Penalty then 't is plain that no part of it is or can be derived from it To which I further add That the End of the Sanction is to move and engage Men to pay that Obedience to the Law which they owe. 'T is indeed one of the forcible and violent ways of recovering a Debt a Debt which Men owe to the Law and which if they did not owe it could not be justly exacted from them under a Penalty Here then is Duty and Obligation supposed in Order of Nature at least as Antecedent to the Sanction and to which the Sanction is to serve as a Means to the End And therefore 't is most certain if there be any thing so in the Measures of Reasoning that the Law does not derive its Obligation nor any Part or Degree of it from the Sanction And this I take to be Vertually at least contain'd in those well-known Words of the Apostle Wherefore ye must needs be Subject not only for Wrath but also for Conscience sake There is I know some Dispute concerning the Meaning and concerning the Extent of the former Clause but whatever be meant by Subjection here and how far soever it is to extend this in the mean time is certain that this Subjection whatever it be is by the Apostle press'd from a double Principle Wrath and Conscience which he plainly distinguishes one from another as two different Grounds and Inducements to Subjection Ye must needs be subject not only for Wrath but also for Conscience that is not only to avoid Punishment but also out of a Sense of Duty and Obligation Which being here made not only a distinct but a further degree of Argument for Subjection 't is plain that in the judgment of the Apostle the Obligation of the Law is not from the Sanction because if so he need only have said Ye must be subject for Wrath which would have been sufficient as including the other But whereas he makes a Contradistinction between them 't is evident that he that is subject only for Wrath is not subject for Conscience and consequently that Obligation in Conscience does not proceed from Wrath but from some other Principle If it be then demanded Whence does the Law receive its Obligation I answer first that 't is enough for my present purpose to have shewn that it does not receive it from the Sanction But if a more positive Answer must be given I say that the Law has its Obligation from the Authority of the Law-giver who by vertue of his Authority has a Right to be Obey'd and to exact Obedience by Punishments in all his just Commands And this they will at length be driven to acknowledge who derive the Obligation of the Law from the Sanction For when they say that the Law obliges by and from the Sanction they must be understood to mean if their Sense be drawn out more at length that the Law obliges me to do so because it obliges me to suffer for not doing so But pray how comes the Law to oblige me to the Latter to suffer for not doing so Is this by vertue of any other Sanction But so we might run on to Infinity It must be therefore by something else And what should that be but the Authority of the Law-giver And if this be thought sufficient to Authorize the Sanction why should it not also Authorize the Law If it be further askt whence has the Law-giver his Authority I answer If he be a Creature he has it from God whom I suppose to be the sole Fountain of all Power But if the Law-giver be God he has it Originally and Independently in himself But whether it be by the more Super-eminency of his Nature as some say or by the Benefit of Creation as others let them dispute that abound with more leisure than I do and want better employment But though the Sanction does not give the Law its Obligation or any part of it may it not however be necessary to it Yes if made so by the Will of the Legislator as I said before Establishing such a Connexion between them that upon the Ceasing of the One the Other also shall cease But not in any wise from the Nature of the thing For if it be of it self Necessary it must either be as a Cause or as a Condition That it is not Necessary as a Cause we have sufficiently proved already by shewing that it has no part in effecting or producing the Obligation of the Law If therefore it be Necessary it must be Necessary as a Condition But that it is not I will now briefly shew By a Condition I understand that which though it has no Causal influence upon the Effect yet it so determines the Efficient Cause to act as that without it it will not act As for instance the opening of a Window though it be not the Cause of inlightning the Room for it does not Efficiently inlighten it yet 't is the Condition of it as being that without which the Sun will not inlighten it Or to come somewhat nearer home the Promulgation of a Law though it be not the Efficient Cause of its Obligation yet it is the Condition of it as being that without which the Law will not oblige Now the Question is Whether the Sanction of the