It is certain, higher powers are not to be resisted; but some persons in power may be resisted. The powers are ordained of God; but kings commanding unjust things are not ordained of God to do such things; but to apply this to tyrants, I do not understand. Magistrates in some acts may be guilty of tyranny, and yet retain the power of magistracy; but tyrants cannot be capable of magistracy, nor any one of the scripture-characters of righteous rulers. They cannot retain that which they have forfeited, and which they have overturned; and usurpers cannot retain that which they never had. They may act and enact some things materially just, but they are not formally such as can make them magistrates, no more than some unjust actions can make a magistrate a tyrant. A murderer, saving the life of one and killing another, does not make him no murderer: once a murderer ay a murderer, once a robber ay a robber, till he restore what he hath robbed: so once a tyrant ay a tyrant, till he makes amends for his tyranny, and that will be hard to do. 2. The concrete does specificate the abstract in actuating it, as a magistrate in his exercising government, makes his power to be magistry; a robber, in his robbing, makes his power to be robbery; an usurper in his usurping makes his power to be usurpation; so a tyrant in his tyrannizing, can have no power but tyranny. As the abstract of a magistrate is nothing but magistracy, so the abstract of a tyrant is nothing but tyranny. It is frivolous then to distinguish between a tyrannical power in the concrete, and tyranny in the abstract; the power and the abuse of the power: for he hath no power as a tyrant, but what is abused. 3. They that object thus, must either mean, that power in it general notion is ordained of God, but this particular power abused by tyrants, and assumed by usurpers, is not ordained: or they must mean, that the very power of tyrants and usurpers is ordained of God, but the way of holding it and using it, is not of God. If the first be said, they grant all I plead for; for though the power in general be ordained, yet what is this to tyrants and usurpers? would not this claim be ridiculous for any man to soy, God hath ordained governments to be, therefore I will challenge it? God hath ordained marriage, therefore any may cohabit together as man and wife, without formal matrimony. If the second be alledged, that the power of these prevailing dominators is ordained, but not their holding and using of it: this is nonsense, for how can a power be ordained, and the use of it be unlawful? For the abuse and use of tyrannical power is all one and reciprocal: an usurper cannot use his power but by usurpation.
Again, is it not plain, that the abstract and the concrete, the act or habit, and the subject wherein it is, cannot have a contrary denomination? if drunkenness and theft, lying or murder, be of the devil; then the drunkard, the thief, the liar, and the murderer, are of the devil too: so if tyranny and usurpation, or the use or abuse of tyrants and usurpers be of the devil, then most the tyrants and usurpers also be of him: none can say, the one is of the devil, and the other of God. Wherefore it is altogether impertinent to use such a distinction, with application to tyrants or usurpers, as many do in their pleading for the owning of our oppressors; for they have no power, but what is the abuse of power.
3. As that authority which is God's ordinance must have his institution; so it must have his divine constitution from himself and by the people. Wherever then there is authority to be owned of men, there must be these two, constitution from God and constitution from the people. For the first, God hath a special interest in the constitution of authority, both immediately and mediately. Immediately, he declares such and such forms of government to be lawful and eligible, and does order whom, and who, and how people shall direct governors. And so, he confers royal graces, and endowments, and gifts for government on them, as on Joshua and Saul: so they become the Lord's anointed, placed and set on the throne of the Lord, 1 Chron. xxix. 23. and honoured with majesty, as his deputes and vicegerants, having their crown let on by God, Psal. xxi. 3. But in regard now he doth not by any special revelation determine, who shall be the governors in this or that place; therefore he makes this constitution by meditation of men, giving them rules how they shall proceed in setting them up. And seeing, by the law of nature, he hath enjoined government to be, but hath ordered no particular in it with application to singulars he hath committed it to the positive transaction of men, to be disposed according to certain general rules of justice. And it must needs be so; for first, without this constitution, either all or none would be magistrates: if he hath ordained civil power to be, and taken no order in whom it shall be, or how it shall be conveyed, any might pretend to it; and yet none would have it, more than another. If then he hath affixed it to a peculiar having and holding, by virtue whereof this man is enstated and entitled to the office, and not that man, there must be a law for constituting him in authority, which will discover in whom it