A Christian Directory, Part 4: Christian Politics. Richard Baxter
for. 3. If this were true, that every individual, by self-resignation, might give a king his power over him; yet a posse ad esse non valet consequentia; and that it is not so is proved, in that God the universal Sovereign hath prevented them, by determining himself, of his own officers, and giving them their power in the same charter by which he enableth the people to choose them. Therefore it is no better reasoning than to say, If all the persons in London subjected themselves to the lord mayor, he would thereby receive his power from them, when the king hath prevented that already, by giving him the power himself in his charter; and leaving only the choice of the person to them; and that under the direction of the rules which he hath given them.42
Object. IV. But saith he, lib. viii. p. 193, "In kingdoms of this quality, (as this we live in,) the highest governor hath indeed universal dominion, but with dependency upon that whole entire body over the several parts whereof he hath dominion; so that it standeth for an axiom in this case, The king is major singulis, universis minor."
Answ. If you had included himself, it is certain that he cannot be greater than the whole, because he cannot be greater than himself. But seeing you speak of the whole in contradistinction from him, I answer, that indeed in genere causæ finalis, the sovereign is universis minor, that is, the whole kingdom is naturally more worth than one, and their felicity a greater good; or else the bonum publicum, or salus populi, could not be the end of government; but this is nothing to our case; for we are speaking of governing power as a means to this end; and so in genere causæ efficientis, the sovereign (yea, and his lowest officer) hath more authority or jus regendi than all the people as such (for they all as such have none at all); even as the church is of more worth than the pastor, and yet the pastor alone hath more authority to administer the sacraments, and to govern the people, than all the flock hath; for they have none either to use or give, (whatever some say to the contrary,) but only choose him to whom God will give it.43
Object. V. Saith the reverend author, lib. viii. p. 194, "Neither can any man with reason think, but that the first institution of kings, (a sufficient consideration wherefore their power should always depend on that from which it did always flow,) by original influence of power from the body into the king, is the cause of kings' dependency in power upon the body: by dependency we mean subordination and subjection."
Answ. 1. But if their institution in genere was of God, and that give them their power, and it never flowed from the body at all, then all your superstructure falleth with your ground-work. 2. And here you seem plainly to confound all kingdoms by turning the pars imperans into the pars subdita, and vice versa; if the king be subject, how are they his subjects? I will not infer what this will lead them to do, when they are taught that kings are in subordination and subjection to them. Sad experience hath showed us what this very principle would effect.
Object. VI. Ibid.44 "A manifest token of which dependency may be this; as there is no more certain argument, that lands are held under any as lords, than if we see that such lands in defect of heirs fall unto them by escheat; in like manner it doth follow rightly that seeing dominion when there is none to inherit it, returneth unto the body, therefore they which before were inheritors of it, did hold it in dependence on the body; so that by comparing the body with the head as touching power, it seemeth always to reside in both; fundamentally and radically in one, in the other derivatively; in one the habit, in the other the act of power."
Answ. Power no more falleth to the multitude by escheat, than the power of the pastor falls to the church, or the power of the physician to the hospital, or the power of the schoolmaster to the scholars; that is, not at all. When all the heirs are dead, they are an ungoverned community, that have power to choose a governor, but no power to govern, neither (as you distinguish it) in habit nor in act, originally nor derivatively. As it is with a corporation when the mayor is dead, the power falleth not to the people.
Therefore there is no good ground given for your following question, "May a body politic then at all times withdraw in whole or in part the influence of dominion which passeth from it, if inconveniences do grow thereby?" Though you answer this question soberly yourself, it is easy to see how the multitude may be tempted to answer it on your grounds, especially if they think your inconvenience turn into a necessity; and what use they will make of your next words, "It must be presumed that supreme governors will not in such cases oppose themselves, and be stiff in detaining that, the use whereof is with public detriment." A strange presumption.
Object. VII. "The axioms of our regal government are these, Lex facit regem; the king's grant of any favour made contrary to law is void; Rex nihil potest nisi quod jure potest."
