an after condescent and act of grace, not dissolving the absolute oath of subiection, which went before it, nor is intended to be the rule of his power, but of the exercise of it. This Ruler is not so absolute as the former in the use of his power, for he hath put a bond on that, which he cannot breake without breach of promise; that is, without sin: but he is as absolute in his power, if he will sinfully put it forth into act, it hath no politick bounds, for the people still owe him absolute

subiection, that not being dissolved or lessened by an act of grace comming afterwards.

[Sect. 3] Now in governments of this nature, How far obedience is due, and, Whether any resistance be lawfull, is a question which here must be decided. For the due effecting whereof, we must premise some needfull distinctions to avoid confu∣sion. Obedience is twofold; first, Positive and active, when in conscience of an authority we doe the thing commanded: secondly, Negative and passive, when though we answer not Authority by doing, yet we doe it by contented undergoing the penalty imposed. Proportionably resistance is twofold: first, Positive, by an opposing of force: secondly, Negative, when onely so much is done as may defend our selves from force, without returne of force against the Assailant. Now this negative resistance is also twofold: first, In inferiour and sufferable cases: secondly, or in the supreme case and last ne∣cessity of life and death: and then too it is first, either of par∣ticular person or persons; secondly, or of the whole com∣munity. And if of particular persons, then either under plea and pretence of equity assaulted; or else without any plea at all, meerly for will and pleasure sake: for to that degree of rage and cruelty sometimes the heart of man is given over. All these are very distinguishable cases, and will be of use either in this or the ensuing disputes.

[Assert. 1] To the question I say, First, Positive obedience is abso∣lutely due to the will and pleasure of an absolute Monarch, in all lawfull and indifferent things: because in such a State the will of the Prince is the supreme Law, so that it binds to obedience in every thing not prohibited by a superiour, that is, Divine Law: for it is in such case the higher power, and is Gods ordinance.

[Assert. 2] Secondly, When the will of an absolute Monarch com∣mands a thing forbidden to be done by Gods Law then it bindes not to active obedience; then is the Apostles rule un∣doubtedly true, It is better to obey God then men: For the Law of the inferiour gives place to the superiour. In things defi∣ned by God, it should be all one with us for the Magistrate

to command us to transgresse that, as to command us an im∣possibility; and impossibilities fall under no Law. But on this ground no man must quarrell with Authoritie, or reject its commands as unlawfull, unlesse there be an open unlawful∣nesse in the face of the act commanded. For if the unlaw∣fulnesse be hidden in the ground or reason of the action, in∣feriours must not be curious to enquire into the grounds or reasons of the commands of superiours; for such licence of enquiry would often frustrate great undertakings, which much depend on speed and secrecy of execution. I speak all this of absolute government, where the will and reason of the Monarch is made the higher power, and its expression the supreme Law of a State.

Thirdly, suppose an absolute Monarch should so degene∣rate [Assert. 3] into Monstrous unnaturall Tyranny, as apparently to seeke the destruction of the whole community, subject to him in the lowest degree of vassallage, then such a commu∣nity may negatively resist such subversion: yea, and if con∣strained to it by the last necessity, positively resist and defend themselves by force against any instruments whatsoever, im∣ployed for the effecting thereof. 1. David did so in his parti∣cular case, when pursued by Saul: he made negative resistence by flight, and doubtlesse he intended positive resistence a∣gainst any instrument, if the negative would not have served the turne: else why did he so strengthen himselfe by Forces? sure not to make positive resistance, and lay violent hands upon the Person of the Lords Anointed, as it appeared; yet for some reason he did it doubtlesse, which could be none o∣ther, but by that force of Armes to defend himselfe against the violence of any mis-imployed inferiour hands. If then he might doe it for his particular safety, much rather may it be done for the publike. 2. Such an act is without the com∣passe of any the most absolute Potentate; and therefore to resist in it, can be to resist no power, nor the violation of any due of subjection. For, first, the most submisse subjection ever intended by any community, when they put themselves under anothers power, was the command of a reasonable will and power; but to will and command the destruction of

the whole body over which a power is placed, were an act of will most unreasonable and self-destructive, and so not the act of such a will, to which subjection was intended by any reasonable creatures. Secondly the publike good and being is armed at in the utmost bond of subjection; for in the con∣stitution of such unlimited soveraignty, though every parti∣cular mans good and being is subjected to the will of One su∣preme yet certainly the conservation of the whole Publike was intended by it; which being invaded; the intent of the constitution is overthrowne and an act is done which can be supposed to be within the compasse of no politicall power: So that did Nero as it was reported of him in his im∣manity thirst for the destruction of whole Rome; and if he were truly what the Senate pronounced him to be, Humani generis hostis, then it might justifie a negative resistance of his person; and a positive, of any Agent should be set on so in∣humane a service. And the united Provinces are allowed in resisting Philip 2^d. though he had bin their absolute Monarch, if he resolved the extirpation of the whole people, and the planting the countrey with Spaniards, as it is reported he did. And that assertion of some, that All resistance is against the Apostles prohibition. Resistance by power of Armes is ut∣terly unlawfull, cannot be justified in such a latitude. But of this more will be spoken in the current of this discourse.

