Democraty the chief and Soveraign power consisteth in many Magistraâ—es yearly chosen by popular Suffrages or by certain other Intervalls of time and this heretofore was the state of the people of Rome when they were governed by Consulls Praetors Tribunes of the people Aedils and other yearly Magistrates and from hence proceed those Expressions which oftentimes we find in Tully Populi Romani Majestas laesa populi Majestas Visum est Senatui populoque Romano The Majesty of the Romane people The injured Majesty of the people it seemed good to the Senate and the people of Rome c. In a state Aristocratical the same Majesty resideth amongst some of the Lords and Nobles whom in some places they call Illustrissimoes in others the Peers of the Land and in other places again they receive other titles and appellations according to the custom of the Nation Amongst whom although peradventure but one as in the Common-wealth of Venice or more of them may have a preheminence of place and dignity above the rest being as it were a certain Primacy of Order which heretofore was the Honour of the Bishops of Rome and some Patriarchs in their Councils yet no man was so superiour above the rest in power that by his own authority he could judge any one of them neither could he himself be judged unlesse it were by all of them altogether Some form of this Government is still retained by our Mayors and Aldermen in our Cities and by the Heads and Fellows of Colleges in our Universities and although as it were but in a shadow yet in some manner they do represent it to us But in a Monarchial Government as the Name it self implies the chief Power is resident in the Person of the King alone whereupon St. Peter a most excellent Interpreter of St. Paul doth admonish the Christian People to obey the King as their superior that no man might any more doubt of whom St. Paul speaketh when he maketh mention of the higher Powers Ro. 1. 3. 1. Samuel also the Prophet of God doth so propound unto the people the fulness of the Kingly Power to be considered of by them 1 Sam. 8. That if a King the supreme in his Kingdom should act all those things which in that Chapter it is manifest that it is lawful for him to do upon no just Cause but upon the meer desire of Domination and to show himself a Tyrant and not a King although he wanted not Sin before God yet he ought not to have any force to be put upon him by the People nevertheless he may justly be said to have abused his Power but his own Power Amongst us English what more certainly or more cleerly can appear unless at noon we choose rather to be blind than open our eyes than that the supreme Power of the three Kingdoms doth intirely appertain to the Kings most excellent Majesty whom we are accustomed to render more remarkable by the title of Majesty not only according to the common use of speaking but in our solemn Ordinances and in all our forms actions of Law in the taking of an oath laying our hands upon the Gospel of the eternal God we acknowledg him the supreme yea the only supreme Governour of all persons and Causes in his Kingdoms VIII In the fourth place we are to understand That when we say the Power of making Lawes is in the King alone It is not so to be understood as if we meant that whatsoever the King is pleased to command shall immediatly obtain the force of a Law for by and by I will show unto you that some Consent of the People themselves and many other things are required to the Constitution of Law but this is that which I would hold forth unto you that the Counsels of the People Senate and other Demands of the Peers People or any whomsoever doe not oblige the Subjects nor do carry with them the Power of a Law unlesse they are strengthened and established by the Authority of the King to which being maturely and duely prepared as soon as the Consent of the King accedeth they immediatly receive the Name the Form and Authority of a Law and forthwith begin as soon as they are published to oblige the Subjects Therefore seeing that only is to be esteemed to be the Principal and the efficient Cause of any thing which by it self and immediatly produceth and into a prepared matter introduceth that Form which giveth to that Thing both the Name and the Being although other things ought to concurre to the production of that Effect or to go before it as so many praevious dispositions that so the matter may be rendred more apt to receive the Form intended by the Agent It is most manifest whatsoever those things are which antecedently are required to the Constitution of a Law yet the will of the Prince from whose Arbitration and Command alone all Rogations of Lawes are either established or made void is the only adaequate and efficient Cause of Publick Laws IX These things being premised The Position is confirmed by many Arguments And first by the Testimony of Holy Scripture First Gen. 49. 10. in that remarkable Testament of the Patriarch Jacob being about to dye The Scepter shall not be taken away from Judah nor a Law-giver from his Thigh is a Prophecy of the future Royal Dignity of that Tribe which the holy old man doth periphrastically describe and to the Confirmation of it he mentioned the Scepter the most remarkable witnesse of Kingly Authority and the Legislative Power the chiefest Perogative of it Secondly Deut. 33. 4 5. Moses was said to be a King in Israel because having gathered together all the Tribes of the People he gave them a Law to observe Thirdly Psal 60. 7. Judah is my Law-giver that is King And the vulgar Interpretation reads it Judah is my King In the Text now in hand Prov. 8. 15. By me Kings reign and the makers of Laws do decree just things where which is usual with Solomon in the whole Book of the Proverbs that the latter part of the verse doth contain an Amplification or Antithesis the very same Persons who in the beginning of the verse are called Kings in the latter part by way of Amplification are called Makers of Lawes Fiftly In the new Testament St. James also maketh mention 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Royal Law X. Secondly It is confirmed by the Testimonies of Philosophers and Historians and by the Authority of the Civil Laws and the municipal Laws of our Nation The thing being so manifest we shall be content to give you but few Examples Aristotle Plutarch and almost an infinit Number of other Authors of great Estimation do all affirm that we must have a Law and the Law of the Prince But that of Ulpian is very remarkable which he hath in his Book of the Roman Laws Quod principi placuit Legis vigorem habet What pleaseth the Prince hath the
jurisdiction do wholy attribute the universal right of the external Government of the Church to the Civil Magistrate And moreover as for these our own Disciplinarians at home Good God! what Monsters of names and opinions as full of Deformity as of Difformity have these last seven years fruitful of prodiges brought forth and nursed under the pretence of Reformation XXX I have neither the leisure nor resolution unless I should appear too troublesom to you to grapple at this time with both these Adversaries But in these as in many other Debates that opinion seemeth to be the truer and is truly the safer which is lodged in the middle betwixt the two extremes and I am confident you will be so much the more willing to imbrace it by how much it is more agreeable to the Doctrine of the English Church as also to the Laws of the Kingdom which is That the Right of making Ecclesiastical Laws is in the Power of Bishops Elders and other Persons duely elected by the Clergy of the whole Kingdom But so nevertheless that the Exercise of the same Right and Power in all Christian Common-wealthâ— ought to depend on the Authority of the supreme Magistrate both a Parte ante as the Schoolmen have it a parte post on the part precedent on the part subsequent to wit that they ought not of themselves to assemble for the making of Ecclesiastical Canons Laws unless they be called to it by his Mandate or Command or at least defended by his Authority a fâ—ll free leave being both asked obtained and being thus called and warranted their Laws or Canons to which they have consented are not ratified not have any Power of obliging untill the Assent of the supreme Magistrate be obtained by whose approbation and Authority as soon as they are confirmed they are presently to pass for Laws and do oblige the Subject And these things may suffice to be spoken of the Cause Efficient THE EIGHTH LECTURE Of the Obligation of Humane Laws from the Formal Cause where Of 1 The Promulgation of Laws 2 Of Laws Penal Ezra 10. 7 8. 7. And they made proclamation throughout Judah and Jerusalem unto all the Children of the Captivity that they should gather themselves together unto Jerusalem 8. And that whosoever would not come within three days according to the Counsel of the Princes and the Elders all his substance should be forfeited OF the obligation of humane Lawes as to their material and efficient Causes we have spoke enough and as much as conduceth to our present purpose in those points which have already been handled by us In this place we are to speak of such as may be reduced to the Formal kind of Causes and although peradventure not so properly if examined according to the acurate and exact Method yet in my Judgment not altogether incongruous to our Discourse on this present Subject They may all of them be reduced to two Heads The one of the publication of Lawes and the other of the penalty adjoined to them to be inflicted on Delinquents Both of which as they are expressly contained in the Text above cited The Publication of the Law in the seventh verse and the penalty of it in the eighth verse so the use of them is very necessary both by the Nature of the Law it self and to obtain the Effect of the Law For seeing the Law by its own Nature and as it is a rule of things to be done ought to have a double Power viz. A Power of Directing by shewing unto the Subjects what is to be done and what is not to be done and a Power of obliging by suggesting into their minds a necessity of obeying The Law could not duely and effectually exercise this twofold Power unless the Subject were informed what is the will of the Prince which is done by publication and understood withall by the penalty annexed to it how much it doth concern him to perform it II. Concerning the Publication of the Law the first Doubt is Whether this publication be meerly on the Account of and as it were intrinsecal to the Law That is to enquire Whether that as the Law hath the Power of directing and obliging the promulgation of it be so necessary that it wanteth of that Power unless it be promulgated Now in all this Discourse you are to understand that I take not this word Promulgation as it is used in Cicero other Roman writers but according to the received manner of speaking amongst the Schoolmen the Canonists of the latter Ages for in that Promulgation of the Antients the Law not yet established or fully made was propounded to the people publickly on three Market days of their approbation of it But the Publication of which we now speak is the Promulgation of a Law already made that the People may take notice of it I therefore shall briefly answer to the Doubt proposed and say That this Publication is so necessary and so intrinsecal to the Law that in some manner it may be called the Form of it and thereupon amongst many Authors it is a part of the Definition of it and indeed it is absolutely necessary to this that the Law may exercise the Office of a Law which is to direct and to oblige the Subjects whom it cannot direct much less oblige although made by never so just and undoubted Authority unless it be known to them and it cannot be known unless it be published For that which properly induceth the obligation is the Will and Authority of the Prince or Governor not as a single but as a publick Person and the Head of the Commonalty But unless by some publick means he shall cause his Will to be propounded and made known unto the People it cannot by any Law be manifest at least according to the interpretation of the Law that it is his Will and proceedeth from his Authority as he sustaineth a publick Person Dist 4. Sect. In isâ—is And from hence is that of the Canon Law Leges constituuntur cùm promulgantur Lawes are constituted when they are published And that also of the Civil Law Leges quae constringunt vitas hominum ab omnibus intelligidebent The Laws which do bind the lives of men ought to be understood by all which being approved by the Common Consent of all Doctors and the Dictates of Reason we need not here for the confirmation of iâ— to instance the Example of God him self solemnly pronouncing his Law unto the Israelites from the Mount of Sinai or the Practice of the most flourishing Common-wealths and Cities in the whole world who as soon as their Laws were made did in the most publick places expose them to the observation of the people engraven in Tables of Brass or Wood the words are most known which every where we meet with amongst antient Authors and to this classis pertain the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifie nothing
Conscience that the said obligation doth not signifie any compulsion for to speak properly the Conscience can no more be compelled than the free-Will but a power rather and authority which she is bound to obey to urge her to the performance of that which belongs unto her duty In the very same manner altogether as a King who hath the Legislative power by enacting lawes doth oblige his subjects to the observation of them As therefore in the external Courts Subjects properly and formally are obliged to obedience not so much by the law it self as by the power of the Law-giver howsoever the Law it self is said to oblige but when it is so spoken it is to be understood improperly and as it were materially and terminatively because the obligation is made by it and to it so the Law is said to judge John 7. 5. Doth our Law judge any one although the Law it self doth not judge but the Magistrate because the Magistrate ought to judge according to the Law so in the internal Court the Rule or the Law imposed on Conscience doth not properly oblige it but the power and authority of the Imposer yet so as by the Consequent truly and not unaptly although not so properly the Rule it self may be said to carry with it an obliging Virtue When therefore it is demanded what is that which obligeth Conscience to the performance of her duty At the same time both these questions are propounded First and principally who is the Lord of Conscience who hath right and power to impose a Rule or Law upon it to which it ought to conforme it self And then secondly and consequently what is that Rule of Conscience or that Law which is imposed on it by the Lord thereof and to which by his dominion and Empire over it it is bound to conform it self VI. In the fifth place it is to be understood when any thing is attributed to another it is attributed either by it self or not by it self that is to say by accident Those things therefore to which the power of obliging the Conscience is any ways to be attributed do fall under a threefold consideration For in the first place they either oblige the Conscience simply by themselves that is they do directly oblige by themselves and by their own power not only as the Term by it self is opposed to the Term by accident but as it opposed also to this Term by another Or in the second place they do oblige by themselves respectively that is as the Term by it self is opposed to the Term by accident and not as it is opposed to the Term per aliud that is by another The meaning is they do not oblige by their own proper power but by the vertue of another having a power to oblige Or thirdly they do oblige by accident only and in neither of the considerations by it self It is besides observable that in those things which do oblige the Conscience in the second consideration there is some difference to be made according to the different account of the cause from whence the obligation doth arise For it is one thing when the obligation is forcibly imposed by the authority of another and another thing when it is willingly contracted and of its own accord By this that hath been spoken it is manifest that there are four degrees of those things which do oblige the Conscience For examples sake to give you a short view of what hath been already spoken and of what as yet remaineth to be spoken you are to understand in the first place that the express Commandment of God doth oblige properly by it self and by its own force In the second place the Laws of men and the mandates and orders of our Superiours do oblige the Conscience but by no power or authority but by the vertue of the Commandement of God Thirdly Vows and promises being made of our own accord when it was wholy in our own choice to do otherwise do in their proper fact and freedom of election oblige our Consciences to the performance of them Fourthly and lastly the Law of consideration of Scandal and offence doth by accident oblige the Conscience VII We are here to understand that only that obligation which consisteth in the first degree is absolute and universal the other three are relative and particular I say it is absolute because it doth directly and alwayes oblige and because it obligeth all persons and the obligation of it is never to be cancell'd The others may be said to be relative both because they do not bind of themselves or by their own power but by a relation to some precept or institution of God as also because they do not always or every where oblige and in every case but when those considerations do require which they do bear a reference and respect unto The obligation therefore of the first degree is predominant over any obligation whatsoever in the other three insomuch that it is able to make them of no effect but it is impossible for them to render it frustrate Nay if we take it universally the obligation in any superiour degree the other being equall is more valid than the obligation in any inferiour degrees whatsoever and doth judge over them either by taking away what was done and contracted as oftentimes or at least by hindring what was to be done as always Therefore as to the power of obligation the Laws of men must give place to the Laws of God private contracts and promises to publick constitutions and the Law or consideration of offence or scandal to them both VIII These things being thus premised that we may be happy in a certain Rule by which we may know how to live I will according to my promise comprehend in some few conclusions those which are most necessary to be understood concerning the Rule of Conscience and the passive obligation of it The first conclusion is That God alone hath a most proper and direct command on the Consciences of all men So that none but God alone hath power to impose a Law upon the Conscience of any man to which it ought to be subjected as obliging by it self I say by it self for we are all bound in our Consciences to observe the just Laws of men to keep our vows and promises made to God or men and to be careful that we become not a scandal or an offence unto others But we are bound unto all these things upon no other tye but as they are reduceable to the will of God commanding them as in its due place we shall give an account unto you of the particulars thereof IX This Conclusion is proved first by the words of the Apostle already mentioned There is but one Law-giver who can both save and destroy In which words two arguments do prefer themselves to our observation In the first place they assert there is but one Legislator not one picked out amongst many not one above many but one