Answ. If lex be taken improperly for the constituting contract between prince and people, and if your facit have respect only to the species and person, and not the substance of the power itself, then I contradict you not. But if lex be taken properly for authoritativa constitutio debiti, or the signification of the sovereign's will to oblige the subject, then lex non facit regem, sed rex legem.45
Object. VIII. Lib. viii. p. 210, "When all which the wisdom of all sorts can do is done for the devising of laws in the church, it is the general consent of all that giveth them the form and vigour of laws; without which they could be no more to us than the counsels of physicians to the sick. Well might they seem as wholesome admonitions and instructions, but laws could they never be, without consent of the whole church to be guided by them, whereunto both nature and the practice of the church of God set down in Scripture, is found every way so fully consonant, that God himself would not impose, no not his own laws upon his people, by the hand of Moses, without their free and open consent."
Answ. 1. Wisdom doth but prepare laws, and governing power enacteth them, and giveth them their form; but the whole body hath no such governing power, therefore they give them not their form.46 2. The people's consent to God's laws gave them not their form or authority; this opinion I have elsewhere confuted, against a more erroneous author. Their consent to God's laws was required indeed, as naturally necessary to their obedience, but not as necessary to the being or obligation of the law. Can you think that it had been no sin in them to have disobeyed God's laws, unless they had first consented to them? Then all the world might escape sin and damnation, by denying consent to the laws of God. 3. This doctrine will teach men that we have no church laws;47 for the whole church never signified their consent. Millions of the poorer sort have no voices in choosing parliament men or convocations; and this will teach the minor dissenting part, to think themselves disobliged for want of consenting; and will give every dissenting part or person a negative voice to all church laws. 4. A single bishop hath a governing power over his particular church, and they are bound to obey him, Heb. xiii. 7, 17. And if the governing power of one pastor be not suspended for want of the consent of any or all the people, then much less the governing power of king and parliament.
Object. IX. Lib. viii. p. 220. "It is a thing even undoubtedly natural, that all free and independent societies should themselves make their own laws; and that this power should belong to the whole, not to any certain part of a politic body – ."
Answ. This is oft affirmed, but no proof at all of it; in many nations the representatives of the whole body have the legislative power, or part of it. But that is from the special constitution of that particular commonwealth, and not from nature, nor common to all nations. All that naturally belongeth to the people as such, was but to choose their law-makers, and secure their liberties, and not to make laws themselves, by themselves, or mere representers.
Object. X. Lib. viii. p. 221. "For of this thing no man doubteth, namely, that in all societies, companies, and corporations, what severally each shall be bound unto, it must be with all their assents ratified. Against all equity it were, that a man should suffer detriment at the hands of men, for not observing that which he never did, either by himself or by others, mediately agree to – ."
Answ. I am one that more than doubt
Dion Cass. saith, that when Euphates the philosopher would kill himself, Veniam dederat ei Adrianus citra ignominiam et infamiam, ut cicutam tum propter senectutem, tum etiam propter gravem morbum, bibere possit. In vita Adrian.
Against the people's being the givers of power, by conjoining all their own in one, in church or state, see Mr. D. Cawdry's Review of Mr. Hooker's Survey, p. 154, &c.
So lib. viii. p. 211, 218, 220.
Lib. viii. p. 195. Trita in scholis, neminem sibi imperare posse; neminem sibi legem posse dicere, a qua mutata voluntate nequeat recedere: summum ejus esse imperium qui ordinario jure derogare valeat. Et quibus evincitur jus summæ potestatis non limitari per legem positivum. Hinc et Augustinus dixit imperatorem non esse subjectum legibus suis. – Grotius de Imp. p. 149, 150.
Hanc video sapientissimorum fuisse sententiam. Legem nec hominum ingeniis excogitatam, nec scitum aliquod esse populorum; sed æternum quiddam, quod universum mundum regeret, imperandi prohibendique sapientia. Cicero de Leg.
How considerable a part of England is London! Yet in this convocation, which hath made the new changes in the liturgy and book of ordination, London had not one clerk of their choosing: for being to choose but two, they chose only Mr. Calamy and myself; who were neither of us accepted, or ever there. Now if your opinion be true; Quær. 1. Whether you make not this convocation's decrees to be but counsels to us? 2. Or at least whether the city of London, or the London ministers, be not made free from detriment, as not consenters? You will free them and me, especially from detriment for our not conforming to this convocation's acts as such; upon reasons which I do not own myself, as generally by you laid down.