[Assert. 4] Fourthly, suppose by such a power any particular person or persons life be invaded, without any plea of reason or cause for it, I suppose it hard to deny him liberty of negative resi∣stance of power; yea, and positive, of any Agents, in such as∣sault of murther: for though the case be not so cleare as the former yet it seemes to me justified by the fact of David, and the rescuing of Jonathan from the causlesse cruell intent of his Fathers putting him to death. As also such an act of will carrying no colour of reason with it, cannot be esteem∣ed the act of a rationall will, and so no will intended to be the Law of Soveraignty. Not that I thinke a Monarch of such absolutenesse is bound to yeeld a reason why he com∣mands any man to be put to death, before his command be obeyed; but I conceive the person so commanded to

death may bee justified before God and men for prote∣cting himselfe by escape, or otherwise, unlesse some reason or cause bee made knowne to him of such com∣mand.

Fifthly, Persons subject to an unlimited dominion must [Assert. 5] without resistance subject their Estates, Liberties, Persons, to the will and pleasure of their Lord, so it carry any plea or shew of reason and equity. First, it seemes to me evident, 1 Pet. 2.18, 19 20. if well doing be mistaken by the reason and judgement of the power for ill doing, and we be puni∣shed for it, yet the Magistrate going according to his mis∣guided reason it is the command of a reasonable will, and so to be submitted to; because such a one suffers by Law, in a State where the Lords will is the Law. Secondly, In com∣mands of the power where is the plea of reason and equity on the part of the commander, whether it be such indeed, some power must judge, but the constitution of absolute Monarchy resolves all judgement into the will of the Mo∣narch, as the supreme Law: so that if his will judicially cen∣sure it just it must be yeelded to as if it were just without repeale or redressement by any created power. And let none complaine of this as a hard condition, when they or their Ancestors have subjected themselves to such a power by oath, or politicall contract: If it be Gods ordinance to such, it must be subjected to and its exorbitances born, as he sayes in Tac••tu•…•…, as men beare famine, pestilence, and other effects of Gods displeasure.

Sixthly in absolute Monarchy the person of the Monarch [Assert. 6] is above the reach of just force and positive resistance: for such a full resignation of mens selves to his will and power, by the irrevocable oath and bond of politicall contract, doth make the person as sacred as the Unction of Saul or Da∣vid. In such a State all lawful power is below him, so that he is uncapable of any penall hand which must be from a supe∣riour, or it is uniust. I have bin the longer on this absolute Monarchy, because though it doth not concerne us, yet it will give light to the stating of doubts in governments of a more restrained nature: for what is true here in the full ex∣tent

of power, is there also as true within the compasse of their power.

[Sect. 4] In moderate or limited Monarchy it is an enquiry of some weight to know, What it is which constitutes it in the state of a li∣mited Monarchy.

First, A Monarchy may be stinted in the exercise of its [Assert. 1] power, and yet be an absolute Monarchy, as appeared before in our distinction of absolute Monarchy: If that bounds be a subsequent act, and proceeding from free will and grace in the Monarch; for it is not the exercise, but the nature and measure of power, wherewith he is radically invested, which denominates him a free, or conditionate Monarch.

[Assert. 2] Secondly, I take it, that a limited Monarch must have his bounds of power ab externo, not from the free determination of his owne will. And now Kings have not divine words and binding Lawes to constitute them in their Soveraignty, but derive it from ordinary providence, the sole meane hereof is the consent and fundamentall contract of a Na∣tion of men, which consent puts them in their power, which can be no more nor other then is conveyed to them by such contract of subiection, This is the root of all soveraignty individuated and existent in this or that person or family; till this come and lift him up he is a private man, not diffe∣ring in state from the rest of his brethren; but then he be∣comes another man, his person is sacred by that soveraignty conveyed to it, which is Gods ordinance and image. The truth hereof will be more fully discovered, when we come to speake of Elective and Successive Monarchy.

