More Baxter: On the Power of Princes
and obedience of subjects, rights, and lesser magistrates
Jumping right in with an extra-long block quote:
“By [political authority or power] we mean A Right and Obligation to Govern particular societies by Legislation (or precept) and Judgement, for the Common good, in subordination to God, the only supream universal Governour, and his universal Laws and final judgement.
GOD is the fountain or first efficient [i.e., as in efficient cause] chief Ruler, and ultimate end, of all true Authority (or Right of Government): For of him, and through him, and to him are all things.
God hath made no Universal Vicarious meer humane Governour under himself, Civil or Ecclesiastical, Personal or Collective, (Pope or Council): nor ordained any Universal Teacher or Apostle; Though he sent forth many into all the world Indefinitely to Teach as many as they could. For no mortal man, or Collective body is naturally capable of it.
Therefore he that claimeth such an Apostolick and Ecclesiastical Power as Vicarious with Obligation to exercise it, condemneth himself for betraying the most of mankind, for he doth not exercise it at the Antipodes, or to the fifth part of the world.”
[…]
“God hath given power to none to destroy the Common good; except such Kingdoms as the Canaanites, &c. that by revelation were judged to destruction, or such particular Countries as by unjust enmity to their neighbours may by the Law of Nature and Nations be destroyed for the necessary preservation of the rest.
Therefore all Laws and Mandates that are notoriously against God or his Laws, or the common safety (that is, destructive to the Common-wealth and welfare) are ipso facto null, or not obligatory, no more than a Justices precepts against the King.”
Moving on. Baxter comes out against popular sovereignty:
“The people are not the fountain of power, nor the donors of it; nor, as such, have they any right to Governing, either to use themselves or to give to others; Though they or part of them may have some in Democracies by the species of the Government,[1] or in mixt Governments; but otherwise they have none by Nature. The Government of Republicks is not by an arbitrary Collation of each mans personal power to some one: But God hath prevented them, and made it necessary by the Law of Nature and Scripture, that there be Governours as his Officers under him, to whom the people shall submit, in all cases where such can be had; and hath given them universal Laws according to which they must Rule.”
This does not imply, however, divine right hereditary monarchy from time immemorial. At some point, as societies were formed, consent was in play. In some circumstances still consent of the governed plays a role, but Baxter is adamant that albeit the people may act as a conduit for power, power is never truly lodged in the same nor theirs to withhold or revoke.
“But because Nature hath given no one person or family a Right more than others, to Rule Kingdoms antecedently to the peoples consent, therefore the people had at the forming of such societies the choice of those persons or families that should govern, and without their consent none were capable recipients of that power: so that as the Kings Charter immediately giveth the power of a Mayor, or Bailiff to the person whom the Citizens shall choose, which choice giveth him no power but only maketh him capable to receive it from the Kings Charter; even so Gods Law and Charter obligeth the people to choose or consent to that family or person that shall Rule them, and giveth Authority (with obligation to use it) to those whom the said consent hath made the capable due recipients.”
And now, Baxter takes aim at Richard Hooker for opinions to the contrary. Schlatter notes that Baxter was perpetually frustrated that Hooker was honored in England whilst Baxter was “stigmatized as the theorist of rebellion” when, in fact, the former was a proponent of popular sovereignty. Schlatter cites the Christian Directory (IV) and Difference between the Power of Magistrates and Church-pastors (pp. 6, 53-59) but not the Second Part—I’m not sure Schlatter ever cites the Second Part in his otherwise superb essay on Baxter’s political thought.
In any case, here Baxter lashes out at the ghost of his nemesis again. Hooker’s central error, as Baxter sees it, is in confusing the “Power of choosing Governours, who shall receive power from God only,” and the “power it self of Governing, which the people as such have not at all.” Accordingly, Hooker erroneously concludes that kings are dependent on (and even subjected to) the body politic, the people, and that “when the line is extinct the power cometh by escheate to the people.”
Escheat being a reference to the transference or reversion of the property of heirless decedents back to the state. Behind this mechanism designed to prevent ownerless, wasted property, is the assumption that all property is a grant of government or the state (even Commonwealth v. Algers (Mass. 1851) in our own jurisdiction affirms the same). Once a line of stewards of property ceases, the land would return to the custody of the original grantee. Applied to the distribution of government power, this is more or less the basis of popular sovereignty theory, which Baxter rejects. For the analogy to work, the power must have, at some point and in some essential way, belonged to the people proper; Baxter cannot stomach this notion.
On Rights:
“Propriety is naturally antecedent to Government, which doth not Give it, but regulate it to the Common good: Every man is born with a propriety in his own members, and nature giveth him a propriety in his Children, and his food and other just acquisitions of his industry. Therefore no Ruler can justly deprive men of their propriety, unless it be by some Law of God (as in executi∣on of Justice on such as forfeit it) or by their own consent, by themselves or their Delegates or Progenitors; And mens lives and Liberties are the chief parts of their propriety. That is the peoples just reserved Property, and Liberty, which neither God taketh from them, by the power which his own Laws give the Rulers, nor is given away by their foresaid consent.”
(Propriety, in this usage, refers to original, natural, or “antecedent,” as Baxter says, right; and employment of the term in this way evidently incapsulates those rights under natural law, a fitness or suitability inherent in God’s law condescended to men and according to their own nature. We might say propriety refers to the irrevocable things fit for man qua man to do, possess, and exercise.)
