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
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
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
rashly and how dangerously also this so vast a power is attributed to the people Nevertheless there be other considerable reasons to be alleged which vehemently may perswade us that the peoples consent and approbation is to be had in the making of Laws First because the Law ought to be as a mind void of any extravagancy of desire but the Laws of Princes rashly sent forth to the unwary Subjects Aristot 3. Polit. in the favour and on the behalf of Courtiers and Flatterers are oftentimes corrupted with the depraved desires of impotent affections Secondly because those Laws which are not allowed when propounded to the Subjects to speak morally are presumed to be either unjust in themselves or too burdensome to the Subjects or at least unprofitable to the publick And therefore it is expedient that they should not be enacted it being very incommodious to the Common-wealth that Laws should be multiplyed without a necessity Thirdly because it is manifest that Laws rightly constituted may be so abrogated by a Contrary Custome that they cease any longer to oblige which Custome is nothing else than a conjoyned consent of the people neglecting to observe that Law as being unprofitable together with the consent of the Prince not exacting an observation of it Therefore it being in the same power to destroy as it is to make the force of the Laws do seem not a little to depend on the approbation and consent of the people Fourthly and cheifly because the consent of the people in the making of Laws and their concurrence with the power of the Prince doth so much conduce both to the publick peace of the whole Kingdome and the safety and security of the people that there can be nothing more For most likely it is that all Subjects will not grievously but readily and cheerfully obey both those Kings who desire their consent and those Laws to which they themselves shall give their consent Neither is it to be feared that the Supreme and Legislative power of the King shall by this means suffer any diminution which is the only argument that the adverse party do object against it for that these two I say the consent of the people and the supreme power of the Prince in making Laws may friendly and at once consist together besides that there seems to be no repugnancy in the things themselves may appear by this that our Kings of England whose supreme power the Inhabitants of this Kingdom before these late unhappy times have most fully always and most freely acknowledged did notwithstanding never so exercise their Legislative power as to impose any Laws on their Subjects without their own consent XXIII We conceive it therefore to be granted that at the least some consent of the people is to be required in the making of those Laws which in Conscience may oblige the Subjects 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But it may be here doubted Aristot 1. Polit 6. and that not unjustly I shall therefore make this the third Doubt or Demand how great and how much of the consent of the people may be required to this that the placit of the Prince may have the vigour of a Law I answer in this consent of the people of which we now treat two things are to be considered viz. the time and manner of consenting And both these do fall again under a twofold consideration For either the Law is consented to as to the time that is before the promulgation of it or after or as to the manner that is with an expresse consent or suffrages or with a tacit consent or customes From the complexion of these there do proceed four sorts or degrees of popular consent XXIV The first and the lowest and least degree of all is the tacit or silent consent before the publication or asking of the Law which is when a people have so put themselves and all that they have in the power of the Conquerour or by a long custome of obedience have so entirely submitted themselves to the will of the Prince that whatsoever he determineth they do yield unto it And this may come to passe both ways for by the Law of Nations that power of the Prince is just which is either obtained by a just War or confirmed by a continued succession as by a right of praescription And this degree indeed although not very profitable to the people if the Prince be pleased to turn his power into tyranny yet it will so far suffice that the people cannot complain of any injury done unto them if it should so fall out that the Prince should determine any thing too severely against them which peradventure is not unjust but such a thing as they would not willingly have to be done As amongst us many of the Presbyterians do importunatly as their Custom is and unjustly complain that the election of Parochial Pastors is unlawfully taken away from the People when those who ought to be chosen to that Office by the Parishoners are presented by some private person or by some College under the name of a Patron without their Consent not dreaming all the while that the right of Electing if the People heretofore had any which is very uncertain and if denyed can never be proved for some certain Cause from the beginning but by the long prescription of Time now unknown was long agoe conveyed unto those whom they call the Patrons of Benefices and so in the election made by the Patrons the Consent of the People is virtually involved and contained which answer if it be of no force amongst men that are obstinate in their own opinions yet of this at least they are to be advertised which may be enough to satisfie the most importunate Adversary which is that the Rights of Patronships and the Advowzons or Advocations of Churches were long agoe established by Authority of Parliament that is by the common and full Consent of the whole People And therefore what is done in this Case by a legitimate Patron the People have already consented that it is lawful for him to do it XXV The second Degree is the silent Consent of the People to such a Law after the promulgation of it that is when the People do not contradict the Law made and published by the King but rather do approve it by their Deeds by conforming themselves to the will of the Prince and by observing that which is commanded by the Law for if he who but holds his peace doth seem to consent much more is he presumed to consent Leges constituuntur cum promulgantur firmantur cum moribus utentium approbantur Distinct 4. Sect. in istis who expresseth an actual obedience Of this degree of Consent thus speaketh Julian again in the place above cited Quid interest suffragio Populus voluntatem suam declaret an rebus et facto What difference is it if the People do declare their Consent by suffrages or by deeds and Acts XXVI The third
Degree is the expresse Consent of the People to a Law propounded to them by the Prince and they consent unto it being asked that is when a Prince having prepared at home the matter of the Law by the Counsel of wise men and though not perfectly drawn it up yet he hath run it over and put it into some Form and transmitted it to his Subjects to be further examined that nothing may openly be contained in it that is either inconvenient or absurd requiring withall that they or a great part of them if they find it to be advantagious to the Common-wealth would confim it with their Suffrages that so by their Consents it may pass into a Law and this in some manner was heretofore the Custom of the Romans their Common-wealth yet standing And from this asking the Rogation of their Laws received its original A word most frequent amongst the best of the Writers of the Roman affairs XXVII The last and highest Degree which is the greatest and indeed the true Liberty of the People by which we Brittans have so long been happy even unto envy under excellent Kings and had we not out of our stupid Ingratitude made our selves unworthy of so great a blessing we had continued still most happy is the expresse Consent of the People before the enacting of the Law when the prescribed Form thereof a just and deliberate Debate being first had of the words and the matter of it and approved by the House of Peers the Suffrages of the House of Commons conjoined with them is at last exhibited to the Kings Majesty to whom alone the chief Power of making Laws doth belong that being by him confirmed if it seem good unto him it may have the Power and Vertue of a Law or otherwise it may be made void and be esteemed no Law which manner of enacting of Laws being most prudently devised by our Forefathers and brought even unto our times by so long a Series of Kings and years hath been found by the Use and Experience of all Ages past so profitable to the Common-wealth that if unseasonable Counsels had not been taken to speak no more of it for the removing of the old Marks and Limits from their right Places our Churches Universityes The King The People The Common-wealth and every private Family had by the blesâ—â—ng of God yet flourished which now by his most just Judgment do goe to wrack and every day do suffer more and more And I do believe that a better way cannot easily be thought upon by the wit of man to moderate on the one side the Power of Kings and to check and to restrain on the other side the Licence of the People XXVIII The fourth Doubt followeth of the Laws of lesse Commonalties for examples sake of Cities Universities Colleges and Schools which besides the Laws common to all the Subjects of the Kingdom do rejoice in their own private Laws Rights and Statutes The Question is to what Persons the Power of making their Laws doth pertain and being made whom and to what they oblige The answer is not difflcult I say therefore in the first place these Societies Corporations and Colleges being all Members of the great Body of the Kingdom and are contained in it as the inferiour orbes of the Heavens are contained in the Superiour it is not lawfull for any College or Society or for the Governours or Oversers of them to make private Laws for their own use which may be contrary or any ways prejudicial to the publick Laws of the whole Kingdom I say in the second place that seeing by the grant of Princes and their special grace and indulgence these societies are incorporated enjoy no other Rights Privileges or prerogatives besides those which it is manifest have been granted to them by a long praescription of time or by the Charters Letters Patents of the King it is to be concluded that all the Legislative power which is derived from them is a derived not a primitive power is at last to be resolved into the supreme power of the King as the true original of it and therefore the said Societies and Governors of them cannot according to their own will either constitute or actually exercise any power in the making of Laws unlesse according to the manner and the measure of that power vouchsafed by the indulgence of the Prince I say in the third place that Laws made by private Colleges and corporated Societies according to the tenor of the power granted them by the King do oblige all the Members of the said Societies and of all those that are under their jurisdiction or Government and none but those directly of it self and by its own force but by the Virtue of the Kings supreme Majesty on whose authority they rely and from which they receive all their force they do in some sense and indirectly oblige all and every Subject of the whole Kingdome but there is not the one and same account nor degree of these two obligations For these Laws oblige those of their own Society to the diligent observation of them but the others unto this that they do no ways violate or diminish them or hinder the observation of them XXIX The fifth Doubt is of Ecclesiastical Laws in the Species of them And that new Laws may be made concerning Rites and Ecclesiastical things and persons and of all Circumstances of outward external worship belonging to Order Honesty and Edification besides those delivered by Christ and his Apostles in the word of God is a thing so manifest and consentanious to Reason that he will hardly clear himself from the suspition of a perverse and obstinate Spirit who being dry and sober will deny it but since the time that the Divines have divided themselves into several parties it cannot easily be agreed upon amongst them to understand unto whom it doth belong to make Ecclesiastical Laws The Papists who would have the Clergy to be exempted from all jurisdiction of the Civil Magistrate of which controversy we cannot here dispute do affirm that Bishops only and amongst them the chief Bishop especially whom they call the Bishop Oecumenical hath the right and power to make Laws which may not only oblige the Consciences of the Clergy but of the Laity also and that without any consent or licence of the politick Magistrate There are some who the person only but not the opinion being changed do embrace this Tenet as also many others of the Papists who notwithstanding do professe themselves most bitter enemies unto Popery but in the mean time the Disciplinary Reformers our new Davusses do disturb all things and having taken away all Power Authority and Ecclesiastical jurisdiction from the King they do challenge it only to themselves and to their own Classes and Conventions The Erastians on the other side and our new Reformers no lesse than they under the pretence of Reformation having altogether disinvested the Clergy of all Ecclesiastical
which is spoken of the people in the first sence to be accommodated to them in the latter There is no sober man will deny that the safety of the people that is of the whole Commonalty as that word comprehends the King together with the Subjects is the supreme Law But that the Safety of the People that is of the Subjects the King being excluded is the supreme Law there is no man will affirm it unless he be a fool or an Imposter A fool if he doth believe what he himself saith and an Imposter if he doth not believe it But if any man will seriously look into the original of this Aphorism I do believe he will more easily grant that it ought more precisely to be understood of the safety of the Prince than of the safety of the Subjects This saying so tossed up and down in the mouths of all men came to us from the Romans and was then used by them when their Republick did flourish most of all under a popular State And there is no great Reason that any man should wonder that the peoples Safety was the supreme Law with them with whom the people themselves were the supreme Power In the Judgment therefore of those wise Antients who were the first Authors of this Aphorism the safety of the supreme Power was the supreme Law of the people indeed in a Democracy but of a King in Monarchy XVIII I say in the second place it being admitted but not granted that this Aphorism is properly understood of the Safety of the People that is of the Subjects it is nevertheless perversly wrested to the prejudice of Regal Dignity which even so doth render its Power more ample and illustrious In this sence A King that gives Lawes and Statutes to his people will not be so bound up by his Laws that it shall not be lawful for him the Safety of the Common-wealth being in an apparent danger to provide for the Safety of Kingdom and people committed to him by God even against the words of the Law Not that it is lawful for Subjects under the pretence of the defence of their liberty to break all the bonds of Laws and fidelity and by an intollerable presumption to trample on the Authority of their King but that it is lawful for the Prince in the preservation of his own his Subjects Safety to lay aside for a while all strict observance of the Laws to make use a little of an arbitrary Right lest by a too unseasonable and superstitious Reverence of the Laws he may suffer both his own person and his people that are subject to him and even the Laws themselves to fall into the Power of his Enemies XIX I say in the third place it being again admitted but not granted that by this Aphorism some licence were indulged to the Subjects themselves as necessity so requiring to lay by the Laws to provide for the publick Safety yet from hence that cannot be inferred which may would conclude For it is not lawful for the Subjects when they find their liberty in any thing to be injured or when they cry out they are sensible of it to break through all Bars of Laws and Duty and without the knowledge of their Prince to have immediately their recourse to Arms and to fill all things with tumults seditions But when the defence of their Princes their own liberties against all forein or domestick Enemies upon an urgent necessity doth so call them to it that a pious a prudent man would make no doubt of it but if the Law-maker himself was present he would dispense with his own Laws it is then lawful for the Subjects to have a greater regard of the Common safety which is the supreme Law and the end of all Laws than to be fearful to prejudice any particular Laws which were therefore made to be subservient only to the publick safety XX. The sum of all is The safety of the Common-wealth that is to say of the Prince and of the Subjects is the supreme Law to which all inferiour Laws are so to submit that present necessity so requiring it is lawful for the Prince by the prerogative of his own power yea and it is lawful for the Subjects the consent of their Prince being according unto reason presumed to recede sometimes from the words of particular Laws to assist their indangered Country and to be careful of its safety as the supreme Law but so that unless the will and consent of the supreme power be expresly obtained or according unto reason presumed they are not to attempt any thing under the pretence of the publick safety and liberty but what the Laws do permit them to XXI There are not a few Doubts that are yet remaining which in some manner do pertain to this Final Cause as concerning Privileges and Dispensations and the Relaxation of the obligation in the danger of life and others of the same nature which unto some may peradventure appear not altogether to agree with the End of Humane Laws The Solution whereof I have thought it more expedient for to deferre unto another time although never so long than by too much prolixity to tire and to torment so attentive and so courteous an Auditory THE TENTH LECTURE In which that most vulgar Speech The safety of the People is the Supreme Law is more largely examined and unfolded that it may more rightly be understood 1 TIM 2. 2. For Kings and for all that are in Authority that we may lead a quiet and peaceable life in all Godliness and Holiness I At this time and place if peradventure you do remember it Courteous Readers did intend to finish compleat this Treatise concerning both the obligations of Conscience to wit the Passive and the Active In the unfolding of the former having in first place and in a Scholastical manner excussed the Definition of Conscience I was as elabourate as I could be in examining and discovering that proper and Adequate Rule of Conscience from the directions whereof it ought to exercise all and every one of its Acts both of Dictating and Judging It was then represented to you that the Holy Scripture was the principal part of that Rule we held forth but the Adaequate part was that Will of God which the School-men call the Will of the sign in some degree made manifest to every man whether first by an inbred light by Practical Principles preserved in the Synteresis and known by themselves which the Philosophers 〈◊〉 Common Notions and the Apostle the Law of God written in our hearts Or secondly by an inferred Light by some external Revelation partly extraordinary and private to some single persons by visions dreams c. at sundry times and in sundry manners Partly ordinary and made publick to all mankind in the written word Or lastly by an acquired light by conclusions rightly and duely drawn from those practical principles or from the written word of God or
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
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 that of St. Paul 1 Cor. 2. 11. which is the Theme and foundation of this present discourse What man knoweth the things of a man but the Spirit of man which is in him That is his own Conscience IIII. But most certain it is that the Latin word Conscientia Conscience and the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which in all things is most responsible to the Latin did both of them receive their deâ—ivations a sciendo from knowing but a praeposition being added to both the words in the pronunciation of them doth seem to imply more then can hereby be contained in the single word Science but several Authors do give a several signification of it To omit those two allusions that by many are alleadged which if we look on the nature of the thing it self may peradventure be retained as altogether not improper but if brought to the exactness of a lawfull examination will presently appeare but vain and not worthy to be insisted on viz. that Conscientia est quasi cordis scientia Conscience is no more than the hearts consciousnes And Conscientia quasi concludens scientia Conscience is as it were a concluding Science It is most certain that those two words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Conscientia beyond the bare notion of a Science have a certain order and relation of that science to another for such is the force of the two particles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Con that in their composition they imply a certain conjunction and an association of many things so that this word Conscientia or Conscience may be said to be conjuncta multorum scientia a conjoyned science of many things which two ways may be understood For it may be said to be the science of many things in respect of the subjects as the science or the knowledge of many men that do know as when many persons do know the same thing or in respect of the objects when it is the knowledge of many things that are known as when the same person knows many things alike Let the word Conscience be taken either in the one sence or the other the account of the word neither much borrowed nor incongruous may be given whether we look on the thing it self or the use and manner of speaking amongst approved Authors V. For in the first place when many men know the same thing they may be said to be conscious of it and to know it altogether So those whom Catiline had chosen into the society of his wickedness and were made partakers of his counsels were said to be conscious of that conspiracy And he is said to be conscious of the Kings secrets to whom his privy counsels are intrusted Ascitus in conscientiam facinoris saith Tacitus Drawn in into the conscience of the villany Mrrtial 12. 24. O si conscius esset hic Avitus saith Martial in his Epigrams Juven Sat. 14. O that this man were conscious of it and Conscia Matri Virgo fuit the Daughter was conscious to what the Mother did And Meorum omnium consiliorum periculorumque testis conscius et adjutor saith Cicero in his orations A Conscious witness and a helper to me in all my counsels and dangers I should here be infinite if I should collect whatsoever to this purpose I every where do meet with in the Authors of greatest reputation But that may serve which already is alledged unless peradventure you exact of me to produce something from the puddle of the Grammarians which may conduce to this purpose I will do it not that the authority of those men is so much to be valued but because in these things they seem as it were by right to arrogate a kind of preâ—eminence to themselves In the first place hear Nonius In hoc differunt saith he Scius conscius scius secum conscius cum alio scius est That is the knowing or scious man doth differ in this froÌ„ the conscious the scious knows by himself the Conscious is scious with another From this original of the word they who thought that Conscience was so called as one Science with another doe give this reason for their opinion that man not only knows what things he hath committed but he hath God who searcheth the heart and the reins to be a conscious witness and an inspector into all his works nay into his most secret thoughts And this is most certain though words be tongue-tyed and the Voyce be dumb Behold my witnesse is in the Heavens and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 my Record that is conscious of me is on high Job 16. 19. The blessed Apostle also St. Paul in the ninth of the Romans and the first when he had called on God to be the witnesse of the truth he was about to speak he presently subnecteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 my Conscience bearing me witnesse As if he should have said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Christ knows it and I know it with him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Christ doth testify it and my Conscience doth aâ—â—est it with him Let this therefore be the first reason of the derivation of the word that Conscience is so called because the deeds of Man are known unto God as well as to himself VI. In another sence the Conscience is called the conjoyned Science of many things as of Objects or of things that are known when a man knoweth many things at once or which strikes on the same string when he conjoyneth and joyntly applyeth the knowledges of several things that are in themselves distinct From whence proceedeth this second reason of the word which pleased much St. Thomas of Aquine and a great part of the Schoolmen and which seeming to be deservedly preferred above the other already mentioned doth bear no unprofitable light to illustrate the Nature and the force of Conscience which is that Conscience is so called because it addeth Science unto Science that is the universal knowledge or the knowledge of Law and Right to the particular knowledge or the knowledge of the fact by applying one unto the other I shall make this more manifest to you by one or by two examples in the first of Samuel the 24 Chapter and the 50 Verse it is said that Davids Heart did fail him after that in the Cave he had cut off the wing of Sauls Garment that is to say his Conscience did prick him for we may imagine that David thus reasoned within himself I know that I ought not to offer any violence to the Sacred Person of the King I know also that very lately I have done that which commeth very near unto violence I am afraid therefore that I have done that which peradventure I ought not to have done and I give thanks unto God who held back my hand from acting that which certainly I ought not to have committed In this manner also the Conscience of Judas the Betrayer did object unto him Thou knowest that thou oughtest not to betray thy Master