[Assert. 3] Thirdly He is then a limited Monarch, who hath a Law beside his owne will for the measure of his power. First, the supreme power of the State must be in him, so that his power must not be limited by any power above his; for then hee were not a Monarch, but a subordinate magistrate. Second∣ly, this supreme power must be restrained by some Law, ac∣cording to which this power was given, and by direction of which this power must act; else he were not a limited Mo∣narch, that is, a liege Soveraigne, or legall King. Now a So∣veraignty

comes thus to be legall, or defined to a rule of Law, either by originall constitution, or by after-condescent. By originall constitution, when the society publike conferres on one man a power by limited contract, resigning them∣selves to his government by such a Law, reserving to them∣selves such immunities: In this case, they which at first had power over themselves, had power to set their owne termes of subiection; and hee which hath no title of power over them but by their act, can de jure have no greater then what is put over to him by that act By after-condescent, viz. when a Lord, who by conquest, or other right, hath an abso∣lute arbitrary power; but not liking to hold by such a right, doth either formally or virtually desert it, and take a new legall right as judging it more safe for him to hold by, and desirable of the people to be governed by. This is equivalent to that by originall constitution; yea, is all one with it: for this is in that respect a secondary originall constitution. But if it be objected, that this being a voluntary condescent is an act of grace, and so doth not derogate from his former abso∣lutenesse as was said before of an absolute Monarch, who confines himselfe to governe by one rule; I answer. This differs essentially from that: for there, a free Lord, of grace yeelds to rule by such a Law, reserving the fulnesse of pow∣er, and still requiring of the people a bond and oath of ut∣most indefinite subjection; so that it amounts not to a limi∣tation of radicall power: whereas here is a change of title, and a resolution to be subiected to, in no other way, then ac∣cording to such a frame of government; and accordingly no other bond or oath of allegeance is required, or taken, then according to such a Law: this amounts to a limitation of ra∣dicall power. And therefore they speak too generally, who affirme of all acts of grace proceeding from Princes to peo∣ple, as if they did not limit absolutenesse: 'Tis true of acts of grace of that first kinde; but yet you see, an act of grace may be such a one, as may amount to a resignation of that abso∣lutenesse into a more milde and moderate power unlesse we should hold it out of the power of an absolute Lord to be o∣ther; or that by free condescent, and act of grace, a man can∣not

as well part with, or exchange his right and title to a thing, as define himselfe in the use and exercise; which I thinke none will affirme.

[Sect. 5] In all Governments of this allay and legall Constitu∣tion there are three Questions of speciall moment to be considered.

First, How farre subjection is due? As farre as they are Gods Ordinance, as farre as they are a power and they are a power as farre as the Contract fundamentall from which un∣der God their authority is derived doth extend. As absolute Lords must be obeyed as farre as their Will enjoynes, because their Will is the measure of their Power, and their subjects Law: so these in the utmost extent of the Law of the Land, which is the measure of their power, and their subjects duty of obedience. I say so farre, but I doe not say no further: for I believe, though on our former grounds it clearely fol∣lowes that such Authority transcends its bounds if it com∣mand beyond the Law: and the Subject legally is not bound to subjection in such case, yet in Conscience a Subject is bound to yeeld to the Magistrate, even when he cannot de jure, challenge obedience, to prevent scandall or any occasi∣on of slighting the power which may sometimes grow, even upon a just refusall: I say, for these causes a subject ought not to use his liberty, but morem gerere, if it be in a thing in which he can possibly without subversion, and in which his act may not be made a leading case, and so bring on a pre∣scription against publique Liberty.

[Sect. 6] Secondly, how farre it is lawfull to resist the exorbitant Illegal Commands of such a Monarch? 1. As before in light∣er cases, in which it may be done, for the reasons alledged, [Pos. 1] and for the sake of publique peace, we ought to submit, and make no resistance at all, but de jure recedere.

[Pos. 2] 2. In cases of higher nature. Passive resistance, viz. By ap∣peale to Law, by Concealment, by Flight, is lawfull to be made, because such a Command is politically powerles, it proceeds not from Gods Ordinance in him: and so we sin

not against Gods Ordinance in such Non-submission, or Negative resistance.

3. For Instruments or Agents in such commands, if the [Pos. 3] streight be such, and a man be surprized, that no place is left for an appeale nor evasion by Negative resistance; I conceive, against such. Positive resistence may be made: because au∣thority failing or this Act in the Supreame Power, the A∣gent or Instrument can have none derived to him; and so is but in the nature of a private person, and his Act, as an offer of private violence, and so comes under the same rules for opposition.

4. For the person of the Soveraigne, I conceive it, aswell [Pos. 4] above any Positive Resistence, as the Person of an absolute Monarch; Yea, though by the whole Community, (except there be an expresse reservation of Power in the body of the State, or any deputed Persons or Court, to use in case of in∣tolerable exorbitance. Positive Resistence, which, if there be, then such a Governour is no Monarch, for that Funda∣mentall Reservation destroyes it's being a Monarchy in as∣much as the Supreame Power is not in one.) For where e∣ver there is a Soveraigne Politique Power constituted, the person or persons who are invested with it are Sacred, and out of the reach of Positive Resistance or Violence: which, as I said, if just, must be from no inferior or subordinate hand. But it will be objected, that sith every Monarch hath his power from the consent of the whole body, that consent of the whole Body hath a Power above the Power of the Monarch, and so the resistance which is done by it, is not by an inferior power and to this purpose is brought that Ax∣iome. Quicquia efficit tale est magis tale. I answer, That rule even in naturall causes is lyable to abundance of restrictions: And in the particular in hand it holds not. Where the cause doth bereave himselfe of that perfection by which it works, in the very act of causing, and convey it to that effect, It doth not remain more such then the effect, but much lesse, and below it, as if I convey an estate of Land to another, it doth not hold that after such conveyance I have a better E∣state remayning in me then that other, but rather the con∣trary;