is. 2. If it were not so, then resisting of a particular magistrate would not be a resisting of the ordinance of God, if a particular magistrate were not constitute of God, as well as magistracy is institute of God: for still it would be undetermined, who were the owner; and so it would be left as free and lawful for the resister to take the place, as for the resisted to hold it; the institution would be satisfied if any possessed it: therefore there must be constitution to determine it. 3. No common law of nature can put in practice, without particular constitution regulating it. That wives and children own their superior relations, is the law of nature; but there must be such a relation first fixed by human transaction, before they can own them; there must be marriage authorized of God, there must be children begotten, and then the divine ordination of these relative duties take place. So the judges of Israel for four hundred and fifty years were given of God, Acts xiii. 20. not all by an immediate express designation, but a mediate call from God by men, as Jephthah; Judg. xi. 6, 11. Inferior judges also are magistrates appointed by God, yet they have their deputation from men. Our Saviour speaks of all magistrates, when he applies that of the 82 psalm to them, I said ye are gods; and shews how they were gods, because unto them the word of God came, John x. 35. that is, by his word and warrant he authorized them, not by immediate designation in reference to the most of them, but the word of God comes to them, or his constitution is past upon them, who are advanced by men according to his word. When men therefore do act according to the divine rule, in the moulding and erecting of government and governors, there the constitution is of God, though it be not immediate. And where this is not observed, whatever power (so named or pretended) there may be, or whatsoever persons there be that take upon them to be the power, and are not thereto appointed or therein instated, and do exercise such a power as God hath not legitimated, they are not a power ordained of God. Hence, whatsoever power hath no constitution from God, either immediate or mediate, cannot be owned: but the authority of tyrants and usurpers, is a power that hath no constitution from God, either immediate or mediate; therefore it cannot be owned. The major is cleared above. The minor is also undeniable: for, either they must pretend to an immediate constitution by revelation, that James duke of York a vassal of antichrist, had, by all his plots and pranks, merited the crown of Britain, and therefore must be constitute king; and this I hope they will not pretend to, except the Pope hath gotten such a revelation from Pluto's oracle; or they must have recourse to the mediate constitution by men: and if so, then either this mediate constitution of God is left undetermined, indefinitely and absolutely giving way to any that will assume what power they please and can: and then, I confess tyrants may have a constitution; but this constitution cannot be of God; or else it is fixed by a rule, regulating the succession or constitution of the governors, and obliging the people to own the government so constituted, with exclusion and disallowance of any other. And so, if in that constitution there be a substantial deviation from the rule, as when incompetent or unallowed persons be the advancers of themselves, or others, into that place by illegal and sinistrous means, in as much as in that case there is the divine disapprobation, it may be said there is no ordinance of God, but a contradiction and contra-ordination to God's order. Gee's magist. origin. chap. 5. sect. 4. subject 3 page 135. This will shake off this of ours, and all other tyrants and usurpers, that come into the government, and hold it not according to God's rule.
4. It is clear also in the second place, that the authority which we can own out of conscience, must have constitution by the people. The special way by which men should be called into the place of sovereign power, may perhaps not be found so expresly defined in scripture, as mens call to the other ordinance of the ministry is; yet in this two things are essentially necessary to the constitution of a magistrate, the peoples consent and compact either formal and virtual. And without these we can own conscientious subjection and allegiance to no man living. That the first is necessary will be evident, from the law of nature and nations, and from scripture. First, The light and law of nature dictates, that the right and interest of constituting magistrates is in the elective vote or suffrage of the people. This will appear, 1. If we consider the original of government among men, especially after they were so multiplied, that there was a necessity of a reduction into diverse communities; which, whatever was before the flood, yet after it, behoved to be by a coalition with consent under an elective government. The scripture makes it more than probable, that the partition of commonwealths was in Peleg's days, in whole time the earth was divided, Gen. x. 2. occasioned by the confusion of "languages at Babel, which did dissolve their union, and scatter them abroad upon the face of all the earth," Gen. xi. 9.
