made a leading case, and so bring on a prescription against publick Jiberty.

SECT. VI.

How far it is lawful to resist.

SECONDLY, How far is it lawful to resist the exorbitant illegal com. mands of such a monarch? 1. As before in lighter cases, in which 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, de jure recedere.

it

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 ordi. nance 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 magis tale, I 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 over himself, than his master, because he gave his master that power over him, by that act of œconomical contract? Thus the community, whose consent establishes a power over them, cannot be said univer sally 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 exorbi tances, 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 culmen 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.

SECT. VII.

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 ex in 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 judg. ments. Suppose the controversy to happen in a government fundamentally legal, and the people no further subjected than to govern ment 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 monar. chy 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 of reason and conscience must be judge; wherein every one must pro ceed 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 consti tution 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.

CHAP. III.

Of the Division of Monarchy into Elective and Successive.

SECT. I.

Elective and Successive Monarchy what they are?

THE second division of monarchy, which I intend to treat of, is that of elective or successive. Elective monarchy is that, where, by the fundamental constitution 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 former. Successive is, where, by the fundamental constitution of the state, the sovereignty is conferred on one prince; and in that one, as a root and beginning to his heirs, after a form and line of succession, constituted also by the fundamentals of that government. In the first, the people's oath and contract of subjection extends but to one person: in the other, to the whole race and line of successors; which conti nuing, the bond of subjection continues; or which failing, the people return to their first liberty of choosing a new person, or succession to be invested with sovereignty.

SECT. II.

All Monarchy whether originally from Consent?

I DO conceive that in the first original all monarchy, yea any indivi dual frame of government whatsoever, is elective: That is, is constituted, and draws its force and right from the consent and choice of that community over which it swayeth. And that triple distinction of monarchy into that which is gotten by conquest, prescription, or choice, is not of distinct parts, unless by choice be meant full and formal choice: my reason is, because man, being a voluntary agent, and subjection being a moral 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 cannot be put on him, nor a right to claim obedience and service acquired, unless a man become bound by some act of his own will. For, suppose another, from whom I am originally free, be stronger than I, and so bring me under his mercy, do I therefore sin if I do not what he commands me? Or can that act of violence pass into a moral title, without a moral principle?

SECT. III.

Monarchy by Divine Institution.

BUT this will be more manifest, if by induction I shew how other titles resolve into this. I will begin with that of divine institution,

Saul and David were by the sacrament of anointing designed to the kingdom, as it were by God's own hand; which notwithstanding, they were not actually kings till the people's consent established them therein. That unction was a manifestation of the appointment of God, and, when it was made known to the people, I think it had the power of precept, to restrain the people's choice to that person; which if they had not done, they had resisted God's ordinance. Yet they were not thereby actually endowed with kingly power, but remained as private men, till the people's choice put them in actual possession of that power; which in David was not till after many years. SECT. IV.

Monarchy by Prescription.

THEN for that usage or prescription; if any such did ever constitute à monarchy, it was by vertue of an universal consent by that usage and prescription proved and implied. For in a popular state, where one man in the community, by reason of great estate, wisdom, 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 generations. In this case, subjection at first is arbitrary in the people; and, if in time it become necessary, it is because their custom is their law; and its long continuance is equivalent to a former election: So that this tenure and right, if it be good and more than at pleasure, as it was at first, the considerate must needs ascribe it to a consent, and implicit choice of the people.

SECT. V.

Monarchy by Conquest. Whether Conquest give a just Title? BUT the main question is concerning monarchy atchieved by conquest; where, at first sight, the right seems gotten by the sword, without the consent and choice of the people, yea against it. Conquest is either, first, total, where a full conquest is made, by a total subduing a people to the will of the victor; or, secondly, partial, where an entrance is made by the sword: But the people, either because of their right claimed by the invader, or their unwillingness to suffer the miseries of war, 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 sovereign's power is from the people's consent; and the government is such as the contract and fundamental agreement makes it to be, if it be the first agreement, and the pretender hath no former title which remains in force, for then this latter is invalid, if it include not and amount to a relinquishing and disannulling of the old. But the difficulty is concerning a full and mere conquest; and of this I will speak my mind clearly. Such a war and invasion of a people, which ends in a conquest, first, it is either upon the pretence or claim of a title of sovereignty over the people invaded: And