go with him twayn A man therefore may and if occasion so requires he ought to depart from his own right for his own peace but much more for the publick tranquillity and obey him who hath no lawful power to command But above all he must have this Reserve so to depart from his own right that by so doing he taketh not any thing away from the right of another And Abraham in this did justly and wisely Gen. 14. who though he made the King of Sodom partaker of the spoils which by the right of war was his portion from the five Kings that were overthrown yet he cautelously provided that both the Priest should have his Tenths and his three Associates in the War should not want of their full proportions In the like manner obedience is so to be payed to an Usurper that the fidelity due unto the lawful Heir be no ways violated and that his right suffers no prejudice by it XXI But it may be objected How can this be done That which is grateful to an Usurper cannot but be most ungrateful to the lawful Prince No man can serve two Masters that look so contrary all whose Votes Mat. â— Studies and Counsels are violently carryed on to the ruine and destruction of one another I answer the account being well computed there is no reason that we should think that this obsequiousness of the Citizen so ordered and bounded as we before have delivered should be unpleasing to the lawful Prince but altogether to the Uâ—urper nay we may presume that with the consent of the true Prince himself it ought to be so For by this obedience the Citizen is not to be accounted to have assisted so much the unjust Possessor as the whole Commonalty or Republick the safety whereof doth no lesse concen the true Heir than the unjust Possessor Nay peradventure much more because being the true Father of his Country he is to be believed to love it sincerely to wish it more happinesse than the other who having excluded him hath thrust himself into his house and hath excercised a command over his Family and by how much the affections of a Mother to her Children are more pure vehement than a Step-mothers as may appear by that remarkable contestation of the two Harlots before Solomon the true Mother who knew the Child to be her own desiring the safety of it and that it should be given rather to another nay unto her Adversary than that it should perish by the Sword so it is most likely and it is to be presumed that the lawful Heir hath a greater care of the safety of his people whom although for the present under the yoak of a Stranger yet he doth acknowledge them to be his own hopeth well that in time they will prove profitable to him than he who having newly usurped the supreme Magistracy will be more careful it is likely to establish his newly acquired Greatness than to procure the safety of the publick and therefore the lawful Heir had rather that as modestly as they could they should accommodate themselves to the present affairs for their own safety than to run into a certain destruction by making an unseasonable and an unsuccessful opposition against one that overpowers them And thus I have given you my opinion concerning this most difficult and high question determining possitively of nothing but being ready if any man shall render more certain reasons to correct what hath been spoken and to jump in to the same Judgment with him XXII The fourth Conclusion followeth Humane Laws concerning things not unlawful do by themselves and directly in the general oblige the Conscience Which is as much as to say This general precept that Subjects should obey humane Laws being duly made is obligatory directly and by its self And this Calvin himself who doth not use to attribute too much to humane constitutions doth acknowledge who in the 4 Institute 10. § 5. doth advise that such a distinction be made inter Genus et Speciem betwixt the General and the Special that although it be denied that Laws in the Special do oblige the Conscience yet it must be granted that they have an obliging power in the General The reason is perspicuous for this general precept doth pertain to the eternal and Divine Law every part whereof doth directly and by it self and not only by consequence oblige our Consciences It pertains to the Law of God in a double respect First Because natural Reason dictates that Peace and Order which is the Soul of Common-wealths and of all humane Societies cannot be preserved but by an Obedience to the Lawes according to the solemn Constitution of them Secondly Because that God in the Holy Scripture doth command us to be subject unto those who are over us in that Order as God hath appointed and to obey 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he Higher Powers as may appear in the first and second verses of this Chapter and not to draw back our necks from their yoaks upon a bare pretext that they are meet men 2 Pet. 2. 13. and Creatures such as we are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Sons of Adam of the same â—ace of mankind and subject to the same Affections Sufferings Inâ—irmities and Casualties as our selvs but rather being mindful that Almighty God by a delegated Power did set them over us as his Vicegerents on Earth and hath been pleased to vouchsafe them so much honour as to communicate his own Name unto them as to so many visible and mortal Gods Psal 82. 6. I have said you are Gods we should reverence honour and obey them with the greatest Reverence and though not for their own sakes who are but men as we are nor composed of better Clay yet in respect to the Divine Oâ—dination who making them to bâ— Prâ—nces hath preferred them into a higher place abovâ— other men and in some measure made them Partakers of his own Power 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 according to the Lord as the Apostle Sâ— Peter â—n another place and by consequence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 â—ccording unto Conscience as the Apostle Sâ— Paul hath it in this place XXIII The fifth Conclusion Humane Lawes according to the solemn Constitution of them doe oblige theâ—â—â—science even in particular and although not directly and by themselves yet by Consequent and by 〈◊〉 of the general Divine Commandment I say in the first place Lawes solemnly and rightly constituted that is both by reason of the efficient Cause being made by him who is indued with lawful Power and by reason of the matter commanding nothing unlawful dishonest or filthy or any wayes unworthy the Duty of a Christian For we already have asserted that the Lawes which do offend in either of those two senses are not obligatory I say in the second place In the particular that is to a particular Determination in things of a middle Nature and in others As what and how
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