Then was it that we may conceive, as Buchanan says, de jure regni apud Scot. 'The time was when men dwelt in cottages and caves, and as strangers did wander to and fro without laws, and such as could converse together of the same language, assembled together as their humours did lead them or as some common utility did allure them, a certain instinct of nature did oblige them to desire converse and society.' But this confusion of languages, and communion of language, in several divided parcels, could not incorporate these several parties into communities; that behoved to be the effect of some other cause: and what should that be, but the joint will, consent and agreement of the severally languaged? It could not be by consanguinity; for there is no direction from nature for a confinement of that into such and such degrees, to make out the bonds of a common-wealth, or possibility of knowing all within such degrees; besides all within these degrees might not be of the same language. Now, the scripture says, they "were divided every one after his tongue, after their families, in their nations," Gen. x. 5. Next, it could not be by cohabitation: for how that must go to be the boundaries of a common-wealth, inclusively, or exclusively, is not defined by nature, nor can it be otherwise determined, than by human choice. Then, it could not be by mens belonging to such a sovereign: for, after that division and confusion, they could not all be under one sovereign, nor under the same that they were subject to before; and a sovereign cannot be before the aggregation of the subjects whereof he is head, they must first be a commonwealth before they can belong to it. Again, it cannot be founded upon the right of fatherhood: for, in that scattering, such a right could not be uninterruptedly preserved: and then Noah should also have been the universal magistrate, which he could not be in these multiplied secessions. And further, if it be refounded on the right of fatherhood, either every company had one common father over all, or every father made a commonwealth of his own children: the latter cannot be said, for that would multiply commonwealths in infinitum: neither can the first be said; for, if they had one common father, either this behoved to be the natural father of all the company, which none can think was so happily ordered by Babel's confusion: or else the eldest in age, and so he might be incapable for government, and the law of nature does not direct that the government should alway be astricted to the eldest of the community: or else, finally, he behoved to be their political father, by consent. For, before this consent, they were unengaged as to common order of government; none of the community having any legal claim to sovereignty more than the rest. When therefore they were forced to conclude upon association, for their mutual preservation, they must be thought to act rationally, and not to make their condition worse, but rather better by that conclusion; and if they found it worse, to resume their radical right which they had conferred upon men subject to law, not to tyrannize over them: and in this case, certainly they had the power of choosing what kind of government suited most to their advantage, and would best preserve their liberties, and how far this should be extended, and who should be affirmed into this combination; still with a reservation of the privilege to their own safety, if their associates should not do their duty: and so they might also reserve to themselves a liberty to alter the form, when they found it productive of more prejudice than advantage, and never to leave their condition remediless; and to pitch upon this way of succession, and not another, the way of free election of every successor, or of definite election limited to one line, or to the nearest in line; and e contra, with a reserve still of their primeve privileges, to secure themselves from the inconveniences of that determination, or to change it; and to make choices of such a family and line, and not another, and whether the eldest always of that family, or the fittest is to be chosen; and however it be, yet still by the peoples consent: and in all this to have respect to some good, great and necessary ends, which, if they should be disappointed of, and find these means useless or destructive to, they were to be loosed from their obligation to use or to own them. See Jus populi vindicat. chap. 5. p. 80, &c. 2. If we consider how nature determines the peoples interest in the constitution of governors: whence comes it that this man, and not that man, this race and family, and not that, is invested with that title? It will be found there is no title on earth now to the crowns, to families, to persons, but the peoples suffrage: for the institution of magistracy in general does not make James Stewart a king, no more than John Chamberlain: neither do qualifications make one, otherwise there might be many better than is this day extant; for there are many men better qualified: and there is no prophetical or immediate callings to kingdoms now: and as for conquest without consent, and having no more for a title, it is no better than royal Latrociny.
