Front Page Titles (by Subject) SECTION 21: It cannot be for the good of the People that the Magistrate have a power above the Law: and he is not a Magistrate who has not his power by Law. - Discourses Concerning Government
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SECTION 21: It cannot be for the good of the People that the Magistrate have a power above the Law: and he is not a Magistrate who has not his power by Law. - Algernon Sidney, Discourses Concerning Government 
Discourses Concerning Government, ed. Thomas G. West (Indianapolis: Liberty Fund 1996).
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It cannot be for the good of the People that the Magistrate have a power above the Law: and he is not a Magistrate who has not his power by Law.
That we may not be displeased, or think it dangerous and slavish to depend upon the will of a man, which perhaps may be irregular or extravagant in one who is subject to no law, our author very dexterously removes the scruples by telling us,
I am contented in some degree to follow our author, and to acknowledge that the king neither has nor can have any prerogative which is not for the good of the people, and the preservation of their liberties. This therefore is the foundation of magistratical power, and the only way of discerning whether the prerogative of making laws, of being above laws, or any other he may pretend, be justly due to him or not: and if it be doubted who is the fittest judge to determine that question, common sense will inform us, that if the magistrate receive his power by election or donation, they who elect, or give him that power, best know whether the good they sought be performed or not; if by succession, they who instituted the succession; if otherwise, that is, by fraud or violence, the point is decided, for he has no right at all, and none can be created by those means. This might be said, tho all princes were of ripe age, sober, wise, just and good; for even the best are subject to mistakes and passions, and therefore unfit to be judges of their own concernments, in which they may by various means be misguided: but it would be extreme madness to attribute the same to children, fools, or madmen, who are not able to judge of the least things concerning themselves or others; but most especially to those who, coming in by usurpation, declare their contempt of all human and divine laws, and are enemies to the people they oppress. None therefore can be judges of such cases but the people, for whom and by whom the constitutions are made; or their representatives and delegates, to whom they give the power of doing it.
But nothing can be more absurd than to say, that one man has an absolute power above law to govern according to his will, for the people’s good, and the preservation of their liberty: For no liberty can subsist where there is such a power; and we have no other way of distinguishing between free nations and such as are not so, than that the free are governed by their own laws and magistrates according to their own mind, and that the others either have willingly subjected themselves, or are by force brought under the power of one or more men, to be ruled according to his or their pleasure. The same distinction holds in relation to particular persons. He is a free man who lives as best pleases himself, under laws made by his own consent; and the name of slave can belong to no man, unless to him who is either born in the house of a master, bought, taken, subdued, or willingly gives his ear to be nailed to the post, and subjects himself to the will of another. Thus were the Grecians said to be free in opposition to the Medes and Persians, as Artabanus acknowledged in his discourse to Themistocles.2 In the same manner the Italians, Germans and Spaniards were distinguish’d from the Eastern nations, who for the most part were under the power of tyrants. Rome was said to have recovered liberty by the expulsion of the Tarquins; or as Tacitus expresses it, Lucius Brutus established liberty and the consulate together,3 as if before that time they had never enjoyed any; and Julius Caesar is said to have overthrown the liberty of that people. But if Filmer deserve credit, the Romans were free under Tarquin, enslaved when he was driven away, and his prerogative extinguish’d, that was so necessarily required for the defence of their liberty; and were never restored to it, till Caesar assum’d all the power to himself. By the same rule the Switzers, Grisons, Venetians, Hollanders, and some other nations are now slaves; and Tuscany, the kingdom of Naples, the Ecclesiastical State, with such as live under a more gentle master on the other side of the water, I mean the Turk, are free nations. Nay the Florentines, who complain of slavery under the house of Medici, were made free by the power of a Spanish army who set up a prerogative in that gentle family, which for their good has destroyed all that could justly be called so in that country, and almost wholly dispeopled it. I, who esteem myself free, because I depend upon the will of no man, and hope to die in the liberty I inherit from my ancestors, am a slave; and the Moors or Turks, who may be beaten and kill’d whenever it pleases their insolent masters, are free men. But surely the world is not so much mistaken in the signification of words and things. The weight of chains, number of stripes, hardness of labour, and other effects of a master’s cruelty, may make one servitude more miserable than another: but he is a slave who serves the best and gentlest man in the world, as well as he who serves the worst; and he does serve him if he must obey his commands, and