and thou knowest that most basely thou hast done it The sence and knowledge of a particular fact either committed or to be committed comming in this manner to the universal knowledge of Law and Right which is in the mind and being conjoyned and applyed and wholly reflecting on it there ariseth from thence all that which we call Conscience The words which by way of Reciprocation are expressed and are most frequent in this kind do confirm this derivation of the name of Conscience Isocrat ad Dem. of which nature is that of Isocrates 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Although you lye hid from others yet you your self will be Conscious to your self Horace 1. and that of Horace Hic murus abeneus esto Epist 1. Nil conscire sibi This is as a Wall of Brasse to be conscious of no offence And that of Virgil Virgil Mens sibi conscia recti A Mind which is conscious to it self of its own uprightnesse Anaead 1. And to conclude all of the same sence is that of St Paul 1 Cor. 4. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I am conscious to my self of nothing VII I do believe that it is now manifest to you from whence the word Conscience is derived and it is left to your choyce to preferr the one acceptation or the other or to receive them both with an equal approbation The other Reasons which the common Schoolmen according to their own capacities do produce are too weak to stop the progresse of this discourse of which there are many things that are yet remayning to be spoken I proceed therefore to open to you the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the cognomination of the word from whence there ariseth amongst grave Authors so wonderful a difference in the definition that as yet the controversy is high and difficult concerning the very first Term of the definition to find out what is the Genus of it To remove therefore all Ambiguity it is in the first place observable that there is such an affinity by nature of the Indowments of the mind viz. of Potentia's Habits and Acts and so near a conjunction so close a connexion according to the use and exercise of them that not only the appellations of words but the offices and real proprieties of every one of them are promiscuously and without any distinction attributed to one another and that not only in the Rhetorical expressions of the Poets and Orators and others the Professors of Humane Literature to whom a Liberty was permitted but even in the Dogmatical positions of the Philosophers and Schoolmen themselves who were denyed that happy elegancy Neverthelesse although it was alwayes accounted a great task in their own certain bounds to define and distinguish of things so united by Use and Nature yet as to the word Conscience which is a kind of Science and so named from it it will be no little advantage to us in this place a little more precisely to explain the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or cognomination of this word Science that so by the manifold use of the single word the ambiguity of the compounded may more rightly and more throughly be understood VIII In the first place therefore as the Names of Habits do familiarly passe into their Objects Science is taken in a double consideration formally and objectively And as the Divines do distinguish of Faith that Faith by which we do believe which is a Habit of Faith existing in the mind is one thing and that the Faith which we do believe which is no more than a thing believed by Faith and but the object of the former and extrinsical to it is another thing the first whereof may be called Faith formally and the or the but objectively so in the same manner we may distinguish of Science and consequently of Conscience that they are taken either properly and formally for the very Habit of the Mind by which we know something our selves or acknowledge it with others or improperly and objectively for that thing it self which we know and know that others do know it with us In which latter and improper sence the Law which is written in our Hearts and is as it were a rule of well living may be called Conscience And in this sence is that to be understood which is so often repeated in the Schools of Damascene that Conscience is the Law of the Mind when indeed Conscience is not properly and formally the Law of the mind but rather an object of the Conscience either adaequate or in part IX Secondly Seeing these three things Potentiaâ—'s Habits and Acts are pertaining to the Soul and although distinct in themselves they are yet ordinated to one another Potentia's as the natural vertues of the soul it self Habits as formes perfecting those Potentia's enabling them for the more ready the more pleasant exercising of their Acts and Acts which are the exercisings as much as the Potentia's as the Habits as the names of Science and of Conscience doe in some measure extend it self to all these For as the Carpenter is said to cut or hew first with his Axe as his Instrument secondly with the edge of the Axe as the formal disposition of the instrument and thirdly with the cutting or hewing it self as the use and action of the Instrument in the same manner the mind of man may be said to know First with the Potentia of knowing as the Instrument Secondly with the Habit of knowing as a disposition that brings that Potentia to perfection and thirdly with an actual consideration as with the use operation of the Potentia the Habit Science hereupon is taken in threefold respect Subjectively formally effectively First Subjectively for the Poteâ—tia in whom it is and which it is apt to bring to perfection as every form in some measure doth perfect its Subject For example when we say that the mysteries of Faith do exceed our understanding the meaning is that they exceed the measure of our cognitive power Secondly Formally the most usual signification of this word for the Habit of knowledge either innate or acquisite in the same sence we are said to know principles known by themselves and conclusions by a legitimate discourse of reason deduced from them and universally all things of which by the assistance of sence and reason we have any certainty Thirdly Effectively for the actual consideration of things before known In which sence to touch upon it by the way the words of St. Paul the Apostle in the 23 of the Acts and the 5 verse in the expounding whereof Interpreters have wonderfully perplexed themselves are absolutely to be understood Brethren saith he I knew not that it was the high Priest 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is I did not think I did not diligently enough consider of it As if he should have said Brethren pardon my just indignation if transported by the heat of a troubled Spirit I have spoken something more liberally
exclusively that is to say one and but one only The Apostle otherwise had made use of a very uneffectual argument to prove what he had propounded For he rebuketh those who unadvisedly did pass their judgments either on the persons or the deeds of other men as the invaders of their Rights Who art thou saith he who Dost judge another As if he should have said dost thou know thy self what thou art and what thou dost It doth not belong to thee to thrust thy sawcy Sicle into the harvest of another man much less boldly to fling thy self into the Throne of Almighty God If already thou are ignorant of it then know that it belongeth to him alone to judge of the Consciences of men to whom alone it doth belong to impose Laws upon the Consciences of men which none can do but God alone 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 There is but one Law-giver It is observable that the Apostle doth ascribe unto God alone the power of saving and destroying from whence we frame the second Argument He only hath power over the Consciences of men either for command or prohibition who hath power with unmerited Rewards to crown the well-doers and with just punishments to torment the transgressors but it is in the power of God alone the onely Law-giver to give Rewards and Punishments according to the quality of every conscience Therefore he alone hath a right and privilege over the Consciences of men X. It is thus proved again in the second place He who alone knoweth the internal motions of the Conscience he only hath the power of prescribing a Law unto them for the Law doth neither determine or judge of things unknown But unto God alone the searcher of the heart the internal motions of hearts and Consciences are discovered Therefore he alone hath the power of imposing a Law upon the Consciences which may oblige them From hence it is that the Laws of men do only bind the external motions of the body to an external Conformity from the knowledge and command whereof all internal motions and several hammers that strike upon the clocks of the mind and Conscience are altogether to be exempted And upon this account it was that not only holy men and endued with the knowledge of the true God such as were the three Captive young men amongst the Babylonians in the third of Daniel and the seven brethren of Maccabeus but many wise men amongst the Heathens did deride the threatnings and torments of Tyrants as exercising their violence not so much upon themselves as upon the outsides only and on the subburbs of them But let us consider what our Saviour Jesus Christ did think himself of these thing◠and what Counsels he prescribed to his Disciples concerning them Fear not them saith he that kill the body and after that have no more that they can do upon you but fear him who after he hath killed hath power to cast into Hell yea I say unto you fear him Luke 12. 3 4. As if he should have said Tyrants by the permission of God have power upon the Bodies but upon the Souls and Consciences of men they have no power no right at all the Laws can neither ordain nor afflict any punishment which doth belong to the inward man God hath only the prerogative of the Soul and Body and for the neglect of their duties can afflict punishments on both and condemn the whole man to everlasting torment XI In the third place it is proved by the condition and natural estate of the Conscience it self which as before I have expressed is so placed as it were in the middle betwixt God the Will of man as that which is usually and truly spoken of Kings and Emperours may as truly be verified of the Consciences of every man Solo Deo minores esse nec aliquem in terris superiorem agnoscere They are lesse than God only and on Earth do acknowledge no Superior That speech of the Emperour Maximilian the first is very memorable Conscientiis dominari velle est arcem coeli invadere To exercise a domination over Consciences is to invade the Tower of Heaven He is a plunderer of the glory of God and a nefarious invader of the power that is due unto him whosoever he is that shall claim a right to the Consciences of men or practice an usurpation over them Let the Bishops of Rome and the Canonists and the Jesuits who do flatter and cringe unto him all others take heed that they be not guilty of this so great a Sacrilege I would also have those admonished who do so submit their Consciences to the power of any creature which ought only to be subjected to God himself to be carefull lest whiles they conferre the Honour of that service to the creature which is due unto God alone they make a God of the Creature which at least is interpreted to be Idolatry From this first Conclusion thus proved there followeth this remarkable position That the proper Rule of Conscience is that which God the supreme Law-giver hath prescribed to it and besides that Rule there ought no other to be admitted XII The second Conclusion followeth which is That the next and most immediate Rule of Conscience although it be neither the Adaequate or the supreme Rule is that light with which the mind at that instant is endued 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Socrat ap Stob. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Joh. 1. 9. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nazian Orat 15. And this is the same light which some do call the light of Reason others the Law of the mind and which the Schoolmen following the Philosophers do call right or rectified Reason This is first proved by some places out of the word of God as Luke 12. 57. Wherefore even of your selves do you not judge that which is right They are the words of our Saviour as if he should have said You have the light within you infused into your minds from that true light which enlightneth every man comming into this world by the help whereof unlesse you will be wanting to your selves you can distinguish what is straight from what is crooked and what is just from that which is unjust The Text Rom. 2. verse 14. and 15. is very remarkable Quum Gentes quae legem scriptam scilicet non habent naturâ ea quae sunt legis faciunt Seeing the Gentiles who have not the Law viz. the written Law do by natue perform those things which are of the Law to wit they practice the Acts of Justice Prudence Fortitude and Temperance and of all other Virtues These men having not the Law are a Law unto themselves for they show the works of the Law written in their hearts their Consciences giveing witnesse thereunto and their thoughts either accusing or defending them By which words it is manifest that in the particular Acts of Testifying accusing and defending and in whatsoever Acts that already are committed by any
Churches do willingly acknowledge and to open a door to the Traditions of the Church of Rome and to take away all the force from the arguments drawn negatively from the Scriptures which the antient Fathers of the Church and the most learned of the Divines of these times do very frequently make use of I make answer that the Church of Rome doth derogate from the perfection of the Scripture in this consideration that in the matters of Faith and things necessary to salvation they do thrust in their unwritten Traditions to be received with the same reverence as the written word of God as if it were not enough for the sons of God to be wise unto salvation by having the new Testament conferred on them which is the Inheritance left them by their Father but they must also have the vain books inserted of humane Traditions But as for those who do dispute negatively from the Scriptures concerning things which are necessary to salvation either to be believed or practised let them make use of this argument as indeed they ought to do But there is no question here of the rule of Faith but of the rule of Conscience and not of the chief rule of it but of the Adaequate and not what is necessary for a Christian to believe or practice to attain unto the salvation of the Soul but what is lawfull for a pious and prudent man to do lawfully or to leave undone at such a time or in such a place The sum of all is that the holy Scripture is the Adaequate Rule of Faith and of things supernaturally to be believed as also of all moral actions so far as they are spiritual and ordained to a supernatural end and it is also the the Law of Conscience the Chief and supreme Rule for the putting of moral things in practice so that where the Scripture determineth of any thing universally either by the way of precept or prohibition it is not lawfull for any other Law whatsoever to stand in opposition to it but it is not so to be understood to be the only Law of Conscience that what is not commanded there to be therefore presently unlawfull And thus much of the third Conclusion XX. The fourth followeth The proper and adaequate Rule of Conscience is the will of God in what way soever it is revealed unto Men. Some call this the Law of God others the eternal Law the words differing in the sound but agreeing in the sence Every part of this Conclusion is to be weighed by it self In the first place I do say it is the will of God which by the Schoolemen though by some of them not rightly expounded and by others of them not rightly applyed is distinguished into Voluntatem beneplaciti and Voluntatem signi the will of the good pleasure and the will of the sign The first called the will of the good pleasure of God is that which God from all eternity did with himself resolve what he himself will do the other which is called the will of the sign is that by which God hath given us a Law by signifying what he would have us to do The first is called the will of God properly and univocally the other improperly and analogically The will of the good pleasure if it be lawfull to speak of the majesty of God after the manner of men is in some respect a Law unto God himself whereby he acteth for he always acteth that which is complacent unto him but it is not given to us by God to be a Law or to be a rule unto our Consciences or at the least for the putting of any thing into action In some respect indeed it may be said to pertain unto the Consciences in regard of sufferings but this is a posteriori from an after observation in this sence that in Conscience we are obliged with patience to endure all things whatsoever shall befall us after that by the event it is manifest to us that God would have it so For rectified reason doth dictate this unto us that we ought not to be displeased at the method of the Divine Providence who can will nothing but that which is most righteous It remaineth therefore Optimum est Deum quo Authore omnia proveniunt sine murmuratione concomitari Senec. Epistol 108 Placeat homini quicquid Deo placuit Idem Epist 71. that the will be the rule of our Consciences which is called The will of the sign For when God by prohibiting and by commanding hath signified what we ought to do and what we ought not to do it is our duties absolutely to conform our wills unto his will Many things amongst the School-men are with unprofitable acutenesse disputed on this Subject viz. Whether and how far the will of the reasonable creature in a thing willed is bound to conform it self to the will of the Creator When the whole matter as much as belongs to our business and the use of humane life may briefly in one word be dispatched which is That we are always bound to will that which God willeth that we should will Thus when God commanded Abraham to offer up his Son Isaac Although God in the will of his good pleasure would not have had that done which at the same time he commanded to be done as by and by shall appear by the event yet Abraham was bound to will the very same thing because God by commanding it did signifie that it was his will that Abraham should have a will unto it XXI I say secondly the will of God revealed unto Men because this revealed will is the formal Cause and Reason of the obligation For the will of God doth not oblige those unto whom it is not revealed And hence it is that the Gentiles to whom the Gospel is not preached are not bound to believe it or to have any faith in Christ for there is no man that is bound to that which is impossible And it is impossible for that man to whom the Gospel hath been never preached and who never hath heard any thing of Christ to believe either in Christ or in the Gospel seeing that the light of Reason cannot ascend so high according to that of the Apostle Rom. 10. 15. How shall they believe in him of whom they have not heard and how shall they hear without a Preacher And the same Apostle thinks it not meet that others should be judged by the Law but those only who have sinned in the Law Rom. 11. 12. Neither doth this suffize to bring an obligation upon the Conscience that the will of God is revealed to him unlesse it be revealed to him as the will of God in a peculiar reference to himself Insomuch that if any of the Gentiles who were Aliens should casually have met with the Books of Moses and by reading of them should observe the Commandements which are there given to the people of Israel he had not presently been obliged to the
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
written in the Hearts of men in the very same manner as the Lawes of Cities or oâ— the Prince are accustomed to be inscribed in Tables of Brasse For they have the same authority and estimation of a Law or of a Rule imposed by God upon us as the Will of the Law-giver signified in a publick instrument and exposed to the peoples view is adjudged to be a Law XXV This natural Law doth consist of diveâ— practical principles which notwithstanding are redâ—ced to one first and universal Law which doth contain the other This universal Law though but short is bipartite of two parts viz. Good is to be done Evil is to be avoyded In the same manner all the Commandements in the Decalogue are reduced to one Universal Law to wit the love of God and the love of our neighbour To this Universal Law conserved in the Synteresis there are other particular Laws subordinated which are derived from it as Conclusions are from Premises some whereof are of the first Dictate of Nature and next of all adjoyning to that principal Law others stand farther off and have only a Secondary relation and by the virtue of those which are more neere Those which are of the first dictate of Nature as soon as they are presented to our minds and cogitations they presently command our belief and by reason of the undeniable evidence of them they do inforce us to assent unto them for it is not lawful to doubt of the truth of them nor is it possible for any one who understands the sence of the words to erre concerning them for no sooner it is propounded that God is to be worshiped and no man to be injured but the mind presently is at rest and without delay assenteth to it but in the latter by reason of the difference which may arise from Circumstances it most often comes to passe that we both doubt and erre and the more remote we are from those first Principles the more prone we are to run into error For the first and universal Principles are so much the more certain than the posterior and the particular as they are the lesse circumstanced For by Circumstances and by descending as commonly it is spoken we oftentimes do fall into errors The precepts of the first kind are that Parents are to be honoured Children nursed the life of our neighbours to be preserved the pledge to be restored which as they are commonly and for the most part to be observed yet they are not absolutely and simply if the thing and place which might so come to passe should otherwise require it For the Commands of the Parents are to be despised in comparison of the Love of God and there may be a just cause of disclayming unreclaymed Children and taking away the life of our neighbour neither is the sword to be restored to the mad man Near unto this distinction is that distribution of Offices Cicer. lib. 1. Offic. in Cicero which he hath taken from the Stoicks for with them a right and perfect Duty which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is one thing and a mean or a common duty which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is another Wherefore that the Conscience may judge more rightly and more certainly what is the will of God so far as is pertaining to this part of the Rule of it it will be requisite to direct it to the most universal precepts that possibly may be had and to those first Axioms which are of themselves to be believed But because I must make haste to other observations I shall here put a period to my discourse concerning this Law of Nature and present you with that of Cicero in his lost books de Republica which by Lactantius 6. Instit 8. is expressely thus recorded Est quidem verò lex recta ratio naturae congruens diffusa in omnes constans sempiterna quae vocet ad officium jubendo vetando à fraude detereat Huic legi nec obrogari fas est nec derogari ex hac aliquid licet neque tota abrogari potest Nec verò aut per Senatum aut per populum solvi hac lege possumus Nec est quaerendus explanator aut interpres ejus alius Nec erit alia Lex Romae alia Athenis alia nunc alia posthac sed omnes gentes omni tempore una lex sempiterna immortalis continebit Unúsque erit communis quasi Magister imperator omnium Deus ille Legis hujus inventor disceptator lator cui qui non parebit ipse se fugiet ac naturam hominis aspernabitur atque hoc ipso luet maximas poenas etiamsi caetera supplicia quâ—e putantur effugerit The Law is right Reason agreeable to nature diffused into all constant everlasting which calleth unto duty by commanding and by forbidding deterreth from deceit This Law is not to be contradicted neither is it lawfull for any man to derogate from it neither is it possible that it should be altogether abrogated We cannot be discharged from it either by the Senate or the People It needs not an Expounder or Interpreter It will not bear one construction at Rome and another at Athens it will not be one now and another hereafter but being the same Law perpetual and immortal it includeth all Nations and at all times And there is as it were one common master and Soveraign Commander over all the one God the Inventor Discussor and Communicator of this Law whom whosoever shall not obey he shall fly from himself and be unworthy of the nature of man and for this alone shall grievously be tormented although he escapeth other punishments that are conceived A remarkable place and which so cleerly unfoldeth the force and nature of this inbred light that we need not to make any addition to it XXVI The second light which is conveyed into the mind as I have said doth come unto it from without and proceedeth from Divine Revelation to wit from that light which God hath held forth unto us in the holy Scriptures in which more fully he hath made known his will unto man that there nothing might be wanting which is necessary for the institution of his manners and the attainment of everlasting happinesse And the rather because the inward natural light as already I have shewed doth not suffice thereto Now this light differs from the natural light not only in its original but in its perfection First because it manifesteth the will of God in those things to which the light of Nature cannot attain Secondly because it ordinateth the moral actions dictated by the light of Nature to a higher end Thirdly because that whereas the Law ingraven in the mind is instituted by God as he is the Author of Nature This Law revealed in the word is instituted by him as he is the Author of Grace and Salvation Therefore where the light of nature is either weak or defective as it is