knowledge whereof hath hitherto shined into our minds whether internally imprinted by the light of Nature or externally revealed by the Word or whether by our own meditation or by the institution of others is now more excellently and more illustriously made manifest unto us The chief Helps or Mediums thereunto are the Discourse of Reason and Authority the last of which is the Judgement and the Practice of the Church of which neither doth the time permit to speak much neither doth it self require that many things should be spoken of it From the Law of Nature many particâ—lar Propositions of things to be done like so many Conclusions from their Principles are deduced by the discourse of Reason to the use of the Conscience In which unless we orderly proceed from the first unto the last we shall be apt to erre as already I have expressed we must therefore be very carefull that in every part of the Discourse the proceeding be legitimate that those things that follow may aptly depend upon those which go before and that the consequence be necessary lest the Conscience being mis-led do not dictate this or that or otherwise to the will than what it ought to do It is again to be feared lest we erre also in applying the holy Scripture unto the use of the Conscience unless a due regard of Reason be had unto Reason and of Authority unto Authority The Papists while they bestow all their studies that nothing be taken away from the Authority of the Church they give but little unto Reason The Socinians on the other side whiles rejecting all Authority they do measure Faith by Reason onely they do onely attain unto this that they grow mad with reason Both have the same errour but it variously deceiveth And both rocks shall not more easily be avoided than if Authority with Reason and Reason with Authority shall handsomely and prudently be conjoyned XXXVI What place either of them ought to have in the right and orderly unfolding and applying the holy Scripture it is not for this time or my present purpose to represent unto you I shall touch upon it in few words There is especially a twofold Use of Reason in relation to the Scriptures Collative and Illative Collative diligently to compare those divers places of Scripture especially those which seem to bear a remarkable correspondence or repugnancy amongst themselves Illative the propriety of the words the context and the scope being found out effectually and artificially to infer Doctrines being in the mean time not forgetfull that we must attribute so much the more to humane Reason in things to be done than in things to be believed as the mysteries of Faith do more exceed the capacity of natural understanding than the Offices of Life XXXVII The chiefest use of Authority is to beat down the boldness of Hereticks and Impostor who indeavour to cast a mist over the clearest testimonies of the Scripture and to elude the force of them with their subtilties and distinctions whose mouths you can no better stop nor more effectually preserve your selves and others from the contagion of them than by opposing unto their Sophisms and Deceits the Judgement and Practice not of one or of a few men not of one Age or of one corner of the Church but of the whole Catholick Church of all places and all times spread over the whole face of the Earth so heretofore those great Advocates of the Christian Faith Irenaeus Tertullian Vicentius and others judged it to be their safest course to deal with their Adversaries by the right of prescription which how advantagious it hath been to Christendome the event hath taught But those things which deserve a larger consideration I am now forced to omit being mindfull of the time of you and of my self and to defer unto another day what remaineth to be spoken concerning the Obligation of Humane Laws THE FIFTH LECTURE In which the Question is thorowly handled concerning the Obligation of Humane Laws in general ROM 13. 5. Wherefore you must be subject not because of anger onely but for conscience sake HAving begun the last Term to treat of the passive obligation of Conscience I proceeded so far that having discovered and disclaimed those subterfuges in which a seduced generation of men do vainly flâ—â—ter themselves that there is some excuse or protection either for the fruit of their Consciences as to things already done or some security for things that remain to be done for the Intention of a good end or by the authority of another mans example or judgment I have proceeded I say so far as to examine and represent unto you that proper and Adaequate Rule of Conscience to which absolutely and simply it ought to conform it self where in the first place I shewed you that God only hath an absolute and direct command over the Consciences of men Secondly that the next and immediate Rule of Conscience is the light with which the mind at that present is endued or to speak after the Schoolmen Ultimum judicium Intellectus practici The last judgment of the practical understanding Thirdly that the written word of God is indeed the supreme and primary 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but not the Adaequate Rule of Conscience * 4. Fourthly that the proper and Adaequate Rule of Conscience is the will of God which way soever it be revealed or which is the same again the Law imposed by God upon the reasonable Creature Moreover that more fully and more distinctly we may understand what this will of God is I made manifest unto you that Almighty God did lay open his Will unto mankind by a threefold means First by the Law of Nature which consisteth of certain practical Principles known by themselves which is called the Law of God written in our hearts Rom. 2. 15. Which is with an inward light and of the same oâ—iginal as our minds Secondly by the written word of God which is contained in both the volumes of the holy Writ and is an external light supernaturally revealed and infused into our minds Thirdly by a knowledge obtained from both the former either by our own meditation or from the Instruction and Institution of others and this as it were by an acquired light the chief helps and introductions whereunto are the Discourse of Reason and the Authority that is to say the Judgment and the practice of the universal Church II. I also did advertise you to make some way to this following Treatise that besides the Law of God which absolutely by its self and by its own peculiar power doth oblige the Consciences of all men and that in the highest Degree there are also many others which do carry an obligation with them but inferiour to the former and do oblige the Conscience not primarily and by themselves but secondarily and by consequence not absolutely but relatively not by its own power but by the vertue of some divine precept or Institution on which they
are grounded which although they do all agree in this that whatsoever power of obligation they have they altogether acknowledge it as proceeding from the Law of God For the first in every kind whatsoever it be is the cause of the rest neither would the Law of God as already it is stated be the Adaequate Rule of Conscience if it should oblige any beyond it self which it did not oblige by vertue of it self yet these things as I have said that do so agree in one do notwithstanding every one of them differ amongst themselves not only in the Species by reason of the diversity of the matter but also in the Degree according to the efficacy of the obliging and they chiefly consist in a threefold difference for some of them do oblige constantly of which there are two kinds The one in reference to those things whose obligation doth arise from the power of another as humane Laws the Commandements of Parents Masters and the like The other in reference to those whose obligation doth arise from the free election of the will it self As Vows Oaths Contracts Promises and the like Somthings again do only oblige by accident and as it were cursorily according to Time and Place and the exigence of other circumstances as the Law or Reason of Scandal The privilege and priority of order and method do require that we begin with humane Laws concerning the obligation whereof those things which at this time shall be spoken of may all of them be reduced to these two questions 1. Whether humane Laws do oblige the Consciences and secondly how far they do oblige them The determining of most of the particular cases do pertain chiefly to the latter Question which God willing shall be the Subject of our following Lecture we shall only at this time touch upon the first Delectus vim in lege ponimus Cicero 1. de legibus which is Whether humane Laws do oblige the Consciences The Subject of the question needeth not any large exposition Lex or the Law is first so called in an active construction a legendo id est eligendo from choosing as Cicero will have it because the Lawgivers do make choyce of those things which they conceive to be most profitable to the Common-wealth Or secondly as others will have it Lex or the Law is so called a legendo from reading and that in a passive construction because the Laws after they were Enacted were engraven in Tables of Brasse or otherwise legibly written and fastned unto Pillars to be read in publick by the people Aquin 1. 2. quaest 90. Arti 16. Biel. 3. dist Arti 1. Or lastly according to other mens derivation Lex is so called a ligando that is from binding because it doth bind the Subjects to the observation of it but in the Genus of it it is nothing else than a Rule of acting imposed on the Subject by the Superiour being impowered thereunto They are called humane Laws in opposition to Divine for as those Laws are called Divine which immediately are constituted by the authority of God himself whether they be Laws Natural or Laws Positive so those Laws are said to be Humane which although they have an authority derived to them from God yet they are immediately commanded by men and imposed on their Subjects III. The Law of man is thus defined by Aquinas 3. 1 a. 2. ae quaest 90 arti 4. It is the ordination of Reason to a common good promulgated by him who hath the care of the Commonalty His words are Lex humana est Rationis ordinatio ad Bonum Commune ab eo qui curam Communitatis habet promulgata By others it is defined otherwise they differ in the words but almost all of them doe agree in the sense and well so they may for this Definition is very suitable to the publick Law which is the most known and the most usual acceptation of that word And so we use to speak Analogum per se positum pro famosiore significato praesumitur an Analogick being placed by it self is presumed to stand for that which is the most remarkable in the signification But in this present question and to our present purpose Under the Notion and Name of Humane Laws the publick Lawes of Cummonalties are not only to be understood although most chiefly they are and primarily but even the particular Commands of Parents Masters Magistrates and all other Superiors imposed on their Children Servants or their People for when both of them are a kind of Precept in this one thing especially there is a Difference betwixt a Law properly so called and a Mandate for a Mandate or Command is but the Precept of a private person invested with a private Authority but the Law is a publick precept of a person indued with a publick Authority In all other considerations there is but little diversity Certainly as to the effect and force of obliging since it is apparent by the tenth verse of this Chap. that all Legitimate Power whatsoever it be not only publick which notwithstanding I must confess to be the only meaning of the Apostle in that place but also all private power is constituted of God and the Command of a Father to his Son is no lesse a Rule for acting than the Law of the Prince to his Subject all those things which I shall now discourse of concerning the obligation of humane Lawes are so to be understood and let this one premonition suffice that the mandates of private persons be comprehended in the publick Lawes and oeconomical Commands with Politick Constitutions and others of the like nature as far as the Course and Consideration of the Analogy will permit And thus much be spoken of the Subject of the Question The Praedicate followeth V. The Praedicate of the Question is the obligation of the Conscience Now what Conscience is and what is an Obligation in the generality of it hath largely enough been already unfolded by me neither is there any need of repetition When we say the Law doth oblige we mean nothing else than that the Law doth impose on the Subject a Necessity of observing and obeying it You are to know that the Law of its own Nature and as it is a Law doth cary in it self a double force or necessary effect that is the force of directing from whence it is called a Canon or a Rule as it layes open to the Subject the will of the Superiour and sheweth what it is that he would have to be performed by him and a power of obliging by which it differs from Counsel and Admonishment because it commandeth the Subject to obey his will and doth so oblige him to the performance of it that if he doth not obey him he doth sin or erre for Sin is nothing else but an aberration or a receding from that Rule or Law which we ought to follow 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so Monsters by receding from the ordinary Law