depends upon his will. For this reason the poet ingeniously flattering a good emperor, said, that liberty was not more desirable, than to serve a gentle master;4 but still acknowledged that it was a service, distinct from, and contrary to liberty: and it had not been a handsome compliment, unless the evil of servitude were so extreme, that nothing but the virtue and goodness of the master could any way compensate or alleviate it. Now tho it should be granted that he had spoken more like to a philosopher than a poet; that we might take his words in the strictest sense, and think it possible to find such conveniences in a subjection to the will of a good and wise master, as may balance the loss of liberty, it would be nothing to the question; because that liberty is thereby acknowledged to be destroy’d by the prerogative, which is only instituted to preserve it. If it were true that no liberty were to be preferr’d before the service of a good master, it could be of no use to the perishing world, which Filmer and his disciples would by such arguments bring into a subjection to children, fools, mad or vicious men. These are not cases feigned upon a distant imaginary possibility, but so frequently found amongst men, that there are few examples of the contrary. And as ’tis folly to suppose that princes will always be wise, just and good, when we know that few have been able alone to bear the weight of a government, or to resist the temptations to ill, that accompany an unlimited power, it would be madness to presume they will for the future be free from infirmities and vices. And if they be not, the nations under them will not be in such a condition of servitude to a good master as the poet compares to liberty, but in a miserable and shameful subjection to the will of those who know not how to govern themselves, or to do good to others: Tho Moses, Joshua and Samuel had been able to bear the weight of an unrestrained power: though David and Solomon had never abused that which they had; what effect could this have upon a general proposition? Where are the families that always produce such as they were? When did God promise to assist all those who should attain to the sovereign power, as he did them whom he chose for the works he designed? Or what testimony can Filmer give us, that he has been present with all those who have hitherto reigned in the world? But if we know that no such thing either is, or has been; and can find no promise to assure us, nor reason to hope that it ever will be, ’tis as foolish to found the hopes of preserving a people upon that which never was, or is so likely to fail, nay rather which in a short time most certainly will fail, as to root up vines and fig trees in expectation of gathering grapes and figs from thistles and briars. This would be no less than to extinguish the light of common sense, to neglect the means that God has given us to provide for our security, and to impute to him a disposition of things utterly inconsistent with his wisdom and goodness. If he has not therefore order’d that thorns and thistles should produce figs and grapes, nor that the most important works in the world, which are not without the utmost difficulty, if at all, to be performed by the best and wisest of men, should be put into the hands of the weakest, most foolish and worst, he cannot have ordain’d that such men, women or children as happen to be born in reigning families, or get the power into their hands by fraud, treachery or murder (as very many have done) should have a right of disposing all things according to their will. And if men cannot be guilty of so great an absurdity to trust the weakest and worst with a power which usually subverts the wisdom and virtue of the best; or to expect such effects of virtue and wisdom from those who come by chance, as can hardly, if at all, be hoped from the most excellent, our author’s proposition can neither be grounded upon the ordinance of God, nor the institution of man. Nay, if any such thing had been established by our first parents in their simplicity, the utter impossibility of attaining what they expected from it, must wholly have abrogated the establishment: Or rather, it had been void from the beginning, because it was not a just sanction, commanding things good, and forbidding the contrary,5 but a foolish and perverse sanction, setting up the unruly appetite of one person to the subversion of all that is good in the world, by making the wisdom of the aged and experienc’d to depend upon the will of women, children and fools; by sending the strong and the brave to seek protection from the most weak and cowardly, and subjecting the most virtuous and best of men to be destroy’d by the most wicked and vicious. These being the effects of that unlimited prerogative, which our author says was only instituted for the good and defence of the people, it must necessarily fall to the ground, unless slavery, misery, infamy, destruction and desolation tend to the preservation of liberty, and are to be preferr’d before strength, glory, plenty, security and happiness. The state of the Roman empire after the usurpation of Caesar will set this matter in the clearest light; but having done it already in the former parts of this work, I content myself to refer to those places. And tho the calamities they suffer’d were a little allayed and moderated by the virtues of Antoninus and M. Aurelius, with one or two more, yet we have no example of the continuance of them in a family, nor of any nation great or small that has been under an absolute power, which does not too plainly manifest, that no man or succession of men is to be trusted with it.