Law be in this sense necessary to the Obligation of it To which I answer By no means For since the Obligation of the Law is supposed to owe its Birth not to the Sanction of it but to other Causes which has been proved already there can be no manner of reason pretended why the Sanction would be a Condition necessary to the actual obliging of it but only as it may be esteemed a Sign that such a Proposition is the Will of the Legislator For the Law having its whole and full Authority within its self independently on the Sanction needs only a publick Sign that 't is indeed the Will of such a Power to make it actually Obliging If therefore the Sanction be necessary it must be necessary as a Sign But that end being already sufficiently answer'd and satisfied by the Promulgation of the Law it cannot pretend to any such necessity and therefore to none at all And accordingly we see that even a solemn Promulgation it self when it ceases to be necessary as a Sign ceases absolutely to be necessary as appears in the Instance of the Law of Nature which because it may be and is otherwise known than by a solemn Publication of it renders that Circumstance wholly unnecessary The sum is if the Sanction be necessary it is necessary as a Publick Sign that being the only thing supposed to be further wanting where the Law is otherwise sufficiently Authentick But it is not necessary on that Account because of the Promulgation which fully and directly serves to that End And therefore it is not at all necessary But may not the Sanction be necessary as a Sign where the Law is not
more necessary to the Sanction than to the Law For oftentimes the natural and inward Reasonableness of the thing may in a great measure supply the place of an Express Law as it did for a long time before there was any Express Law given but now Punishment is a more Arbitrary thing and that depends more upon the Will of the Governor and therefore unless there be an Express Declaration of it as there will be no certain ground of expecting it so there will be little or no influence derived upon Men from it Which makes it absolutely necessary that the Sanction should be expressly declared and published otherwise it will neither have the Nature nor the Effect of a Sanction It may indeed be the secret intent and purpose of the Law-giver to inflict such a Punishment for such an Offence and perhaps in some Cases this may be justly done without declaring before-hand that he will do so and this may be said to be the Sanction of the Law-giver but unless this be openly and plainly declared it can be no Sanction of the Law nor can it be a Sanction to those that are to be govern'd by it If God in his first solemn intercourse with Adam after the Precept given him had reserv'd that other Clause to himself In the day that thou eatest thou shalt die or had communicated this his Will and Purpose to an Angel or to any other Being but not to Adam himself could this have been said to have been in any respect a Sanction to Adam No certainly because not manifested to him whose concern it was Nor for the same reason could the other be said to be a Sanction to the Jews It must therefore either be said that the Tenth Commandment did not oblige the Jews which I think would be an intolerable Assertion and withal expressly against the sense of the Apostle declaring Lust to have been a Sin by virtue of that Commandment or that it obliged them without any Sanction and consequently that the Sanction is not necessary to the Obligation of the Law Which is the thing that I plead for If it be said that though the Sanction be not necessary to the Obligation of the Law in general nor consequently to the Obligation of all Laws yet it must be necessary to the Obligation of Human Laws because Human Laws do not oblige under Sin and therefore must oblige only under Penalty and that therefore such Laws without a Sanction will not oblige I answer first That this Objection proves a great deal too much for upon this Supposition the Law would not oblige to Action even with a Sanction for it would not so oblige at all But we suppose here the Law to have such an Obligation and say that the Sanction is not necessary to it and consequently that the removal of the Sanction does not remove the Obligation Our present Argument therefore is not concerned in this Objection We are here enquiring what Alteration the Toleration has made in the state of things by removing the Sanction of the Law whether it has thereby removed the Obligation too We say it has not but that if the Law had any Obligation before it has so still because the Sanction is not necessary to it But whether it had or no belongs not to our present Consideration which is only concerning the Effects of the Toleration but to the Absolute Merits of the Cause But however since it happens to come in my way this I say further That it