It is certain, God would not command us to obey kings, and leave us in the dark, that we should not know him that hath a real call to it. And if he have not the peoples call, where shall we find another? It remains therefore they must have it from the people, who have it to give radically and virtually, having a power to preserve themselves, and to put it in the hands of one or more rulers, that they may preserve themselves by them. All men are born alike as to civil power (no man being born with a crown on his head) and yet men united in society may give it to this man, and not to that man; therefore they must have it virtually, for they cannot give what they have not. And as cities have power to choose their magistrates, so many cities have power to create an universal ruler over them all. The people also have power to limit the magistrates power with conditions; so that the present ruler shall not have so much prerogative as his predecessor, as royalists cannot deny, therefore they must have given that power which they can limit. See Lex Rex, quest. 4. p. 10. &c. 2dly, The scripture also gives light in this particular. 1. In giving directions and rules about their orderly calling their governors, impowering them to "take wise men, and understanding, and known among their tribes, to be made rulers," Deut. i. 13. "To make judges and officers in all their gates," Deut. xvi. 18. "To set one among their brethren king over them, and not a stranger," Deut. xvii. 15. To what purpose are these rules given them, if they had no interest to choose their magistrates? Would God command them to set a king over them, if they had not power to do it? And to set such a man over them, and not such an one, if they had no influence in making one at all? And accordingly that wise statist says very well, 2 Sam. xvi. 18. Hushai to Absalom, nay, but whom the Lord and this people, and all the men of Israel choose, his will I be, and with him will I abide. Which will also hold in the negative, whom the Lord and the people, and all the men of the kingdom do not choose, his we will not be, nor with him will we abide. 2. The scripture expressly attributeth the making of kings to the people. All the people of Judah took Azariah, and made him king, instead of his father Amaziah, whom they had executed, 2 Kings xiv. 21. They came with a perfect heart to make David king in Hebron, 1 Chron. xii. 38. So they made Joash king, 2 Chron. xxiii. 11. 3. Even these that were particularly designed of God, and chosen to be rulers, yet were not formally invested with power, before the people conferred it upon them. Gideon was called of God to it, but was not judge, till the people said, Rule thou over us, both thou and thy son, giving him an hereditary right for his children, Judg. viii. 12. Saul was appointed to be king, and therefore Samuel honoured him, because he was marked out of God to be king, 1 Sam. ix. 24. and anointed him with oil, 1 Sam. x. 1. after which he was gifted and qualified for government. God gave him another heart, vers. 9. yet all this did not make him king, till the people met for his inauguration, vers. 17. &c. and crowned him, and made him king in Gilgal, 1 Sam. xi. last verse. David was anointed by Samuel, and yet was a persecuted fugitive for several years, and never acknowledged formally king, till the men of Judah came and anointed him, 2 Sam. ii. 4. for if he had been king before, then there were two kings in Israel at one time, and David failed of his royal duty, in not punishing the murderer Saul; whereas himself says, he would not touch the Lord's anointed. Therefore the people made all kings, and that by choice and consent, without which they were no kings. Hence I argue, if the consent and choice of the people be so essentially necessary to the making of kings, then they who set up themselves against the consent of the body of the land, and without the choice of any, must be usurpers, not to be acknowledged for lawful kings; but the former is true, as is proven above: therefore.——Now plain it is, that this duke set up himself against the consent of the body, being excluded from the government by the representatives of England, and generally hated of all; who disdaining to wait upon the formal choice of any, but after he had paved his passage to the throne upon his brother's blood, did usurp the title without all law.
5. The second thing necessary for the legal constitution of a king by the people, is their compact with him: which must either be express or tacit, explicit or implicit. Two things are here to be proven, that will furnish an argument for disowning both the brothers. First, that there must be a conditional reciprocally obliging covenant between the sovereign and the subjects, without which there is no relation to be owned. Secondly, that when this compact is broken in all or its chiefest conditions by the sovereign, the peoples obligation ceases. The first I shall set down, in the words of a famous author, our renowned countryman Buchanan, in his dialogue 'de jure regni apud scotos. There is then (or there ought to be) a mutual compact between the king and his subjects', &c. That this is indispensibly necessary and essential to make up the relation of sovereign and subjects, may be proved both from the light of nature and revelation.