because what was in one is passed to the other: The Servant who at the year of Iubile would not go out free, but have his eare boared, and given his Master a full Lordship o∣ver him: can we argue, that he had afterward more power over himselfe then his Master, because he gave his Master that power over him, by that act of Oeconomicall Con∣tract. Thus the Community whose consent establishes a Power over them cannot be said universally to have an emi∣nencie of Power above that which they constitute; some∣times they have, sometimes they have not: and to judge when they have, when not respect must be had to the Origi∣ginall Contract and Fundamentall Constitution of that State, if they have constituted a Monarchy, that is, invested one man with the Soveraignty of Power, and subjected all the rest to him; Then it were unreasonable to say, they yet have it in themselves; Or have a power of recalling that Su∣premacie which by Oath and Contract they themselves transferred on another: Unles we make this Oath and Con∣tract lesse binding then private ones, dissoluble at pleasure, and so all Monarchs Tenants at will from their people. But if they in such Constitution reserve a power in the bo∣dy to oppose and displace the Magistrate for exorbitancies, and reserve to themselves a Tribunall to trie him in, that man is not a Monarch but the Officer and Substitute of him or them to whom such Power over him is reserved or conferred. The Issue is this, If he be a Monarch he hath the Apex or Culmen Potestatis, and all his Subjects divisim and conjunction, are below him: They have devested themselves of all superiority and no Power left for a Positive Opposi∣tion of the Person of him whom they have invested.

[Sect. 7] Thirdly, Who shall be the Iudge of the Excesses of the Soveraigne Lord in Monarchies of this composure? I an∣swer, A frame of Government cannot be imagined of that perfection but that some inconveniencies there will be pos∣sible for which there can be provided no remedie: Many miseries to which a people under an absolute Monarchie are lyable are prevented by this Legall Allay and definement of

Power. But this is exposed to one defect from which that is free, that is an impossibility of constituting a Judge to deter∣mine this last controversie, viz. the Soveraignes transgres∣sing his fundamentall limits. This Judge must be either some Forraigner, and then •…•…e lose the freedome of the State, by subjecting it to an externall power in the greatest case: or else within the body: If so then 1. either the Monarch himselfe, and then you destroy the frame of the State, and make it ab∣solute; for to define a Power to a Law, and then to make him Judge of his Deviations from that Law, is to absolve him from all Law. Or else 2. the Community and their Deputies must have this power: and then, as before, you put the apex Potestatis, the prime 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 in the whole body, or a part of it, and destroy the being of Monarchy: The Ruler not be∣ing Gods immediate Minister but of that Power, be it where it will to which he is accomptable for his actions. So that I conceive in a limited legall Monarchy, there can be no sta∣ted internall Judge of the Monarchs actions, if there grow a fundamentall Variance betwixt him and the Community. But you will say, It is all one way to absolutenesse to assigne him no Judge as to make him his own Judge. Answ. I say not simplie in this case there is no Judge: But that there can be no Judg legall and constituted within that frame of Govern∣ment: but it is a transcendent case beyond the provision of that Government, and must have an extraordinary Judge, and way of devision.

In this great and difficult case, I will deliver my appre∣hensions freely and clearly, submitting them to the censure of better Iudgements. Suppose the controversie to happen in a Government fundamentally legall, and the people no further subjected then to Government by such a Law.

1. If the act in which the exorbitance and transgression [Pos. 1] is supposed to be, be of lesser moment, and not striking at the very being of that Government, it ought to be borne by publique patience, rather then to endanger the being of the State by a contention betwixt the head and body Politique.

2. If it be mortall and such as suffered, dissolves the frame [Pos. 2] and life of the Government and publique liberty. Then the

illegality and destructive nature is to be set open and redres∣ment sought by Petition; which if failing, Prevention by resistance ought to be. But first that it is such must be made apparent; and if it be apparent, and an Appeale made ad con∣scientiam generis humani, especially of those of that Commu∣nity, then the fundamentall Lawes of that Monarchy must iudge and pronounce the sentence in every mans conscience; and every man (as farre as concernes him) must follow the evidence of Truth in his owne soule, to oppose, or not op∣pose, according as he can in conscience acquit or condemne the act of carriage of the Governour. For I conceive in a Case which transcends the frame and provision of the Go∣vernment they are bound to. People are unbound, and in state as if they had no Government; and the superiour Law of Reason and Conscience must be Judge: wherein every one must proceed with the utmost advice and impartiality: For if hee erre in iudgement hee either resists Gods Ordi∣nance, or puts his hand to the subversion of the State and Policy he lives in.