defective in those things which are beyond its Sphear of which nature are the mysteries of Faith and weak in those things which are a little more remote from those precepts which are most universal in those cases I say we must have recourse to the light of the word as to a light shining in a dark place 2 Pet. 1. 19. To the Law and the Testimony if they speak not according to this word it is because there is no light in them Ifa 8. 20. Thy word is a Lantern unto my feet and a light unto my path Ps 119. 105. If I should enlarge my self upon the perfection and the profit of this Law there would be no end of my discourse See on this Subject the nineteenth Psalm where there you shall find much in few words and concisely And the hundred and nineteenth Psalm where you shall find the same things in more words and more largely represented XXVII Moreover there are two parts of this Law the Law properly so called and the Gospel I do not here understand the Law and the Gospel in that sence as for the most part it is taken by Divines for the two Covenants made by God with man The covenant of Works and the covenant of Grace but in the more common acceptation for the Books of the old and new Testament which the Fathers not unaptly for this purpose have called the old Law and the new Law but both these Laws all the whole Law of Moses and the new Law of Christ for that part of it which containeth moral institutions is cryed down by the Antinomians the Anabaptists and Enthusiasts and other prodigious names of a generation of people of our age as altogether unprofitable and unworthy of the care and study of a Christian after he is come to be of age in Christ and annoynted with the unction of the Spirit They will admit of no Law but only the Law of Faith and the Dictates of the Spirit I am not at leasure now to confute them neither indeed is it very needfull seeing that the Apostle James hath long since so opposed the Monsters of such errours as if by some Prophetick Spirit he had on purpose undertaken the Confutation of them XXVIII The old Law which is called the Mosaical Law is distinguished into three parts the Moral the Ceremonial and the Judicial Of every one whereof many things are diversely disputed by many men I shall at this time passe them by and briefly propound unto you what I conceive of the obligation of them reserving in the mean time to every man his own Judgment I say therefore in the first place That no Law at all delivered by Moses doth formally directly and by its self oblige the Conscience of Christians as it is the Law delivered by Moses my reason is that every Mosaical Law as Mosaical was positive and a Law positive doth oblige none but those only on whom it is imposed Seeing therefore that the Law delivered by Moses was only imposed on the peculiar Nation of the Hebrews as may easily appear to any man that will observe but the beginning of it Hear Israel and the whole Addresse of the folowing discourse it cannot so appertain unto those who are out of the number of that Nation as by that account to oblige them because delivered by Moses But if any part of that Law doth now oblige Christians as certainly the Commandements of the Decalogue are obliging it commeth to passe by Accident and ratione materiae by reason of the matter not because Moses so commanded but because that which hath been commanded by him is either agreeable to the Law of Nature or confirmed in the new Law by Christ himself XXIX I say in the second place That the Ceremonial Law of Moses doth oblige the Jewes in their Consciences before the Gospel of Jesus Christ was preached to them but not other men unlesse those only who were Proselytes of the Jewish Religion and worship who consisting of two kinds Proselytae Portae and Proselytae Justitiae so called by the Jews that is to say Proselytes of the Gate and Proselytes of Righteousnesse were obliged to the observation of the Ritual precepts Those of the former kind were obliged to the fewer but those of the latter as the Jews themselves were obliged to the observation of them all Now from the time of the Death and Resurrection of Christ since the Gospel began first to be preached to the Jews and afterwards to the Gentiles until the eversion of the Temple of Jerusalem and the Jewish Common-wealth this Law indeed was dead if we love to speak after St. Augustine but not deadly which is to say that it had lost the force of obliging but the Rites and Ceremonies delivered by Moses were not altogether unlawful but left as indifferent to the observation of every man so that it was lawful for any one according to the emergency of the occasion to use the freedom of his own will and to use them or not to use them a due respect being always had to Prudence and Charity And that this was the sence of St. Paul is so manifest both by his constant Doctrine and his Practice that there needeth no proof of it And after the eversion of the Temple it was spoken by diverse men that this part of the Law of Moses was not only dead but mortiferous which unlesse it be rightly applyed and with a prepared Distinction I am affraid will be found to be more wittily than solidly expressed For all Ceremonies are not alike to be esteemed But those which concern Order and Decency are wisely to be severed from those which were the Figures of Christ to come for those figurative Ceremonies which were instituted by God to be Types of Christ our Redeemer to come in the Flesh such as were Circumcision sacrifices and many such like became certainly of no use after Christ did really fulfill all things which were typically figured in those Ceremonies and sufficiently declared to the whole world by the Preachers of his Gospel that all those things were rightly fulfilled they are therefore to be taken away not only as dead and rotten but are most carefully to be shunned by every true Christian as deadly and pestiferous and above all things it must most precisely be taken heed unto that they be not observed with any opinion of necessity according to that Gal. 5. 2. I Paul say unto you if you be circumcised Christ will profit you nothing But those Ceremonies which pertain only to the outward Decency in the solemnity of the Divine-worship although peradventure it were better not to use them where a just cause of offence may be given yet they are not simply to be condemned as unlawfull upon this bare account that they are a part of the Mosaical paedagogy XXX I say in the third place That although many do distinguish betwixt those Political Laws of Moses which were of a common right of which they
assign some Notes and Critisms and betwixt those which were of a particular right it is not necessary that any such distinction should be made Nay we may roundly affirm that those Laws of Moses which are called Political or Judicial do none of them oblige Christian Magistrates to a strict observation of them but it is lawfull for them according to their own discretion and as they shall find find it expedient for the safety and profit of the Common-wealth either to revive them into power or to make them of no effect XXXI I affirm in the fourth place That the moral Law delivered by Moses that is to say the praecepts of the Decalogue or the ten Commandements do oblige all Christians as well as Jews to the observation of them All Protestants that I do know of do with one mouth acknowledge this truth Bellarmine therefore doth us the greater injury who feigneth that we do make Christian liberty to consist in this not to be bound in Conscience to be subjected to any Law and that Moses with his Decalogue doth not pertain unto us Let him see how he can clear himself of this scandal and vindicate those of his part from this crime if we are in it For the Controversie amongst his School-men is agitated Whether Christians are bound to the praecepts of the Decalogue only as they are the Declaratives of the Law of Nature or as they were also delivered by God to Moses and by Gods Commandement given by Moses to the people of God and transmitted into the holy Books Some there are of them that do deny the one others that do affirm both And in our Churches the same diversity of opinions is to be found if it be not rather a diversity in words than in opinions For seeing they amongst themselves and we do agree with them in this which is the main of all that the Moral Law which is delivered by Moses and is contained in the precepts of the Decalogue hath the power to oblige the Consciences of Christians it will peradventure be not worth our labour from whence it doth obtain that power to oblige In my judgement they speak more unto the purpose who say that this Law of Moses doth not oblige Christians formally and as it is delivered by Moses but onely by reason of the matter as it is the Declarative of the Law of Nature and it receiveth therefore all its force of obliging not from Moses bringing or delivering it but from the Dictates of the Law of Nature which God in the first Creation did inspire into our minds and after the Fall would have it to remain in them as the Remembrancer of his will And this may suffice to be spoken of the old Law or the Law of Moses XXXII The new Law or the Law of Christ that is to say the Gospel doth contain these three things 1. Mysteries of Faith to be believed in which chapter I comprehend the promises of God by Grace 2. Sacred Institutions Ceremonial and Ecclesiastick And 3. The Moral Precepts of which I speak and universally of all of them That the Gospel obligeth none but those only who are called those only to whom it is preached For where there is no Law there can be no transgression for moraly especially in Supernaturals it is the same thing Non esse et non apparere not to be and not to appear or not to be so sufficiently propounded as it may be known The words of our Saviour are expressly to this sence Ioh. 15. 22. If I had not come and spoken to them they had not had sin that is they had not been guilty of despising the Gospel But it obligeth all men to whom it is preached to an obedience as well of Faith as of Life so that we are all bound to whom the Gospel is preached both to believe in Christ as our Redeemer and to obey him as our Law-giver And whosoever shall fail in the performance of these two things shall suffer everlasting punishment for the neglect of his duty XXXIII I say in the third place That the Christian Church is obliged to the Sacred Institutions that is to the preaching of the word the administration of the Sacraments the Ordination of Ministers of the Gospel and the exercise of the Keyes as well of Knowledg as of Power it is bound I say in all those things which pertain to the essence of them according to the institution of Christ and the Apostles so that it is not lawful for the Church much lesse for any particular congregation or person either willingly to diminish or to change any thing at all therein But the external circumstances of the Sacred Institution are so free that any particular Church may determine of them according to Time and Place and to the custome of the People of God and as it shall seem most expedient to Edification XXXIV In the third place I affirm That the Moral Precepts of the New Testament are the same according to their substance with the Morals of the Old Testament and they are both of them to be reduced to the Law of Nature which is contained in the ten Commandements as omnia Entia realia all real Beings are reduced to the ten Predicaments But the Precepts of Christ in the new Law as the holy Fathers of the Church do every where acknowledge are in many things far more excellent than the Precepts of Moses in the old Law not onely in that respect that they are propounded more fully and clearly but because they ascend also higher and do advance the true Christian to a more eminent degree of perfection and that with most effectual inducements on both sides the past Example of Christ being propounded to him on the one side and the inestimable reward to come in the Kingdom of Heaven on the other And this most clearly may appear in those two great Duties of a Christians life commanded in the new Law viz. of loving our enemies and taking up the cross For as some have dreamed these are not so onely to be esteemed as if they were onely Counsels to a more perfect life propounded to all men under the condition of a more large reward and oblige no man under sin and punishment but those onely who by a vow have obliged themselves to the observation of them But they expresly in themselves are Precepts and properly so called and universally obliging to the observation whereof all those who profess the Name of Christ are bound under the guilt of the most grievous sin to wit the abnegation of Christ and the punishment of eternal damnation unless they truly do repent And thus much concerning the second Light of the mind XXXV The third remaineth which we call the light acquired which surely is nothing else but an addition or increase of that light whether of Nature or Revelation which was before in the minde to some more eminent degree of clearness as when the will of God the
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
of Nature are said to be the sins of Nature In the second place you are to know that the effect of this Law that is the obligative power of it is grounded on the Will and the power of the Lawgiver so that to speak properly the Law it self doth not bind so effectually as the Will and Power of the Law-giver by causing and inducing an obligation by the means of the efficient Cause but it may be said and indeed usually so it is that the Law doth oblige terminatively that is as a Term of obligation and by the vertue of an exemplar Cause because it is that to which a man is so obliged that he may work according to the Rule of it as an Artist in working is directed by the Copy that is propounded to him In the third place it is to be observed that to oblige the Conscience is so to bind a man up unto obedience under a mortal fault as the Schoolmen speak it that if he prove disobedient he is not only lyable to a temporal punishment either ordained by the Lawes or to be inflicted according to the sentence of the Magistrate but he is deservedly checked by his own Conscience as guilty of the neglect of his Duty and thereby of the Anger of God contracted on him V. The sense therefore of the Question is Whether Humane Lawes have the power to oblige the Consciences of those men to whom they are exhibited in the same way as I have now explained amongst the Protestants Calvin doth deny it as Bellarmin at least doth object against him it is denyed also by Beza and many others Amongst the Papists it is denyed by Gerson Bellarmin himself confessing it and by Almain Bellarm. 3 de laic 9. And as some affirm by Navarrus Amongst the Protestants again it is affirmed by Musculus Ursine and others And amongst the Papists it is confirmed by the Jesuits and a great number of the Schoolmen Some there are who do distinguish on it Rom. 13. as David Paraeus and others And it must needs indeed be acknowledged if by the heat of too much opposition and the affectation of contradiction they had not on both sides erred this controversy had long ago been cast out of the world In disputations such as these I oftentimes do call that to mind which when I was a young man I did read in Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It is manifest that it is so but not why another doth dispute it so In which place he disputes An principia sunt contraria Whether Principles are contrary An detur infinitum Whether there be an infinitenesse or not and the like And therefore in these doubts for this is the true sense and reading of that place in the third of the Physicks we had more need of an Arbitrator who may reconcile both opinions differing rather in shew than in substance than of a Judge who while he determins one part doth condemn the other And this indeed would prevail much in a great part of the controversies which with such contention of minds and bitternesse of stile are now amongst parties carried on in the Christian world if Divines would not suffer themselves to be swayed rather by faction than affection Indeed in this present question as far as I can judge by the perusal of those few books which the infirmity of my health and the streightnesse of my time doth permit to look over the height of the Spirit of contention being on both sides taken away they neither of them do seem to me to be in any great errour but I conceive that those who affirmatively have defined this question to speak freely what I think have spoken more commodiously to the institution of our lives more carefully safely to avoid the danger of error and more properly to the form of sound Doctrine than those who have defined it negatively But that more distinctly I may propose unto you what I conceive is to be determined in this question I will as briefly and as cleerly as I can with some Conclusions comprehend and terminate the whole Subject I will confim my own opinion with some reasons as need shall require and I will answer the arguments which commonly are alleged by the adverse party VII The first Conclusion is that Humane Laws if injust do not oblige unto obedience The thing is manifest enough if the words be rightly understood and that no man might give a misunderstanding to them we are to be advertised that a Law may be said to be unjust either in respect of the End or the Manner or of some Circumstance extrinsecal to the Law it self or in respect of the Matter and Object of the Law For it differeth if that be commanded which is manifestly unjust or whether that which peradventure is not otherwise unjust be yet unjustly commanded That kind of Injustice which adhereth to the Law it self per se that is of it self in respect of the thing commanded doth take away the obligation but it taketh not away that obligation which commeth unto it extrinsecally and as it were by accident that is to say by the fault of the Commander For suppose that a Prince should by a Law made command something to be done the doing whereof of it self were not unlawfull to be done or should forbid that to be done which were not simply necessay And suppose withall there should be no such just cause why he should command this or forbid that being induced to it either by the desire of filthy Lucre or the meer Lust of exercising his Tyranny or by some other depraved affection of his mind this Law is unjust indeed on the part of the King that did command it but the Subject neverthelesse is obliged to the obedience of it The Reason is because that Injustice doth hold altogether on the part of the party commanding and not of the thing commanded So that although the King could not without sin make such a Law yet the Subject without sin could perform that which by that Law is commanded And whatsoever the Subject can perform without sin he is bound if commanded to perform by the Duty of obedience Let the Prince himself look to it by what Counsel or Intention â—e inacted such a Law It doth not belong to me who am but his Subject to examine it neither shall it be imputed unto me if he hath offended in it but as long as nothing is commandmanded but what Lawfully may be performed it shall be imputed to me if I am wanting in my Duty and shall not obey him VIII Moreover I add this also if the Law it self either in respect of the Object or the Matter be peradventure unjust and grievous to the Subject as for examples sake if he demands the payment of a greater Subsidy than the occasion doth require the Conscience of the Subject is not here freed from the obligation But here again we are to distinguish For a thing may be
