They who have a right of chusing a King, have the right of making a King.
THO the right of magistrates do essentially depend upon the consent of those they govern, it is hardly worth our pains to examine, Whether the silent acceptation of a governor by part of the people be an argument of their concurring in the election of him; or by the same reason the tacit consent of the whole commonwealth may be maintained: for when the question is concerning right, fraudulent surmises are of no value; much less will it from thence follow, that a prince commanding by succession, conquest, or usurpation, may be said to be elected by the people; for evident marks of dissent are often given: Some declare their hatred; others murmur more privately; many oppose the governour or government, and succeed according to the measure of their strength, virtue, or fortune. Many would resist, but cannot; and it were ridiculous to say, that the inhabitants of Greece, the kingdom of Naples, or duchy of Tuscany, do tacitly assent to the government of the Great Turk, king of Spain, or duke of Florence; when nothing is more certain than that those miserable nations abhor the tyrannies they are under; and if they were not mastered by a power that is much too great for them, they would soon free themselves. And those who are under such governments do no more assent to them, tho they may be silent, than a man approves of being robbed, when, without saying a word, he delivers his purse to a thief that he knows to be too strong for him.
'Tis not therefore the bare sufferance of a government when a disgust is declared, nor a silent submission when the power of opposing is wanting, that can imply an assent, or election, and create a right; but an explicit act of approbation, when men have ability and courage to resist or deny. Which being agreed, 'tis evident that our author's distinction between eligere and instituere signifies nothing: tho, if the power of instituting were only left to nations, it would be sufficient; for he is in vain elected who is not instituted; and he that is instituted is certainly elected; for his institution is an election. As the Romans who chose Romulus, Numa, and Hostilius to be kings; and Brutus, Valerius, or Lucretius to be consuls, did make them so, and their right was solely grounded upon their election. The text brought by our author against this doth fully prove it, Him shah thou set king over thee whom the Lord shall chuse; for God did not only make the institution of a king to be purely an act of the people, but left it to them to institute one or not, as should best please themselves; and the words, whom the Lord shall chuse, can have no other signification, than that the people resolving to have a king, and following the rules prescribed by his servant Moses, he would direct them in their choice; which relates only to that particular people in covenant with God, and immediately under his government, which no other was. But this pains might have been saved, if God by a universal law had given a rule to all. The Israelites could not have been three hundred years without a king, and then left to the liberty of making one, or not, if he by a perpetual law had ordained that every nation should have one; and it had been as well impertinent as unjust to deliberate who should be king, if the dominion had by right of inheritance belonged to one: They must have submitted to him whether they would or not: No care was to be taken in the election or institution of him, who by his birth had a right annexed to his person that could not be altered: He could not have been forbidden to multiply silver or gold, who by the law of his creation might do what he pleased: It had been ridiculous to say, he should not raise his heart above his brethren, who had no brethren, that is, no equals; but was raised above all by God, who had imposed upon all others a necessity of obeying him. But God, who does nothing in vain, did neither constitute or elect any till they desired it, nor command them to do it themselves, unless it so pleased themselves; nor appoint them to take him out of any one line: Every Israelite might be chosen: None but strangers were excluded; and the people were left to the liberty of chusing and instituting any one of their brethren.
Our author endeavouring by Hooker's authority to establish his distinction between eligere and instituere, destroys it, and the paternal right, which he makes the foundation of his doctrine. Heaps of Scripture are alleged, says he, concerning the solemn coronation and inauguration of Saul, David, Solomon and others, by nobles, ancients, and people of the commonwealth of Israel: which is enough to prove that the whole work was theirs; that no other had any title more than what they bestowed upon him: They were set up by the nobles, ancients, and people: Even God did no otherwise intervene than by such a secret disposition of the lots by his Providence, as is exercised in the government of all the things in the world; and we cannot have a more certain evidence, that a paternal right to dominion is a mere whimsy, than that God did not cause the lot to fall upon the eldest, of the eldest line, of the eldest tribe; but upon Saul, a young man, of the youngest tribe: and afterwards, tho he had designed David, Solomon, Jeroboam, and others, who had no pretence to the paternal right to be kings, he left both the election and institution of them to the elders and people.