God which they call positive and from which they would have us freed by the death of Christ whether they be ritual or judicial were only imposed on the Jews but not on us who are Christians Again where it is manifest what God would have done it doth not belong to us by any collation of Comparatives too saucily to determine what ought to be done Now it is manifest that God would have both he would have that his positive Laws delivered to the Israelits by Moses should not oblige the Christians and that the Laws of men rightly and solemnly constituted by the Magistrates should oblige the people under their Authority Thirdly If this Argument indeed were of any force those that make use of it do not observe that by it they do not only take away the obligation but altogether the use also of all humane Lawes For Christ hath no otherwise freed us from the obligation of the Mosaâ—ck Laws than so by taking away the use of them that by us they are no more to be esteemed as Laws Therefore if in the same manner he would have us to be free from the obligation of humane Laws it must of necessity follow that he would have no humane Laws to be any longer extant amongst us So wild a proposition is this of the Anabaptists and other fanatick persons neither is it admitted by themselves who do propound it XXXVI Again they object that of Saint James Chapter the fourth there is but one Law-giver to wit God and Christ who is only Lord of the Conscience He is an invader thereof of Christs right and thrusts himself into the Throne of God whosoever he is that assumeth unto himself a power of obliging the Consciences of other men I answer There is indeed but one supreme Law-giver who hath a direct and Soveraign command over the Consciences of men as by himself and by his own virtue and authority to oblige them which Law-giver is God and Christ as the Apostle hath it But this hinders not but that there may be other Law-givers of an inferiour order and degree who by a power granted and derived to them from that supreme Lawgiver have of themselves a right of making Laws which may consequently oblige the Conscience Just as a King who solely in his own Kingdom hath a peculiar Legislative power yet notwithstanding by his Charter he may give to some College or Corporation a right of making Laws which may oblige all the members of that body not by their own power but by the force of the royal Donation and the Authority granted to them from the King Our Universities as you all know are happy and rejoice in this privilege that in a Legitimate Convocation they may make Laws which we call Statutes and ordain punishments for Delinquents and if it be expedient they may abrogate again and cancel the same Statutes Now there is no man of a sober understanding who will conceive that the excercise of this power doth any wayes derogate from the Legislative right of the King or can be any deceit or prejudice unto it unless it be extended beyond the limits of the Donation defined in the Charter Nay it is rather an excellent and a singular mark of the royal autocrasy that the King hath not only the Legislative power himself but that he can vouchsafe it unto others to be had and used his own right being notwithstanding safe and entire into himself XXXVII The other objections relying on one the same Foundation may be resolved by one a and the same labour I will briefly run them over In the third place they object that the Civil power is meerly temporal therefore belongeth not unto the Conscience which is spiritual Fourthly the end of Humane Laws is the external peace of the Common-wealth and not the internal peace of the Conscience therefore the Laws themselves do only oblige the outward man and not the Conscience which lyeth within Fifthly the Magistrate cannot judge of Consciences and therefore can make no Laws over them it being the same extent of power to give Laws and to judge according to them Sixtly the Magistrate in making of Laws hath no intention of binding the Consciences of the people but only to oblige them to perform that which the Law commandeth which if it be done it is all one to the profit of the Commonwealth whether it be done out of any Conscience of duty or not and it is enough if the effects of Actions be commensurated to the intention of the Agents and they ought not further to be extended XXXVIII I answer and first universally to them all By all these Arguments this only is obtained that humane Laws do not oblige directly and by themselves or by their proper force which of our own accord we grant for we assert no other obligation but what comes to them ex consequenti by Consequence and by the virtue of the general command of God of rendring obedience to the higher powers And from this ground I answer to the particular objections And as the to third I say that the Civil power being meerly temporal cannot of it self and in respect of the Object in which properly and immediately it verseth have a spiritual effect and therefore of it self cannot induce a spiritual obligation neverthelesse by consequence it may have a spiritual effect by a derivation from the power of some superiour cause in the virtue whereof it worketh Now every Magistrate as long as rightly and dâ—ely he doth exercise the Legislative Power which God hath put into his hands he worketh in the virtue of God himself and by ordination of him who is himself a Spirit and as the Lord and Father of Spirits hath a Command over the Spirits of men XXXIX I answer to the fourth that although peace be an external blessing of a Commonalty yet the internal Conscience is obliged to the uttermost to the procuring and preserving of it by all lawful and honest means because that God the Lord of Conscience hath commanded us to love and follow peace and if private certainly much more publick peace Neither is it any way inconsistent that although Conscience be internal yet it is obliged to a thing external for the obligation of Conscience doth not arise from the Nature or any condition of the thing or Object into which it is carryed but from the will of him who hath the right of obliging that is God himself XL. I answer to the fifth that the Legislative and Judicial power doth originally pertain to the same person that is to him who hath the supreme jurisdiction over the Subjects nevertheless dispensatively and by the will of the supreme Magistrate it may both of them and both ways be administred by other persons as he shall think expedient Therefore although God alone hath in himself a peculiar power over the Consciences of the Creature and maketh as well as judgeth Laws by an original proper and absolute right yet
from the Intention of the Law-giver a force of obliging the Citizens to the observation of them One whereof is enjoyned formally and in express words to wit That no man exact monies beyond the allowance prescribed in the Law the other virtually and by Consequence That no man be punished for trading in usury as it is by that Law permitted To conclude therefore in a word the Precept or Injunction of the permissive Law doth oblige all Subjects but the Permission no man XXII The sixth doubt is of things indifferent and of a middle nature Now these things indifferent or of a middle nature are such all the Species whereof are neither commanded nor forbidden by any Divine Law natural or positive They are therefore of themselves and of their own nature lawfull to be observed as they are not forbidden and free to be observed as they are not commanded There were some of an opinion that there ought no Laws of man to be made concerning things indifferent but of those things only which are of a natural or a divine right and thereupon they said That Civil Laws were not so much the Constitutives of a new Law as the Declaratives of the old and explications and evolutions of the Divine will But what need we to confute an opinion so abhorring from all sound reason that rather to the contrary we may rightly judge that these things indifferent are the most proper and the only most fit matter of Humane Laws For we are bound to the observation of those things which God hath commanded although the commands of all men whatsoever are either silent or do contradict them And as for those things which by God are forbidden we are obliged to the not performance of them the Laws of men being silent or never so importunately commanding them Therefore these things indifferent do remain as a large Field in which the power of man might exercise it self and put forth its force by inducing an obligation where there was none before That manifestly it may appear that the civil Magistrate in things indifferent and which before any Act of his were free to both may state and decree something on either side by determining that indifferency which may oblige the Consciences of his Subjects to obedience For as in Meat and Drink and Pleasures as also in giving and receiving the moral prudence of a privare person by allowing unto himself a golden mediocrity doth so far advance his natural and indifferent Acts beyond their state and native Condition that from thence they begin to be Acts of Vertues to wit of Temperance and Liberality so a person invested with the publick Authority doth by his politick prudence in giving certain bonds of mediocrity to his Subjects concerning things free and of a middle nature so advance those Acts enjoyned in his Laws beyond the degree of their former State that they now begin to be Acts of virtues to wit of Obedience and Legal justice XXIII A thing most plain and which would have found no Adversary if so manifest a truth had not prestringed some Reformers of our age nay and of our own Nation who to make a way to that wild Reformation for which they so much contended had rather against common sence to take away from the world all indifferency than to grant unto the Magistrate any power of determining of Rites Laws Altogether like that Macedonian who with his Sword did cut that Gordian knot asunder which by no Art he was able to untye In this as in many other things the true Disciples of the old Stoicks who asserted that there was nothing indifferent to a wise man but that he mannageth all things from the greatest to the least even to the paring of his nayles with the highest point of discretion But they so took away this indifferency out of affairs with words only that at last being enforced to it by the reasons of their adversaries they in deeds did grant it having invented some frivolous distinctions more honestly to hide their errour that they might not seem to have erred at all But there have been found some amongst us who have been so bold as to defend their odious exploded Doctrine in their publick writings that more pertinaciously than the Stoicks themselves did heretofore Two especially the one of them a Divine a man of some account amongst those of his own party the other a Lay-man one of the Peers of the Land both of them now dead with whom because I believe their Doctrine to be dead also and not easily to be received into the belief of sober men much lesse to find a patron amongst them I think it not worth my labour to insist on the confutation of it XXIV I do receive therefore as granted that there are things and actions indifferent at least in their own nature and in the Species of them which I believe there is no man so Stoicized that will deâ—y Of which in reference to our present purpose â—â—is is next to be advertised that an Act indifferent in its own nature that is in respect of the matter or the object of it if it be commanded by the Law from good and lawful doth become honest and necessary and if it be forbidden by the Law from good and lawful it becomes evil and unlawful which comeâ— not to passe by reason of any change made of the thing it self which whether it be commanded or forbidden both physically and morally doth remain the same as it was before for there is no respect that alters nature but proceedeth from that obligation which the Law induceth From whence it is that being before both in nature and of it self so also in use and as to us free unto both the authority of the Law being added to it it becomes in the use of it and as to us no longer free but it is either necessary or unlawful according to the exigence of the Law XXV If it be demanded seeing the Law appeareth to have an equal power on either side how comes it to passe that the Law by forbidding an Act can make it of being good and lawful to become evil and unlawful but the same Law as heretofore we have denyed it cannot by commanding an Act make it from being evil unlawful become good and lawful I answer the reason of the difference is most manifest from that most known Axiome Bonum ex causâ— integrâ malum ex quolibet defectu An Act therefore that is evil in its own Species and in the respect of the object of it must of necessity be always evil neither in any exercising of it be the circumstances what they will may it be made good by reason of the defect of goodness in the part of the object which defect is sufficient to corrupt the whole Act But an Act good in its own kind or at least not evil if it be attended but with some one circumstance that is indirect it becometh wholy
that Deliverance which God vouchsafed to the Nation of the Jewes under Ahasuerus King of the Persians Esther 9. Thirdly when Moses commanded but one day only in the year to be observed in the seaventh month for a solemn Fast the Kings and Magistrates of that people for what causes it is not known but likely in the remembrance of some remarkable Judgements of God did by their own Authority institute annual solemn Fasts insomuch that in the dayes of the last of â—he Prophets there were four solemn Fasts kept every year viz three others besides that of the seventh month in the fourth fifth and tenth month of all which mention is made Zach. 8. 19. Fourthly the Feast of the Dedication of the Altar called Encoenia was instituted by the Asamonians without any command of God The History is to be read Maccab. 4. 59. And by the Judgement of the most and best Interpreters Christ himself is thought not only to have approved of it but to have honoured it with his presence Joh. 10. 20. Fifthly we find it no where to be enjoyned by any Commandment of God that in solemn Fasts and penitential mourning they should put on Sack-cloth and strew Ashes on their hair but amongst the Jews for some Ages past the long custom was so received and so obtained the force of a Law that Christ himself did use that manner of Speech as from the custom of that Nation and showed not the least dislike of it Mat. 11. 21. Sixthly it is manifest by the writings of the Rabbins that it was the manner also of the Jews before the supper of the Passeover that the Master of the Family should stoop solow as to wash the feet of those of his own houshold which although commanded by no Law of God we find it to be observed by Christ as it is manifest in the History of the Gospel John 13. Why shall I here number up the Synagogues every where builded in so many Cities and Towns for the Conveniency of sacred Conventions and many other things a long Catalogue whereof the Jewish Commentaries doe afford us From all which this may be concluded If so many things pertaining to the worship of God were lawful for the Jews to alter under that yoak of Severer Discipline there can no probable Argument be derived from their Example to overthrow the force of Ecclesiastical Humane Laws THE SEVENTH LECTURE Concerning the obligation of humane Laws in relation to the Efficient Cause thereof PROV 8. 15. Per me reges regnant et Legum conditores justa decernunt By me Kings reign and the makers of Laws do decree just things IN the last Term we did treat of the obligation of humane Laws both in the Generality of them to wit that Laws rightly constituted do oblige the Consciences of the Subjects to obedience so also in the Species as to those doubts which seemed properly to pertain to the material cause to wit how humane Laws do oblige them First we treated of things impossible Secondly of things possible but very burthensome Thirdly of things necessary Fourthly of things unlawfull and dishonest Fifthly of Evils to be permitted Sixthly of Things of a middle Nature indifferent in general Seventhly of Ecclesiastical Rites in Special of all these things which have been spoken that I may not appear too tedious in repetition the Sum is this That Subjects are obliged to obey just Laws but they are not obliged to obey Laws that are unjust And so Solomon in this Text requireth of the makers of Laws that they do decree nothing but what is just I must now proceed to prosecute those things which are yet remaining to be spoken of In the handling of which I will use as much brevity as the subject will permit that so in its due time I may finish the whole work or at least so much of it as pertaineth to the obligation of Laws II. In the order of Causes according to the method which I have elsewhere observed the Efficient Cause doth follow next to the Material And the Formal next to that the Final Cause is the last of all and doth both head the Rear and shuts it up Concerning the Efficient Cause of Laws I have already sufficiently shewed in the third Conclusion of the fifth Lecture That humane Lawes do not oblige unless they are made by a person invested with a legitimate Authority This in the first place is now remaining to be considered of In whom is the just and lawful power of making of Laws or who are those makers of Laws to whom according to the mind of Solomon The Right of discerning righteous things belongeth To give a full Answer to this first doubt which is the chiefest of all by farr in this kind of Cause two things are to be supposed In the first place I suppose the legislative power to be the power of a Superior as to give a Command in which appellation I do also comprehend a Prohibition which is a proper Act of the Law to be the Act of a Superior You are to observe that in this consideration there is not a little difference betwixt these three A Promise A Petition and a Command Without the least distinction it is common to all Superiors Inferiors and Equals to promise For a Father may promise something to his Son and the Son to the Father and the Brother or a Neighbour to his Brother or to his Neighbour But to Crave or to Petition belongeth properly to Inferiors and sometimes in some respect to Equals As the Son beseecheth his Father or the Neighbour his Neighbour to excuse him or to receive the acknowledgment of his thankfulnesse but this belongeth not unto Superiors unlesse it be very improperly and by discending to a lower degree than their condition is But it is so peculiar to Superiors and of Men placed in a preheminence of Dignity to Command that he would be altogether ridiculous whosoever he is whether an Equal or an Inferior that seriously should command his Superior or Equal to the performance of any thing For every Act doth require a Beginning proportionated to it And an Equal hath no Command on an Equal III. Now as to an obligation concerning these three it is thus to be Stated He who craveth one thing of another man obligeth by that petition neither himself nor the party of whom he craveth it for it is a petition and a petition is an Act of Indigence and not of power whose effect because it depends on another and proceeds not from the Agent it self cannot induce any obligation But he who promiseth something to another man doth by his promise oblige himself but he obligeth not him to whom the promise is made for a promise being the Act of a free will every man as he is a free Agent and hath a power over his own will as the Apostle speaketh 1 Cor. 7. 37. can exercise on himself that Right and Power which he hath over his own will but