said to be unjust either as it is unfit or grievous to be born or unlawful to be done In the first Interpretation if it be unjust what by the Law is commanded that is if it be unequitable and not dishonest yet if it be done it is the fault only of him who doth command it He that obeyeth the Command is so far from fault that he should be a great Transgressor if he did not obey it But in the latter sense if any thing what is commanded be unjust that is not only grievous to be born but also shamefull to be done and notwithstanding it is done the Sin lyes heavy on both First on the Magistrate who commanded an unjust thing Secondly on the Subject who acted an unlawful one The sense of the Conclusion is this Wheresoever the Law by its Command doth forbid any thing to be done which is so necessary that it cannot be omitted by the Subject without Sin or wheresoever the Law doth Command any thing to be done which is so unlawful that iâ— cannot be put in execution without Sin that Law doth not oblige in Conscience IX My first reason is De jura praelec 2. Because as elsewhere I have fully explaned there is no obligation for an unlawful Act. Sect. 13. Secondly because as there also I have expressed the first Obligation doth prejudge the following insomuch that a new obligation contrary to the former cannot be superinduced Now any Law commanding a thing unlawful as homicide Perjury Sacrilege or forbidding a necessary duty as the worship of the true God or the performance of our Dutyes to our Prince or Parents c. doth exact that of us which is contrary to our former obligation by the vertue of which divine Precept we were before obliged therefore that humane Law cannot induce any obligation on us The third Reason is Because that no man can at the same time be obliged to Contradictories but if that Law were obligatory it would oblige to the performance of that thing which the Law of God at the same time doth oblige to the not performance of it Now to do and not to do are Contradictories The fourth Reason is deduced from the examples of godly men who have been always so instructed by the principles of their Faith that with a cheerfull spirit they have undertaken and performed the grievous but not dishonest Commands of the Emperours But if any thing though by the authority of Law was required of them which was against Faith or good manners or any ways repugnant to common honesty they openly and couragiously did deny the Command and for the fear of God despised all humane Laws and institutions The Decree being made at Babylon that the concent of musick being heard they all should worship the great golden Image which the most mighty monarch had set up and a most severe punishment threatned to those who should do otherwise the three young men of the Hebrews would not suffer themselves to be obliged by that Law Dan. 3. Because an unlawful thing the worshiping of an Idol was commanded In the Law again of the Persians it being commanded that no man for certain days should make a Petition to any God or man for any thing but to the King of Persians only Daniel did not obey that Law but as his Custom was at his set houres he prayed unto God Dan. 16. And Peter and John being forbidden to speak any more in the Name of Jesus they not only disobeyed the Command but confidently answered Whether it be right in the sight of God to obey you rather than God judge yee Acts. 4. The Reason indeed was because the things that were forbidden were necessary viz. The worship of the true God and the preaching of the Gospel committed to their Chatge X. The second Conclusion The Law of man prohibiting a thing simply evil as Theft Adultery Sacrilege or commanding a thing good and necessary as the worship of God the discharge of Debts the Honour of Parents doth induce a new obligation in the Conscience My first reason is because the proper Cause being given the necessary effect of it will follow unless it be hindred by some other means But an obligation is so necessary an effect of the Law that some have thought that the very Name of the Law hath received its derivation from it as already I have menâ—ioned And nothing seems to be here assigned which may hinder the consecution of its effect The second reason is a Minori ad majus from the Less to the Greater By the confession of all men a Law prohibiting a thing otherwise Lawful or commanding a thing otherwise free doth oblige therefore much more prohibiting a thing unlawful or commanding a thing free But something there appears that may be objected to both these reasons viz. Non esse multiplicanda Entia sine necessitate Beings are not to be multipled without necessity For every man by the power of the Divine Law being obliged to the performance of what is necessary and the eschewing of what is unlawful the same obligation doth exclude that which we think to obtain by humane Laws as superfluous as water praeexistent in a full vessel doth hinder the infusion of new moysture And it seemes that two obligations to the same thing can no more be admitted in one Conscience than can two Accidents of the same Species in one Subject To this I answer that it is usuâ—ly spoken and indeed truly enough Obligationem priorem praejudicare posteriori The former obligation doth prejudice and take place of the posterior which Argument we our selves have even now made use of for the confirmation of the former Conclusion But this Saying hath place only amongst those obligations which are Destructive to one another and whose effects have so great a Contrariety and Repugnancy amongst themselves that one being admitted the other of necessity must be taken away Notwithstanding this doth not hinder but that another and a new obligation may come unto the former provided it be of the same reference and can be consistent with it Neither in this consideration is that of any moment as is alleged of water in a full vessel for the impediment why the full vessel admits of no more liquor doth not consist in the part of the liquor but proceeds from the incapacity of the vessel and the nature of the place which cannot at once receive more bodies And nothing hindreth but there may be many Accidents of the same Species in one and the same Subject provided they be Relative and not Absolute as suppose that Socrates had ten Sons there must be in Socrates ten Paternities for relations are multiplied according to the multiplication of their Terms And we said but even now that the Law did oblige according to the manner of the Term. Therefore seeing that every Law according to the nature of it and as it is a Law is an Inductive to an obligation there will be so
written Law of God although both of them by themselves are most perfect in their own kind and being joyned do contain the particular Principles of supernatural faith and the general Principles of things to be done accommodated to all parts of life yet neither of them doth descend to all those particulars which either may be or for the most part are necessary for the preservation of Peace and Order in Cities and Governments For examples sake the Law of reason which is the same with the Law of Nature doth dictate and the Scripture also in the next verse of this Chapter doth teach that Tribute is to be paid for the maintainence of Princes and of the charges of Wars and other publick uses but unlesse it be by a Lâ—w determined how much is to be payed and by what proportion and by whom and in what space of time and other circumstances either thâ—â— payment will miscarry or not be made timely enough or else it will not be enough for the use of the Common-wealth If you say that by this Argument the necessity of Laws is proved indeed but the obligation of them is not determined for Subjects may be enforced to their duties by the â—â—nunciation of punishments We confesse indeed the truth of this if we should go no higher but it furthermore we shall consider without selves how headlong man is burryed to forbidden sins and how bold to venture through them all how 〈…〉 a Keeper Fear is of Duty unlesse that withall there be some sense of Religion to contain men in their duties it will most easily appear how wisely Almighty God the most prudent Moderator of all things hath provided for the affairs of men who hath endued their Consciences with a certain religious reverence to the Law which doth grow up together with their use of Reason From hence it comes to passe that amongst the Heathâ—â—â— ignorant of the true God there were scarce any one found of the antient Legislators but pretended to the people that the Laws which â—e made were delivered to him by some God to 〈…〉 need not give you the names of 〈…〉 Lycuâ—gus and many others whoâ— the 〈◊〉 make mention of it being a truth so well known to all XXVII The third argument is this What is to be done for the Lord we are bound in Conscience to the performance of it But we are bound to be subject to Humane Laws rightly established that is so constituted by the supreme power or by others receiving their Authority from it for the Lord â— Pet. 2. 13. Be subject to every Ordinance of man for the Lords sake whether it be to the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Supreme which sufficiently expounds the meaning of St. Paul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Higher Powers in the first verse of 〈◊〉 Chapter or unto Governours as unto them that are sent by him c. And that these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For the Lord or for the Love of God as the French Translation hath it doth imply the obligation of Conscience is manifest in the first place by the use of the same expressions in other places of the Scripture as Eph. 6. 1. where speaking of the Duty of Children towards their Parents the words of the Text are Liberi obedite Parentibus vestris 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Domino Children obey your Parents in the Lord And by the Duty of Servants to their Masters in the same Chapter v. 7. With good will 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 serving the Lord and not men which in the third of the Col. v. 23. is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as to the Lord and not to Men as if he should say For Conscience and not for Wrath only or for the fear of God rather than the dread of Men. It is manifest Secondly from the following words in that place of St. Peter 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for so is the will of God And â—o St. Paul in the said sixth chapter of the Ephesians and the sixth verse speaking of the Duty of Servants he exhorts them to obey their Masters in the sincerity of Heart 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 doing the will of God from the Heart Now the will of God is the very same Rule of Conscience which I have said to be the Rule Adaequate XXVIII The fourth Argument What Natural Reason doth so prescribe to be done that both the fault and the guilt of the fault are contracted if it be not done we are without all doubt obliged in Conscience to the doing of it For since the sense of Sin pertaineth to the Conscience as also doth the fear of Punishment which ariseth from it whatsoever it is that the Mind rightly conceiveth doth induce the stain of a fault and a guilt of punishment for that fault it doth directly appertain to the obligation of the Conscience Now Natural Reason whose Judgement cannot be indirect doth so far command us to obey Humane Laws that if that obedience be not performed we are immediately conscious to our selves that it is meerly by our own fault that we fayl in that Duty XXIX The fifth Argument â—he Violation of that which necessarily draweth along with it the Violation of the Laws of God doth oblige the Conscience because no man with a safe Conscience can violâ—te the Law of God which is the Rule of the Conscience but the violation of every particular Law solemnly constituted by Men doth necessarily draw along with it the violation of the Law of God to wit of that General Commandment by which God commandeth obedience to the Magistrate Therefore the said Violation of the particular Law of Men doth oblige the Conscience XXX The sixth Argument We are bound in Conscience not to Act that which if it were acted is in a manner to resist God himself For we are bound to be subject and to submit our selves unto God and therefore not to resist him for Subjection and Resistance are contrary unto one another neither can any Man at the same time be subject unto and resist the same person But not to obey Humane Laws solemnly constituted is interpretatively to resist God For he who obeyeth not the Laws doth disobey the Legislative power of the Magistrate which whosoever he is that doth it the said power being ordained by God he doth oppose himself against Gods Ordinance and by Consequence interpretatively he doth oppose God himself which is the Determination of St. Paul in the second verse of this chapter and from whence he orderly concludes the necessity of Subjection 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 â—ccording to Conscience in this veâ—se XXXI From what hath been already spoken it will be no great difficulty to answer to the Arguments which commonly are objected by the Adversaries to this Truth The first and chiefest whereof is taken from Christian Liberty and to the Confirmation of it many places of Scripture are alleged with much pomp circumstance which seem to adstipulate to that Liberty
And many are the objections w ch from hence do take their Rise They allege it is written by St. Paul 1 Cor. 7. 23. Yee are bought with a price be yee not made the Servants of men And agâ—in Gal. 5. 6. Stand firm in that liberty in which Christ hath set you free and be not intangled again with the yoak of bondage And again Col. 2. 16. Let no man judge you in meat or drink c. and other places to the same effect They dispuâ—e also that it is not likely that Christ at last should have freed us so from the positive Laws of God himself which were certainly most just to leave us captivated under the slavish Bondage of the Laws of Men. XXXII I will answer to all these places but I would have you first preadvertised seeing that there are many Texts and heads of Christian liberty that we diligently do take heed not too rashly to confound them neither rudely and unskilfully to wrest and cite those places of Scripture which pertain to one kind of Liberty to another kind to which they do not belong which transition to another kind is not only the perpetual and Solemn vice of the Antinomians and the Anabâ—ptists but of many others who would be esteemed the Reformers of this age and this as they often put in practice in other disputations so most especially in those where the debate is concerning the Rites of the Church having thus preadmonished you of their Errors I now proceed to the solution of their Arguments In that Text to the Corinthians the Apostle would exhort the faithful that in whatsoever place God had constituted them and with whatsoever gifts he had indued them that contented in that Station they would modestly contain themselves within their own limits measuring themselves by the gifts and calling of God and acordingly accommodate their lives and actions whether they be servants or free and not so inslave and emancipate their Consciences to the Judgment and command of any Man as wholly to depend upon his Will and Opinion but being mindfull that he is the servant of God and of the Lord Jesus so to study to please men and to be subservient to their affections and commands as to do nothing unworthy of a man who professeth himself to be the Servant of God and Christ And this being the certain sense of the Apostle in that whole discourse we may most truly conclude from hence that we ought not to be obedient to the pleasures of Masters Parents or Princes or any Mortals whatsoever if they command any thing to be done which is wicked or unlawful for instead of being the Servants of God this were to make themselves the Servants of Men But he who out of Conscience doth obey the just honest and profitable Constitutions of Men is so far from being thought that he is therefore the Servant of Men that by the two chiefest of the Apostles he is expressely said to serve the Lord God and not Men. Eph. 6. 7. Col. 3. 23. and 1. Pet. 2. 16. In this Text To serve the Lord and not Men the particle of Negation as usually in other places is taken comparatively that is to say rather God than Men he serveth God for himself and Men for God He serveth Men as he performeth what is commanded by them and he serveth God as he doth it out of the Conscience of his Duty XXXIII That other place to the Galathians is best of all to be understood by the whole scope of the Epistle Some false Apostles in the Churches of Galatia being either Jews or Judaizing Christians did violently contend contrary to the institution of the Apostles in the Council at Jerusalem that the Gentiles newly converted to the Faith should not only be baptized but circumcized also And those Impostors as their custom is under the pretence of piety and a wicked diligence amongst the credulous vulgar did so wonderfully prevayl that they had drawn many into so great an errour that they thought they could never attain unto everlasting happinesse unlesse they suffered themselves to be circumcized The Spirit of the blessed Apostle not induring this wretched and growing Imposture doth inveigh against the grossenesse of the error of it with more than ordinary Indignation throughout the whole course almost of the Epistle And amongst other Arguments he admonisheth the Galatians of that liberty by which Christ after his comming did free his Church from the unprofitable burden and yoak of the Mosaick Ceremonies and doth exhort them constanly to maintain the liberty obtained by the death of Christ and not to stoop their necks again unto the yoak of slavery which they should altogether do if they should believe the ritual observation of the dead letter of the Law to be necessary Now how incongruously this is by the Anabaptists applyed to the Laws of Men profitable and necessary for the Commonwealth from which the Scriptures do no where tell us that Christ hath freed us he is wilfully blind that doth not discern it XXXIV The third place taken out of the Epistle to the Colossians doth not at all appertain to Humane Laws rightly constituted concerning things of a middle nature but to the Doctrines of Impostors who dogmatically propounded to the people of God some things to be necessary which God never commanded which was the Custom of the Traditionary Pharisees whom Christ Mat. 15. reprehends upon that account for making the Commandements of God of no effect by their Tradition or clean contrary they as dogmatically did forbid other things as unlawful which God never did prohibit injoyning the people as to such and such things Touch not taste not handle not The Apostle admonisheth the Colossians to have a care of such dogmatizing Teachers and not suffer any snare to be thrown upon their Consciences by these Impostors Magistrates therefore in a political Government do not offend who in things of a middle nature do either command or prohibit any thing to the people for Profit Honesty Decency or for Orders sake but without any opinion of necessity on either side which belongeth to the thing it self that is commanded or forbidden Those pittiful Ministers I may more truly call them Magistrates so Magisterially they do pronounce all things do rather offend who so importunately vex and inveigh against the harmlesse Laws of Magistrates and exercise a Tyranny oâ—â—er the Consciences of the people and whatsoever is distastful to them is presently condemned for Impiety or at least for Superstition XXXV That which in the fourth place they do allege thaâ— because Christ hath freed us from the positive Laws of God therefore much more from the Laws of Men is in many respects erroneous and absurd For in the first place it is not truly said that Christ hath freed us from the positive Laws of God by which we never were bound For the positive Laws of God or Men do only oblige those on whom they are imposed Now those Laws of
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
Duty so from a double Duty there ariseth a double Obligation for every Duty doth infer an Obligation and every Obligation doth suppose a Duty Therefore one kind of the Obligation of Humane Laws is that by which Subjects are bound to obey the precepts of the Law it self and the other by which they are bound to submit themselves to the power of the Law-giver one of the Obligations belongeth to Active Obedience the other unto that Obedience which is called passive and to which we give the Name of Submission III. If it be here demanded how farr Humane Laws can oblige the Consciences of the Subject It is to be said in the first place that all Laws made by one invested by a lawful Power do oblige to Subjection so that it is not lawful for a Subject to resist the Supreme Power by force of Arms whether things just or unjust be commanded This wâ—â— evermore the mind and practice of the Christians in the first Age of the Church living under the most grievâ—us Tyranny of the greatest Enemies to the name of Christ to make no mention herein of the Conduct and the instinct of Nature and the light of right Reason this is most manifest by the Doctrine of the two chiefest of the Apostles For so Peter the Apostle of Circumcision doth diligently instruct the Jews And so Paul the Doctor of the Gentiles doth as carefully instruct the Gentiles St. Peter in the first book and second chapter commands Servants to be subject to their Masters not only good and gentle Masters but those severer ones who would punish them with Scourges when they had not deserved it Saint Paul Rom. 13. doth urge in many words the necessity of Subjection but granteth unto none the Liberty of Resistance be their case or their pretence never so good In the second place I say That although this Subjection is simply necessary yet it is not satisfactory as to Duty unlesse the command of the Law be obeyed where it can be done without Sin And therefore the Subject is bound to Obedience in Conscience in all things that are lawful and honest Hence it is that this word be Obedient is so often and so expressely inculcated by the Apostle Eph. 6. Col. 3. and in other places In the third place I say Where the precept of the Law cannot be observed without sin if the Subject shall patiently submit himself to the Power of the Law-giver he hath satisfied his Duty and is not obliged in Conscience to perform that which the Law commandeth nay he is obliged not to do it for there can be no Obligation to things unlawful It is alwayes necessary therefore to be subject but not alwayes necessary to obey IV. Furthermore seeing both are certain that the Consciences of Men are free Servitus in totum hominem uon descendit Sen. de Bencf 20. and ought to be so which Liberty no Humane Power can or may infringe And that an Obligation is a kind of a Bond and doth induce a necessity which seemeth to be opposite and to fight with just Liberty for neither is he any wayes free who is bound neither can he be free to both who by some necessity is bound to either that it plainly may appear that this Obligation of Conscience of which we now do treat may consist with the just Liberty of Conscience we must necessarily in this place give you another distinction which is that the Precepts of Humane Law may be taken two wayes either formally for the Act it self of giving the precepts or materially for the thing precepted If the Law-giver therefore should intend an Obligation or impose on the Subject a necessity of obeying from giving the Precept of his Law taken materially that is from the necessity of the thing it self which is precepted which notwithstanding in the truth of the thing was not necessary before that Law was made he in that very fact should lay a force upon the Conscience of the Subject which should be repugnant to the Liberty of it But if he should derive his Obligation from giving the precept of his Law taken formally thâ—â— is from the legitimate Authority with w ch he himself is invested that gives it a moral indifferency of the thing precepted in the mean time remaining and in the same state in which it was before the Law was made although the obligation followeth which imposeth on the Conscience a necessity of obeying yet the inward Liberty of the Conscience remaineth uninjuried and intire V. If this seems obscure to any I will illustrate it unto him by an Example A Civil Law being made that no man should eat flesh during all the time of Lent if the Law-giver either in the preface or in the body of that Law should signify that he laid this Command upon his Subjects because it were ungodly and unlawful for them in that time to eat flesh This were to throw a Snare on the Consciences of his Subjects as much as in him lay to weaken their Liberty But if expressely he should signify that the thing being otherwise free in it self he did so ordain it for the profit of the Commonwealth that his Subjects according to the Example of the antient Church should thereby take an occasion to exercise a more abstemious and severer Discipline or if by the words of the Law it self or elsewhere it might appear that the Law-giver intended not by that Law to fasten any opinion of necessity on the thing so commanded there would on this account no injury be done to the Consciences of the Subjects and the liberty thereof For there is a great difference when one thing is commanded by the Magistrate because it is thought to be necessary oris prohibited because it is conceived to be unlawful And when another thing begins then only to be thought necessary and lawful after that it is commanded by the Magistrate and unlawful because it is forbidden by him The first Necessity which anteceded the Law and is supposed by it to be some cause of it is contrary to the liberty of the Conscience but the other which followeth the Law and proceedeth from it as an essect thereof is not repugnant to it The reason of this difference is because the antecedent necessity which the Law supposeth doth necessarily require some assent of the practical judgement but to the following necessity which proceedeth from the Law the consent of the will is sufficient to the performance of that outward work which by the Law is commanded Now an Act of the Will cannot prejudice the liberty of Conscience as an Act of the judgment doth for the Act of the Will doth follow the dictates of the Conscience as the effect followeth its cause but the Act of the Judgment doth precede those Dictates as the Cause goeth before its effect VI. These distinctions being premised I proceed unto the Doubts where in the first place those which we meet with concerning the material Cause
