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be from a superior, or it is unjust. I have been the longer on this absolute monarchy, because, though it doth not concern us, yet it will give light to the stating of doubts in governments of a mora restrained nature; for what is true here, in the full extent of power, is there also as true within the compass of their power.
What makes a Monarchy limited f
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 limited monarchy.
First, A monarchy may be stinted in the exercise of its 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.
Secondly, I take it, that a limited monarch must have his bounds of power ab externa, not from the free determination of hisown will. And now kings have not divine words and binding laws to constitute them in their sovereignty, but derive it from ordinary providence; the sole mean hereof, is the consent and fundamental contract of a nation or men, which consent puts them in their power, which can be no more nor other than is conveyed to them by such contract of subjection. This is the root of all sovereignty individuated and existent in this, or that person, or family; till this come and lift him up, he is a private man, not differing in state from the rest of his brethren; but then he becomes another man, his person is sacred by that sovereignty conveyed to it, which is God's ordinance and image. The truth hereof will be more fully discovered, when we come to speak of elective and successive monarchy.
Thirdly, He is then a limited monarch, who hath a law, beside his own 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 he were not a monarch, but a subordinate magistrate. Secondly, This supreme power must be restrained by some law according to which this power was given, and, by direction of which, this power must act; else he were not a limited monarch, that is, a liege sovereign, or legal king. Now, a sovereignty comes thus to be legal, or defined to a rule of law, either by original constitution, or by after condescent. By original constitution, when the society publick confers on one man a power by limited contract, resigning themselves to his government by such a law, reserving to themselves such immunities: In this case, they, which at first had power over themselves, had power to set their own terms of subjection; and he which hath no title of power over them, but by their act, can, de jure, have no greater than what is put over to him by that act. By after condescent, fix. when a Lord, who by conquest, or other right, hath an absolute arbitrary power, but, not liking to hold by such % right, doth either formally or vertually desert it, and take a new legal 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 original constitution, yea, is all one with it; for this is, in that respect, a secondary original 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 absoluteness, as was said before of an absolute monarch, who confines himself to govern by one rule: I answer, this differs essentially from that; for there a free Lord of grace yields to rule by such a law, reserving the fulness of power, and still requiring of the people a bond and oath of utmost indefinite subjection; so that it amounts not to a limitation of radical power. Whereas here is a change of title, and a resolution to be subjected to, in no other way, than according to such a frame of government; and accordingly, no other bond or oath of allegiance is re. quired or taken, than according to such a law; this amounts to a limitation of radical power. And therefore they speak too generally, who affirm of all acts of grace proceeding from princes to people, as if they did not limit absoluteness: It is true, of acts of grace of that first kind, but yet, you see an act of grace may be such a one, as may amount to a resignation of that absoluteness into a more mild and moderate power, unless we should hold it out of the power of an absolute lord to be other; or that by free condescent, and act of grace, a man cannot as well part with, or exchange his right and title to a thing, as define himself in the use and exercise, which I think none will affirm.
How far Subjection is due in a limited Monarchy.
Is all governments of this allay and legal constitution, there are three questions of special moment to be considered:
First, How far subjection is due? As far as they are God's ordinance, as far as they are a power, and they are a power as far as the contract fundamental, from which, under God, their authority is derived, doth extend. As absolute lords must be obeyed as far as their will enjoins, 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 far, but I do not say no further; for I believe, though on our former grounds it clearly follows, that such authority transcends its bounds, if it command beyond the law, and the subject legally is not bound to subjection in such case; yet, in conscience, a subject is bound to yield to the magistrate, even when he cannot, de jure, challenge obedience, to prevent scandal, or any occasion of slighting the power which may sometimes grow, even upon a just refusal. 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 prescription against publick liberty.
JlaiD far it is lawful to resist.
Secondly, How far is it lawful to resist the exorbitant illegal commands of such a monarch? 1. As before in lighter cases, in which it may be done for the reasons alledged, and for the sake of publick peace, we ought to submit and make no resistance at all, but, dejure recedere.
2. In cases of a higher nature, passive resistance, viz. by appeal to law, by concealment, by flight, is lawful to be made, because such a command is politically powerless, it proceeds not from God's ordinance in him; and so we sin not against God's ordinance in such non-submission, or negative resistance.