not on another For by the force of Free will a man is master only of his own will and of his own Acts and not of anothers Now on the contrary he who layes a precept upon or who doth command another if he hath right to command he obligeth by commanding that man whom he commandeth but he doth not oblige himself Because a command is an Act of power and Authority and of right upon another and is fit and proper unless peradventure there be something that hinders it to induce an obligation so the Father with Authority commands the Son the Master the Servant the General the Souldier the King the people and God as a Superior commandeth man to such and such duties and by commanding doth oblige him to the performance of them IV. In the second place I suppose that the Legislative power is a power of publick Jurisdiction for it sufficeth not to the power of making Laws that a man hath a Right and power over others to prescribe unto them what is to be done unless he be invested with an external power to compel them to the performance of it and to afflict punishments on the Refusers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith Aristotle Ethick 10. The Law hath a necessitating power The Schoolmen therefore do distinguish that power which a Superior hath over an Inferior into that power which they call Dominative or the power of Masterdome and the power of Jurisdiction The first whereof is less and more private and not admitting an external Jurisdiction the other greater and of a more inforcing Authority These two powers do not a little differ between themselves and that in a three-fold consideration First in respect of the matter or object for the Power Dominative or of mastery is properly exercised on the more imperfect and private Commonalty as a House a School or a Family but the power of Jurisdiction on the more perfect and publick Commonalty as a City an Army a Common-wealth Secondly in respect of the End for the power Dominative by it self and Primarily is ordinated to the profit of the person indued with that power that is the master and but Secondarily and by Consequence to the good of the Commonalty as it is profitable for a Family that the master of it should grow rich Now the power of publick Jurisdiction is Primarily ordinated to the publick good of the Commonalty it self and but Secondarily and Consequently to the good of the person indued with that power which is the Magistrate himself it being profitable for a Prince that the Common-wealth should flourish Thirdly in the respect of the more effectual Administration which is greater in the power of jurisdiction than in the Power Dominative by reason of a greater coactive Power for examples sake The Master of a Family cannot so efficaciously prevail that his Commands may be put in Execution by his Sons or Servants whom he cannot correct but with a rod or Cudgel as may the civil Magistrate who by his Power may enforce his Subjects to Obedience by imprisonment or banishment by confiscating their Goods or by Death it self 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The fatherly Authority hath nothing in it that is enforcing nothing that is necessating saith Aristotle in the place newly quoted Therefore to the making of Laws every superiority is not sufficient but besides that Dominative there is required the power of Jurisdiction so properly called for the Laws cannot be made or established unless by a Person that hath a publick coactive power by this time you understand I believe that I may need no more to admonish you of it that what here hath been spoken by me concerning Laws doth absolutely pertain to the chief Laws of a Nation and not to any others unless analogically after their way the proportion that is due unto them as they come near or are more remote from their perfection V. To these two suppositions which to what sense they tend you shall easily understand from those things which presently I shall represent unto you I in the third place do now adde a responsive position viz. That the power Legislative is a power autocraâ—ical That is the power of making Laws which may oblige the Commonalty doth consist in him alone whether he be a single person as in the state of Monarchical Government or whether they be more as in other Governments who exerciseth the chief power over the whole Commonalty I will in the first place explane this position and afterwards I will confirm it And for the explication of it we are in the first place to understand that for the happiness of humane societies and the more commodious Adminstration of Commonwealths it hath pleased Almighty God the Author of Order not only to constitute a political Government that there may be Magistrates to be set over the people but also in that very Government to constitute a political Order that amongst the Magistrates themselves there might be divers degrees as well of Dignity as of Power And it is likely that the military word of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the Apostle useth in the Romans hath a relation to this sence to show that there is not only an ordination of Magistrates from God but a subordination also such as is seen in a military Army VI. In the second place we are to know that in all things in which there is order to avoid a proceeding to an infinitenesse which Nature doth abhor we must at the last come necessarily to something which is the first and chiefest in that Order where we are to make a stand Therefore seeing that Magistrates of the same Commonalty are some of them superiour unto another in Dignity and power it must of necessity so come to passe that some one of them must be transcendent above the rest that the others may depend on him and he on none In the same construction the head is the highest in the body the Admiral in a Fleet and the Emperour in an Army The supreme Magistrate is only less than God himself and in governing the people committed to his charge hath neither a Superiour nor an Equal St. Peter calls him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Superiour St. Paul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the higher power 1 〈…〉 13. and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rom. 13. 1. the man in Authority And the Schoolmen 1 Tim. 〈◊〉 2. caput communitatis the head of the Commonalty in whom solely the chief command and the Majesty of the Empire doth consist and to whom all inferiour Magistrates do owe all that power which they do exercise over the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as being sent from him 1 Pet. 2. 14. VII In the third place we are to know that this supreme power which we call Majesty or Autocratical that is governing all by it self according to the diverse form of Commonwealths is placed either in some one person or in more In a popular state which is called
from our own meditations or the Institution of other men II. I affirmed that all these and every one of them do oblige the Consciences of men and only these absolutely and primarily by themselves and by their proper virtue for all these and these alone do exhibite to us the will of God who alone of himself hath an absolute and a direct command over the Consciences of men But I gave you to understand that there were many other things which Secondarily and relatively and by Virtue of the Law or the Divine will in which they are founded do in their manner oblige the Consciences And all of them do agree in this that they owe all the force of obliging which they have to the Divine will for otherwise the Divine Law would not be the Adaequate Rule of Conscience nevertheless they do all differ among themselves both in the Species by reason of the diversity of the matter and also in the degree according to the power of obliging Moreover there are three degrees of those who do thus oblige The first is of those things whose obligation doth arise from the Authority of another having a right or power in which number are Humane Laws The second is of those things whose obligation doth arise from a free act of the proper will such as are Vowes Oathes Promises and Spontaneous Contracts The third degree is of those things whose obligation doth arise from the intuition of brotherly Charity in which classis is ranked the Law or the Consideration of Scandal or offence III. As for the obligation of Humane Laws I have spoken much more than at the first I propounded to my self yet it may be much less than the weight of the thing deserved of which in our dayly Conversations there is a most frequent Use or the Abundance and Variety of those Doubts required which might cast a scruple into the minds of men In the resolution where of I proceeded so far in the former Terms that having gone over those difficulties which I thought could not improperly be reduced to the material efficient and formal Causes of Laws in my last Lecture I came to treat of those which more properly did pertain to their final Cause where at first having laid this foundation for the whole following Discourse That the good of the Commonalty or which is the same that the publick Peace and Happinesse is the End of Humane Laws with what brevity and perspicuity that I could I answered to the six following Questions First Whether there be any Use or at least any necessary Use of Humane Laws in a Common-wealth in order to the Common Good Secondly It belonging to the Common-wealth that Vertue be reverenced and Vices restrained whether a Law-maker could command all the Acts and Offices of all Vertues and prohibit all Vices and Enormities whatsoever Which if he were not able to perform whether he were at least bound to command and prohibit as many as he could of either kind by Laws which might oblige his Subjects in their Consciences Whether and how far it be required to the effect of the obliging of the Subjects that the Intent of the Law-maker be carryed to the publick Good Fourthly If the Laws made already shall appear less profitable to the publick whether and how far the change of them is either to be attempted by the Prince or to be urged by the Subject Fifthly The Common good being the end of Laws and even of Government it self whether it be lawful and how far lawful for the said Common good to change the form it self of the whole Government or to attempt the change thereof Lastly how that common saying The safety of the People is the supreme Law is to be understood IV. These things I thought necessary to repeat more fully to you that after so long an interruption of Academical exercitations my whole proceedings in these Lectures and the order I have observed therein might better appear unto you and that I might recall into your memory the heads of those things which having heard before with so much humanity I justly do believe that in so long an interval of time you have almost forgotten You will expect I conceive and not undeservedly that I should now proceed in my intended course and go directly on to those next Doubts which yet remain to be resolved As of those of Privileges of Dispensations and to others which some ways do belong to the final kind of a Cause I do confess it indeed and I ought to do it But my friends do interrupt me they advise me that the stubborn and intolerable boldnesse of some men do rather efflagitate that seeing so precisely and so impudently they abuse the Aphorism to the publick ruine although I expounded it but in my last Lecture in the former Term yet that I would take it under examination again and open the genuine sense thereof more clearly and fully than before I had done This in my Construction was nothing else but in a new pomp of words to do over that which I had done before and to the loathing of your Stomacks to give you that meat you before were cloyd with This desire was not pleasing to me but they did grow upon me with new importunities to take it in hand again It will be your humanity to resent and excuse that modesty which I granted to my persisting friends especially having used such a prevalent Argument to overcome me to it not doubting but it would be grateful to the most of you if I should again undertake it V. It is therefore my present businesse to declare unto you what is the meaning of that common Axiom The safety of the people is the supreme Law and how it is to be understood Some men within these few years not well imployed have invented and brought at last into the Common-wealth a new state of Government as before they had brought into the Church a new Religion and as they have earnestly endeavoured under the pretence of Conscience or of Christian liberty to overthrow all the force and frame of the Ecclesiastick Government so under the preâ—ence of Civil liberty or the liberty of the Subject they labour in this confusion of times and with incredible heat of spirit and military terrour to shake and from the very foundation of it to pluck up the whole Fabrick of the Government of State These as often as they are accused of the Royal Dignity trod under feet of the despised Authority of all holy Laws of the disturbance of the publick peace of an unbridled and horrible tyranny exercised on their fellow Subjects all barrs of Right and Justice being broken down of an affected parity in the Church and in the Common-wealth all difference of birth and honours and States being taken away and many more such Anabaptistical impieties they presently defend themselves and their manners with this safety of the people as with a Buckler and think this alone to be preferred
acting or determinating any thing against the Laws Doth not the whole course of the words in Cicero openly pronounce that the supreme Authority which is above all Laws and the whole Care of the publick safety doth properly belong to him who hath the Regal Command and the chief Right of the Militia Salutem Reipublicae nulli magis convenire quam Caesari and a transendent Power to be subject unto none And that to prove this truth you may have the Consent of the most excellent Writers both Greek and Latin Aristotle doth express the same in these words 3. Polit. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Paulus l. 3. F. de off praef vig. That is He who is set over the Common-wealth whether he be a single person or more hath the Arbitration and Power of determining those things of which the Laws cannot accurately that is speak of in particular because it is no easy task universally to comprehend particulars XX. Some peradventure will except against this and say It goes very ill with mankind if the safety of all must depend on the Arbitration of one when in a case of the highest necessity it is not lawful for any man to provide for his own and the publick safety without his Counsel What if by some sudden and unexpected casualty the affair will not admit the delay of one day Whiles we are going 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eurip. ap ap Stob. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1. 10. counselling and returning the Common-wealth may be destroyed what will you advise us to if it be necessary in such a straight of time and distance 〈◊〉 place to expect the leave and consent of the King I answer in this nature the Subjects may be permitted to act something of themselves and without the Princes consent if an urgent and unavoidable necessity doth require for necessity as the Proverb speaks it hath no Law I deny nevertheless that from this assertion that may be done which some would have to be done I say therefore in the first place that whatsoever right can accrew unto the Subjects upon this assertion viz. That all Laws being neglected they should themselves provide for the publick safety doth come unto them upon another account for it can no ways rely on the authority of this present Aphorism as on its foundation which leaves unto the Prince alone the care of providing for the publick safety and doth not permit it to the people Again it is one thing to attempt a thing against the publick Laws the Prince not knowing it and another thing to do it the Prince not willing to it for one of the two may lawfully be done upon due conditions but the other is absolutely unlawful I say in the second place that if the Subjects will attempt any thing in order to the publick safety two things above all other must most precisely be observed and he who shall neglect either of them cannot defend himself by any excuse of necessity and how religigiously they have observed them who have been the Authors or Fomentors of the most deplorable troubles in this Kingdom I forbear in this place to make mention of let them look to that themselves The two conditions are these First that no thing be done or attempted to be done to the prejudice of the Prince whose person whose dignity it pertains to the publick safety to be most careful to preserve inviolable Secondly that nothing likewise be attempted against the Laws and Rights of the Kingdom In manifestis non opus est interpretatione sed executione Aquin. 2. 