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
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
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
shall be examined and discussed at this time The first doubt is De materia impossibili of a matter in it self impossible concerning which I say in the first place That no Law ought to be made concerning a matter altogether impossible If such a Law be made it is tyrannical and by right null and obligeth no man in Conscience The first reason is because that Laws are made in relation to Acts as to be acted by a man who is a free Agent now liberty speaketh a power unto both but in things impossible there is no such liberty of power as by it self is manifest Secondly No man by right can be obliged to the performance of that the omission whereof cannot be imputed as a fault unto him nor ought to be imputed to him for punishment for every obligation is either to a fault or to a punishment or to both but the omission of a thing impossible cannot be imputed to any man for a fault nor ought it to be imputed to any one for a punishment Ergo c. But that there is no obligation of a thing impossible whether it be impossible by the Nature of the thing or by circumstances Praelect 2. Sect. 12. or any other way hath already by me been proved in my treatise of the obligation of an oath and there is no need of repetition VII I say in the second place A Law which is possible to some but seemeth to any other or to but few or peradventure but to one or two to be impossible may lawfully be made if it be useful to the Common-wealth but not unless there be some extraordinary great cause and a manifest necessity doth require it but being made it doth oblige all those who are able to keep it but not those who cannot keep it as if some great Tribute were commanded for the necessary use of the Common-wealth for the payment whereof some of the Subjects are nothing so able as others Those who are so poor that they cannot pay the sum which the Law lays upon them are not bound in Conscience to do that which they are unable to perform as is already apparent by the proposition above mentioned Neverthelesse they are obliged to make their addresses to those who are over them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nazianz. Orat. 9. Debeone omittere quod possum quoniam quod debeo minime possum Bernard and openly and sincerely and without the least falshood to professe the slendernesse of their Estate and unless they can prevail to be quite exempted from the Law or to procure a remission of some part of the sum with which they are taxed they are to bring into the publick as great a part of it as possibly they can for he who cannot do what he ought to do he yet ought to do what he is able to do VIII The second doubt is concerning a thing commanded by the Law not impossible but very grievous and very burthensome and which the Subject cannot perform without great inconvenience losse danger of life and the ruine of hiâ— whole Estate I say in the first place That in this case the Law-giver if he foreseeth this will come to passe ought to use some caution in the clauses of that Law and as conveniently as he can he is to provide a remedy for this Evil And if it cannot so well be done in the form of the Law it self leâ—t subtile and deceitful Knaves and too much intent to their own profit may thereby find a hole to escape 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Isae â—s ap Stob. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so elude the force of the Law yet what possibly in him lyeth he ought to provide that in the execution of that Law some qualification may be had leâ—t a Law otherwise profitable and necessary may become a snâ—re or a detriment to any honest man I say in the second place That the Subject though so heavily taxed is neverthelesse bound in Conscience to obey that Law although with the ruine of his whole Estate if any evident or necessary Cause for the good of the Common-wealth doth so require For example suppose a hostile Army be invading the Kingdom if a Law be made that all the corn in the Fields for some miles not far from the Shore be spoiled and all the Corn in the Barnes or Ricks which cannot be carried away be burned and that all the Houses in the Suburbs be pulled down and that all the Sluces thereabouts shall be opened and the Fields be drowned every Citizen and Subject is directly bound to obey this Law and cheerfully and willingly to obey the Commands thereof and with the loss of his own goods to redeem the publick safety not only upon that account that his Country being betrayed to his Enemies by his unseasonable parsimoniousness it is sure enough that every private person will be suddenly sensible of the ensuing calamity but especially out of the Conscience of his duty because that every good man is to preferâ— the publick above all private interests I say in the third place That a Subject unlesse some remarkable necessity doth appear or fear of publick danger is ordinarily not obliged to obey a Law that is so extremely burthensome as to bring with it the certain ruine of his whole Estate or the imminent danger of his life But he is bound as generally hath been already spoken and which almost in all cases I would have you to observe that we may need not any more to repeat it to you to make not the least resistance but patiently to endure whatsoever injury or contumely shall be brought upon him by the superiour powers IX The third doubt is concerning things necessary as if the Law of men should command any thing which was necessary before and commanded by the Law of God or forbid any thing which was before unlawful and prohibited by the Law of God What is the obligation in this case I answer briefly That the Subject by this Law is absolutely obliged For first the obligation which was in force before the Law of God doth not hinder the effect of the Law of man by excluding a new obligation for a man by many bonds may be obliged to the performance of one and the same duty as I have already declared in the former Lecture to which reason we may also adde another which is that oftentimes the Law of man doth adde something to the Law of God to wit by determining the Act as to the substance of it commanded by the Law of God and therefore necessary as to the manner quantity or some other circumstanceâ— of it which was free before or by adding some determination to the Law of God prohibiting a thing unlawfull as to the degree of the Crime or the manner of the punishment or the measure of it or other things of the like nature for examples sake it is by Divine right that there should be publick congregations to perform
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