the duties of Divine worship but at what hour the people shall meet and in what place what form of words are to be used and what must be the gesture of the body the several parts of the service and other things of the same nature are all of them to be determined by Humane constitutions In the same manner the Law of God forbiddeth Theft to be commited but what kind of Theft is to be animadvertised against with such a punishment and what with another punishment is from the Laws of man From this determination of a general thing and undetermined by the Law of God the Law of man hath this privilege that it can induce a new obligation on the Conscience of the Subject not only different from the first obligation in number and in respect of the Term because it is of another dependency but also diverse in the Species and in respect of the matter because it is exercised on another object for the first obligation which ariseth from the Law of God is to the thing it self as it is a substance but this obligation which the Lawes of men do super-induce is to the manner of the thing or to the circumstance of it X. The fourth Doubt is of a thing that is foul and unlawful which is indeed a Doubt of great moment and containeth many cases for almost all the Conditions which are required to the right Constitution of Lawes a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aristot 5. Ethic. 3 are reduced to Justice alone And not only for that reason that universal Justice doth in her Circle comprehend all Vertues but especially for this reason that particular Justice and more specifically that Justice which is called Legal Justice is above all other Vertues the chief and the only Pillar of Common-wealths and all humane Societies Concerning this Doubt In the first place it is questioned Whether an unjust Law ought to be made for the publick profit Of which opinion was Nicho. Machiavel who affirmed that the due matter of Laws whether just or unjust was that which was most commodious for the preserving the encreasing of a politick State for when in his opinion the end of Civil Power is the preservation of it self and the encrease of Soveraignty which Power cannot vigorously be preserved much less the Soveraignty enlarged if all the Lawes and Councils of Princes were examined according to the exact Rule of Justice and Honesty It concerned those who sate at the Helm so to bend as occasion should require the Rule of Honesty as to make it subservient to the publick advantage for the end in all things is to know how best to measure those things that are of a middle nature what so ever was the opinion of Machiavel this was certainly the Judgment of a personage of great account amongst the Lacaedemonians who openly pronounced that was most honest to the Spartans which was most profitable to them To confirm this opinion that of Horace is alleged Ipsa utilitas justi propè mater et aequi Hor. 1 â—aâ—yr 3. Profit almost the very mother of Justice and Equity And how thriving a Principle this is may be proved by the Example and successe of the Turks who relying on this Foundation most happily have far and near extended the bounds of their Empire throughout Asia Africa and Europe And to speak the truth had not some men who above all others do professe themselves to be Christians nay the only Christians and delight to be called the Reformers and the Restorers oâ— the purer Religion made a great use of this most wicked principle the Christian World had not every where groaned under so many Sacrileges Perjuries Seditions Warrs Tumults and Tyrannies XI But on the other side Princes on earth ought not to abuse that power which they have received from God against his will or otherwise than he intended for this power is not given them so much as to Lords as it is intrusted to them by God as his Ministers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rom. 13. 4 6. It is intrusted to them upon that account that they should work righteousnesse and not exercise Tyranny and an unjust Domination And this is manifest by the very words of the Text By me Kings Reign and Princes decree just things As if to Reign and truly to be a Prince were nothing else but to decree those things which are just and righteous And the Prophets do every where denounce the most severe anger Esai 10. 1. and vengeance of God against those Kings Princes who had decreed unjust Judgements Psal 94. 20. and had meditated iniquity as a Law Neither is the inlargement of Empire the â—nd of Civil Power as the Politicians of this world do affirm but the preservation of the people in Tranquillity and peace with all Godlinesse and Honesty 1 Tim. 2. 2. For Justice if there be any other is the best preserver of the publick peace And as the Righteousness of Faith doth procure and conserve the inward peace of the Conscience so legal Justice doth preserve the outward peace of the Common-wealth Esai 32. 17. the fruit of Justice saith the Prophet Pindaâ— shall be Peace and the Theban Poet calleth Quietnesse the Daughter of Justice Neither is that the meaning of Horace as if Honesty were meerly to be measured by profit the scope of his sense is far otherwise to wit that men wild at first and wandring by the observation of the publick profit and the common good were brought at the last to draw together into one Body and maintain Societies and by just Laws and Punishments to restrain injuries and wickednesse The Arguments drawn from the Turks whom it appears that God especially had raised up and made them as his Scourge to correct the great perfidiousnesse and other Sins of the Christians or from any others to maintain a bad Cause by the prosperous successe that did attend it do favour rather of the Alcoran of some abhominable miscreant than of the Purity of the Gospel of our Saviour Christ XII The second Question is Whether an unjust Law though it ought not to be made yet being made may oblige the Conscience of the Subject so far as to be bound to observe it For many things there are which ought not to be done yet being done are valid And it may so come to passe that what could not without sin be commanded yet without sin may be performed as abundantly we have confirmed in our fore-going Lectures The reason of this doubt is Because that true obedience is no Disputresse for the practice of obedience doth properly consist in this to subject ones self to the will of another without the least murmur or dispute Nimis delicata est obedientia saith Bernard quae transit in genus causae deliberativum That Obedience is too delicate when it comes once to be so deliberate as to inquire after the Cause thereof But I answer briefly the Conscience of the
Subject is not bound by that Law It was my first Conclusion in the former Lecture and confirmed by many Arguments and if any man be yet unsatisfied it may be further proved For no inferior power can oblige against the will of the superior power therefore the power of God being above all the power of Men there is no power of any man whatsoever that can oblige against the will of God who by his Law hath forbidden all wicked and filthy things from whence is that of Saint Augustin There can be seen no Law which is not just And by this reason the Argument drawn from that of obedience is answered by granring that the Subject ought to submit himself without dispute to the will of his Superior to wit the supreme superior into whose will all obedience is ultimately resolved Quod jubet homo prohibet Deus ego audiam hominem surdus Deo Beâ—nard Epist 7. and not of the subordinate Superior if it appeareth that his will is averse to the supreme superior Now God is absolutely the chief Commander the bare signification of whose will is sufficient to induce an obligation of Obedience especially since it is most certain that his will cannot be unjust Therefore Abraham obeyed God commanding those things which if God himself had not given him the charge might seem not only to be hard and unjust but impious and full of wickednesse To wit that his Father his Country and kindred being all abandoned he should become a poor banished Man and travel into a remote and an unknown Country nay that with his own hand he should cut the throat of his own Son in whom alone was not only all the Comfort and the Succour of his Age but all the Hope of the Promises of God and that he should lay him on the Altar and offer him as a Sacrifice to that God who commanded of him such cruel things He did rightly indeed and as it became a man who deserved to be called the Father of the Faithful and to be the singular Example of an unshaken Faith to all the world without the least haesitation and with a most willing obedience he made himself ready to put in Execution the Commands of God But as for the Commandments of men seeing that every man is lyable to Errour and sin and his Will may be depraved it is very lawful nay where there is a just Cause of suspition it is needful also to examine and to try them That admonition of the Apostle 1. Thess 5. 2. Try all things and keep that which is good may with great right and as fitly be applyed to the commands of the Superiors as to the Instructions of Teachers of whom notwithstanding St. Paul in that place doth especially speak Away then with the haughtiness and proud commands of over-lording Spirits sic volo sic jubeo This will I have This I do command Away with the base flattery of the Papists who think it a sin for any man in any manner whatsoever to suspect the Dictates of their Lateran Jove Away with their blind obedience by which those that enter into their Religious Houses do by a vow oblige themselves to obey their Superiors in every thing and in all things without distinction XIII In the third place it is propounded Whether it be Lawful for a Subject to depart from his own right Pura mala ut nunquam justè juberi sic nec licite possunt fieri Bernard Epist 7. and although he be not obliged yet of his own accord to obey such an evil Law I answer it is not lawful for the law of God doth simply oblige to the not doing of any thing that is evil or unlawful Therefore an unjust Law I understand unjust in that sense in which we now speak as unjust in relation to the matter cannot lawfully be kept because God cannot lawfully be offended For whatsoever is repugnant to the Law of God or to the light of Nature known and written in our hearts or revealed in the written word is not to be admitted by a Christian either to avoyd any particular detriment whatsoever or the scandal of our Neighbours or to promote the favour or to decline the hatred of our Superiors Daveniam Imperator tu Carcerem ille Gehennam were the words of the primitive Christians Excuse us Emperor you can only condemn us to prison but God unto Hell And so before them said the Apostles of our Lord Jesus Christ Whether it be right in the sight of God Act. 41. 9. to hearken unto you rather than unto God judge yee And before them the three young men of the Hebrews in the third of Daniel Dan. 3. 18. Be it known unto thee O King that we will not serve thy Gods nor worship the Golden Image which thou hast set up XIV In the fourth place it is demanded What Law is to be thought so unjust that it is not only not obliging but moreover it is unlawful to obey it I answer a Law may be said to be unjust for manifold considerations First if it be made by one who is not invested with a lawful power and so it is unjust Proper defectum Justitiae Commutativae for the defect of Justice commutative because the Lawgiver assumeth more than is due or by right doth belong unto him it doth not therefore oblige the Subject to obedience neverthelesse the Subject if it seems expedient to him and he be not otherwise hindred may depart from his own right and obey that Law Secondly in consideration of the Final cause if it doth not tend to the publick good nor preserve the rights due unto the Commonalty And this Law is unjust by reason of the defect of that Justice which they call Legal which alwayes intendeth the common good and that the republick may receive no detriment a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Homer 〈◊〉 ad â— But this Law howsoever it be unjust doth notwithstanding oblige the Subject for the Subject is no competent nor fit Judge of Legal Justice and if by his obedience any thing doth follow which is either incommodious or noxious to the Commonwealth it is not to be imputed to him who performed his part well enough but to the Supreme Magistrate whose duty it was to provide for the preservation and advancement of the publick good Thirdly in consideration of the Formal Cause if the Law by an unequal proportion and not by merit of the Citizens doth dispence and distrbute Burdens and Favors Pâ—nishments and Rewards This Law is unjust by reason of the defect of Justice distributive which commandeth to give all things by equity to every one as every one hath deserved And this Law howsoever it be unjust doth notwithstanding oblige as well as that of which but now I spoke of and for the same Cause for the dispensation of these things doth not belong to the office of a Subject but of the Supreme Magistrate Fourthly in consideration of
the material Cause of which we do now discourse if the Law doth command any thing that is base dishonest or any wayes unlawful the said Law is unjust for the defect of that Justice which is called Universal which requireth a due rectitude in every Action And this alone is so far from obliging the Subject to obedience that it doth altogether oblige him to render no obedience to it XV. It is demanded in the fifth place What Justice is required and how much of it will suffice as to this that a Law may be said to be just and esteemed obligatory For answer I say in the first place It is not necessarily required that what by the Law is commanded should be just positively which the Philosophers call Honest that is that it may be an Act of some Virtue but it doth suffice if it be just negatively that is if it be not unjust or shameful as are the Acts of all Vices Otherwise there could no Laws be made of things of a middle nature or of things indifferent which notwithstanding as by and by shall be manifest are the most apt matter of Laws I say in the second place Grant that some Law be unjust in regard of the Cause efficient or the final or the formal Cause in any of those respects newly mentioned yet if there be no defect of Justice in respect of the material Cause that is If by the force power of the Law the Act to be performed by the Subject be such that he may put it in Execution without any sin of his own that Justice of it is sufficient to induce the obligation XXVI But lest the Subject too licentiously to withdraw himself from the yoak of the Law should give some pretence for his disobedience as it is a wonder to see how many men do suffer themselves to be deceived by this paralogism and should allege that the Law doth seem too unjust unto him and which with a good Conscience he cannot obey therefore ought not to obey for this they say were to obey with a doubting Conscience which cannot be without Sin as the Apostle teacheth Rom. 14. 23. For whatsoever is not of Faith is Sin It is necessary therefore in the sixth place to inquire farther and to demand What certainty is required to know whether any Law be unjust or not that so a Subject may be secure in his Conscience whether he be bound or not bound to the observation of it I answer in the first place If the Law be manifestly notoriously unjust it is certain that the Subject is not bound to the observation of it which is also to be affirmed if by any moral certainty after some due diligence in searching out the Truth he judgeth it to be simply unjust I say in the second place If out of any confirmed Error of his Judgement which it is not easy for him to leave he thinks the Law to be unjust when indeed it is not yet for all that Error in his mind the obligation of the Law doth still remain insomuch that he is guilty of Sin if he doth not obey it but should Sin more grievously if that Error not yet left off he should obey it Of this Case we shall have a greater opportunity to speak when if God shall permit we shall come to the Comparison of both the sorts of obligations I say in the third place If out of some light doubt or scruple he suspects it may be so that the Law is unjust that scruple is to be contemned the Law altogether to be obeyed And no man under the pretence of his tender Conscience is to excuse him self from the necessity of giving obedience to it XVII I say in the fourth place And I would to God that those whose Custom it is to defend their grosse disobedience under the pretence of their tender Consciences would give due attention to it If because of some probable Reasons appearing on both sides the Subject cannot easily determine with himself whether the Law be right or not insomuch that his mind is in a great incertainty and knows not which way to incline he is bound in this case actually to obey it so that he sinneth if he obeyeth it not and doth not sin if he obeyeth it My reason is First Becaâ—se by the Rule of Equity In dubiis potior est conditioâ—â—ossidentis In doubtful things the Condition of the Possessor is the better Therefore when there is a Case at Law betwixt the Law-maker and the Citizen unlesse there be some apparent reason to the contrary it is presumed alwayes to be on the side of the Law-maker against the Citizen as being in the Possession of Right But if there appears any sound reason to the contrary the Case is altered because it is against the supposition of Reason for we then suppose that they contend in Law one having as much Right as the other The second Reason ariseth from another Rule of Law In re dubia tutior pars est eligenda In a doubtful Case the safer part is to be chosen And its safer to obey the Conscience doubting than the Conscience doubting not to obey Because it is safer in the honor due unto Superiors to exceed in the mode that is due unto them than to be defective in it The third Reason proceedeth from the same Rule for generally it is safer for a Man to suppose himself to be obliged when he is free than to suppose himself free when he is indeed obliged For seeing by the inbred depravation of the Heart of Man we sin oftner by too much Boldnesse than by too much Fear and are more prone than it becomes us to the licentiousnesse of the Flesh and lesse patient to bear the burthen unlesse we were throughly before hand resolved to obey those Laws which are not apparently unjust the Wisdom of the flesh the Craft of the old Serpent would suggest unto us excuses enough which would retard and hinder us from the performance of our Duties And so much of the fourth doubt XVIII The fifth followeth Of the permissive Law of Evil Wether it be lawful and how far lawful And whether it be obligatory and how far obliging Where in the first place we are to observe That an evil thing may three wayes be admitted by the Law that is to say privatively negatively and positively Privatively to be permitted is the very same which is pretermitted by the Lawgiver And in this sense all those things are permitted concerning the forbidding of which or the Punishing of which the Laws do determine nothing That negatively is permitted the excercise whereof the Lawes do define and limit with certain bounds within which those are safe and without fault who do contain themselves but those who do exceed them are to be punished by the Law And in this sense the Laws of most Nations do permit of Usury Thirdly that is permitted positively the excercise whereof is tolerated under a
certain pay of some Tribute and thus houses of Incontinence are permitted at Rome XIX This distinction being permised In the first place I affirm That privatively many Evils are necessarily tolerated in all Common-wealths for it is impossible that the Laws should extend themselves to all the Species and kinds of vitious Acts or that all kind of Sin should be restrained by humane Laws The Law of God hath this only which is admirable and peculiar to it self that it alone commandeth all things that are to be done and forbiddeth all things that are to be avoyed Now in this permission there is no place for obligation for it is necessary that every obligation should arise from some Act and not by the privation of an Act or a Non-Act I say in the second place That the negative permission of evil may be lawful For if there be some evils that cannot be quite taken away without some great Inconvenience to the publick it pertaineth to the political prudence of Government so to moderate the use of it and circumscribe it within certain bounds as to make it subservient to the Publick profit And this by the Example of God himself who permitted the Divorce of Wives to the people of Israel to that purpose as Christ the most excellent Interpreter of the Law expounds it Mat. 19. â— Lest by the hardnesse of their hearts and the unbridled roughnesse and cruelty of Husbands to their Wives there should arise more grievous inconveniences I say in the third place That by this Law there is no man notwithstanding obliged to perform that which this Law permitteth for the end of permission is not that that be done which by this Law is permitted but that nothing be done beyond that which the said Laws permit Therefore as the permission it self is only negative so it induceth only a negative obligation That is the Subject is obliged to do if he pleaseth what the Law permitteth and not to exceed the bounds which that Law prescribeth I say in the fourth place That the positive permission of Evil is not lawful if there be more or more grievous Evils which follow that permission than those are for the remedy whereof it was pretended especially if to the permission and imposition of a filthy thing there is added a suspition of filthy lucre I say in the fifth place That by such a Law no man is bound to the performance of that which is permitted nay for all the permission of that Law every man is obliged to a non-performance My Reason is as to the former part Because it is against the Nature of a permission to oblige for a permission granteth Liberty and every obligation is a kind of a Bond. As to the latter part Because we suppose that what by the Law of man is so permitted is of it self evil and by the Law of God we are obliged not to do Evil The permission therefore of Evil as it is a bare permission doth oblige no man to the performance but as it is the permission of Evil it doth oblige every man not to do that which is permitted XX. But it hath often heretofore been spoken that every Law hath a power obligative which so individually doth accompany it as but to grant the Law the obligation must necessarily follow and take away the obligation you take away also the Law with it It may therefore be objected that we must hereupon either deny the permissive Law to be a Law or acknowlege it doth oblige To answer to this objection we need not fly so far as to deny the Law permissive to be a Law which we do acknowledge not only to be a Law but a Law properly so called Certainly that Mosaical Law of Divorce mentioned Mat. 19. Though it comes by name of permission 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the eighth verse yet in the seventh verse of the same Chapter it is called a command 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 What is not the very name of a Law every where given to it is not the Definition of that name as congruous to it as to a Law either commanding or forbidding something to be done so that it cannot be denyed but that the Law is predicated of them all univocally and as a Genus in reference to its Species it is not then to be granted that the Subject by this Law is obliged I do so conceive it altogether to be granted which that it may more rightly be understood to be not incohaerent with those things which have been already spoken of a permissive Law I say in the sixth place That every Law permissive as it is a Law doth oblige the Subject in his Conscience to the observation of it The reason is manifest for an obligation as often it hath been already spoken is a necessary effect of the Law and not to be severed from it Which that it may not seem to be quite contrary to what now hath been delivered these two things are to be observed which therefore the more remarkably I shall give unto you The first that I said the permissive Law doth oblige to the observation of it Now it is one thing that the Subject is obliged to the observation of the Law which I still affirm and another thing that the Subject is oâ—liged to do that which the Law permitteth which I have before denyed and do deny it still The second that I said the permissive Law as a Law doth oblige which is true but I did not say it did oblige as it was permissive for that is false because we are to know that the force of a permissive Law as it is a Law doth not consist in the permission it self which being differentaa divisiva but a divisive difference of the Law it must needs come in order after it as every difference divisive is by nature in a posterior place to the Genus which doth divide it and presuppose it but is for the most part expressely or at least virtually contained in that praeception which is as it were the constitutive and formal difference of the Law and in the very words of the Law it self For this preception is that from whence the obligation of the Subject doth first arise and to which his obedience is ultimately terminated I will make it manifest unto you by example By reason of the necessity of borrowing of money the maker of the Law permitteth of Usury in a moderate proportion amongst the Citizens a punishment being denounced to those who shall exceed by taking more use than the Law allowes I will not here define whether Usury be simply and in every kind of it unlawful or not neither doth it belong to my present purpose nevertheless this is certain that were it never so lawful no man by that permissiou is obliged to the exercising of it But in this Law besides this permission which obliges no man there are two things which belonging to the Precept of the Law have thereupon