2 qu. 120. art 2. but by the Princes consent either his express consent where conveniently it may be had or at least reasonably presumed if he be at a great distance and the affair admits of no delay the consent of the Prince is then reasonably presumed when the necessity is so great and evident that no wise or sober man can doubt but if the Prince himself were present he would grant unto his Subjects a relaxation of that Law XXI These two conditions being observed unless there ariseth no impediment from particular Circumstances certum est omnia licere pro patria Quintil. declam 369. I say it is lawful for Subjects for the defence of the safety of the Prince of themselves if it be against the Invasion of Forein or the Insurrection of Domestick Enemies to look more to the common profit which is the supreme Law than to the letter of particular Laws which are therefore made to serve the publick profit and not to prejudice it The reason is evident for middle things are for the end and not the end for middle things and therefore these middle things ought to be subservient to the end and not the end to them therefore seeing the publick safety hath under it the consideration of the End and the Laws but the consideration of middle things and seeing it is certain that in the Intention of the Agent the End is before and more to be respected than all middle things are or can be it must follow both that the common profit of our Country is to be preferred above all particular Laws and that rightly it is to be presumed that the Prince is of the same opinion who is Principal Agent in making of Laws and therefore whatsoever herein is done in his absence or to be done he tacitely doth consent unto it provided his own Dignity and Right being saved a manifest necessity doth exact it for the publick safety XXII The Histories are full of examples to prove this but the reason of it being so manifest I purposely pass them by as superfluous I will only produce one but an Illustrious one and worthy to be inserted into the Annals of this Nation for the eternal memory of the Gentleman and which was done also in this age and in the memory of some here present It was the remarkable act of the high Sheriff of Worcestershire To put the Laws in execution and chiefly for the preservation of the publick peace there is an yearly Magistrate called a high Sheriff set over all the Shires of England to this Magistrate for the undergoing of so great an Office there is granted by the Laws of the Land the power of summoning the trained Bands to assist him as often as need requireth to go with him to discover and suppresse any Tumults and Disorders that may happen in any place of his County but so that it is not lawful for him to go with the said trained Bands beyond the Terms and bounds of his own County After that by the great and wonderful mercy of God the Powder Treason was discovered some who were conscious of that Conspiracy and one or two of the chiefest of them did fly into Worcestershire the high Sheriff a gallant and prudent man did follow them as they fled from place to place with the trained Bands and being come to the uttermost confines of his County
〈◊〉 〈◊〉 of whom mention is made in the fourth verse of this 2 of the Galatians who pretending that they came from James did indeed creep in privily of themselves to observe the liberty of St. Paul and other Christians as some do think or rather as others are of opinion and more probably whether they were weak Brethren sent indeed by St. James but as yet not throughly instructed concerning the cessation of the Rites and Ceremonies of the Law St. Peter desiring to be gracious with them or rather fearing to give them an offence did immediately and altogether abstain from the Tables and the society of the Gentiles and from the meats forbidden in the Law of Moses by whose example the Jews of Antioch being induced who by the Sermons of Paul and his fellow labourers in Christ had been taught the Christian â—iberty a little better than those that came from Jerusalem and more fully understood the abolishing of the ceremonial Law yet being but weak themselves and more addicted to the ceremonies to which a long time they had been accustomed they easily suffered themselves to be seperated from the communion of their brethren the believing Gentiles not without some suspition as it is probable that Peter the chief of the Apostles was the more compent judge of these things what was to be done that themselvs were hitherto drawn in by Paul with the gratefull but the empty shew of liberty and what is more to be admired for it is not strange or unaccustomed for the weaker sort to stumble even Barnabas himself who was St. Pauls collegue and his daily companion in his journeys who constantly asserted the Doctrine of Christian liberty against the Jews being overcome by the authority of so great an Apostle did stoop with him into the same fellowship of dissimulation not without a great offence to the believing Gentiles III. Paul doth here declare that for this fact St. Peter was reprehended by him and that vehemently openly and deservedly Not only that he himself to the scandal of so many of the brethren out of too great desire of complacence or thâ— fear of offence had shewed himself more favourable to the Jewish ceremonies than did become him but that he drew others by his example into the same participation of Hypocrisie with him and by the same example had endeavouted to enforce the believing Gentiles although unwilling and against their Consciences unto Judaisme I am not ignorant that St. Hierom having alleged some other Authors that jump with him in that opinion doth give a far different interpretation of this reproof than what I here have specified viz. That this affair was not carryed seriously and as indeed it was betwixt these two chiefest of the Apostles but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and by contrivance the benefit of the Church at that time so requiring it Indeed he would perswade us that this dissimulation of St. Peter was necessary to retain the good opinion of the Jews which that it might not be too dangerous to the Gentiles this counterfeit reproof of St. Paul was altogether as necessary by which the errour of the Jews concerning the continuing force of the ceremonial Rites might be so corrected that by the same endeavour provision should be made that no danger of scandal should be given to the Gentiles And thus by the conjoyned dissimulation of both the Apostles it was so effected that the Jewes as well as the Gentiles should by this pious fraud be more easily retained in the faith of Christ which not long they had imbraced These words therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are so handsomly interpreted by him to maintain his own opinion as above all other of the Fathers he is accustomed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to serve those assertions which are but his own conjectures that the words he withstood him to the face do not in his construction signifie openly and before the people or to his own face but only under a pretence and shew and according to the outward appearance in which construction these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are by him usurped also as it is manifest 2 Cor. 10. 7. IV. This opinion of St. Hierome was nothing pleasing to St. Augustine who denieth that any thing was here done by contract or contrivance but that St Paul most sincerely and exprssely did oppose himself to this unseasonable combination he therfore in a letter did very friendly admonish St. Hierome of his errour Inter Epist Hierou Epist 97. who persisting more obstinate in his opinion letters being often sent from the one to the other the question began to be disputed betwixt them as became the contestation of two such great wits with much acutenesse on both sides and with solid weights of reason at the last in the judgment of most men the victory stood on St. Augustines side and his arguments being conceived to be more sound and more considerable but very few did adhere to the opinion of Chrysostome in which it is not to be wondred at if Cardinall Baronius were one who being carefull that the affairs of Rome should not suffer any diminution and that the infallibility of his Jove of the Capitoll should not grow into contempt if any stain of rashness or error should blemish the reputation of St. Peter or if any man should be so bold to reprove him or to dare to open his mouth against him by saying Master why do you so doth here use all his art and industry to crown with applause the exploded opinion of St. Hierome and to restore it unto honor though banished and begging for reputation all the world over but truly this is that Baronius as every where he doth betray himself to be partiall who in his voluminous and laborious Chronicles did make it all his busines to gratify the Bishop of Rome and to measure the faith and Authority of all monuments and the great moments of all opinions and testimonies by the dignity and Advancement of the Sea of Rome But Paul to return from whence I have digressed did most iustly reprove St. Peter his fellow Apostle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is face to face as the same phrase is read in the 15 of the Acts and in other places of importunate dissimulation and this he did boldly and openly before all and more especially because that by his example he had drawn Barnabas into an error and the Jewes of Antioch and given a great and a greiveous offence to the Gentiles who had newly imbraced the Christian faith to the great danger and scandal of the liberty of the Gospel V. I have more willingly inlarged my self upon this as well to give some light to a place heretofore obscure and much controverted as to make more manifest the force of the argument which for the confirmation of our position is deduced from this discourse of the Apostle For St. Paul judged that not only St. Peter who was the leading example but that
performance of them because they did not pertain unto him but were only peculiar to the Israelites and it is known that the Law doth not oblige all men unto whom it is known but all those only to whom it is given XXII In the third place I say the will of God in what way soever it be revealed for the will of God receiveth its authority from it self and not from the manner of revealing it So that the Church of Rome in their controversie concerning Traditions need not to take so much pains to prove That the word of God unwritten is of equal authority with the word of God that is written for this we willingly do grant unto them We only â—ain would understand how we may satisfie our selves that the Tradition unwritten may appear to be the word of God as undoubtedly as the word which is written The will of God therefore in what manner soever it be revealed is the Rule of the Conscience provided it be so revealed that it either actually be made known or may be so made known unto the mind if culpable negligence doth not hinder And it doth oblige the Conscience to acknowledge it and to propound it unto our own will as the will of God to which it is bound to conform it self and not only so but to command the executive potentiaes to bestirre themselves for the fulfilling of this will of God Remarkable is that of Damascene 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what God willeth mâ—st of necessity be good for his will is the measure of goodnesse but the Law of God is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 â—hat commandment by which 〈…〉 that good will of his he proceeds 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Law of God comming to our â—ind doth attract it to it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it doth incite instimâ—late and as it were spurs it doth urge our Consciences to the performance of their duties by representing and inculcating into our wills the will of God And this is that most proper and exact obligation of Conscience which we before have spoken of XXIII The force and effect of this obligation is variously expressed by St. Paul Sometimes he confesseth himself a Debator to the Grecians and Barbarians Rom. 1. 14. As if he should say seeing I know by the will of God that I am set apart to preach the Gospel to the Gentiles without difference whether they are Graecians or Barbarians I acknowledge that in this respect I am a Debtor to them And in the 2 Cor. 2. 14. he saith that he is tyed and bound as men are bound with bonds to the performance of this duty And in the first of the Corinthians the ninth Chapter and the sixteenth verse 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The preaching of the Gospel is intrusted to me so that I have not the leasure to be idle for a great necessity doth presse me and wo unto me if I should neglect it The like necessity to be imposed upon them and not to be shaken off was openly and before St. Pauls time acknowledged by two of the greatest of the Apostles and for a long time individual Companions S. Peter and St. John Acts 4. 20. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For we cannot but speak God hath commanded us to speak with authority and you command us to hold our peace Whether it be better to obey him or to obey you Do you judge We are free and can be so from your command for you have no power upon our Consciences but the command of God doth hold us fast and haâ—h such a coercive power over us that unlesse we wil perish we cannot be free nor do any thing but that only which he commandeth XXIV Moreover when it is asserted that the next and immediate Rule of the Conscience is the light of the mind and the primary and the supreme Rule is the written word of God and the proper and the Adaequate Rule of it the will of God by manner whatsoever revealed or which is to the same sence The Law imposed by God on the reasonable Creature That these things may more fully be understood we are to know that the light of the mind is threefold as God in three ways hath manifested his will to the reasonable Creature There is the light innate the light inferred and the light acquired or the light of nature the light of Scripture and the light of Doctrine The first light which I do call the light Innate doth proceed from the Law of nature For in the first creation of the World as God endued brute and inanimate Creatures with a natural instinct by which they are inclined unto those things which are congruous to their natures and the conservatives of it which is as a Law unto them as it is so expressed by David Psal 148. 6. Thou hast given them a Law which they may not transgresse So a certain natural Law is given unto man and proportionated to his nature as he is a reasonable Creature that is more sublime and noble and if I may so speak it more Divine than what is given to other Creatures of this inferiour Oâ—h And this Law doth incite him to the performance of those things which are agreeable to his nature as he is a man that is to say a living Creature indued with reason or to live according to reason Now this Law is natural impression and as it were a figure of that eternal Law which is in the mind of God and it is a part of that Divine Image after which man at the first was said to be made Gen. 1. by which knowing of a certainty that there are some things in our reasonable nature that are congruous to the will of God the Creator and other things which are not so we do conclude that the one is good and ought to be performed by us and the other evil altogether to be abhomined The light proceeding from this law is extremely obscured by that grievous ruine which folowed the fall of Adam and from hence arise those thick clouds of Ignorance and Error in which all his posterity whilst we live in this World are invelopped But the providence of God hath so most wisely ordered it that in the common wrack it hath come off more unhurt than many other of the Faculties for it hath pleased God that certain propositions and practical principles Quae animis imprimuntur inâ—â—â—atae intelligentiae Cic. 1 de leg which the Philosophers call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Basilius most acutely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 spark of the Divine Fire which in the great conflagration was preserved in the ashes of it should still remain that so in our breasts and most inward parts Haec tamen exigua lucis scintillula râ—mansit Calvin Instit 10. Sect. 5. he might have the Preachers of his will These 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 These common Notions are that Law of God which the Apostle Rom. 1. doth say is