On Lesser Magistrates:
“Inferior Magistrates have authority from God, in that they have it from the King, or other supreme Rulers, whom God empowereth to make inferior Magistrates, as their officers.”
Baxter clearly operates with a hierarchical view of the distribution of magisterial or kingly power. It is first invested directly, by the conduit of the people, by God in the king. The king can then appoint lower officers, so that the power of the lesser magistrate is always derivative. They serve at the king’s pleasure since God does not inject them with authority directly—a big debate in the seventeenth century was whether sovereignty can, in fact, coherently be divided or parceled off; Baxter thinks not, it seems. Therefore, lesser magistrates are mere positive or nominal creations, we might say, with no intrinsic difference from other subjects. In other words, anyone could have been appointed a lesser magistrate and been enabled to act as an officer of the king. The status of officer doesn’t provide any special right over the king, to rebel or depose, that is, than any other subject. For inferior magistrates are drawn from the mass of subjects. If they were to rebel or depose it would, perhaps, be analogous to when a king rebels against God himself, the source of his power, via dereliction of duty both to the divine and temporal.
“The inferior Magistrates are the subjects of the King, as well as the meanest men, and therefore have no power to depose him, or to take up arms against him any more than other subjects… Subjects are bound to take their Rulers, not as their own creatures, to set up and take down as the Roman Souldiers did: (For then to obey a Ruler would be but radically to obey themselves, or to obey their servants): But as the Officers of God, who communicateth authority to them, and so to honour and obey God in them, as we do the King in his inferiour Magistrates: And so to obey for Conscience sake.”
One theory we could advance here on the lesser magistrate question is, accounting for what’s fleshed out below regarding the injustice of king’s waring against their own people, that 1) lesser magistrates have real but derivative power from the king; 2) if the seat of the sovereign becomes vacant power does not revert to the people; 3) however, the people remain the conduit of said power; 4) it is further not clear what happens to the derivative power invested in lesser magistrates if the seat of the sovereign becomes vacant; 5) perhaps, it remains so invested in the lesser magistrates until it is rescinded by one with power to grant derivative authority; 6) in which case, if the king has effectively absconded or forfeited his power, that power could a) then only still reside with the possessors of derivative (but real) power, or b) we recommunicated/redirected to a lesser magistrate by the selection of the people. In which case, we would end up with the very basic view that the people themselves cannot rebel without appropriate leadership—in this case, those who have possessed derivative power legitimately. (Baxter says none of this, to be clear. And his view might be as limiting of rebellion/resistance as it facially appears.)
Returning briefly to the subject of rights, Baxter puts them in perspective:
“If we are wronged by unjust defamations or oppression or persecution, as long as Rulers destroy not the Common-wealth, particular Subjects must not vindicate their own right so much as by dishonouring their Soveraign; because his honour is more necessary than our Rights to the common good.”
(Baxter is always concerned with stability, cohesion, and unity, as the good work of Walter Douglas suggests.)
It is better to not vindicate a particular, individual right if in so doing one will dishonor the sovereign because said dishonor is a strike against the common good of the commonwealth itself. This because “The Union of the King and people is the life of the Kingdom; and dividing is destroying: Therefore an Vniting of their Interests is a chief point in policie; and setting their Interests as divided in opposition or supicion of each other is pernicious.”
And this goes both ways:
“Therefore it is against the Constitution of the Common-wealth, for the King to raise war against his Kingdom as their enemy, or for the Kingdom to raise war against the King: King James asserts the first, and the Reason of Government proveth both.”
Above all, the health and longevity of the commonwealth is central:
“The command of a Prince, (whether sober or in drink, or passion) to any subject, to destroy the Prince himself (as Saul did command one) or to destroy the Common-wealth, or to break the Laws of God, or the fixed Laws of the Land, will not justifie the subject that obeyeth that command, nor doth give him right to impunity before God, or in the Courts of Justice, except in such cases as the Law it self excepth.”
So, Baxter would say that one big limit on the sovereign’s power would be that commands (explicit or implicit, presumably) to assassinate the governors (literally or metaphorically) or to euthanize the commonwealth are invalid. It’s a sin akin to suicide wherein the punishment for it is inherent in the act itself.
Most importantly, in the post-civil war context, “I do hold that it is not Lawful for any of his own Subjects to raise war or take arms against the King, either his Person, Authority, Dignity or Rights.” In sum, neither part of the body politic, the commonwealth, can do violence to the other.
What other limits are on the sovereign’s commands, since Baxter says that “God hath limited all humane power”?
Princes are obliged to God’s laws and their own word or contracts.
“[Y]et as Laws are the Instruments of Government, no one is under a Law as such that is not under Government. And therefore no Soveraign is under his own Laws as Governing Laws; though he may by the bonds of fidelity and justice and for the Common good be obliged to Govern the subjects by them.”
He may also be bound by sort of societal contracts “which are called Fundamental or Constitutive Laws, made by common consent [i.e., including the sovereign’s consent; e.g., Magna Charta; elsewhere called “the essential Constitution of the Kingdom”] to secure the subjects rights [i.e., propriety as discussed above].”
Other than that—no self-destruction and no lying—the sovereign has lawful authority to determine all else according to the light of nature and prudence in various time and circumstances though he may not rightly command sin or ban the exercise of commands of God vis a vis worship (primarily).
[1] Baxter’s distaste for democracy is well known. See e.g., Richard Schlatter, Richard Baxter and Puritan Politics, 26-33.