is not at all necessary that Human Laws should be purely Penal because they are Human and consequently that 't is not necessary that all Human Laws should be so For when-ever they are purely Penal 't is acknowledged that they oblige to Punishment otherwise they would oblige to nothing which is the same as not to oblige at all and consequently would be no Laws But how come they to oblige to Punishment but only by the Will and Intention of the Law-giver invested with competent Authority And if by that he could oblige to Punishment then by the same had he so pleased he might have obliged to Action For this is a most unquestionable Rule That he who can oblige to Punishment can also if he pleases oblige to Action nay much rather it being a much greater thing to oblige to Suffer than to oblige to Do. Human Laws therefore are not necessarily to be supposed purely Penal as they are Human nor consequently ought all Human Laws to be so esteem'd 'T is not from the different Authority of the Law but from the different Intention of the Law-giver that any Law becomes purely Penal 'T is therefore by meer Accident that Human Laws are any of them purely Penal and not from the Specifick Nature of the Laws themselves which for any thing that is in their proper Natures may oblige in Conscience as well as any other Laws And that they do so oblige unless where t is otherwise express'd or insinuated in the Form of the Law is most certain the Law of God requiring us to obey the Laws of Men where they are not contrary to the Law of God But I need prosecute this no further since the Excellent Bishop Sanderson has given the World sufficient Satisfaction in this Point in those judicious Discourses of his de Legum Humanarum Obligatione in Conscientia If it be further urg'd which I think is the last Reserve of this Objection That the Removal of the Law does involve the Removal of the Sanction and why then will it not hold as much the other way that the removal of the Sanction should remove the Law To this I answer That there is a great Disparity in the Case The Sanction is made purely for the sake of the Law whom it is to guard and defend and so serves to it as the Means does to the End and consequently if the Law be abolish'd or suspended c. the Sanction must needs fall in proportion with it But now the Law is not made for the sake of the Sanction but for the good of those who are to be govern'd by it And therefore though the removal of the Law removes the Sanction yet it does not therefore follow that the removal of the Sanction should in like manner carry with it the removal of the Law To which after all I might add That 't is impossible that the whole Sanction of Human Laws should ever be removed For since the Law of God requires Obedience to the Laws of Men where-ever it may be lawfully paid and threatens those with the Punishments of another Life who are disobedient to publick Order and Government in this though the Human Sanction should be taken away yet the Divine Sanction would still remain and as long as that does remain the whole Sanction cannot be said to be removed This I might say for a Reserve and I do not see what Answer can be made to it but I think my Cause is otherwise so well
That any Law would Oblige let the Matter of it be never so wicked and unjust or the Authority whereby 't is made never so incompetent provided it were arm'd with a sufficient Sanction For the Sanction being supposed to be the only Fountain of Obligation that being present and in such measure as is requisite the Obligation must needs follow as every Effect does upon the Being of its intire and adequate Cause Secondly It would also follow that no Law could oblige constantly unless it were backt with the greatest Penalty that is absolutely possible For since the Law is supposed to have all its Obligation from the Penalty then where there is the greater Penalty there will be the greater Obligation and consequently if the Case should so happen that a Man should threaten me if I do not transgress the Law with a greater Punishment than the Law does in case I do I am then discharged from the Obligation of the Law as being under a greater Obligation and may innocently transgress it though it were the Law even of God himself Which at one blow would strike off the constant Obligation of the whole Jewish Law For the Law of the Jews being ratify'd and confirm'd to them only by Temporal Penalties and those not always the greatest even of the same Kind and Order if a Jew should happen to be tempted to transgress the Law as he easily might by a greater Punishment than the Law would inflict upon him for transgressing it upon this supposition that the Law receives its Obligation from the Penalty it would follow that he would be released from the Obligation of his Law which I think is Absurd enough But to this I further add Thirdly If the Law