in a threefold consideration And first of all the worship of God properly so called and the chiefest is that inward wordship of the mind which consisteth in the exercise of inward Vertues as of Faith Hope Love Invocation Confidence c. Secondly those outward Acts by which that inward worship of the mind is partly expressed and partly helped and fostered such as are publick Prayers Singing of Psalms the Hearing of the word and the participation of the Sacraments c. may reducibly and lesse properly be called and oftentimes are called the worship of God as they are the outward Testimonies and Helps of that worship which so properly is called Thirdly Seeing it is impossible that any outward action especially if it be a solemn one should be performed without some Circumstances either more or lesse of Time Place and Gesture from whence it comes to passe that the very same Circumstances which if established by Laws or Customes are called also Rites do sometimes receive the appellation of worship although very improperly and only for that Concomitancy which they have to that outward worship which it self also is improperly called a worship It is therefore to be affirmed That the inward primary worship properly so called doth only so acknowledge God to be the only Author of it that it is not lawful for any man either to institute a new worship or being instituted by God to exhibit it to any other besides God himself We are to affirm also That the outward worship according to its substantials is instituted only by God but there is a far different account to be made of the circumstances which are accessary to this outward worship and those which do accompany it If there be any who will Honor them also with the Name of worship For seeing that the outward worship of God cannot be performed without Circumstances and God in the Gospel hath not given any certain particular Circumstances perpetually to be observed in sacred Assemblyes but only hath lay'd down some Generals as may conduce to Order Honesty and Edification it must necessarily follow that the Determination of the said Circumstances which are but Accidental to the worship it self and mutable according to the respect of Times Places and Occasions must pertain unto those who under Christ have a Right and Power of Governing the Churches which that they may be imposed by those who in the several Churches are invested with publick Authority and being imposed may Religiously be observed by all the Members of the said Churches the nature of Holy worship doth not forbid but Solemnity rather Decency doth require We observe also that even those Men themselves who so Lordly bitterly do inveigh against the Canons and Ecclesiastical Constitutions yet as often as they please do use those Rites in the outward worship of God no where prescribed by Christ or his Apostles as the lifting up of their hands in the taking of an Oath the uncovering of the Head in the Holy Conventions and many other things which because we dayly observe to be done it is unnecessary to rehearse them XXX In the fourth place they object that Moses the pattern of the old that is of the Jewish Church who was given by God to the people of the Jews to be their Lawgiver did not only by his Law define the Substantials of the Jewish worship but according to that fidelity which was in him he omitted not the least Circumstances and in building the Tabernacle which was to be a Type of the Christian Church he most compleatly and perfectly finished all things according to the Idaea of the Example which was propounded to him in the Mount And now if Christ the-Lawgiver of the new Testament should not have prescribed all things and every thing even to the least Circumstances which are to be performed in the Ecclesiastical worship it may justly be believed to suspect which is near to Blasphemy that he was lesse faithful in the House of God than Moses and thereupon there is a remarkable injury and contumely done unto Christ if any new Rites never instituted by him should by humane Authority be brought into the Church or be received by the Christian common people But they who do object these things ought in the first place to have considered that by this Argument all humane political Laws are no lesse everted than Eclesiastical for Moses by the commandement of God did give unto the people of Israel a certain and a defined Law not only of those Rites which belonged to the worship of God but also of those Decrees and Judgments which belonged to the Administration of Civil Government XXXI In the second place it is a wonder moreover that they observed not that by this comparison of that fidelity which was in both Law-givers Moses and Christ that they could not more importunately have alleged any thing that could bring a greater dammage to their own Cause or more strongly have confirmed ours For as from that that Moses both in rituals and judicials did give many Laws unto the people of the Jews we do truly collect it was the will of God that the people of the Jews should be so restrained in their duties under that paedagogy and Mosaick Discipline as under a Yoak of servitude so that very few things should be free unto them so from that also that Christ the most faithful Interpreter of his Fathers Will did give unto the Christian Church but a very few Laws of Ceremonies we do truly collect that it is the will of God that the Magistrates and Christian people should be permitted in those things to their own Liberty so that it is now free for any private Man of his own accord no command or prohibition of a superior intervening to do as shall seem in his own Judgement to be most expedient and to the several Churches and their Governors to prescribe those things which according to the condition of the time and place shall seem to them to be most subservient to Order Honesty Edification and Peace XXXII Moreover Those who do make use of this Argument ought in the third place to have considered that under that Paedagogy of Moses the Jews themselves had not all the Liberty of Rites in things pertaining to the worship of God so take away that it was not lawful for them by their own Authority to observe and to institute those things which it is manifest were never commanded either by God himself or by Moses his Servant Of many take these few instances First the solemn feast of the Passover which by the Law of Moses was commanded should be observed but seaven dayes was by a special Law of Hezekias who received a singular testimony of his piety from God himself and by the consent of the people continued seaven dayes longer The History is extant 2. Chron. 30. Secondly Esther and Mordecay did institute that the seast of Purim should be yearly celebrated in memory of
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
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
else but the Tables in which the Athenians wrote their Laws Of the same nature were the twelve Tables of the Romans and others of other Nations concerning which let those men who have the leisure to be curious of such antiquities consult with the Philologers and the writers of Dictionaries of both languages we must proceed to other things III. The necessity of the publication of Laws being thus granted and determined there ariseth a second Doubt What this promulgation of the Law ought to be that it may pass for lawfull and inferre an obligation In answer to which I say in the first place that the manner and the reason of publishing a Law as to the particular Rites and Circumstances may be varyed according to the Customs of diverse Nations But all do agree in this and by common use it is required that the Law-giver take caâ—e to have his will so propounded and manifested to his Subjects by some external sign that it may publickly be known unto them all so that none of those who are bound to observe the Law maybe ignorant that the said Law is extant and this is therefore required because the power of directing is intrinsecal and essential to the Law Subjects cannot direct their actions according to the will of their Prince unlesse they know what his will is how can they know it unlesse by proclamation or by writing or insculpture or some other outward sign it be sufficiently exposed and manifested to them IV. I say in the second place To the publication of a Law to oblige the Subjects it is not only required that the Lawgiver doth publickly signifie his will unto them but he is to proceed further that is to have it done in a solemn manner or at least that it be so done which is even as much as a solemn Right that it may be sufficiently testified and made known unto his Subjects that the Law-giver intended that this will of his may have the power of a Law and that it may oblige them the reason is because not every will of the Superiour although known unto the Subject doth presently and in ipso facto oblige him unless withall it be manifest that the Superiour had an intention that it should oblige him For every Superiour endued with a Legislative power and sustaining a double person the one private as a single man the other publick as a Lawful Superiour doth come under a double consideration In the midst of these late tumults the unhappy caprichiousness of some wits did put me to this new distinction concerning the personal and political Capacity of a King The Distinction in my judgment is something more proper to our present business than to the Subject then in hand It is this the will of a Prince if a Prince be considered as in his personal capacity that is as he is a single and as it were a private person carries not with him the respect of a Law and obligeth not his Subjects to direct their Actions according to it Therefore to oblige the Subjects It is not enough for a Prince any way to signify unto them that he will have this or that done unlesse upon some other account it be manifest that it is his will to have it so done as he is in his Political Capacity that is as he is a Prince and the Head of the Commonalty and as he sustaineth a publick person with a Legislative Power which seeing it cannot be made manifest enough by the bare signification of his Will it is needful that by some more publick and solemn Ceremony it should be attested unto those whom it concerns to have the knowledge of it lest any man for the excuse of his Disobedience might pretend that rotten and that vulgar one I had not thought of it V. I say in the third place In large Empires which contain many Provinces it is requisite that the publication of a new Law be made in every Province of the Empire Some there are who think this to be simply necessary and to be required from the nature of the Law which doth not oblige unlesse it be received of the people And therefore if be only published in a Princes Court or in the Metropolis of the whole Kingdom or some chief Cities thereof the promulgation of it is no way sufficient to oblige those who do live in the more remote places and provinces But although this be not absolutely necessarily neither doth the nature of the Law seem to require it and the common opinion of the Doctors as well as the common practice of most Nations are of another Judgment yet it is profitable that it should be done that so the Law to which all men are bound as much as may be may come to the knowledge of all men which by how much the more easily it may be done in our times than in Ages heretofore before the Art of printing was found out by so much the more inexcusable is the neglect But to make no digression The manner of publishing our Laws which is received amongst us doth not only seem to be the most sufficient but the most easy and commodious of all others viz. that the Laws signed and passed by the King by the consent of the Representatives of the whole Kingdom in the Houses of Parliament the Parliament being dissolved be committed to the presse and printed by the Kings Printer and in a known Character that no man may doubt but that the said Laws are lawfully made and sufficiently published VI. The third Doubt It being supposed that the Law is sufficiently published When doth iâ— begin to oblige the Subjects presently after the publication of it or some time afterwards I answer in the first place that it is beyond all controversie that those Laws in which a certain time of obligation is defined As soon as that time is arrived the said Laws begin presently to oblige and the obligation of them is perpetual unless there be a time for the obligation of them which in the same Laws is expressed or they become to be abrogated by a new Law or by a contrary custome And hence it is that according to the common consent of the Civil Lawyers the Laws of the Emperour being newly made do not oblige the Subjects of the said Empire unless after the space of two months after the promulgation of them because that this time by some Authority in the Novels as in all other of their Laws is to be observed is universaly prefixed defined for this intent that it is presumed that in the space of two months the knowledge of the said Law may easily be brought unto all the Subjects I say in the second place That in the Kingdoms and Common-wealths where nothing of any certainty is either defined by Law or received by custome concerning the time in which Laws new made do begin to oblige the said Laws having no certain time of obligation affixed to them do
presently as soon as ever they are published according to the manner of the Country oblige all those Subjects to whose notice they are arrived or where it was not in the fault of the Lawmaker but that they might have come to the knowledge of them For seeing the obligation of the Law dependeth on the will of the Law-giver and not on the notice of the Subject it followeth that the obligation of the Law is of force when the Law-giver hath sufficiently expressed his will to his Subjects by some outward sign whether it were made known to all his Subjects or whether it so fell out that some of them peradventure were ignorant of it For grant but the Law and the obligation is granted which hath its dependency on the Law as it is a Law and necessarily followeth it as every necessary Effect doth follow its proper Cause as already we have often mentioned Therefore there being nothing wanting to a Law that is required to the compleating of its essence after that it is made and sufficiently published it altogether followeth that a Law so made and published ought presently to inferre an obligation neither is it any wayes inconvenient that an obligation be made and become ours by the will only Act of another we not knowing it if the said obligation doth carry with it the nature construction of a moral Debt as the Schoolmen speak it Although from obligations and debts w ch arise from contracts the case is otherwise VII The fourth Doubt How the Law doth reach unto those who though after a sufficient publication of it and the elapse of the time prefixed by the Law have not yet actually any knowledge of it Which is to demand whether he to whom the Law is not actually known be so guilty of the fault that he transgresseth if he doth any thing against it and thereupon deserveth that punishment which that Law inflicteth on the transgressors of it The reason of this Doubt is on the one side because that obligation is vain or rather none at all which obligeth neither to the fault nor to the punishment And on the other side both because it is absurd to be bound to that which is impossible but to observe a Law which we know not is certainly impossible as also because from the two Offices of the Law above specified it is necessary that the power of directing as first by Nature must go before the other power of obliging so that the Law cannot oblige any but whom it directeth and it cannot direct any but those to whom it is known This being laid down in the first place which admits of no scruple viz. that the Subject to whom the Law is known is obliged both to the fault and to the punishment As for those that know not the Law I answer to the propounded doubt and say in the first place that he who by his grosse negligence is ignorant of the Law when it proceeds from his own fault that he is ignorant of it is no lesse or at least not much lesse guilty of the fault and deserveth punishment as well as he who doth know the Law and doth it not For the Ignorance of that thing which every man ought to know and may know doth excuse no man And in the interpretation of the Law there is no great difference betwixt a wilful Ignorance and a fault committed VIII I say in the second place That he who is therefore ignorant of the Law because he was a little more carelesse or negligent than in a businesse of that moment he ought to be although the fault be never so light as the Civilians term it yet because it is manifest it was done by a fault and by his own Fault he is not altogether free from the obligation of the Law My Reason is because that Ignorance was vincible as the Schoolmen speak that is which could be overcome for if the Subject had been so diligent as he ought to have been and as the dignity of the cause required and as wise men use to be in their imployments of greater weight he could not be ignorant it is presumed of the promulgation of the Law Now his Ignorance of that Law according to which every man is bound to direct his Actions being in him an ignorance that might have been helped this Ignorance cannot be but culpable and if culpable in whatoever degree it be it cannot but accordingly be inexcusable It may be argued But by how much the lighter the fault is the Ignorance in both Courts is so much the more excusable and amongst the equal Arbitrators of things doth deserve a more easy pardon It is to be answered that he was before obliged by the Law although he was ignorant of it And it is manifest by this because as soon as ever by the Testimony of some man of Reputation he understood that the Law was published he immediately in his own Conscience judged himself to be obliged by that Law now there could arise no obligation from a new report or by the Testimony of this man neither is there any power of obligation either in himself or in his Testimony therfore without doubt he was obliged before by that Law although he had neither notice of the Law nor any Conscience of the Obligation IX I say in the third place He who in earnest and invincibly either by accident or any other impediment and by no neglect of his own is ignorant of the promulgation of a Law as if any man should be visited with madness or labour under some long or grievous disease or being newly returned from forein Countries should never hear of the publication of such a Law nor indeed could hear of it he is not by that Law obliged either unto the fault or any punishment of the fault so properly named Nevertheless by the same Law which he is invincibly ignorant of he may become so far lyable to a punishment improperly so called that is to some losse to be sustained The first part of this position is thus proved No man committeth a fault or deserveth punishment who doth not Sin but he who keeps not a Law of which he is invincibly ignorant doth not Sin for if he should sin he were obliged to that which is impossible therefore he cannot deservedly be blamed nor justly punished But that he may be obliged to some dammage to be sustained by that Law which is the other part of our assertion shall appear to be most clear by this example Suppose there be a Law prohibiting some certain kind of Trassiquings and Contracts by which Law amongst other things it is decreed that all such contracts made one month after the promulgation of the said Law shall be altogether void and of no effect If any man after that month is run out being in good earnest and invincibly ignorant of the promulgation of that Law shall strike such a bargain which is by the said Law forbidden he will be
clear indeed from the fault by reason of his invincible Ignorance which was impossible to be helped and consequently he ought to be free from the punishment which justly is due to no man but for the fault neverthelesse he shall not only sustain the Dammage by reason of the nullity of the Contract which he entred into but he is bound also to sustain it according to Conscience both by the force of obedience which is due unto the Law and by his reflection on the publick profit The like is to be determined in many other Laws of the like nature For examples sake In those Laws by which persons are disabled by which privileges are revoked In those Laws by which Usury is moderated and in those by which certain prices of things to be sold are constituted and in the like of which the Canonists and the Divines do treat at large Neither ought this seem to be unjust to any man for although a Dammage be sometimes called a Punishment it is only analogically and very improperly for otherwise there is a great difference betwixt a Dammage and a Penalty or punishment properly so called If an innocent person be punished a great injury is done unto him but often it comes to passe that an innocent person may be dammaged and yet no great injury done unto him And thus much as conduceth to our present purpose may suffize to be spoken of the promulgation of the Law X. In the next place we are to speak of the penal Law in which many things being omitted which unprofitably are accustomed to be disputed by many of the Casuists and which pertain rather to the external and pleading Courts as that of the Canonists and Papists than to the internal Court of Conscience we shall be contented to give a view unto you of some few and the most remarkable of them and which most neerly we conceive do conduce to the Government of Conscience In this kind we meet first of all with this doubt Whether the Constitution of the punishment doth any wayes pertain to the Essence of the Law I answer It seemeth that it doth not as something that is extrinsecally requisite to compleat the Essence of it so that the Law were not a Law if the penalty were not annexed to it but only consequently as something necessary to this that the Law may effectually obtain the end which it intended For the Form and Essence of the Law consisteth in the Precept of it I here understand Precept as it is largely taken to comprehend a prohibition with it as in the Scriptures are the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and amongst the Divines as well Negative Commandments as Affirmative are commonly called Precepts And from this Precept alone both the powers do depend which we have said to be in the Law viz. the power of directing the Action and of obliging the Consciences of the Subjects For the Subject hath a sufficient Rule according to which he ought to direct his Actions and to the observation whereof unlesse he will be wanting in his duty he is bound in Conscience as soon as he understands that his lawful Superior hath commanded this or that by Law whether there be any punishment annexed to that Law or not Therefore this necessity of annexing the punishment doth not arise from the Nature of the Law it self which consisteth in the meer Precept but that the Precept which of it self would not barely suffice Tatitè permittitur quod sâ—ne ultiâ—ne prohibetur Tert. 1. contra Marcion 26. may with the greater vigour obtain its effect from another double Hypothesis the one of the Subject the other of the End For it is expedient that the Laws should be most religiously observed which is the Hypothesis in respect of the End neverthelesse the inbred Depravity of mans heart being supposed w ch is another Hypothesis in respect of the Subject it can very hardly or almost never come to passe but that the most profitable Laws will be despised either by the negligence or the perversenesse of most men unlesse by fear they are contained within their bounds Qui ratione traduci ad meliora non possunt solo metu continentur Quintil. 12. Instit who make but a mock of the Dictates of Conscience From this double Hypothesis it comes to passe that the wisest Law-makers have alwayes judged it necessary and saving to the Common-wealth to add more force to the observation of the Laws by the fear of punishments and that after the example of God himself who pronounced not the first Law which he gave to man without the threatning of a punishment Gen. 3. Some good Citizens peradventure whose number are but few induced only by the Conscience of their Duty and their Love unto Virtue and their Country would render Obedience unto the Laws although there were no punishment propounded but the Turba or the greatest number are inforced only by the fear of punishment to the performance of their Duties It is manifest hereby that the Constitution of punishments in the making of Laws is necessary XI The second Doubt is concerning the obligation of the penal Law as to the extension of it whether the penal Law doth oblige only unto the penalty or whether it obligeth unto the fault also Which is to demand if a Subject may so satisfie the Law and his Duty if being prepared to undergoe and by undergoing the penalty constituted by the Law he may be no longer guilty of the Delinquency although he observeth not the command of the Law Or whether for all that he is not bound in Conscience to the performance of that which is by the is Law commanded That more clearly and distinctly we may answer to this doubt it being a Question of great Moment and of which in the Common Lives of Men there is a most frequent use It will not be amisse the better to unfold it to premise some things which are very profitable before hand to be known We are to understand therfore in the first place that that positive Humane Law ought only to be called Penal which by the will of the Legislator doth expresly determine some temporal punishment for the Transgressors of it And in all this discourse as often as mention is made of punishment you are to understand no other but only a Temporal punishment This word Temporal punishment is taken in a twofold Consideration either as 't is opposed to the Spiritual or as it is opposed to Eternal punishment And for the most part in common discourse they are taken as Members contradistinct to one another sometimes Spiritual opposed to Temporal and sometimes Eternal unto Temporal there are therefore three kinds of punishments or if you will you may call them Species or manners of punishments or degrees of punishments For whatsoever comes under the name of punishment is first Either a spiritual punishment as the losse or the deprivation of Grace