But Hooker being well examined, it will appear that his opinions were as contrary to the doctrine of our author, as those we have mentioned out of Plato and Aristotle. He plainly says, It is impossible that any should have a compleat lawful power over a multitude consisting of so many families, as every politick society doth, but by consent of men, or immediate appointment from God: Because not having the natural superiority of fathers, their power must needs be usurped, and then unlawful; or if lawful, then either granted or consented unto by them over whom they exercise the same, or else given extraordinarily by God. And tho he thinks kings to have been the first governors so constituted, he adds, That this is not the only regiment that hath been received in the world. The inconveniences of one kind have caused sundry others to be devised. So that in a word, all publick regiment, of what kind soever, seemeth evidently to have risen from deliberate advice, consultation and composition between men, judging it convenient and behoofeful. And a little below, Man's nature standing therefore as it doth, some kind of regiment the law of nature doth require; yet the kinds thereof being many, nature tyeth not to any one, but leaveth the choice as a thing arbitrary. And again, To live by one man's will, became all men's misery: This constrained them to come unto laws, &c. But as those laws do not only teach that which is good, but enjoin it, they have in them a constraining force. To constrain men to anything inconvenient seemeth unreasonable: Most requisite therefore it is that to devise laws, which all men should be forced to obey, none but wise men should be admitted. Moreover that which we say concerning the power of government must here be applied unto the power of making laws, whereby to govern; which power God hath over all; and by the natural law, whereunto he hath made all subject, the lawful power of making laws to command whole politick societies of men, belongeth so properly unto the same entire societies, that for any prince or potentate, of what kind soever upon earth, to exercise the same of himself, and not either by express commission immediately from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws therefore they are not, which publick consent hath not made so. The humour of our age considered, I should not have dared to say so much; but if Hooker be a man of such great authority, I cannot offend in transcribing his words, and shewing how vilely he is abused by Filmer; concluding, that if he be in the right, the choice and constitution of government, the making of laws, coronation, inauguration, and all that belongs to the chusing and making of kings, or other magistrates, is merely from the people; and that all power exercised over them, which is not so, is usurpation and tyranny, unless it be by an immediate commission from God; which if any man has, let him give testimony of it, and I will confess he comes not within the reach of our reasonings, but ought to be obeyed by those to whom he is sent, or over whom he is placed.
Nevertheless, our author is of another opinion; but scorning to give us a reason, he adds to Hooker's words, As if these solemnities were a kind of deed, whereby the right of dominion is given; which strange, untrue, and unnatural conceits are set abroad by seedsmen of rebellion; and a little farther, Unless we will openly proclaim defiance unto all law, equity, and reason, we must say (for there is no remedy) that in kingdoms hereditary, birthright giveth a right unto sovereign dominion, &c. Those solemnities do either serve for an open testification of the inheritor's right, or belong to the form of inducing him into the possession . These are bold censures, and do not only reach Mr. Hooker, whose modesty and peaceableness of spirit is no less esteemed than his learning; but the Scriptures also, and the best of human authors, upon which he founded his opinions. But why should it be thought a strange, untrue, or unnatural conceit, to believe that when the Scriptures say Nimrod was the first that grew powerful in the earth long before the death of his fathers, and could consequently neither have a right of dominion over the multitude met together at Babylon, nor subdue them by his own strength, he was set up by their consent; or that they who made him their governor, might prescribe rules by which he should govern? Nothing seems to me less strange, than that a multitude of reasonable creatures, in the performance of acts of the greatest importance, should consider why they do them. And the infinite variety which is observed in the constitution, mixture, and regulation of governments, does not only shew that the several nations of the world have considered them; but clearly prove that all nations have perpetually continued in the exercise of that right. Nothing is more natural than to follow the voice of mankind: The wisest and best have ever employed their studies in forming kingdoms and commonwealths, or in adding to the perfections of such as were already constituted; which had been contrary to the laws of God and nature, if a general rule had been set, which had obliged all to be forever subject to the will of one; and they had not been the best, but the worst of men who had departed from it. Nay, I may say, that the law given by God to his peculiar people, and the commands delivered by his servants in order to it, or the prosecution of it, had been contrary to his own eternal and universal law; which is impossible. A law therefore having been given by God, which had no relation to, or consistency with the absolute paternal power; judges and kings created, who had no pretence to any preference before their brethren, till they were created, and commanded not to raise their hearts above them when they should be created; the wisdom and virtue of the best men in all ages shewn in the constitution or reformation of governments; and nations in variously framing them, preserving the possession of their natural right, to be governed by none, and in no other way than they should appoint: The opinions of Hooker, That all publick regiment, of what kind soever, ariseth from the deliberate advice of men seeking their own good, and that all other is mere tyranny, are not untrue and unnatural conceits set abroad by the seedsmen of rebellion; but real truths grounded upon the laws of God and nature, acknowledged and practiced by mankind. And no nation being justly subject to any, but such as they set up, nor in any other manner than according to such laws as they ordain, the right of chusing and making those that are to govern them, must wholly depend upon their will.
 [Patriarcha, ch. 13.]
 [Patriarcha, ch. 14.]
 Deut. 17.
 [Deuteronomy 17:17, 20.]
 [Patriarcha, ch. 14.]
 Hooker, Eccl. Pol. I. 1.c. 10. [Richard Hooker, Of the Laws of Ecclesiastical Polity (1593), bk. 1, ch. 10.]
 [Patriarcha, ch. 14. These words are in fact Hooker's.]
 [Hooker, bk. 1, ch. 10; bk. 8, ch. 3.]