be to receive its Obligation from the Sanction then we must suppose it therefore to Oblige because it makes it Reasonable or Eligible for a Man to do so or so that he may avoid such a Punishment for that is all the engagement to action that the Sanction can be supposed to add But if this be all this is not to Oblige in Duty but only in Point of Prudence which indeed is not properly to Oblige at all since otherwise all rational Inducements would be Laws Indeed the Proposal of a Penalty may be a good Ground of Perswasion why a Man should do so as the Law directs But it can be no more it cannot lay an Obligation upon the Conscience or make it Sin to do otherwise It may move determine and in some Cases secure the Choice but it cannot Oblige the Will To say therefore that the Law Obliges by and from the Sanction is in effect to say that it does not Oblige at all since then it could Oblige only by way of Persuasion and rational Inducement which indeed is not strictly and properly to Oblige The truth is upon this Supposition the most Excellent Law of the most Sacred Authority in the World would Oblige no otherwise than the Demand of a Thief upon the High-way The Thief bids me Deliver or he 'll Pistol me The Law bids me do thus or I shall be Punish'd I yield up my Money to the Thief to avoid being Pistol'd and I yield my Obedience to the Law to avoid being Punish'd 'T is possible here that the Motive of Action in both Cases may be the same viz. the avoiding of Evil. But I hope no-body will be so Gross as to say that the Obligation in both Cases is alike too that the Law Obliges no otherwise than the Command of a Thief when he comes to Rob me And yet this must be said if it be true that the Law has its Obligation from the Sanction for then 't is plain that all its Obligation comes to this That it makes it reasonable and eligible for me to do such an Action to avoid such an Evil and so does the Thief Fourthly If the Law Obliges purely in Vertue of the Sanction then 't will follow that the Law will Oblige no further than the Sanction reaches Consequently it will not Oblige the Supreme Magistrate who is acknowledged not to be subject to the Sanction of the Law But this is more than the greatest Sticklers for Prerogative will allow and indeed is against the general Sense of the greatest Masters of Law whether Common or Civil who generally yield the Supreme Magistrate to be under the Directive though not under the Coercive Power of the Law And if so then the Preceptive does not Oblige by Vertue of the Coercive since 't is allow'd to Oblige where the Coercive does not reach Fifthly This Hypothesis of the Law 's receiving its Obligation from the Sanction will in the Consequence of it make all Laws purely Penal that is such as do not oblige Absolutely to the Fact but only Conditionally either to the Fact or to the Penalty and which therefore are equally satisfy'd either by doing what is Express'd or by suffering what is Intail'd upon the Omission of it For if the Law be supposed to Oblige by Vertue of the Penalty which it proposes then its Obligation comes to this That I must do such a thing because otherwise I must suffer such a Punishment which is as much as to say that if I do not such a thing I must suffer such a Punishment which will again at last be resolv'd into this that either I must do so or suffer so which though it Obliges me Disjunctively leaves me at full Liberty as to the Determination of my Choice Which expresses the true Form and Nature of a pure Penal Law But I suppose it will not be said that all Laws are purely Penal For then there would be no Sin but only where the Penalty is declined or resisted the Consequence of which again would be that all the Sin that is in the World would only be against Human Laws and that there would be no such thing as Sinning against God because the Divine Justice can neither be evaded nor resisted Which is a Consequence that would make strange Alterations and introduce as strange Confusions in the System of the Moral and Intellectual World Sixthly and Lastly If the Obligation of the Law proceeded from the Sanction then 't would follow that I am therefore Obliged to do because I must Suffer for not doing But this is so far from being true that the Reverse of it is so For I must therefore Suffer for not doing because I was Obliged to do For I must Suffer because I Sinn'd otherwise my Suffering would be unjust And I could not Sin if I were not under an Obligation which being thus Pre-supposed and Antecedent to the Necessity of undergoing the Penalty which is what I call the Sanction cannot possibly be founded upon it or proceed from it This last Argument proves not only that the Law does not derive its whole Obligation from the Sanction but also that no Part or Degree of it is thence derived For if the whole Obligation be as is supposed Antecedent to the