according to his good pleasure he may either delegate a dispensation of either power to another or he may reserve it to himself Therefore it would not be absurd if any man should grant that God in some measure hath delegated a Legislative power to the Magistrate of obliging Consciences but hath reserved the Judicial power over them entire unto himself But there is no necessity that compelleth us to grant 〈◊〉 or to use any expressions that may be helped although by never so gentle an interpretation For we do not say this that God hath given to the Magistrate a power to oblige by his Laws the Consciences of those that be under him but this rather which is a more wary and a more commodiouâ— kind of speaking that God hath given to the Magistrate a power of making Laws which but by the only Authority of God himself do oblige the Consciences of his Subjects For to speak properly the Magistrate doth not oblige the Conscience to obey the Law but God obligeth the Conscience to obey the Magistrate XL. And by this a way is made for an 〈◊〉 to the last objection I do grant indeed 〈…〉 effects of Actions ought not to be extended 〈…〉 the intention of the Agents nevertheless where there are more Agents subordinate there is 〈◊〉 hindreth but that the effect may be extended beyond the intention of the inferiour Agent provided it doth not exceed the Intention of the principâ—â— Agent As in the generation of a Monster which being but boyes we have learned from Aristotle the effect which is the production of the Monster is besides the intention of the second cause or as they speak it of Nature natured that is to say of the person that begets or brings it forth but it is not besides the intention of the first Cause or of Nature naturing that is Almighty God Therefore although the Magistrate in the making of a Law hath no explicit intention of obliging the Consciences yet by instituting the Law he doth institute that which by the intention ordination of God hath an implicit force of obliging them which necessarily is conjoyned to him And this may suffice to be spoken of the obligation of Humane Laws in general I will shortly proceed to the Questions or particular doubtful Cases if God shall permit and my health be more constant to me THE SIXTH LECTURE Of the Obligation of Humane Laws in reference to their material Cause PROV 8. 15. Per me reges regnant et Legum conditores justa decernunt By me Kings reign and the makers of Laws do decree Justice I Have reduced to two general Questions or to two heads what I have propounded to be spoken concerning the obligation of humane Laws The first is whether humane Laws do oblige the Consciences of Subjects Concerning which in the former Lecture I have expounded to you what was my Judgment of it The other Question is How they oblige To which question I have told you there belongeth the deâ—â—ding of some Cases and Doubts which meeâ— in this â—ubject And because they are 〈◊〉 few noâ— of one kind therefore to avoid Confusion and that we may proceed in some Order and Method to that which is to be spoken I have thought is not impertinent to give you a rough Representative of the whole Treatise now in hand And that Method which most of you do remember I observed in those my former exercitations concerning the obligation of an oath I here conceive it very necessary for me to use again that those things may all of them be reduced to the four kind of Causes which I conceive may commodiously be referred to them But because I do find many things to remain which cannot easily be included in those bounds we will assigne them their several â—lasses And they are chiefly two the first of Persons who are under the obligation of those Laws and the other in the comparing of the obligatory Vertue which is in Humane Laws with that which ariseth from the Judgement of the Conscience by Vowes Oaths Promises Contracts and from the Law of Scandal or if there be any thing else which elsewhere obligatory for these two obligations do seem to be in a contestation and justling for precedency to strive which of them should give place unto 〈…〉 To add the third Classis for some certain species of Laws which seem to contain in themselvs somthing singular to themselvs such as are Ecclesiastical Laws Penal Laws the local statuâ—es of Colleges and lesse societies will not peradventure be very necessary seeing in some manner they may be reduced to somthing in the four kinds of Causes and though not so aptly as to satisfy the curious yet so fully as to serve our present purpose for whilst our hearers understand what it is we speak of we have never taken any great care in what method we have gone We will in the first place therefore if God shall grant life health and opportunity to accomplish what we have propounded speak of the obligation of the Laws as to the four kinds of Causes In the second place of the persons who are obliged to the observation of those Laws And lastly of the comparison of the obligations which quarrel amongst themselves giving you before-hand one or two distinctions which will be of great concernment in the whole management of this discourse II. We must understand therefore in the first place Seeing that to the end of Political Government and order there is a two-fold power in those who are invested with Soveraign Authority A directive power by which the Subjects may understand what they have to do and a Power Coactive or Coercitive for by reason of the Analogy it is better so to call it than Coercive by which the Subjects may be compelled to the performance of those things that are commanded if of their own accords they shall refuse to give obedience to them both which are so contained in the Laws that the one consisteth most in precepts and the other is most to be seen in punishments there ariseth from this double power of the Magistrate a double duty of the Subject which answereth to that double power The duty of Obedience in reference to the Directive power and the duty of Subjection in reference to the power Coercitive I here understand subjection as it is properly so called by an appellation Generical which as elsewhere it often comes to passe is restrained to one certain Species For obedience also is a Species of Subjection largely taken The Apostle comprehends both those duties Heb. 13. 17. and signifies them in those two words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Obey them that have the oversight of you and submit your selves The first whereof pertaineth to the Duty of obedience or of performing that which is commanded by a lawful Superior the other to the Duty of Subjection or of induring what by him shall be inflicted Furthermore As from a double Power there ariseth a double
vitious by reason of the defect of a due rectitude in that circumstance From whence ariseth another difference betwixt an affirmative and a negative Humane Law or a Law commanding or forbidding For a Law affirmative doth not give any goodness to the Act which it commandeth if it be otherwise evil in any part of it But a Law negative doth contribute evilnesse to the Act which it forbiddeth although it be otherwise good in every part of it Or which is the same again a Humane Precept affirmative doth make that necessary which it finds to be good a humane precept negative doth make that unlawful which it found to be good both of them what they found evil do leave it to be evil as they found it Notwithstanding both do oblige in their manner and as to us this to the doing of that which by commanding is now made necessary and that to the not doing of that which by forbidding is now made unlawfull XXVI The seventh Doubt remaineth of Ecclesiastical Lawes in Special By Lawes Ecclesiastical I do not understand those Lawes which are constituted by Ecclesiastical Persons without the Authority of the Civil Magistrate which consideration pertains not to this case but to a Cause of an other kind to wit the Cause efficient but those which being made by any lawful Power doe treat of Ecclesiastical things for at this present we dispute only of the material Cause I have never heard of any besides those two above named who denyed all Indifferency or who would not grant to the political Magistrate some Power in things indifferent meerly political But we meet every where with a great number of Innovators who would take from men all Power of making Rites and Ceremonies in the publick worship of God besides those which are prescribed by Christ and his Disciples in the Gospel But sincerely I professe that to give satisfaction to my self and to others in this particular Having perused many Books written by many Authors but especially of our own Nation concerning this Subject I find not any one that can produce any just or any likely Reason of Difference why there may not be a Power of ordaining and determinating concerning things indifferent as well in Cases Ecclesiastical as Political For the Arguments which are urged from Scandal and Christian Liberty and other common Places of the same Nature doe equally fight against the Lawes and Constitutions of both Kinds and do overthrow them both or neither of them Those which are thought to carry a peculiar force against Ecclesiastical Laws and Rites are four which as the time will permit I will briefly and orderly examine they are derived 1. From Christ the Lawgiver 2. From the perfection of the Scripture 3. From the nature of holy Worship 4. From the example of the antient Church XXVII In the first place they object that of the Apostle James 4. 12. There is one Lawgiver who can save and destroy In the reign of Elizabeth many who were the Coriphaei of that Disciplinary Faction did make very much of this argument as the foundation of their whole Cause They alleged that Christ was the only Prince and Legislator of his Church And the Laws which he made did oblige the Church to a perpetual observation of them and that no other Laws ought to be admitted nor any other Legislator acknowledged whosoever shall presume to make any other Lawes besides those which Christ made shall act the part of Anti-Christ and declare himself a rash Invader into the Office of Christ We have discoursed on this place and expounded it already as occasion did require especialy where it was to be proved that God only and his Christ did exercise an absolute and a direct Command on the Consciences of Men But that this hath no greater a place in Lawes politick than in Ecclesiastick he must needs be blind that doth not observe it For why can the obligation of humane Laws in civil things consist with the legislative Power of Christ alone and why cannot there be the same consistence in Lawes Ecclesiastical Who can discover or produce the least shadow of any difference from that Text. Be Christ the Law-giver of the Christian Church Is he not as well the Law-giver of the Christian Common-wealth But the Apostle in that place made not the least mention of the Church nor instituted the least disputation concerning things Ecclesiastical neither doth he treat there at all of Political Lawes or Rites but of the Censures of Private Men. He would have the faithful admonishâ—d to be mindfâ—â—l of Christian Charity and that they should forbear from passing a rash Judgment on their Brothers for God was only the Judge of Consciences who alone made that Law by which every man in the last Day shall be judged This is the true scope of that place This is the mind of the Apostle What is here I pray you that tendeth to the condemning of Humane Lawes or if to the condemning of them why of Ecclesiastical Lawes more than Civil Neither of which either the one or the other are asserted by us by themselves and of their own Vertue to oblige the Conscience XXVIII In the second place they object the Perfection of the Holy Scripture This they say is the Rule both of Life and Manners and which can make a man of God wise to every good work to which if any man shall adde any thing of his own he shall commit a most remarkable trespasse against God and pull most heavy punishments on himself All this is most certain But if the Scripture in all considerations be the absolute rule of our lives of all things whatsoever to be done and if we may believe these Stoicks it extends to the slightest things insomuch that it is not lawful to take up a straw unlesse it be by the prescribed word of God will it not suffice as well for the regulating of things Civil as Ecclesiastical or how can the Laws of â—he Church derogate more from the perfection of the Scripture than the Laws of the Commonwealth or who is he who rightly can say that he hath added something to the word of God who for Honesty and Orders sake did make the Ecclesiastical Laws seeing he propounded not his Laws unto the people as the word of God and God in his word hath commanded that all things in the Church shall be done honestly and in order XXIX In the third place they object the Nature of worship to wit that the worship of God is a thing sacred in which worship all things are to be done by the Command of God and all Humane inventions are to be driven far away as superstitious nay plainly Idolatrous and traditionary Rites Indeed the worship of God is a sacred thing neither is it lawful for man to institute any other worship besides that which God hath ordained But because there is an Ambiguity in the word we are to distinguish of the worship of God which is taken
force and Vigor of a Law which lest it may seem to make a way for tyrannical Domination being ill understood hath heretofore been thus expounded by our Country-man Bracton What pleaseth the Prince that is not every thing which headily and out of the heat of his troubled mind is suddenly conceived and resolved upon but that which by the Counsel of his Peers his Royal Assent giving Authority unto it and deliberation and a debate being had thereon shall maturely and rightly be defined Cui 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 legibus ipsis legum vim imponendi potestatem Deus dedit Finch Nomotech in Epist dedic And in our Laws In the dayly proceedings in our Courts of Pleas the Laws according to the solemn Form of Appellation are called the Kings Lawes for no other Cause as our Lawyers have informed us but because the Kings of England are the Fountains of Justice and Laws and the Laws themselves in the reading of them professing it because from Almighty God they have granted to them an autocratical or a self-Ruling Power of giving force unto the Laws themselves that they may passe for and be esteemed as Laws This is so plain that we need not take any further pains in producing more witnesses XI And indeed this were enough and might give abundant satisfaction were it not for the impudence of an idle person that conceals his own Name who by a ruinous and a nasty fiction and which was never heard off in the world before these unhappy times hath endeavoured to cast a mist over so clear a light by raising an Invention of I know not what coordinate Power And to flatter the nefarious Counsels and Endeavours of some Neotericks in these dayes which being destitute of all defence of Right were nevertheless for the time to be supported by some specious pretence although never so weak and slender he doth in a Book published for that purpose earnestly labour to make the people sensible of that wild Philosophy which hither to had been imposed on them by way of contradiction viz. That the King being supreme and having no equal is notwithstanding at the same time not supreme and hath an equal yet is it not so much to be admired as lamented that there were found some who greedily snatched at and imbraced this ridiculous Invention as slid down from heaven and indeed because it concerned their Interest that the people should be seduced into such a false Belief they therefore suffered themselvs to be so insnared by this grosse Sophism as to become guilty of the foulest Perjury For what can deserve to be called Perjury if this be not Perjury in the highest Nature As to acknowledge and constitute a Power equal to him in his Kingdom whom in expresse words you have sworn to be the only and the supreme Power in the Kingdom Away then with this our so absurd Coordinator and with all his portentuous Jugglings and having so cleanly rid our hands of him let us proceed XII The said position or Conclusion is thirdly proved by reason the chiefest Act of Governing doth require the chiefest Power for every Act being the exercise of some Power doth presuppose in the Agent a Power proportionate to it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the making of Laws is the supreme chief Act of Governing It cannot therfore be excercised unless by a person who is invested himself or who by his virtue and authority doth derive unto another the supreme power and jurisdiction over the Commonalty subjected to him For seeing there are two most noble parts and Species of jurisdiction and publick power and remarkable above the rest viz. the Legislative power and the power Judicial both of which consist in jure dicundo that is in pronouncing the Law from whence the name of jurisdiction doth proceed but with this difference that the jurisdiction of the Judge is the speaking of a Law only as it is already given or exhibited but the Jurisdiction of the Lawgiver is the speaking of a Law that is as yet unmade and remaineth still to be exhibited it followeth that the power of the Judge is far more narrow and not of such a noble extension as that of the Law-giver It is the office of the Judge to speak and give Laws unto the people by a Law already made but it is the office of the Law-giver to give Laws unto the Judge himself and to ordain a new Law which may be a Rule unto him in his seat of Judicature the Judge is obliged to pronounce according to the prescript of the Law constituted The Law-giver out of the plenitude of his power doth prescribe and constitute the Law which the inferiour Judge is no lesse bound for the future to observe than the people themselves It is therefore no wayes inexpedient that the judicial power being a power of an inferiour nature be ordinarily exercised by an inferiour person but it is as necessary as expedient that the supreme architectonical power of making Laws should be excercised by none but only by that person who hath in his hands the supreme power and so much of the first Doubt XIII The second demand or Quaere is Whether the consent of the people be required to the obligation of the Law For by what hath been already spoken a man may peradventure conceive that the power of making Laws doth pertain unto a Prince by so absolute and full a power that the Subjects have no part in this great affair and in whatsoever he determineth there remaineth nothing for the people to do but to perform his commands and to humble their necks under the yoak of his obedience And indeed according to the lusts of those who heretofore bore sway it may appear by their sic volo sic jubeo that this excesse of command did take such place amongst the Kings of former ages when the meer arbitrations of Princes stood for Laws that the name of a Tyrant of an innocent at the first and of an honest signification did grow at the last into a great ignominy by the foul abuse of so saving a power and even in our days it doth convey somthing that is horrid into our ears as often as we hear it spoken But that some consent of the people is at least required I have both heretofore manifested and it is granted by all of the most approved Authors that I have read Insomuch much that the Jesuits themselves the most stout Defenders of the Popes oecumenical omnipotence and which by them is by no limits to be included do yet hold that many in Germany and other places are to be excused for the non-observing of the Laws of the Council of Trent and the Bulls of the Sea of Rome only upon this Account that those Laws were never received into use amongst those Nations I affirm therefore and it is the common received opinion that the Laws propounded and instituted by a Prince or the Head of a Commonalty do not