of the friendship of God or of that inward joy and consolation which ariseth from the sence of his Grace and Love Or secondly it is â—n Eternal punishment which consisteth partly in the Eternal Deprivation of the beatifical vision of God and Christ and partly in the eternal Torments of Hell Or thirdly it is a temporal punishment distinguished from both the former which pertaineth to the state of this present life and hath relation only to the body and external things neither doth it take away of it self and necessarily either the sence of the Grace of God or the Hope of everlasting life Temporal punishments of this nature are the losse of money Banishment Imprisonment or Fines set on the head of any one courgings and many of the like and lastly death it self Those punishments which are the chiefest and of most frequent use may be reduced to these heads Death Banishment Confication of goods and Imprisonment XII In the second place we are to understand that punishment as it is opposed to the fault is taken again two wayes For sometimes it is taken largely and materially as it is opposed to it in a contrary opposition that is as it is another Species condividing the same Genus And so every Evil that befalleth any man which is not malum culpae the Evil of the fault is called a punishment or malum Poene the Evil of punishment although it be not inflicted on him who indureth it for any fault going before but casually or by injury it may happen to him so a suddain Disease mony taken away by theft a Wound given by a thief goods lost by fire or Shipwrack and all kind of Hurt or Dammage which is grievous to indure is to be numbred amongst things penal and to come under the name of punishment Sometimes the word punishment is taken more strictly and as it were formally as it is opposed to the fault in a relating opposition that is as it is inflicted on a man for a preceding fault As if a man should be mulcted fourfold for the goods of another taken away by Theft or should be banished for sedition And this is the proper the former the improper signification of the word penalty or punishment for punishment is improperly so called when no fault did go before it From hence proceeded that most known Definition of punishment that it is Supplicum quo quis proper delictum afficitur It is a punishment with which any man is inflicted for a fault Secondly in this present disputation we intend to debare on both the significations of the word as the nature of the discourse shall require But the last is the chiefest for it is called a penal Law not so much in the respect of the DaÌ„mage or the Hurt w ch can come unto any man by occasion of the Law that peradventure justly â—hough without any fault of his as in respect of the punishment w ch by the determination of the Law is appointed for those who do trangress it XIII In the third place we are to know That in penal Laws some are purely penal and others mixed A Law purely penal is when in the simple ordination of it it only appoints the punishment and neither by commanding or forbidding doth expressly enjoyn any thing For examples sake suppose there be a Law which giveth power to the Inhabitants of any City or Town to choose every year one of the most remarkable of the Citizens to be their Mayoâ— or Bayliff this clause being added to the find Law The Citizen who is chosen and shall refuse the place shall be fineà one hundred pounds This Law is purely penal because it ordains a punishment for those who shall refuse to undertake that office nevertheless it commandeth no man to undertake it nor forbiddeth any man to refuse it A penal Law that is mixed is when it commandeth any thing to be done or forbideth any thing the penalty being added that is to be inflicted on the Transgressors For Examples sake let us suppose a Law to be declared in this or the like Form Let no man presume to transport any of the Merchandize of this Nation into a forain Kingdom or to sell any forain Merchandize in any place of this Kingdom unless be paeyeth the accustomed Tribute he who shall 〈◊〉 otherwise shall suffer the loss of the Merchandize he vendeth This is a penal Law because it hath a penalty annexed to it nevertheless it is not purely penal but mixed for under that penalty it commandeth the Customs to be paid and forbiddeth the exportation or the selling of Wares the Customs not payed Some there are who think that there is a third kind of a penal Law to be added to these two which containeth at once both the command and the punishment but neither of them positively and specially but both of them disjunctively and indifferently For examples salte let there be a Law under this Form Being chosen by the Commonalty of the City either undergoe the Office of the Mayor or chief Magistrate or pay a hundred pound There needs not for this cause that any new Species should be added For the Species of things are not to be multiplyed without necessity And this disjunctive Form of propounding the Law ought to be referred to that which is purely penal for in it self it containeth no absolute command if you allege Of these two things though neither of them is commanded definitely yet both of them are commanded indefinitely I easily may reply to command indefinitely and under a disjunction to speak properly is no more to command than to say that the picture of a man iâ— a man This disjunctive Law therefore as I have said is purely penal which is manifest by the compared Form of the examples For if the Law-maker shall put forth the Edict in this manner He who being elected shall refuse the Mayoralty shall pay one hundred pound or in this manner being elected either be Mayor or pay one hundred pounds it is all one There is in both the same sence the same force of the words and one the same obâ—igation XIV In the fourth place we are to know that between an obligation to the fault and an obligation to the temporal punishment there is no necessary Connexion or certainly not so neeessary that it may be also reciprocal There is a necessary Consequence indeed from a Temporal punishment properly so called to the fault And this Argument therefore is of force Peter is to be punished by the Law therefore Peter hath committâ—d a fault But from a temporal punishment properly so called suppose any dammage or the like the fault is not necessarily inferred For a man without any fault of at all his own may be obliged to a losse as already we have said Neither is the Consequence reciprocal from the fault to the temporal punishment For it may so come to passe that a man may be obliged to the fault and yet not be
by the Law of his Country to pay customes and taxes I say in the third place Ordinarily because it may be done extraordinarily the present state and condition of things so requiring so that what otherwise was free and might be omitted may in an exigence fall out so necessary to be done that he may offend and fail in his office if he doth not do it but ordinarily these extraordinary cases being excepted he who is prepared to undergo the punishment imposed by the Law is no further bound by that Law if the Law be purely penal XVIII The reason of the whole Conclusion is because the maker of Lawes doth not oblige but by commanding and therefore a simple ordination which commandeth nothing doth no more oblige of it self than the Counsel of a friend or the exhortation of a grave man For as he who giveth Counsel to another or doth exhort him to do this or that doth declare what it is that he desireth him to do but doth neither oblige him to it nor intend to oblige him so a Legislator in that Law in which he commandeth not any thing of the Subject but only shews him what he would have him to act under the Condition of a proposed punishment is to be presumed not to have a will to oblige him further but only to the penalty he proposed For if he had an Intention to oblige him to the fault also it had been most easy for him by adding a command to signifie his intention so unto him Therefore seeing that a simple and bare ordination doth not it self oblige unto the fault and the addition of a temporal penalty cannot of it self oblige but only to the undergoing of the temporal penalty it is manifest that a Law purely penal which containeth nothing in it self besides a bare ordination and temporal penalty annexed to it neither of which is obligatory to the fault cannot of it self oblige unto the fault but unto the punishment also And the same is to be spoken of those Laws which are called conventional which example I the more willingly do use because it serveth not only to confirm but excellently to illustrate our Conclusion To which also may be added the will of the Testator and many other things which as to the power of obligation are all of a like nature The Inhabitants of some Town who have not the power to make Laws properly so called do yet in the Court of the Lord of the Mannor for so they term it debate and agree amongst themselves concerning some things conducing to the keeping of peace and justice amongst their Neighbours and under the name of penalty a pecuâ—iary mulct is imposed on those who shall violate the agreement these conventions are called the Laws of the Inhabitants and in our own language BY LAWES for learned men and skilful in antiquity do note that in the antient language of the Saxons the monosyllable BY doth signifie a habitation We with many others for informations sake do call these Laws conventional Laws for although they be contracts only and conventions amongst private persons and to speak properly not Laws by reason of the defect of the publick Authority yet they are commonly called Laws by reason of the Analogy which they have with Laws properly so called and as to those two effects of the Laws of directing and obliging for as the Lawes do direct the Subjects so those Conventions do direct the Persons confenting in the acting and do oblige them to the performance of what they are to act and certain it is that in these Conventions the persons contracting did not intend mutually to oblige themselves to the Fault but only to the Penalty For Example sake The Inhabitants of some village do agree amongst themselves that the Masters of every Family in that village shall every year in the Month of May work in their own persons three days for the repairing of the High-wayes and they who shall not do so suppose here that every days work is valued at ten pence shall have a mulct upon them to pay twenty pence It is certain by this conventional Law that the persons who did contract it did chiefly intend the yearly repairing of the High-ways moreover they wiled that every Master of his Family should labour in his own person for so profitable a work otherwise they would not agree upon a mulct that they who refused should pay as much again as the days work came unto And as certain it is on the otherside that they intended not mutually to oblige them selves any further than to the paying of the imposed mulct if any one of them either by the reason of other imployments could not or upon any other pretences whatsoever would not in his own person perform that work Imperia mortuorum Senec. 3. Contr. v. 9. Legatum est quod legis modo testamento relinquitur VLV. Institu Cap. So in Wills and Testaments for Testaments are as a Law also both to direct and to oblige the Executors and those thar are to receive the Legacies Caius â—â—lleth that his Wife Caia while she remaineth a Widdow shall retain the houses with the adjacent lands which he bought of Titius but if she marryeth he is to lose them It is manifest that it is the Will of Caâ—ias that his wife should remain a widdow and should not marry again for in that Intention he annexed that Condition by the fear of the Dammage to deterre his wife from a second Mariage And by inserting that Condition he intended not and indeed could not intend to oblige his wife to the Fault as to have offended if she should have marryed another Husband XIX But you will allege Agreements do oblige and Wills and Testaments do oblige to the fault for he offendeth who standeth not to the Agreement he hath made And those offend who do otherwise than by the will of the Dead is ordered I answer that the Case is far different to violate Contracts Laws or the Wills of the Dead and to infringe the will of a Legislator or a Testator made under a Condition How great the difference is the Examples which before we have produced will best of all inform us He doth not presently transgresse against that conventional Law of working for three days under a pecuniary Mulct who refuseth to work unlesse he refuseth also to pay the Mulct For he stands to what was agreed upon if he performeth either and that also according to the intention of those who made the agreement who intended indeed mutually to oblige themselves to the performance of that work but not simply absolutely but under the condition above specified So in that Testamentary Law of Caia marrying another Husband Caius being dead she offendeth not by marrying although it be certain that the Testator had rather and indeed willed for he who had rather willeth that she should not marry yet notwithstanding she should undoubtedly offend if being now marryed unto another she
propounded and he doth not violate the Law unless he doth neglect them both XXIV This which was to be spoken of the obligation of a Law purely penal being as I conceive sufficiently unfolded let us now passe to the consideration of a penal Law mixed Concerning which I make this my third conclusion A penal Law mixed to wit which openly commandeth something to be observed and that it more diligently may be performed which is commanded doth appoint a penalty to the transgressors doth oblige both to the fault and to the punishment insomuch that he neither satisfies the Law nor his Conscience who undergoes the punishment unless he doth perform that also which is commanded by the Law There is none can doubt that such a Law doth oblige to the punishment for otherwise of what use would the punishment be that is added to it And it is manifest that it obligeth to the fault because it containeth a manifest command And every command obligeth to the fault For a Fault or a Sin is nothing else but the transgression of some precept 1 Joh. 3. Neither can that be probably spoken which is said to be the opinion of Navarr that the Law-maker by inserting the punishment doth signify that he hath no intention of obliging but only to that punishment which is annexed Observe I pray you how perverse it is so to interpret the appointing of a punishment which it is certain is for that end annexed to the precept that the said precept by the fear of punishment might more diligently and more accurately be observed as to make weak and take-away the obligation of the said precept Numberlesse are the Laws which throughout the world are made against Thieves Murderers perjured Persons and other wicked and nefarious people God also gave a Law to our first Parents by which he forbad them to eat of the fruit of the Tree which was in the midst of Paradise having annexed to the prohibition the punishment of death if they should eat thereof Gen. 2. Can any man be found so dâ—stitute of reason as to think that Adam was obliged by this Divine Law and that others are obliged by Humane Laws to the punishment only and not unto the fault Who will affirm to omit humane Laws that Adam was not obliged in Conscience by that Divine Law to abstain from the forbidden fruit but to this only that if he did eat thereof he should be ready to undergoe the setence of death The opinion therefore of Navarre being exploded as dangerous and by all men confuted if indeed the opinion was his which I shall hardly believe he being a man of so reverend a fame we are to affirm that a penal Law mixed being both penal and preceptive doth oblige both to the punishment and to the Fault to the punishment as it is penal and to the Fault as it is preceptive XXV The third Doubt remaineth How and how far the transgressor of a penal Law is bound to undergoe the punishment in the fact it self that is appointed by the Law I must make haste I will therefore be as short as I can I say therefore in the first place if the punishment appointed by the Law be such that it imposeth not any thing upon the transgressor to be either done or suffered by him but consisteth rather in an inability to do something which was commodious for him to do or in an incapacity of receiving somthing which would be profitable for him he is guilty of the Law so violated and is bound ipso facto to undergo the punishment There are many Laws which do forbid transgressors to do this or that as the Civil Laws for certain causes do forbid translationem Dominii the alteration of power or free-holds There are also many Laws which for such a certain time do make Delinquents incapable of such a place or dignity As if a Disturber of the peace by a statute of the University be prohibited to have his Grace propounded in the Congregation House for the space of two years after the fault committed In such the like cases where the punishment consisteth only in the Inability or the Inâ—â—pacity because to undergoe this punishment there is no Cooperation required of the person to be punished but rather a certain Cessation of operating He who hath violated the Law is obliged willingly to suffer the punishment although he be not required I say in the second place if the punishment appointed by the Law be such that a cooperation of the person offending be necessarily required to the Execution of the Law that is that he who is to be punished is to act something himself in his own punishment he is not obliged ordinarily to undergoe the said punishment ipso facto before the Judge hath pronounced the sentence or which is the same before the punishment be exacted of him by a person to that purpose invested with lawful Authority The guilty person is bound indeed to suffer the punishment but if he called to it otherwise he is not bound I say in the third place that a guilty man after the sentence pronounced by the Judge or after he is required to it by a person invested with lawful Authority is obliged to a willing undergoing of the punishment yea and with some Cooperation of his own if this Cooperation be not against the Laws of humanity though otherwise very grievous and extremely painful For examples sake If an offendor be commanded to pay a great sum of money under the name of penalty or to depart the Kingdome he is bound by the power of the Law to the performance of it but if the punishment imposed be not only grievous but something also that is inhumane as if a malefactor be commanded to scourge himself to cut off his own hand to drinke poyson or the like in these cases the guilty person is obliged to undergoe the punishment passively but he is not obliged actively to cooperate in it w ch he knows to be ordained by the Law and which by his default he hath deserved And let this suffice to be spoken of the necessity of the Promulgation of Laws and of the Obligation of those penal Laws which may seem to have any reference with the Formal Cause of Laws THE NINTH LECTURE Of the Obligation of Humane Laws in respect of the Final Cause thereof 1 TIM 2. 2. For Kings and for all that are in Authority that we may lead a quiet and peaceable life in all Godlinesse and Honesty IN our former Lectures we have treated of the Obligation of Humane Laws as to their Material Efficient and formal Causes in some places peradventure more largely and in others again peradventure more concisely than was requisite It remaineth that we should proceed to the explication of those things which do pertain to the final Cause of Laws But before we do come to dissolve these doubts we are first to premise and pronounce as an undoubted Truth That the ultimate end
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
by a Law which when it is committed we are not able to punish And thirdly seeing the external operation of good works and the external declination of evil ones doth suffice to the outward felicity of a Republick it followeth that a Legislator or a Law-maker neither wisely can nor rightly ought either to command or to forbid the internal actions of Virtues or Vices In which regard as in many others the Law of God and Christ which requireth Truth Purity Sincerity in the inward parts and restraineth and checketh the highest and first inordinate motions of the Will and punisheth as well Sins thought on as Sins committed doth most infinitely excell the most excellent Laws of men And therefore David in the 19 Psalm saith that the Law of God is perfect and undefiled and the Law of Christ is as the maker of it is described to be in the fourth of Hebrews A word lively and mighty in operation and sharper than a two-edged Sword and entreth through even to the dividing asunder of of the heart and Spirit and of the Joynts and Marrow and is a Discerner of the thoughts and intention of the hearts VII I say in the third place that Humane Laws may de Jure or by Right command all the outward Acts of all Vertues and forbid all the outward works of sin but they cannot do it de facto The Reason of the first member is because there is no external Act of Vertue or of Vice in the whole Nature and in every Species of it so disposed but that the commanding or the forbidding of it according to the Condition of Affairs and Times may be ordinated to the publiek good Therefore not only the Acts of Justice properly so called as some will have it but the acts also of all other Vertues whatsoever may become the due object and matter of the Law And this I remember to be the observation also of Aristotle and if I be not much mistaken he giveth Instances of it in the Acts of Fortitude and Temperance As if by a military Law it were ordained that none of the Souldiers should run from his Colours or from his ingaging with the Enemy or throw away his Arms or as if by another a Law of frugality or moderation the excess in banquetting were prohibited or as if there were a Command that none should exceed in the bravery of his habit or in the greatness of his retinue or in the Ornaments of his House The Reason of the latter member is because there is so great a variety even of the Species themselves much more of the Degrees both of the Offices of Vertues and the Acts of Sin that if the Law-makers should provide a Caution for every one of them the very multitude of the Laws would be a burthen to the Common-wealth not to be endured VIII I say in the fourth place that a Law-maker is not obliged to this viz. To forbid all the evil that he can forbid or to command all the good It will suffice that the greatest and most remarkable of both kinds are to be contained in the Laws and which are so conjoyned with some extraordinary publick profit that unless somthing were determined of them there must necessarily follow some great and grievous Evil which would prove extremely incommodious to the Common-wealth for amongst the lusts of the Flesh the Allurements of the world the temptations of the Devil and the diâ—positions of men so fruitful of all manner of Iniquities may we so much as dream of a Platonick or an Eutopian Commonwealth we are to think we have done well enough if we stick not too deep in the mire For it is necessary that in every Common-wealth some evils should not be prohibited but tolerated and many good things not commanded but left to every mans discretion and that many things of both kinds should be passed by by the Laws lest being too unseasonably active to remove one evil we peradventure make way for more and greater to arise IX The third Doubt is concerning the Intention of the Law-giver whether and how far it is required to the effect of obliging Which is to demand If a Prince out of no foresight or intent to Justice or to the publick good at all being either carryed away by hatred or ambition and the meer lust or ruling or by avarice or any other depraved desire of an impotent mind should give a Law to his Subjects whether they are bound in Conscience to obey it The answer is easy they are obliged to obey it if there be no other impediment that is if he who made the Law hath a lawful Power and the Law it self be otherwise just and according to the Law of the Nations duely debated and sufficiently promulgated I say therefore in the first place that as in Artificials the End of the work and of the person wotking is not always the same as in the building of a House the End of the work that is of the House is that it may be a commodious habitation for the master of it but the End of the Carpenter is that he may get some gain thereby Just so in a Common-wealth it may come to passe that the Law-maker may intend his own advantage and yet the Law it self may tend to the publick Good X. Peradventure you will object that an indirect End or Intention doth always corrupt the work and therefore the evil Intention of the Law-maker doth vitiate the Law which was his work To answer this objection I say in the second place that an evil intention doth always blemish the work as the work speaketh the action of the person working but it doth not always blemish the work as it is the effect of the operation These two therefore the Action it self and the Perfection of it differ not a little amongst themselves although they are commonly called by the same Name In the same manner as the Effecting and the Effect it self The building of the House and the House builded are both of them called the work of the Carpenter although the one of them is but an action transient and the other after the house is finished an action permanent A bad Intention therefore doth corrupt the work of the Lawmaker that is his own Act which makes the Law and which for the defect of a good end is not without fault but it corrupts not the work of the Legislator that is the Law made by him if that which is commanded by the Law is reducible to the Common good So for all the evil intention of the Judge a Sentence pronounced by him either for favour or for hatred is firm and valid if the said sentence in it self considered appeareth not to be unjust For as rightly St. Augustine hath it potest ex libidine imperantis sine libidine obtemperari We may without any lust obey the lust of the Commander XI I say in the third place Suppose that a Law be not only made with an evil
