the people, are legislative, so of necessity there must be a third to be executive of the laws made, and this is the magistracy. In which order, with the rest being wrought up by art, the commonwealth consists of “the senate proposing, the people resolving, and the magistracy executing,” whereby partaking of the aristocracy as in the senate, of the democracy as in the people, and of monarchy as in the magistracy, it is complete. Now there being no other commonwealth but this in art or nature, it is no wonder if Machiavel has shown us that the ancients held this only to be good; but it seems strange to me that they should hold that there could be any other, for if there be such a thing as pure monarchy, yet that there should be such a one as pure aristocracy or pure democracy is not in my understanding. But the magistracy, both in number and function, is different in different commonwealths. Nevertheless there is one condition of it that must be the same in every one, or it dissolves the commonwealth where it is wanting. And this is no less than that, as the hand of the magistrate is the executive power of the law, so the head of the magistrate is answerable to the people, that his execution be according to the law; by which Leviathan may see that the hand or sword that executes the law is in it and not above it.
Now whether I have rightly transcribed these principles of a commonwealth out of nature, I shall appeal to God and to the world—to God in the fabric of the Commonwealth of Israel, and to the world in the universal series of ancient prudence. But in regard the same commonwealths will be opened at large in the Council of legislators, I shall touch them for the present but slightly, beginning with that of Israel.
The Commonwealth of Israel consisted of the Senate, the people, and the magistracy.
The people by their first division, which was genealogical, were contained under their thirteen tribes, houses, or families; whereof the first-born in each was prince of his tribe, and had the leading of it: the tribe of Levi only, being set apart to serve at the altar, had no other prince but the high-priest. In their second division they were divided locally by their agrarian, or the distribution of the land of Canaan to them by lot, the tithe of all remaining to Levi; whence, according to their local division, the tribes are reckoned but twelve.
The assemblies of the people thus divided were methodically gathered by trumpets to the congregation: which was, it should seem, of two sorts. For if it were called with one trumpet only, the princes of the tribes and the elders only assembled; but if it were called with two, the whole people gathered themselves to the congregation, for so it is rendered by the English; but in the Greek it is called Ecclesia, or the Church of God, and by the Talmudist the great “Synagogue.” The word Ecclesia was also anciently and properly used for the civil congregations, or assemblies of the people in Athens, Lacedaemon, and Ephesus, where it is so called in Scripture, though it be otherwise rendered by the translators, not much as I conceive to their commendation, seeing by that means they have lost us a good lesson, the apostles borrowing that name for their spiritual congregations, to the end that we might see they intended the government of the church to be democratical or popular, as is also plain in the rest of their constitutions.
The church or congregation of the people of Israel assembled in a military manner, and had the result of the commonwealth, or the power of confirming all their laws, though proposed even by God himself; as where they make him king, and where they reject or depose him as civil magistrate, and elect Saul. It is manifest that he gives no such example to a legislator in a popular government as to deny or evade the power of the people, which were a contradiction; but though he deservedly blames the ingratitude of the people in that action, he commands Samuel, being next under himself supreme magistrate, “to hearken to their voice” (for where the suffrage of the people goes for nothing, it is no commonwealth), and comforts him, saying, “They have not rejected thee, but they have rejected me that I should not reign over them.” But to reject him that he should not reign over them, was as civil magistrate to depose him. The power therefore which the people had to depose even God himself as he was civil magistrate, leaves little doubt but that they had power to have rejected any of those laws confirmed by them throughout the Scripture, which, to omit the several parcels, are generally contained under two heads: those that were made by covenant with the people in the land of Moab, and those which were made by covenant with the people in Horeb; which two, I think, amount to the whole body of the Israelitish laws.
But if all and every one of the laws of Israel being proposed by God, were no otherwise enacted than by covenant with the people, then that only which was resolved by the people of Israel was their law; and so the result of that commonwealth was in the people. Nor had the people the result only in matter of law, but the power in some cases of judicature; as also the right of levying war, cognizance in matter of religion, and the election of their magistrates, as the judge or dictator, the king, the prince: which functions were exercised by the Synagoga magna, or Congregation of Israel, not always in one manner, for sometimes they were performed by the suffrage of the people, viva voce, sometimes by the lot only, and at others by the ballot, or by a mixture of the lot with the suffrage, as in the case of Eldad and Medad, which I shall open with the Senate.
The Senate of Israel, called in the old Testament the Seventy Elders, and in the New the Sanhedrim (which word is usually translated “the Council”), was appointed by God, and consisted of seventy elders besides Moses, which were at first elected by the people, but in what manner is rather intimated than shown. Nevertheless, because I cannot otherwise understand the passage concerning Eldad and Medad, of whom it is said “that they were of them that were written, but went not up to the tabernacle,” then with the Talmudists I conceive that Eldad and Medad had the suffrage of the tribes, and so were written as competitors for magistracy; but coming afterward to the lot, failed of it, and therefore went not up to the tabernacle, or place of confirmation by God, or to the session-house of the Senate, with the Seventy upon whom the lot fell to be senators; for the session-house of the Sanhedrim was first in the court of the tabernacle, and afterward in that of the Temple, where it came to be called the stone chamber or pavement. If this were the ballot of Israel, that of Venice is the same transposed; for in Venice the competitor is chosen as it were by the lot, in regard that the electors are so made, and the magistrate is chosen by the “suffrage of the great Council or assembly of the people.” But the Sanhedrim of Israel being thus constituted, Moses, for his time, and after him his successor sat in the midst of it as prince or archon, and at his left hand the orator or father of the Senate; the rest, or the bench, coming round with either horn like a crescent, had a scribe attending upon the tip of it.
This Senate, in regard the legislator of Israel was infallible, and the laws given by God such as were not fit to be altered by men, is much different in the exercise of their power from all other senates, except that of the Areopagus in Athens, which also was little more than a supreme judicatory, for it will hardly, as I conceive, be found that the Sanhedrim proposed to the people till the return of the children of Israel out of captivity under Esdras, at which time there was a new law made—namely, for a kind of excommunication, or rather banishment, which had never been before in Israel. Nevertheless it is not to be thought that the Sanhedrim had not always that right, which from the time of Esdras is more frequently exercised, of proposing to the people, but that they forebore it in regard of the fulness and infallibility of the law already made, whereby it was needless. Wherefore the function of this Council, which is very rare in a senate, was executive, and consisted in the administration of the law made; and whereas the Council itself is often understood in Scripture by the priest and the Levite, there is no more in that save only that the priests and the Levites, who otherwise had no power at all, being in the younger years of this commonwealth, those that were best studied in the laws were the most frequently elected into the Sanhedrim. For the courts, consisting of three-and-twenty elders sitting in the gates of every city, and the triumvirates of judges constituted almost in every village, which were parts of the executive magistracy subordinate to the Sanhedrim, I shall take them at better leisure, and in the larger discourse; but these being that part of this commonwealth which was instituted by Moses upon the advice of Jethro the priest of Midian (as I conceive a heathen), are to me a sufficient warrant even from God himself, who confirmed them, to make further use of human prudence, wherever I find it bearing a testimony to itself, whether in heathen commonwealths or others; and the rather, because so it is, that we who have the holy Scriptures, and in them the original of a commonwealth, made by the same hand that made the world, are either altogether