But says our author, there can be no law where there is not a supreme power, and from thence very strongly concludes it must be in the king; for otherwise there can be no sovereign majesty in him, and he is but an equivocal king. This might have been of some force, if governments were establish’d, and laws made only to advance that sovereign majesty; but nothing at all to the purpose, if (as he confesses) the power which the prince has, be given for the good of the people, and for the defence of every private man’s life, liberty, lands and goods: for that which is instituted, cannot be abrogated for want of that which was never intended in the institution. If the publick safety be provided, liberty and propriety secured, justice administered, virtue encouraged, vice suppressed, and the true interest of the nation advanced, the ends of government are accomplished; and the highest must be contented with such a proportion of glory and majesty as is consistent with the publick; since the magistracy is not instituted, nor any person placed in it for the increase of his majesty, but for the preservation of the whole people, and the defence of the liberty, life and estate of every private man, as our author himself is forced to acknowledge.
But what is this sovereign majesty, so inseparable from royalty, that one cannot subsist without the other? Caligula placed it in a power of doing what he pleased to all men:6 Nimrod, Nebuchadnezzar and others, with an impious and barbarous insolence boasted of the greatness of their power. They thought it a glorious privilege to kill or spare whom they pleased. But such kings as by God’s permission might have been set up over his people, were to have nothing of this. They were not to multiply gold, silver, wives or horses; they were not to govern by their own will, but according to the law; from which they might not recede, nor raise their hearts above their brethren.7 Here were kings without that unlimited power, which makes up the sovereign majesty, that Filmer affirms to be so essential to kings, that without it they are only equivocal; which proving nothing but the incurable perverseness of his judgment, the malice of his heart, or malignity of his fate, always to oppose reason and truth, we are to esteem those to be kings who are described to be so by the Scriptures, and to give another name to those who endeavour to advance their own glory, contrary to the precept of God and the interest of mankind.
But unless the light of reason had been extinguished in him, he might have seen, that tho no law could be made without a supreme power, that supremacy may be in a body consisting of many men, and several orders of men. If it be true, which perhaps may be doubted, that there have been in the world simple monarchies, aristocracies or democracies legally established, ’tis certain that the most part of the governments of the world (and I think all that are or have been good) were mixed. Part of the power has been conferr’d upon the king, or the magistrate that represented him, and part upon the senate and people, as has been proved in relation to the governments of the Hebrews, Spartans, Romans, Venetians, Germans, and all those who live under that which is usually called the Gothic polity. If the single person participating of this divided power dislike either the name he bears, or the authority he has, he may renounce it; but no reason can be from thence drawn to the prejudice of nations, who give so much as they think consistent with their own good, and reserve the rest to themselves, or to such other officers as they please to establish.
No man will deny that several nations have had a right of giving power to consuls, dictators, archons, suffetes, dukes and other magistrates, in such proportions as seemed most conducing to their own good; and there must be a right in every nation of allotting to kings so much as they please, as well as to the others, unless there be a charm in the word king, or in the letters that compose it. But this cannot be; for there is no similitude between king, rex, and basileus: they must therefore have a right of regulating the power of kings, as well as that of consuls or dictators; and it had not been more ridiculous in Fabius, Scipio, Camillus or Cincinnatus, to assert an absolute power in himself, under pretence of advancing his sovereign majesty against the law, than for any king to do the like. But as all nations give what form they please to their government, they are also judges of the name to be imposed upon each man who is to have a part in the power: and ’tis as lawful for us to call him king, who has a limited authority amongst us, as for the Medes or Arabs to give the same name to one who is more absolute. If this be not admitted, we are content to speak improperly, but utterly deny that when we give the name, we give anything more than we please; and had rather his majesty should change his name than to renounce our own rights and liberties which he is to preserve, and which we have received from God and nature.