sincerely and openly but with all due reverence to present their just grievances to their Prince and faithfully to lay before him with what present remedies they may cure those evils that oppress them and humbly to beseech him that he would be pleased to condescend to the petions of his Subjects as he shall judge it to be most safe and advantagious to the Commonwealth and confirm the grant of them with his Royal hand And if he being thus petitioned to shall refuse they are to desist for that time from their purposes and to be content with their present affairs and Laws and that without all murmuring or the least sign of force until their Prince being throughly perswaded by his Council and Intreaties of some friends or induced by the arguments of Reasons shall renounce that pertinaciousnesse of his Spirit and give an open Ear to the desires of his Subjects XV. The Fifth Doubt Seeing that the Common good is not only the End of the Laws but of the whole politick Government Is it lawful out of any foresight or pretence of the Common good to change the present form of Government or to attempt the change thereof and how far and to whom is it lawful For Examples sake Is it lawful for the people to change a Monarchical Government into an Aristocratical or into a Democratical or on the contrary A Question of great difficulty concernment especially in these times manners in which we live For my part I will faithfully represent unto you what I think of it and will leave unto every man the liberty to think what he pleaseth I suppose only what is already granted by many and what cannot easily be denye dviz that a Monarchy by Inheritance or a successive Kingdom is absolutely the best amongst all the forms of Common-wealth and highly to be preferred above the other two This being granted I think in the first place that the people if they please may change a Democratical into an Aristocratical or into an Monarchical Government First because it seemeth to be a change for the better moreover in Democracy the chief Command is in the Power of the people so that they may determine of themselves as they themselves please provided that no Injury be done to any man Now it is most certain that by this Change no Injury is done by the people unto any one It cannot be to any other for no Injury can be done to any man in any thing to which he hath no Right neither can any Injury be done herein to themselves who of their own accord do make this Change for no Injury can be ever done to a willing Person 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I think in the second place that for all these reasons the Peers of a Land also may turn their Aristocratical Government Arist 5. into a Monarchical one For it is a change into the better Ethic. 〈◊〉 and by so doing no injury is done to any man But I cannot so easily resolve you this doubt whether it be as lawful for them to convert an Aristocracy into a Democracy for although they have power to do it and it may be done by them without any injury yet it seems not to be a Commutation into a better State Thirdly I believe that the Monarchy of an elective Kingdom may be changed peradventure into any form of Government but especially into an hereditary and a successive Kingdom and that for almost the same Reasons above alleged nevertheless this ought not to be done unlesse the Kingdom by the death of him that last Reigned be vacant for otherwise it would be an injury to the present King And Secondly it ought not to be done unlesse by the joynt consent of the Peers of the Kingdom and People and of those persons who have the right of electing I think fourthly that a Monarchy by inheritance cannot lawfully be changed into an Elective Kingdom or into any other form of Government either by the people alone or by the joynt consent of People Peers and King which is the whole people in their greatest latitude unlesse peradventure there shall be such a defect in the Royal Progeny that there is not one of them remaining to challenge the Kingdom due by inheritance to him The Reasons of this opinion are First Because according to our former supposition it were a change from a better to a worse Secondly Because by reason of that exchange an apparent injury would be done to the lawful Heir Thirdly Because that not only the Exchange but because such a desire and indeavour doth seem to be quite contrary to the words of Salomon Prov. 24. 21. My Son fear God and the King and have nothing to do with them who affect new things What before I said I must in this place again repeat viz. I do not urge this as too confidently to affirm it or to cause a disputation with any man in the proof of this particular if he be of another judgment XVI The sixth doubt How may that be understood which so commonly is spoken Salus pâ—puli est suprema Lex The safety of the People is the supreme Law The reason of the doubt doth proceed from that which we propounded and proved in the beginning viz. That the End of Laws is the publick good From hence on one side it seems to follow that the safety of the Common-wealth doth depend on the strict observance of the Laws and on the other side that all observancy of the Laws ought to give place to the safety of the Commonwealth And from hence some who within these few years have brought a new Divinity and a new policy into the Church and Common-wealth have no lesse confidently than perversely collected and suggested that the Liberty which they call the Right of the Subjects for so they interpret the Safety of the People is to be preferred above the prerogatives of Kings or the enacting or establishing of Laws and therefore all Regal Power and Authority of the Laws is to stoop unto it For the resolution of this doubt you are to know that all the deceit almost on this vulgar Axiom doth arise from the Equivocation which lyeth hid in the Terms especially in that word People For the people being a kind of a Metaphorical Body may be taken two wayes as the word Body may it self Collectively as it signifies the whole Commonalty of the Republick that is both King and Subjects and Discretively as it signifies the Subjects precisely by themselves and severed from the King As when we say the King and the people So in the word Body sometimes the other Members are to be understood with the Head as when we say the Soul and the Body And sometimes the Members only are precisely to be understood the Head to be taken by its self as when we say the Head and the Body XVII First therefore I say that most precisely and by a very evil Counsel that is wrested
to all Laws Kings Ordinances and Customs whatsoever VI. From so loose and dangerous an Interpretation of this vulgar Axiom not only a window but a spacious door being opened to seditious tumults and all manner of popular licence It is manifest that they who defend their horrible wickednesse with this forbidden buckler do not entertain the pure and genuine construction of that Axiom but do feign another to themselves which by an inforced Interpretation may give some shew of Patronage to their depraved Counsails and their Cause For as often as any man to serve his Avarice Ambition Hatred or Anger shall attempt new designs and fill all things with Rapine Blood and Plunder he incontinently may pretend the Safety of the People for his nefarious Villanie Examine I pray you the Annals and Chronicles of all times throughout the world both sacred prophane antient modern exotick or our own you shall every where find that the Catilines and Cethegi of all times and places did constantly practise these things under the pretence of liberty and popular safety so that he may seem to have a Melonin stead of a Heart they are Tertullians own words that will suffer himself to be thus Circumvented and deluded But whether unwarily hath this Tempest hurried me whiles I let loose the reigns to my just Indignation I therefore do contain my self and that I may appear a Disputant and not an Orator I return to the matter in hand VII Where in the first place this is to be considered what in that vulgar Axiom is meant by the word Safety For it any man finds his dignity or liberty affronted or injured in some small thing nay and if it be a great one he is not presently to complain that he hath endangered or lost his Safety For every Hurt or Blemish is not directly opposed to the Safety of any thing or person but the Ruine or Destruction of it It is altogether the same thing a due Analogy being reserved in a body Politick and Republick as it is in a humane body and a single person By reason of the jarring of the contrary qualities in a mans body because of the defect or excesse of inward Heat and Cold and a various Immutation of extrinsecal Accidents it may so come to passe that a man may hardly enjoy his health but very often in one part or other of his body he may endure that either within or without which may be very troublesome to him it may also come to passe that by the Stone the Tooth-ach or the Gou◠or by some other disease in some other part he may feel an extreme pain or be so sick in every part that he may lye down yet in the mean time it may be neither necessary nor seasonable to have recourse unto extraordinary Remedies as if he were in apparent danger of his life and safety So in a Common-wealth we must not presently attempt against the Laws and Ordinances We must not gather together a rabble of the vulgar and raise tumults we must not presently cry out Arms Arms for the safety of the people as soon as any popular Souldier or bold Babler shall complain unto the people and accuse the Prince the Peers the Magistrates and Judges or their Ministers or any one of them of violating the Laws doing Injurie or neglecting their duties although peradventure they have deserved it There ever were and will be under the best Kings and the best govern'd Common-wealths some oppressions of the meaner Citizens proceeding from the abuse of Power and many other grievances for the preventing or redressing of which no care or industry of the Governours no severity of the Laws could prevail for if it shall be lawful for the factious Citizens as soon as ever they see one or another example of this nature to despise all Laws and Ordinances and under the pretence of the publick safety to revenge themselves upon the oppressors by force of Arms Kingdoms and Common-wealths will never be free from troubles and tumults Our Saviour saith Luke 17. 1. It cannot be avoyded but that offences will come and we must go out of the world as the Apostle saith 1 Cor. 5. 10. or seek some Eutopia or Platonick Common-wealth to preserve us if we shall make such an Interpretation of the safety of the people that unless every one of the lowest degree of Citizens be altogether secure from all unjust force and unrighteous Domination of some Superiour or other there shall be no publick peace at all The safety of the Common-wealth is then indeed in danger when by the incursions of Exotick Enemies or by the depraedations of wicked Citizens the affairs are brought into so manifest a danger that unless some timely help be provided the City and Country undoubtedly will be destroyed VIII We have seen what our Innovators do mean by the word Safety In the next place we are to observe how rightly that word People is interpreted by them The People as St. Augustine defines them from the lost books of Cicero in his Repub. is Coetus multitudinis Hominum juris consensu utilitatis Communione Sociatus * De 〈…〉 A multitude of men associated by the consent of Law and Right and the Communion of profit 〈◊〉 in this appellation of people all the Roman Citizens of every Order and Condition were contained For besides Kings in their first times and Emperors in their last the Romans had a threefold degree of distinction Patricians Knights and the Common people But in what a latitude this word is to be received amongst the Latine writers wheresoever it is found the Reader may collect by the adjoyned circumstances which for the most part for a most sure argument for this purpose may best be done by those words which are annexed viz. the opposite Terms The word People is taken three wayes by the Roman Writers First and of all the most unusual it is taken for the Common People alone which was the lowest order of the People of Rom◠as in that of Martial Dat populus dat gratus eques dat thura Senatus Where the word People being opposed to the Senate and the Knights can signifie nothing but the Common-People Secondly for both the inferior orders of People viz. the Common People and the Knights together the Supreme or Patrician order being excluded For in the beginning of the constitution of that Common-wealth the Kings being expelled the Fathers thought good to retain among themselves a kind of Prerogative of Honour and Dignity above other Citizens and for the signification of it to separate themselves by that name from the rest of the Turba of the People From whence came those solemn Forms The Senate and the People of Rome It seemed good to the Senate and the People of Rome In which the name of People doth comprehend all the other Citizens both Knights and Common-People the Senate excepted Thirdly it is taken for all the Citizens of all degrees without difference both
as too burthensome and therefore because too insolently he domineereth over them to drive him out of his house to seize upon his Keys Truncks and all his goods and to mannage themselves the Government of the Family at their own pleasure under this pretence only that The safety of the Family is the supreme Law oeconomical There is no man but will confesse but that these wicked and nefarious Counsels may by some lawful consequence be deduced from these Principles which Principles being rightly understood are most true and profitable And yet an egge is not more like unto an egge than the Arguments of those men who by pretending the peoples safety fill all things with sedition are to this wild kind of reasoning as if and that very eminently also the safety of the General were not contained and included in the safety of the Army and the safety of the Master in the safety of his Family and the safety of a Prince in the safety of his people To be short we must acknowledge the safety of the People that is of the King and People together is the supreme Law but the safety of the People that is of the Subjects the King being excluded is not so XIV In the second place I am to add something more And though I conceive that I have clearly enough proved that in this Axiom by the word People neither the Subjects without the Prince nor the Prince without the Subjects ought precisely and by themselves to be understood but both of them conjunctively yet if any man will more exactly consider either the dignity of the persons or the original of this Aphorism he will willingly grant it to be understood more precisely of the safety of the King than precisely of the safety of the People For first that the Kings Majesty is sacred hath not been only most copiously acknowledged by all the Fathers of the Church even at that time when there were no Christian Kings who have reverenced them as men second to God and lesse only than God himself and have offered Vows and Prayers unto God for their safety and have taught that on their safety the safety and happinesse of the whole people did depend But God himself as largely may be shown if need required hath been pleased that abundantly it should be testified in the holy Scriptures From whence it came to passe that all good Subjects and endued with a right understanding in the height and heat and the extremest danger of Battel have judged that the safety of the King alone was to be preferred above the safety to them all which as it became good Subjects those Israelites gallantly professed who at the time of the execrable Conspiracy of Absolon preserved their fidelity which they vowed to King David 2 Sam. 18. 3. And of the same mind were they who not basely flattering a mortal man for their own profit but speaking according to the Dictates of the Spirit of God have called the King the breath of their nostrils for so that godly Prophet and sanctified from his mothers womb the Prophet Jeremy speaketh it Lamen 4. 20. In a most apt signification That breath which is attracted and emitted through the nostrils being that vital breath Animus Râ—publica tu es illa corpus tuum Senec. 1. de clem 5. Ille spiritus vitalis quem haec tot millia trabunt Ibid. c. 4. with which the soul as with a Bond is united to the Body and which failing the living Creature must forthwith necessarily expire and perish His Breath goeth forth he returneth to his Earth Psal 146. 4. XV. This also is worthy your observation that the Axiom of which we now treat hath been brought unto us from the Roman Nation and then in use with them when Rome did most flourish in a popular state And there is no reason we should wonder That the safety of the people was to them a supreme Law to whom the people themselves were the supreme Power The Lawes were then the Peoples the judgments the Peoples the whole jurisdiction the Peoples the entire Government and autocratical Majesty was the Peoples And from hence it is that amongst all the Historians and in Cicero also and other Writers of that age so frequent a mention is made of the majesty of the Roman people as being in a state Democratical which in a state Monarchical is not the Peoples but the Kings Therefore as much as the safety of the People was to them with whom was the Majesty of the People which how much it was by the Aphorism they would it should be testified to the world so much unto us if we will make use of of that Aphorism an Analogy in the so different forms of both Republicks being rightly observed as fit it should be so should be the safety of our Kings who acknowledge no other majesty but the Kings only XVI From these things which have been spoken I believe it is manifest enough that neither in the appellation of Safety nor in the appellation of People there is any force at all in this vulgar Axiom as to wrest it to the prejudice of Kingly dignity unless with the greatest injury that can be done unto it And if the two other remaining words of it viz. The supreme Law should be rightly weighed they would acknowledge I believe if they had but any Modesty or Reason that nothing can be spoken in this Axiom which is more ample and illustrious to establish the soveraign Power of Kings For these words the supreme Law do suppose that in every Common-wealth there ought necessarily to be somewhere a soveraign Power which is above all humane Laws positive 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist 5. Ethic. 14. Nulla tanta providentia potuit esse eorum qui leges compoâ—ebant ut species criminum complecterentur Quintiâ— declam 331. to which he ought to look and by his Authority to take care that neither by the defect of Laws or the too superstitious observance of them the Common-wealth may receive any dammage And the reason of this is plain enough for the wisest Law-maker cannot so foresee all circumstances of events to come neither can he make such a sufficient precaution by the Laws as to prevent all those Evils inconveniencies which he suspects may come to pass and this is not by the fault of the Laws or of the Law-makers but as Aristotle hath excellently observed it it is by reason of the nature of those things that are to be defined by the Laws which being indefinite by Reason of their variety and uncertain 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. because depending on futurity cannot be comprehended within some certain Rules of Limitation The Law-maker therefore hath discharged his part if by his Laws he hath ordained those things which are for the most part just Aristot 1. and profitable to the Commonalty Ethic. 14. although it may so fall out as indeed often times it doth that on
he feared if he should make a halt there and pursue them no further by reason of the fear of the Laws they might escape away he was therefore so venturous that for all the Law he brought the trayned Bands into the County that was contigious to it where having overtaken the Traitors he reduced them unto his Power and took along with him the Ringleaders of them with the rest of that desperate Rabble He conceived to himself as indeed he ought to do if he should throughly perform the duty of a good Subject he could never express it in a more honourable service and in that point of Necessity the more strict observance of the Laws was unseasonable he was therefore to obey the supreme Law that is to say the safety of his Country and to disregard all things in respect to the publick profit The Business being thus dispatched according to his own Desire the wise and active Gentleman least the Authority of the Laws should be disparaged by his Example which indeed was to be imputed to Necessity and being sensible withal to how greivous a Punishment they are lyable in the Rigor of the Law who are the violators of it believed he had not done enough to acquiesce in the consciousnesse only of what he had atchieved unlesse withal he had made a provision for his safety for the Time to come and took as much care as in him lay that no man should abuse his Example by peradventure too boldan undertaking of any new Design He therefore posts away unto King James of happy memory and prostrating himself at his feet he humbly craved pardon for the violation of the Law and as he deserved he not only from the most prudent King obtained pardon for the not observance of the Law but praise for preferring the publick safety above it XXIII To give satisfaction to some friends I have here my Auditors expounded to you a little more largely then my Custome is what is the sence of that Axiom Salus populi suprema Lex The safety of the people is the supreme Law and to stop withal the Mouths of some importunate Men who to speak with Solomon do force blood from the too much wringed Nose that is by misinterpreting a pious saying and indeed if it be rightly understood salubrious to the publick they perversly render it impious and destructive unto mankind To be short the sum of all is this If some private persons be hurt or injured If the Subjects have some publick Grievances of which they justly may complain they must not presently have a recourse as if the safety of the people were in the extremest Jeopardy to extraordinary Remedyes and which are contrary to the Laws But if there be a just fear that the Common-wealth will be ruinated either by forein Enimyes or seditious Subjects unless somthing be effected which is not permited by the Laws It is then lawful for the Prince by the Prerogative of his own Power nay it is lawful for the Subjects by the presumed Will of their Prince provided nothing be acted to his prejudice and the present exigence of Necessity so requireth to recede from the word and sence of particular Laws to assist the endangered Country and to be serviceable to the safety thereof as to the supremest Law I shall suddenly proceed to prosecute the rest as God shall permit and opportunity shall inable me The Grace of our Lord Jesus Christ c. Thus far I have committed the Sayls unto the Winds although in a blustring season and the face of Heaven being masked with many Clouds yet God being my Pilot I safely proceeded in my intended course and now I did begin to stand more off to Sea being resolved if the Times would give me leave to have reached the desired Port when behold a suddain and over-powering Tempest did over my head admonish me that for the time to come it would be very unsafe to adventure further or to continue ploughing through these unquiet Deeps I perceived therefore that new Counsels were forthwith to be taken and unless I would be come the reproach and sport of the Winds I must no longer stay on such a dangerous and such a vaunting Sea I suddenly therefore tacked about and timely brought my Ship into the Haven for it seemed to me more honourable gradually to retreat than to be beaten back by force and more profitable for my affairs to live within my own doors with ease and umbrage than to be seen in the Market place or on the Theatre attended with noyse and fear and envy Hinc eadem FINIS discriminis atque laboris Therefore till Heaven some calmer days shall send The Work and Dangers here together END THE END THE FOLGER SHAKESPEARE LIBRARY