3. For instruments, or agents in such commands, if the streight be such, and a man be surprised, that no place is left for an appeal, nor evasion by negative resistance, I conceive, against such positive resistance may be made; because, authority failing, or this act in the supreme power, the agent 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 sovereign, I conceive it as well above any positive resistance, as the person of an absolute monarch, yea, though by the whole community, except there be an express reservation of power in the body of the state, or any deputed persons, or court, to use (in case of intolerable exorbitance) positive resistance; which if there be, then such a governor is no monarch; for that fundamental reservation destroys its being a monarchy, inasmuch as the supreme power is not in one. For, wherever there is a sovereign politick 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, since 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 axiom: Quicquid efficit tale, est mugis tale, 1 answer: That rule, even in natural causes, is liable to abundance of restrictions, and, in the particular in hand, it holds not. Where the cause doth bereave himself 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, than the effect, but much less, 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 estate remaining in me, than that other, but rather the contrary; because what was in one is passed to the other. The servant who, at the year of jubilee, would not go free, but have his ear bored, and giving his master a full lordship over him: Can we argue, that he had afterward more power orer himself, than his master, because he gave his master that power over him, by that act of aeconomical contract? Thus the community, whose consent establishes a power over them, cannot be said universally to have an eminency of power above that which they constitute; sometimes they have, sometimes they have not; and, to judge when they have, when not, respect must be had to the original contract, and fundamental constitution of that state. If they have constituted a monarchy, that is, invested one man with a sovereignty 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 supremacy, which, by oath and contract, they themselves transferred on another; unless we make this oath and contract less binding than 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 body to oppose and displace the magistrate for exorbitances, and reserve to themselves a tribunal to try him in, that man is not a monarch, but the officer and substitute of him, or them, to whom such power over him is referred or conferred. The issue is this. If he be a monarch, he hath the apex, or oilmen potestatis; and all his subjects, divisim and conjunctim, are below him; they have divested themselves of all superiority, and no power left for a positive opposition of the person of him, whom they have invested.
Who shall be the Judge of the Excesses of the Monarch?
Thirdly, who shall be the judge of the excesses of the sovereign Lord, in monarchies of this composure? I answer: A frame of government cannot be imagined of that perfection, but that some inconveniences there will be possible, for which there can be provided no remedy: Many miseries, to which a people under an absolute monarchy are liable, are prevented by this legal 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 determine this last controversy, viz. the sovereign's transgressing his fundamental limits. This judge must be either some foreigner, and then we lose the freedom of the state, by subjecting it to an external power in the greatest case; or else within the body. If so, then, 1. Either the monarch himself, and then you destroy the frame of the state, and make it absolute; 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 i(X,'' 'n the whole body, or a part of it, and destroy the being of monarchy, the ruler not being God's immediate minister, but of that power, be it where it will, to which he is accountable for his actions. So that I conceive, in a limited legal monarchy there can be no stated internal judge of the monarch's actions, if there grow a fundamental variance betwixt him and the community. But you will say, it is all one way to absoluteness to assign him no judge, as to make him his own judge. Answ. I say not simply in this case, there is no judge, but that there can be no judge legal and constituted within that frame of government; but it is a transcendent case beyond the provision of that government, and must have an extraordinary judge and way of decision.
In this great and difficult case, I will deliver my apprehensions freely and clearly, submitting them to the censure of better judgments. Suppose the controversy to happen in a government fundsmentally legal, and the people no further subjected than to government by such a law.
1. If the act, in which the exorbitance and transgression is supposed to be, be of lesser moment, and not striking at the very being of that government, it ought to be borne by publick patience, rather than to endanger the being of the state, by a contention betwixt the head and body politick.
2. If it be mortal and such as, suffered, dissolves the frame and life of the government and publick liberty: Then the illegality and destructive nature is to be set open, and redressment 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 appeal made ad conscientiam generis humani, especially of those of that community, then the fundamental laws of that monarchy must judge and pronounce the sentence in every man's conscience; and every man (as far as concerns him) must follow the evidence of truth in his own soul, to oppose, or not oppose, according as he can in conscience acquit or condemn the act of carriage of the governor. For I conceive, in a case which transcends the frame and provision of the government they are bound to, people are unbound, and in state as if they had no government; and the superior law rf reason and conscience must be judge; wherein every one must proceed with the utmost advice and impartiality. For, if he err in judgment, he either resists God's ordinance, 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 civil, but moral, residing in reasonable creatures, and lawful for them to execute, because never divested and put off by any act in the constitution of a legal government, but rather the reservation of it intended: For when they define the superior to a law, and constitute no power to judge of his excesses from that law, it is evident they reserve to themselves, not a formal authoritative power, but a moral power, such as they had originally before the constitution of the government; which must needs remain, being not conveyed away in the constitution.