But that the folly and wickedness of our author may not be capable of any farther aggravation, he says, That it skills not how he come by the power. Violence therefore or fraud, treachery or murder, are as good as election, donation or legal succession. ’Tis in vain to examine the laws of God or man; the rights of nature; whether children do inherit the dignities and magistracies of their fathers, as patrimonial lands and goods; whether regard ought to be had to the fitness of the person; whether all should go to one, or be divided amongst them; or by what rule we may know who is the right heir to the succession, and consequently what we are in conscience obliged to do. Our author tells us in short, it matters not how he that has the power comes by it.
It has been hitherto thought, that to kill a king (especially a good king) was a most abominable action. They who did it, were thought to be incited by the worst of passions that can enter into the hearts of men; and the severest punishments have been invented to deter them from such attempts, or to avenge their death upon those who should accomplish it: but if our author may be credited, it must be the most commendable and glorious act that can be performed by man: for besides the outward advantages that men so earnestly desire, he that does it, is presently invested with the sovereign majesty, and at the same time becomes God’s vicegerent, and the father of his country, possessed of that government, which in exclusion to all other forms is only favoured by the laws of God and nature. The only inconvenience is, that all depends upon success, and he that is to be the minister of God, and father of his country if he succeed, is the worst of all villains if he fail; and at the best may be deprived of all by the same means he employ’d to gain it. Tho a prince should have the wisdom and virtues of Moses, the valour of Joshua, David and the Maccabees, with the gentleness and integrity of Samuel, the most foolish, vicious, base and detestable man in the world that kills him, and seizes the power, becomes his heir, and father of the people that he govern’d; it skills not how he did it, whether in open battle or by secret treachery, in the field or in the bed, by poison or by the sword: The vilest slave in Israel had become the Lord’s anointed, if he could have kill’d David or Solomon, and found villains to place him in the throne. If this be right, the world has to this day lived in darkness, and the actions which have been thought to be the most detestable, are the most commendable and glorious. But not troubling myself at present to decide this question, I leave it to kings to consider how much they are beholden to Filmer and his disciples, who set such a price upon their heads, as would render it hard to preserve their lives one day, if the doctrines were received which they endeavour to infuse into the minds of the people; and concluding this point, only say, that we in England know no other king than he who is so by law, nor any power in that king except that which he has by law: and tho the Roman empire was held by the power of the sword; and Ulpian a corrupt lawyer undertakes to say, that the prince is not obliged by the laws;8 yet Theodosius confessed, that it was the glory of a good emperor to acknowledge himself bound by them.9
[Patriarcha, ch. 26 (“Of the King’s Prerogative over Laws”), pp. 105–106.]
Plut. Vit. Themist. [Plutarch, Life of Themistocles, ch. 27, sec. 3.]
Libertatem & consulatum L. Brutus instituit. An. l. 1. [Tacitus, Annals, bk. 1, ch. 1.]
[“No liberty was ever more welcome than servitude under a good king.” Claudian, Praise of Stilicho (Loeb, 1922), vol. 1, lines 114–115.]
Sanctio recta, jubens honesta, prohibens contraria. Cicer. [See Section 10, n. 31.]
Omnia mihi in omnes licere. [“I can do all things to all men.” Suetonius, Caligula, ch. 29.]
[Ulpian, Ad legem Juliam et Papiam, bk. 13 .]
[See The Institutes of Justinian (London: Longman, Green, 1948), proem, p. 1.]