oblige the Subjects nor have the Power of a Law unless they be received by the Commonalty themselves and are allowed by the Customs and Suffrages of those that use them According to Demosthenes the Law is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Common Ingagement of a City and if peradventure his authority be of lesse value because he lived in the popular Common wealth of the Athenians will you be pleased to hear the great Lawyer Julian who lived when the Roman Emperours had the fulness of command his words in his two and thirtieth Book de legib are these Ipsae Leges nulla alia ex causa nos tenent quam quod judicio populi receptae sunt The Laws do oblige us for no other cause than that they are received by the judgement of the people XIV But though all acknowledge the necessity of that reception or consent yet all men do not derive it from the same Fountain There are some who think that the consent of the People is therefore required in the making of Laws because that Princes have all their power flowing to them from the people which if they do abuse as they are to be esteemed to abuse it if they shall extend it further or longer than it shall please the people the people by their own right may again re-assume that power which before they had granted to them This is a most erronious and a dangerous position and which all those who are not enemies to mankind and the publick peace ought deservedly to abhominate All their reason relyeth on a double foundation but both of them very weak and abhorring to sober sence The first is that Princes do owe unto the people for all their power the other that whosoever he is who granteth power to another it lyeth in his power to revoke that power when he pleaseth O most egregious Sophistry if this were so Were Samuel more to be condemned for his Oratory who the more to affright the people being weary of their Theocracy or Government immediately from God and to deterre them from their perverse affectation of innovation had enough to do to lay before their eyes the vast extent of the power of Kings Or were the people of Israel more to be condemned for their folly who ignorant of their own right would suffer themselves to be circumvented and baffled by so gross a pretence and return nothing back unto the Prophet no not so much as a word Were they all so dumb and stupid and void of resolution as well as understanding that not one in so great a multitude could be found as had either so much acuteness or confidence as readily to make answer to these objections of Samuel it being so easy for them to give such a sudden check unto them Tell Boys these tales who have the leisure to hear them and not the wit to understand them We if our King shall thus begin to domineer will use our own privileges and presently take away that right from him which we have given to him In how few words had they done the whole work and stopped for ever the mouth of the Prophet if these fictions of new Magistrates had been so much believed in former ages as they now are confidently suggested to new Disciples and willingly entertained by the unadvised multitude XV. But to be in earnest and to draw more near unto the thing it self 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Homer in hymn I say in the first place That the power of Governing in a Common-wealth by what means soever men arrive unto it proceedeth only and immediately from God himself The Testimonies of holy Scripture to prove this are most manifest b Non alio animo populus rectorem suum intuetur quà m si Dii immortales potestatem visendi sui faciant Seneo 1. de clemâ—â— 19. By me Kings reign Prov. 8. That is by my authority alone and not by any authority of men The Powers ordained are ordained by God and not by the people Rom. 13. 1. The Magistrates themselves which are set over the people are the Ministers of God Rom. 13. 4 6. And therefore they are called Gods Psal 82. 6. because they are his Vice-gerents on Earth God himself and not the suffrages of any people conferring this honour on them I have said you are Gods Can any people constitute Gods unto themselves without the filthy Crime of Idolatry Seeing it belongs to men by their own authority to make choice of their own Vice-gerents and to intrust them with places and power according to their own and not anothers arbitration Will any mortal man be so bold as to arrogate that right unto himself as to affirm that the Minister of God on Earth and as it were a Vice-God is made so by his authority and by a power which his wretchedness hath conferred on him although peradventure there may be some references or parts of the people concerning the person of the King as he is the Subject of Power as by and by you shall see just so as in the Generation of natural things there are some praevious alterations which may prepare and dispose of the matter to receive the Form to be introduced yet the conferring of the Kingly Power and the application of it to the Person is not the work of the People but immediatly of God himself as the Production of a Form into the matter subjected is the immediate work of the Agent or Person generating Lib. 5. contra haeres cap. 20. That is elegantly spoken of Irenaeus Cujus jussu homines nascuntur hujus jussu et Reges constituuntur By whose Command men are born by his Command Kings are also constituted XVI I say in the second place to point directly to the Fountains Head that political Domination at the beginning was only the off-spring of paternal power Those who have the leisure to look more diligently after the beginning of things will find that the Nations did not grow up into Kingdoms and Commonwealths by the mutual consent of the people but that all Empire amongst the posterity of Noah did for a while consist within the bounds of paternal Authority At that time there were neither Kings nor petty Kings much lesse Monarchs of vast Continents nor so much as the least signes of any Aristocratical Government or popular State a word not heard of throughout all the world in those antient times and first of all brought into Greece a moving Nation and desirous of novelty by the ambition or fury of some who industriously affected new things All Domination at that time consisted in the power of Heads of Familyes amongst which he who was the first born of every Family 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aristot 7. Eudem 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Id. 1. Polit. â— without any suffrages or election was by a certain Right and privilege of Nature the Governour of all things both Holy and Civil and as it were the Prince of all that alliance who
according to his Arbitration did chastise Delinquents first with moderate punishments and Families afterwards increasing into greater multitudes he afflicted the guilty with more grievous Chastisements till at the last the numbers of Men still increasing and Vices increasing with them there was a necessity of condemning notorious Offenders unto Death From hence it came to passe that heretofore the Father had the power of Life and Death over his Children and his Family Pater jussi Hoc nomen â—mni lege Majus est Jus nobit vitae necisque concessum est Quintil. declam 6. of which power there remained a long time some Impressions after the Constitutions of Kings amongst the Nations And from hence amongst the Persians the too much severity of the power of the Fathers over their Children was so much observed but nevertheless disproved by Aristotle And that old and solemn form of the Romans of arrogating their Children which Aulus Gellius maketh mention of Noct. Attic. lib. 5. cap. 19. UTI EI. VITAE NECIS QUE IN. EO POTEST AS SIET That he hath the power over him both of Life and Death c. From these beginnings by the increase of Families Kingdoms by degrees did every where arise And those who commanded over them were called Kings and in their Dominions although but of a short extent peradventure but one little City with the Hamlets and Villages bâ—longing to it they exercised an absolute Authority and Command Principio rerum gentium Nationumque Imperia penes Reges erant In the beginning of things the Governments of People and Nations were in the Power of Kings Justin 1. hist 1. Cic. 3. Legib. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist 1. Polit. so Justine begins his History And Cicero before him saith Omnes antiquae Gentes regibus quondam paruerunt All antient Nations did heretofore obey Kings And Aristotle more antient than both of them doth testify that those Cities which were free in his times he means the Cities of Greece and others which followed their Examples were at the first under the Command of Kings Amongst many other things this is no light Argument of this original which I have spoken of that the Dominions of Kings were heretofore inclosed in such narrow limits that in Canaan alone which is no great Country we do read that there were one and thirty Kings overthrown by Josuah the Captain General of the Host of Israel Jos 12. And probably we may conjecture that he left above as many more unfought with for not long after the death of Josuah we find that Adonibezek did exercise a barbarous cruelty on seventy Kings whom he had Conquered Judg. 1. 7. What need many words so little is the difference betwixt the Prince of a great Family and a King of a small Territory 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gregor Presb. in vita Greg. Nazianzeni that they seem to differ more in Name and Bulk than in Deed and Power so that it is not to be doubted if a true Calculation be made but that the Domination of a Family in the processe of Time did by degrees and by an unperceived inlargement grow up into a Kingly Name and Power And the Original of the greatest Empire is no where else to be extracted but from this Head And thus far there is nothing more plain nothing more sure than that in the conferring of Kingly power the people had no part at all neither indeed could have XVII From these things as I conceive we safely may conclude to note that by the way which is worthy your observation That the form of Government by which the first-born of the whole Family doth succeed into his Fathers rights as the next Heir is justly to be preferred above the rest for many considerable reasons but especially for this because it best of all answers to that Original to which it seems that Nature it self in some sort hath made man From which most antient and congruous Form of Nature when once we have departed the impotent and unruly lust of Domination attempting forbidden wayes to ascend to the height of Soveraignty all things are thereby laid open to Tyranny and popular Indeavours For they who arrive to Soveraignty otherwise than by a legitimate succession must necessarily be promoted to it by one of these three ways either by open Force and strength of Arms or by Craft and Policy or thirdly by a free Election Those who by force of Arms have obtained the Soveraign Power whether it were by meer Usurpation without any pretence of Right or by War made upon their Enemies who unjustly have provoked them for both wayes it comes to passe it is certain do owe no more their Authority to their Subjects than those who succeed in their Kingdoms by Hereditary Right nay much less For the one do govern over their willing Subjects and used to the yoak and the other over an unwilling people and if they were equal to him in strength ready to make resistance and to fight against him So that in this consideration also in conferring of the chief Power the people have no interest at all XVIII But in the establishing of the Power of those Men who by Tyranny and Deceit do exercise a Tyrannical Power it cannot be denyed but that the people have a great interest For those who affect Tyranny are accustomed above all things to court the favor of the people potentiam ex vulgi adulatione quaerentes seeking after power by flattering of the Vulgar Justin 13. 3. The Histories of divers Nations do afford us many Examples to confirm this Truth I will make use only of the Abridgement of Trogus Pompeius where we may find by what Arts Pisistratus of the Athenians Ibid. 2. 8. Clearchus of the Heraclians Ibid. 16. 4. Dionysius Junior of the Sicilians and others of other Countryes did allure the people to side with their factions Ibid. 21. 1. With invective and envious orations they would incense the Spirits of the credulous multitude against the best of the Citizens they would Act and Inact many things publickly to be praysed and which carried a face of Clemency Justice and Benignity to the people they would insinuate themselves into the affections of the Citizens as if they were the only assertors vindicators and patrons of the publick liberty with all kind of flatteries and allurements with which the Vulgar love and are accustomed to be trepanned Their pretences and dissembling of duties their often-repeated promises the hopes they throw in of happier times and of the change of Government into a better are those egregious artifices by which they who by deceit do arise to Soveraignty do solicite and bend and lead which way they will the moving and unwary people flattering them with fair words to serve their foul Ambition And Hòs equidem per-rarò haec alea fallit These are the men who have the Dice that alwayes run upon the Sice for relying on the favour of the