And this power of judging argues not a superiority in those who Judge, over him who is Judged for it is not Authoritative and Civill, but morall, residing in reasona∣ble Creatures and lawfull for them to execute, because never devested and put off by any act in the constitution of a legall Government, but rather the reservation of it intended: For when they define the Superiour to a Law, and consti∣tute no Power to Judge of his Excesses from that Law, it is evident they reserve to themselves, not a Formall Au∣thoritative Power, but a morall Power, such as they had originally before the Constitution of the Government; which must needs remaine, being not conveyed away in the Constitution.

CHAP. III. Of the division of Monarchy into Elective and Suc∣cessive.

THe second division of Monarchy, which I intend to [Sect. 1] treat of, is that of Elective or Successive. Elective Mo∣narchy is that, where by the fundamentall constituti∣on of the State, the supreme power is conveyed but to the person of him whom they take for their Prince; the people reserving to themselves power, by men deputed by the same constitution to elect a new person on the decease of the for∣mer. Successive is, where by the fundamentall constitution of the State, the Soveraignty is conferred on one Prince; and in that one, as a root and beginning to his heires, after a forme and line of succession, constituted also by the funda∣mentals of that Government. In the first, the Peoples oath and contract of subiection extends but to one person: In the other, to the whole Race and Line of Successors; which continuing, the bond of subjection continues; or which failing, the people returne to their first liberty, of choosing a new person, or succession to be invested with Soveraignty.

I doe conceive that in the first originall all Monarchy, yea [Sect. 2] any individuall frame of Government whatsoever, is ele∣ctive: that is, is constituted, and drawes its force and right from the consent and choice of that Community over which it swayeth. And that triple distinction of Monar∣chy in o that which is gotten by Conquest, Prescription, or Choice is, not of distinct parts unlesse by Choice be meant full and formall Choice: my reason is, because man being a voluntary agent and subiection being a morall act, it doth essentially depend on consent: so that a man may by force and extremity be brought under the power of another, as unreasonable creatures are, to be disposed of, and trampled

on, whether they will or no: But a bond of subjection can∣not be put on him, nor a right to claime Obedience and Ser∣vice acquired, unlesse a man become bound by some act of his owne Will. For, suppose another, from whom I am ori∣ginally free, be stronger then I, and so bring mee under his mercy doe I therefore sin if I doe not what he commands me? or can that act of violence passe into a morall title, without a morall principle?

[Sect. 3] But this will be more manifest, if by induction I shew how other titles resolve into this. I will begin with that of di∣vine institution. Saul and David were by the Sacrament of anointing designed to the Kingdome, as it were by Gods owne hand, which notwithstanding, they were not actually Kings till the Peoples consent established them therein: That unction was a manifestation of the appointment of God, and when it was made knowne to the People, I thinke it had the power of Precept, to restraine the Peoples choice to that person; which if they had not done, they had resi∣sted Gods ordinance. Yet they were not thereby actually endowed with Kingly power, but remained as private men, till the Peoples choice put them in actuall possessi∣on of that Power, which in David was not till after many yeares.

[Sect. 4] Then for that of Usuage or Prescription; if any such did ever constitute a Monarchie, it was by vertue of an Univer∣sall consent by that Usuage and Prescription proved and implyed: For in a Popular state, where one Man in the Communitie, by reason of great estate, Wisdome, or other Perfection is in the eye of all the rest, all reverence him, and his advice they follow: and the respect continues from the People to the house and family, for divers genera∣tions. In this case, subjection at first is arbitrary in the peo∣ple; and if in time it become necessary, it is because their Custome is their Law; and its long continuance is equi∣valent to a formall Election: so that this Tenure and Right if it be good and more then at pleasure, as it was at first, the

considerate must needs ascribe it to a consent, and implicite choyce of the People.

But the mayn Question is concerning Monarchy archie∣ved [Sect. 5] by Conquest; where at first sight the Right seems gotten by the Sword, without the consent and Choyce of the Peo∣ple, yea against it. Conquest is either 1. Totall where a full Conquest is made, by a totall subduing a people to the Will of the Victor: or 2. Partiall, where an entrance is made by the Sword: But the People either because of the Right claymed by the Invader; or their unwillingnesse to suffer the Mise∣ries of Warre, or their apparent inability to stand out in a way of Resistance, or some other consideration, submit to a composition and contract of subjection to the Invader. In this latter it is evident, the Soveraignes Power is from the Peoples consent; and the Government is such as the Con∣tract and fundamentall agreement makes it to be if it be the first Agreement, and the pretender hath no former Title which remaines in force, for then this latter is invalid, if it include not and amount to a relinquishing and disanulling of the Old. But the difficulty is concerning a full and meere Conquest; and of this I will speak my mind clearly. Such a Warre and Invasion of a People, which ends in a Conquest, 1. it is either upon the pretence or claim of a Title of Sove∣raignty over the People invaded: and then, if the pretender prevaile, it is properly no Conquest, but the vindication of a Title by force of Armes. And the Government is not Ori∣ginall, but such as the Title is by which he claymes it. 2. Or it is by One who hath no challenge of Right descending to him to justifie his claim and Invasion of a People: Then if he subdue, he may properly be said to come to his Govern∣ment by Conquest.