First, It may appear from the light of natural reason. 1. From the rise of government, and the interest people have in erecting it by consent and choice (as is shewed above) if a king cannot be without the peoples making, then, all the power he hath must either be by compact or gift: if by compact, then we have what we proposed: and if by gift: then if abused, they may recal it; or if they cannot recover it, yet they may and ought to hold their hand, and give him no more that they may retain, that is, no more honour or respect, which is in the honourer before the honoured get it. Can it be imagined, that a people acting rationally, would give a power absolutely, without restrictions, to destroy all their own rights? Could they suppose this boundless and lawless creature, left at liberty to tyrannize, would be a fit mean to procure the ends of government? for this were to set up a rampant tyrant to rule as he listeth, which would make their condition a great deal worse than if they had no ruler at all, for then they might have more liberty to see to their safety. See jus populi, chap. 9. pag. 96, 97. 2. This will be clear from the nature of that authority, which only a sovereign can have over his subjects; which, whatever be the nature of it, it cannot be absolute, that is against scripture, nature, and common sense, as shall be proven at more length.
That is to set up a tyrant, one who is free from all conditions, a roaring lion and a ranging bear to destroy all if he pleases. It must be granted by all, that the sovereign authority is only fiduciary, entrusted by God and the people with a great charge: a great pledge is impawned and committed to the care and custody of the magistrate, which he must take special care of, and not abuse, or waste, or alienate, or sell: (for in that case, royalists themselves grant he may be deposed.) He is by office a patron of the subjects liberties, and keeper of the law both of God and man, the keeper of both tables. Sure, he hath no power over the laws of God, but a ministerial power, he may not stop and disable them as he pleases; of the same nature is it, over all other parts of his charge. He is rather a tutor, than an inheritor and proprietor of the commonwealth, and may not do what his pupil's interest, what he pleases. In a word, the nature and whole significancy of his power lies in this, that he is the nation's public servant, both objectively in that he is only for the good of the people, and representatively in that the people hath impawned in his hand all their power to do royal service. The scripture teaches this, in giving him the titles of service, as watchmen, &c. allowing him royal wages for his royal work, Rom. xiii. he is God's minister attending continually on this thing.
There is his work, for this cause pay you tribute also. There is his wages and maintainance. He is called so in that transaction with Rehoboam; the old men advised him to be a servant unto the people, then they should be his servants, 1 Kings xii. 7. There was a conditional bargain proposed: as to be a servant, or tutor, or guardian upon trust, always implies conditions and accountableness to them that entrust them. 3. It must needs be so, otherwise great absurdities would follow. Here would be a voluntary contracted relation, obliging us to relative duties, to a man that owed none correlative to us, and yet one whom we set over us. It were strange, if there were no condition here; and no other voluntarily suscepted relations can be without this, as between man and wife, master and servant, &c. This would give him the disposal of us and ours, as if both we and what we have were his own, as a man's goods are, against which he does not sin whatever he doth with them. So this would make a king that could not sin against us; being no ways obliged to us, for he can no otherwise be obliged to us, but upon covenant conditions; he may be obliged and bound in duty to God otherwise, but he cannot be bound to us otherwise: and if he be not bound, then he may do what he will, he can do no wrong to us to whom he is noways bound. This also is point blank against the law of God, which is the second way to prove it, by the light of revelation or scripture. 1. In the very directions about making and setting up of kings, the Lord shews what conditions shall be required of them, Deut. xvii. 15. &c. and in all directions for obeying them, the qualifications they should have are rehearsed, as Rom. xii. 3, 4. Therefore none are to be set up but on these conditions, and none are to be obeyed but such as have these qualifications. 2. In his promises of the succession of kings, he secures their continuation only conditionally, to establish the kingdom, if they be constant to do his commandments and judgments, 1 Chron. xxviii. 7. There shall not fail a man to sit upon the throne, yet so that they take heed to their way to walk in God's law, as David did, 2 Chron. vi. 16.