people and being assisted with their stocks and their indeavours they at last ascend to that height of Honour and imperial Dignity to which their Ambition did so long aspire XIX But how little this availeth to prove the legitimate power of the people in conferring of the Soveraign command he may easily observe whosoever shall consider that First it was alwayes esteemed a weak way of argumentation to dispute a facto ad jus From the Deed to the Right of it Secondly that which was done by the people in this Nature was not according to Judgment not in a quiet and a well-tempered mind but clouded and tossed with violent affections And when the Tempest shall be a little asswaged and the people at last though too late shall find themselves to be circumvented and over-reached by policy they will repent of what they have done they will be ashamed of their too forward credulity and they will condemn their own rashness and imprudency who being tempted by a greedy Hope of encreasing their Liberty have wiâ—h their own hands and of their own accords delivered up themselves into the servitude of a tyrannical Domination All these things do breath forth a meer impotency and a weakness of mind so that he must be an admirable Artist who confideth that from hence he can extract any Argument for any true Right or legitimate Power of the People XX. There remaineth therefore but one only Form of a Common-wealth in which there appeareth any shew of popular Right for the constituting of a Prince and that is a Kingdom elective when in the Place of the deceased Prince a new King succeedeth to be chosen by the free Suffrages of the People And here prolixly we profess that the People have their share and which indeed is lawful and by good Right due unto them but this notwithstanding is not any ways to be granted that thereupon the whole power of the elected King doth depend upon the people or that it ought to be acknowledged to be due unto them For it is one thing to constitute a power and another thing to elect a person that is to exercise that power Neither is it only another thing but for the most part it belongs also to another Interest The Mayor or Bayliff of such a Town or City is yearly chosen by the Towns-men or the Burgers and being chosen he exerciseth a kind of Jurisdiction within the Subburbs and Precincts of that place which it were not lawful for him to exercise unless he had been so elected In the same manner amongst the Fellows of Colleges as often as the Presidentship is vacant they have the Right to chuse a new President to whom being so chosen by vertue of the said Election the whole Government of that College doth pertain In both places the right of persons electing doth consist wholy in the designation of the person to be elected who is to exercise the power due unto his Office not as derived from the persons electing but as granted to him upon another account For the chief Magistrate of a City oweth not that power which he exerciseth in the City to those fellow Citizens of his who made choice of him for that year to sit at the Helm of Government but to the Royal Charter which according to the favour of it hath indulged to the City with such a privilege neither doth the Master of College receive the Authority which he obtaineth in it from the Fellows by whose suffrages he is elected but from the Founder from his Statutes who hath given that Authority to him In a word where the election of a Prince is received from the people either by Laws or Customs there the people indeed do design and nominate the person of him who Governeth but God alone doth confer upon him the Authority of Governing XXI But let us grant to the Flatterers of the people this their Supposition a little to gratulate their Importunity it will notwithstanding nothing prevayl unlesse we shall grant this also which they had rather take than solidly prove That whosoever conferreth a Power on any one it is lawful for him as often as he thinks fit to take from him that power which he hath given him and to resume it into his own hands And this is that which must never be granted for all Reason and Laws and Courts of Judicature are directly and Loudly against it They declare That all lawful Contracts are not to be broken And that a Donation absolutely made Populus in cum omne suum imperium potestarem transtulit Ulpian F. de constit princip and without any condition cannot be revoked neither in the whole nor in part for the right which before the election was fully in the persons electing the election being made doth presently and in that very deed passe into the person elected and many other things to the same purpose are over the whole world the most received Dictates of nature and of reason and approved and confirmed by the consent of all Nations as by the use of daily observation may abundantly appear The seven Princes of Germany have a full power to elect an Emperour but to remove him from the Empire being elected they have no power The Commonalty of all the Counties and Boroughs of England that is all the Inhabitants and Free-holders as we speak it beneath the degree of the Nobility of the Land have a right by common Suffrages to elect Knights Burgesses and in their name to send them to the high Court of Parliament as their Repesentatives and to intrust them with a power in their steed and in their behalf to debate of the publick affairs of the Kingdom but to abrogate the power which is once committed to them being elected although peradventure they answer not the expectation of those who did elect them they have no right at all The same account is to be given of those men in whose power there is a right of electing a Mayor of a City or a President of a College or the head of any other civil Corporation who the election being ended have no more to do at all the right anthority of Governing being translated into the persons elected whose power they are afterwards bound to obey and to accquiesce in the election which they have made and if the person elected shall deport himself unworthy of his place they are not to impute it to any but themselves XXII These things I confesse might longer be insisted on and indeed it would be worth the labour to proceed further in the proof thereof and to pluck up out of the minds of men all the strings of so dangerous a root and so much tending unto sedition did not the reguard of the time and my intentions call me back from whence I have digressed And peradventure there is no great need of any longer discourse on this subject seeing out of the things already spoken I believe it is manifest enough how
of the Laws is the good of the Commonalty or the publick peace and tranquillity This is proved first from those very words of the Apostle that we may live a quiet a peaceable life The Apostle doth here exhort that both privately but especially in publick Congregations for so I conceive this place to be understood and the best Interpreters are of the same opinion with me Requests Prayers and Supplications with thanksgivings may be made as first for all men in general out of Charity and in order to a Spiritual end viz. Eternal happiness in the life to come as they are men and either in Act or in Power Members of the mystical Body of Christ so more especially for Kings and others invested with supreme Authority and this out of Prudence and in order to a Temporal end to wit external felicity in this present life as they are the chief Members of the body politicks from whose legislative and executive power accordingly as they have administred it whether rightly or unjustly either the chief happiness or unhappiness of the rest of the Members and by consequence of the whole Body doth depend Therefore the making of Laws being the chief Act of the supreme political Jurisdiction that which is the supreme End of that supreme Jurisdiction is also the supreme End of the making of Laws to wit the good of the Commonalty It is proved secondly from the Nature of the End as by a Demonstration a priori That in its order is the ultimate End of everything to which all the Acts of that thing are reduced 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist 8. Ethic. 11. as to their first regulative principle and to which they are referred as to that for whose sake they are ultimately ordained Therefore the Final Cause is commonly called by Aristotle That for which But all the Acts of Laws are regulated by the Common good as by their first Rule and Principle and are referred to the Common good as to that for whose sake they are made as may appear by running over the several Acts Therefore c. For wherefore are good things commanded or evil ones forbidden and things indifferent and of a middle Nature permitted Or wherefore are Rewards decreed to men that have deserved well of the Common-wealth or wherefore are punishments appointed to the Violators of Laws or wherefore are the Laws in the Courts indifferently pleaded unto both of which those are the first Acts of Laws and by the way of Form and the other more remote and by the way of Effect Is it not for that end that the Common-wealth may flourish in peace and safety and that private men according to their measure and degrees may partake rejoyce in the publick happinesse in a word that they may be all inservient to the Common good Thirdly it is proved a posteriori from the posterior by the sence and consent of all men For the Law-makers who do decree just judgements do indeed appear and those who meditate on Evil as a Law do notwithstanding desire to seem to have an Eye to the Common good and profit in the making of their Laws and to preferr the publick interest above their own Whether they sincerely intend or craftily pretend they all professe that in the making of their Laws their chiefest Intention was the publick Good II. This foundation of the present discourse being laid to wit That the End of Laws is the good of the Common-wealth I proceed to the Doubts whereof let this be the first Whether there be any necessary use at least of Humane Laws And indeed we should not have needed to have made any Doubt of it did not the mad errors of the Anabaptists and some others of their faction make this businesse for us from whose Principles seeing they affirm it is not lawful for a man that is a Christian to be a Magistrate or to contend by war or by sutes in Law to swear or to administer an oath to any one it seems to follow that there is no need at all of Humane Laws For take away but Jurisdiction there will be no man to make Laws and take away the Seats and Courts of Justice there will be no man that will fear them What need sad complaints if the offence be not redressed by punishment what will vain Laws profit without the execution of them The Directive power of the Law must of necessity fall unto the ground if the Coactive power doth not assist it The reason of this Doubt is for the Law of Nature may suffice to leave the Gentiles inexcusable which dictates to them to eschew all Sins and trespasses to injure no man and the like But if that be defective the Christian hath at hand a more sublime and a more perfect Law to wit the Law of Faith Justice and Charity made by our Saviour Jesus Christ whom St. James acknowledgeth to be the only Judge and Law-giver James 4. 12. This place in my Judgement doth neerly touch our Innovatours who have derived and drawn most of their opinion from the unclean wells of the Anabaptists whilst they collect from that place of the Apostle that it is lawful for no man besides Christ alone to make Ecclesiastical Laws for it no wayes appeareth either by the force of the words or by the scope and order of the whole perioch that the Apostle hath spoke more there of Ecclesiastical Laws then of Civil And unless they had rather deal unfaithfuly and deceitfuly with us than be ruled by reason they must do one of these two things which they please either turn absolute Anabaptists and take away altogether from mankind all the power of making Laws or grant unto supreme Magistrates as it is fit they should the power of making Ecclesiastical Laws III. But how these our Brethren can disintangle themselves from the snares of the Anabaptists it doth not much concern us let them look unto it themselves We easily do answer that the Law of Nature is written in our hearts and the Law of Christ is revealed in the Gospel and that both of them in their kind are most perfect but so that for all that it is most manifest that the profit of humane Lawes is very great and their use as necessary Because those divine Laws do contain only general Principles of things to be done From which as Conclusions from their Principles more special Rules are to be deduced accommodated to the right Institution of publick Societies of the manners of single persons Neither is it any way to be feared that it may derogate at all from the perfection of the Law of God For the makers of humane Laws do not go about to add any new stock to the most rich Treasure of the divine Law but they rather take from thence what they judge most profitable to themselves and to their people and the good of the Common-wealth Humane Laws therfore if they are just are nothing else but the Relicts of
some suddain and unexpected Emergencies those Laws may be defective in some particular cases not foreseen And in this Case if there be not a person orsome persons to exercise a kind of an arbitrary Power there will be no other effectual Remedy to relieve the endangered Country and provide for the publick safety And this is the reason why wise men have always determined and Reason also perswadeth to it that in exigent points of necessity Legal Justice ought to give place to Equity Equity according unto Aristotle being nothing else then the rectifying 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist ibâ—d or the correcting of legal justice or even of the Law it self as presently afterwards he explains that Definition by supplying its defect in particular cases in which it comes to pass that by too much generality it falls short of either Justice or the publick Profit For it is necessary that Laws should be constituted generally out of a respect to those things which generally and for the most part are done but not out of a respect to all those things which may be contingent in particulars in many of which if Laws were strictly and by a praesâ—ript of words accommodated they must necessarily be defective also and fall short of either moral Justice or of Common Profit or of both of them XVII This being then granted that the safety of the People that is the publick profit doth require that there be some Authority in the Common-wealth which is to be above the Laws and to supply the defects thereof it will necessarily follow by Consequence Aistot 3. which Aristotle asserteth in his politicks Polit II. that this supreme Authority cannot appertain to any one else than to him alone who is set over the whole Commonalty and invested with the chiefest Power Whether he be a single person as in a monarchial Government or many as in other Forms of Common-wealths Shall it be lawful therefore now for Subjects under pretence of of publick liberty and safety to break all the Bonds Ordinances Laws and Fidelity and by an intolerable rage of Pride 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to tread under their Feet the Authority of Laws and Princes and for the Defence of so great a Villany impudently to abuse and pervert that Aphorism which thoâ—e factious men are always boasting of and repeating to one another viz. Salus populi est suprema Lex Homer Illiad â— The safety of the people is the supreme Law How comes it to pass that on the contrary they will not understand that even by the very same Axiom it is acknowledged that the Prince hath a Power even over the Laws themselves so that it is lawful for him out of the fulnesse of his Power if necessity compels and the Affairs admit of no delay for the defence of his own and his Peoples safety against forein or domestick Enemys to lay aside for awhile the stricter observation of the Laws lest by a too superstitious and too unreasonable Reverence of them he suffers both himself and his people and at last the Laws themselves to fall into the power of his Enemies XVIII As to that Question whether a Ptince be free himself from the Laws he hath made which are confirmed and approved by the Consent of the People received by common Use and how far he is bound ordinarily to observe them I shall hereafter God willing give you my Judgement therein It is now only here demanded whether it be lawful for him without order and in case of necessity for the defence of his Country to do some thing either besides or against the Law it self That it is lawful for him so to do and that in good Conscience he may do it it is first proved by the Examples of the best Kings and by the Histories of all Nations that have been remarkable throughout the world And secondly Reason it self doth dictate it from the defect of the Laws in respect of the whole and from the uncertainty and multiplicity of particular events both which but even now I mentioned And thirdly those things do sufficiently prove it which are allâ—ged by Sam. on the Right of Kings 1. Sam. 6. which cannot well be interpreted otherwise although many in vain have attempted so to do But that the least scruple may not arise nor remain from any thing which hath here been spoken and is misunderstood Give me leave I pray you to call back this so divulged an Axiom to its first Original And if I shall not so perform it that you your selves may confesse that the Care of the publick safety the Laws somtimes laid aside doth according to the meaning and sence of the Axiom it self depend wholly on the will of the Prince and nothing at all on the will of the People proclaim me to grow dark in the cleareâ— light and that I have hitherto been not the Defendor but a Prevaricator and Betrayer of the best of Causes XIX I have declared already that this Axiom was derived from the Romans unto us I shall now add that which first of all as I know of is written in the first Book of Marcus Cicero de Legib. But by himself as he affirmeth taken out of the antient Laws of that Nation and described by him in the very word of the Law it self Having therefore in the former explained the Laws belonging to Religion and the worship of the Gods in his third Book he proceeds to give an account of those which belong to the Magistrates and Common-wealth Where amongst other things he hath these words I must beseech you to give due attention to them Regio Impereo duo sunto iique praecundo judicando consulendo Praetores Judices Consules appellantor Militiae summum jus habento Nemini parento Ollis Salus Populi suprema Lex esto Let there be two in the Soveraign Command and for their going before Ruling or Judging and Counselling let them be called Praetors Judges and Consuls Let the chief Right of the Militia be theirs let them be under none Let the Safety of the People be a supreme Law unto them To them that is to them that are invested with the soveraign Command who had the chiefest Power of the Militia and acknowledged not any Power above their own to which they were to be obedient That is to the two Consuls who although by the Constitution of that Common-wealth did exercise only a yearly Magistracy yet for that time they had the chiefest Power over the City the greatest part of the world which was in Subjection to the Roman Empire Come hither all you whosoever you are who amongst these or other Nations are assertors and Patrons of popular Licence Read andâ— read overagain every period weigh every sentence clause and point Examine every word syllable and tittle Where will you find the Prince being unwilling the least sign of any Power granted to the Subject either of judging of the safety of the People or of