And there be who wholly condemne this title of Con∣quest as unlawfull, and take it for nothing else but a Natio∣nall and publike robbery: so one of the Answerers to Doctor Ferne, saies in his p. 10. Conquest may give such a right as Plun∣derers use to take in houses they can master.— It is inhumane

to talke of right of Conquest in a Civill, in a Christian State. But I cannot allow of so indefinite a Censure: rather I think the right of Conquest is such as the precedent Warre was: if that were lawfull, so is the Conquest: For a Prince may be inva∣ded, or so farre injured by a neighbour People, or they may be set on such a pernicious enmitie against him and his peo∣ple, that the safety of himselfe and people may compell to such a Warre, which warre if it end in Conquest, who can judge such Title unlawfull? Suppose then Conquest may be a lawfull way of acquisition: yet an immediate cause of right of Soveraignty; that is, of a Civill power of Government to which obedience is due, it cannot be: I say, an immediate cause, for a remote impulsive cause it oft is, but not an im∣mediate formall cause; for that must ever be the consent of the people, whereby they accept of, and resigne up them∣selves to a Government, and then their Persons are morally bound, and not before. Thus far the force of conquest may goe; it may give a man title over, and power to possesse and dispose of the Countrey and Goods of the Conquered; yea, the Bodies and lives of the Conquered are at the Will and Pleasure of the Conquerour: But it still is at the Peoples choice to come into a morall condition of subiection or not. When they are thus at the mercy of the Victor, if to save life they consent to a condition of servitude or subiection, then that consent, oath, or covenant, which they in that ex∣tremity make, being in relicita, bindes them, and they owe morall Duty. But if they would rather suffer the utmost violence of the Conquerour, and will consent to no termes of subjection as Numantia in Spaine, and many other People have resolved; they die or remaine a free People. Be they captived or possessed at pleasure, they owe no duty, neither doe they sin in not obeying; nor doe they resist Gods ordi∣nance, if at any time of advantage they use force to free themselves from such a violent possession: yea perhaps, if before by contract they were bound to another, they should sin if to avoid death or bondage they should sweare or cove∣nant fealty to a Conquerour, and it were more noble and laudable to die in the service, and for the faith to their natu∣rall

Soveraigne. Thus I am perswaded it will appeare an un∣controlable truth in Policie, that the consent of the People, either by themselves or their Ancestors is the only mean in ordinary providence by which soveraignty is conferred on a∣ny Person or Family: neither can Gods ordinance be con∣veyed and People engaged in conscience by any other means.

It hath been affirmed by some, that mixture and limitati∣on [Sect. 6] is inconsistent to successive Monarchy; as if where ever Soveraignty is entailed to a succession, it must needs be ab∣solute: But I must professe I cannot see how it can stand with truth: Rather I thinke, that both Elective and Heredi∣tary Monarchy are indifferently capable of absolutenesse or limitation. If a free, and not pre-ingaged People to any Government, by publike compact yeeld up themselves to a Person, to be commanded by his Will as their supreme Law, during his naturall life, and no longer, can it be denied but that he is an absolute, and yet Elective Monarch? unlesse you will say, he is not absolute, because he cannot by his Will, as by a Law, bind them to elect his sonne to succeed him, and change their Government into hereditary. But his being limited in this Clause doth not disparage his So∣veraignty, or make his power of Government limited, be∣cause this belongs not to present Government, but is a meere provision for the future. Againe, if the power of Ruling according to a Law, be by consent conveyed to one Person, and his heires to succeed after him, how this should come to be absolute and the entailement should overthrow the con∣stitution, I cannot imagine: If the whole latitude of power may be by a People made hereditary sure a proportion may as well; unlesse the limitation be such as includes a repug∣nancy to be perpetuall. Indeed this enstating of a succession makes that power irrevocable, during the continuance of that succession but it makes it neither greater nor lesse in the Successor then was in his Progenitors, from whom hee derives it.

In a successive Monarchy the Successor holds by the ori∣ginall [Sect. 7]

Right of him who is the root of succession; and is de jure King the immediate instant after his Predecessors de∣cease: Also the people are bound 〈◊〉〈◊〉 him, though they ne∣ver take any Oath to his person. For as he commands in vertue of the originall Right, so they are bound to obey by vertue of the originall Covenant, and nationall Contract of Subiection: the new oath taken either by King or People, is but a reviving of the old; that the Conscience of it by re∣newing might be the more fresh and vigorous: it neither gives any new power, nor addes or detracts from the old, un∣lesse by common agreement an alteration be made; and so the foundation in that clause is new, which cannot be with∣out the consent of both parties.

CHAP. IIII. Of the Division of Monarchy into Simple and Mixed.

[Sect. 1] THe third division is into Simple and Mixed. Simple is when the Government absolute or limited is so in∣trusted in the hands of one, that all the rest is by depu∣tation from him: so that there is no authority in the whole Body but his, or derived from him: And that One is either individually one Person, and then it is a simple Monarchy: Or one associate Body, chosen either out of the Nobility, whence the Government is called a simple Aristocraty: or out of the Community, without respect of birth or state, which is termed a simple Democracy. The supreme autho∣rity residing exclusively in one of these three, denominates the Government simple, which ever it be.

Now experience teaching People, that severall inconveni∣ences are in each of these, which is avoided by the other: as aptnesse to Tyranny in simple Monarchy: aptnesse to de∣structive Factions in an Aristocracy: and aptnesse to Confu∣sion and Tumult in a Democracy. As on the contrary, each

of them hath some good which the others want, viz. Unity and strength in a Monarchy; Counsell and Wisedome in an Aristocracy; Liberty and respect of Common good in a Democracy. Hence the wisedome of men deeply seene in State matters guided them to frame a mixture of all three, uniting them into one Forme, that so the good of all might be enjoyed, and the evill of them avoyded. And this mixture is either equall, when the highest command in a State by the first Constitution of it is equally seated in all three; and then (if firme Union can be in a mixture of Equality) it can be called by the name of neither of them but by the generall stile of a Mixed State: or if there be priority of Order in one of the three, (as I thinke there must be or else there can be no Unity) it may take the name of that which hath the precedency. But the firmer Union is, where one of the three is predominant and in that regard gives the denomination to the whole: So we call it a Mixed Monarchy, where the pri∣mity of share in the supreme power is in one.

Now I conceive to the constituting of Mixed Monarchy [Sect. 2] (and so proportionately it may be said of the other.)

1. The Soveraigne power must be originally in all three, viz. If the composition be of all three so that one must not hold his power from the other, but all equally from the fun∣damentall [Pos. 1] Constitution: for if the power of one be origi∣nall, and the other Derivative, it is no mixture, for such a Derivation of power to others is in the most simple Mo∣narchy: Againe, the end of mixture could not be obteyned; for why is this mixture framed, but that they might confine each other from exorbitance, which cannot be done by a derivate power, it being unnaturall that a derived power should turne back, and set bounds to its owne beginning.

2. A full equality must not be in the three estates, though [Pos. 2] they are all sharers in the Supreame power; for if it were so, it could not have any ground in it to denominate it a Mo∣narchie, more then an Aristocracie or Democracie.

3. A power then must be sought wherewith the Monarch [Pos. 3] must be invested, which is not so great as to destroy the

mixture; nor so titular as to destroy the Monarchy; which I conceive maybe in these particulars.

1. If he be the head and Fountaine of the power which governs and executes the established Lawes, so that both the other States as well conjunctim as divisim, be his sworne sub∣jects, and owe obedience to his commands, which are accor∣ding to established Lawes.

2. If he hath a sole or chiefe power in capacitating and putting those persons or societies in such States and conditi∣ons, as whereunto such Supreme power by the foundations of the Government doth belong, and is annexed: so that though the Aristocratical and Democraticall power which is conjoyned to his, be not from him: yet the definement and determination of it to such persons is from him, by a ne∣cessary consecution.

3. If the power of convocating or causing to be put in ex∣istence, and dissolving such a Court or Meeting of the two other estates as is authoritative, be in him.

4. If his authority be the last and greatest, though not the sole, which must establish and adde a consummatum to every Act. I say these, or any of these put into one person makes that State Monarchicall, because the other, though they depend not on him quoad essentiam et actus formales, but on the prime constitution of the Government, yet quoad existenti∣am et determinationem ad subjecta, they doe.

The Supreme power being either the Legislative or the Gubernative. In a mixed Monarchy sometimes the mixture is the seate of the Legislative power, which is the chiefe of the two: The power of constituting officers for governing by those Lawes being left to the Monarch: Or else the Pri∣macie of both these powers is jointly in all three: For if the Legislative be in one, then the Monarchy is not mixed but simple, for that is the Superiour, if that be in one, all else must needs be so too: By Legislative, I meane the power of making new Lawes, if any new be needfull to be added to the foundation: and the Authentick power of interpreting the old; For I take it, this is a branch of the Legislative and is as great, and in effect the same power.

Every mixed Monarchy is limited: but it is not necessary [Sect. 3] that every limited should be mixed: For the Prince in a mixed Monarchy, were there no definement of him to a Law but onely this: that his Legislative acts have no validity without the allowance and joint authority of the other: this is enough to denominate it exactly a limited Monarchy: and so much it must have, if it be mixed. On the other side, if in the foundations of his Government he be restrained to to any Law besides his own Will, he is a limited Monarch, though that both the Legislative and Gubernative pow∣er (provided he exceed not those Lawes) be left in his owne hands: But then the Government is not mixed.

Now concerning the extent of the Princes power, and the [Sect. 4] subjects duty in a mixed Monarchy, almost the same is to be said, which was before in a limited: for it is a generall rule in this matter: such as the Constitution of Government is, such is the Ordinance of God: such as the Ordinance is, such must our duty of subjection be. No Power can chal∣lenge an obedience beyond its owne measure; for if it might, we should destroy all Rules and differences of Government, and make all absolute and at pleasure. In every mixed Prin∣cipality.

First, Looke what Power is solely entrusted and commit∣ted [Assert. 1] to the Prince by the fundamentall Constitution of the State, in the due execution thereof all owe full subjection to him, even the other Estates, being but societies of his sub∣jects bound to him by Oath of Allegeance as to their liege Lord.

Secondly, those acts belonging to the power which is sta∣ted [Assert. 2] in a mixed Principle if either part of that Principle, or two of the three undertake to doe them it is invalid it is no binding Act; for in this case all three have a free Negative voice: and take away the priviledge of a Negative Voice, so that in case of refusall the rest have power to doe it without the third, then you destroy that. Third, and make him but a Looker on: So that in every mixed Government, I take it, there must be a necessity of concurrence of all three Estates

in the production of Acts belonging to that power, which is committed in common to them: Else suppose those Acts valid which are done by any major part, that is, any two of the three, then you put it in the power of any two, by a con∣federacy at pleasure to disanull the third, or suspend all its Acts, and make it a bare Cypher in Government.

[Assert. 3] Thirdly in such a composed State, it the Monarch in∣vade the power of the other two, or run in any course tend∣ing to the dissolving of the constituted frame, they ought to employ their power in this case to preserve the State from ruine; yea that is the very end and fundamentall aime in constituting all mixed Policies: not that they by crossing and jarring should hinder the publike good; but that, if one exorbitate, the power of restraint and providing for the pub∣like safety should be in the rest: and the power is put into di∣vers hands, that one should counterpoize and keep even the other: so that for such other Estates, it is not onely lawfull to deny obedience and submission to illegall proceedings, as private men may, but it is their duty, and by the foundati∣ons of the Government they are bound to prevent dissolu∣tion of the established Frame.

[Assert. 4] Fourthly, the Person of the Monarch, even in these mixed Formes, (as I said before in the limited) ought to be above the reach of violence in his utmost exorbitances: For when a People have sworne allegeance, and invested a Person or Line with Supremacy, they have made it sacred, and no ab∣use can devest him of that power, irrevocably communica∣ted. And while he hath power in a mixed Monarchy, he is the Universall Soveraigne, even of the other limiting States: so that being above them, he is de jure exempt from any pe∣nall hand.

[Assert. 5] Fifthly, that one inconvenience must necessarily be in all mixed Governments, which I shewed to be in limited Go∣vernments, there can be no Constituted, Legall, Authori∣tative Judge of the fundamentall Controversies arising be∣twixt the three Estates. If such doe arise, it is the fatall dis∣ease of these Governments, for which no salve can be pre∣scribed; For the established being of such authority, would

ipso facto overthrow the Frame, and turne it into absolute∣nesse: So that if one of these, or two, say their power is inva∣ded, and the Government assaulted by the other, the Accu∣sed denying it, it doth become a controversie: of this questi∣on there is no legall Judge, it is a case beyond the possible provision of such a Government. The Accusing side must make it evident to every mans Conscience. In this case, which is beyond the Government, the Appeale must be to the Community, as if there were no Government; and as by Evidence mens Consciences are convinced, they are bound to give their utmost assistance. For the intention of the Frame in such States, justifies the exercise of any power, conducing to the safety of the Universality and Govern∣ment established.

Notes

• Authority, how farre from God, how farre from Men.
• Whether the end of Government be the peoples good?
• Division of Ma∣gistracie.
• Whether abso∣lute Monarchy be a lawfull go∣vernment.
• Three degrees of absolutenesse.
• Whether resi∣stance be law∣full in abso¦lute Monarchy.
• What makes a Monarchy li∣mited?
• How farre sub∣iect o•• is due in a limited Mo∣narchy?
• How farre it is Lawfull to re∣sist
• Who shall be the Iudge of the excesses of the Monarch?
• Elective and successive Mo∣narchy what they are?
• All Monarchy whether origi∣nally from con∣sent?
• Monarchy by divine institu¦tion.
• Monarchy by prescription.
• Monarchy by conquest.
• Whether con∣quest give a iust title?
• Whether a Mo∣narch by suc¦cession may not be limited?
• Simple and mixed Monar∣chy, what?
• What it is which consti∣tutes a mixed Monarchy?
• How far the Princes power extends in a mixed Mo∣narchy?