The Obligation of Human Laws, Chapter 2
CAP. II.
FOr the foremoſt, I wonder the leſs that this debater does ſhow ſo much diſdainful contempt of my determination, when he is poſſeſſed with ſo much prejudice, as gives him not leave to mind the very main diſtinctions I offer him in it. After he hath therefore in the enſuing, firſt three leaves fallen upon a paſſage of providence, which I have ſet down as proper and indeed peculiar to the matter of the Caſe, he enters the Liſt with theſe words. This is ſufficient to ſhow what may be expected from this new undertaker, who will appear I don…t not as lame in his Reaſonings as he doth in this, and prove as unfit to determine caſes of Conſcience, as to make obſervations of providence. I do not know what kind of guſt one may have of the ſame thing which pleaſes another, but it does become any inge…uous mind to think, that all men are not caſt into the ſame mould, and to take heed therefore, leaſt by cenſuring of that which the moſt of others approve, he brings his own Judgement into queſtion, and becomes the leſs regarded himſelf for it. And really if the ſpleen and extravagancy, of five ſides and a half, and no leſs of about twenty leaves in all, to no purpoſe but abuſe of his paper, do not ſhew more what may be expected in this ſtale undertaker, who hath come out now this fourth time to debate; then that obſervation of mine will diſcover in me, I am miſtaken. For my part let the determination of the caſe be found as ſolid as that obſervation upon the matter of it is pertinent, and I ſhall have no cauſe to be moved by his cenſure. But what is that which hath moved him thus? why, he makes me (ſayes he) ſuch a pittiſul Gamester that I am not reflective (here he quotes the Page wherein I have delivered that hainous word) upon more removes then one of thoſe many I ought to ſee.— Yet I have done my endeavour to comprehend him and to fathome the bottom of his deep diſcourſe. I muſt confeſs I have expreſt my ſelf in theſe words he quotes, I ſpeak verily according to my thoughts, and I can't help that. But one would think by theſe words, we ſhould have at leaſt ſo much integrity now from this perſon, as to ſet down my determination at leaſt in my own words, being ſo few, if not made better by his, that the Reader might judge whether he does indeed look to the bottom of what I have offered, and if after theſe words he yet does not, he may be aſhamed, to expreſs himſelf thus, and ſhew ſuch a ſpirit as this is.
Well in my caſe, I diſtinguiſh then firſt, between the authority of the Magiſtrate, and of his Laws and Commands. To this purpoſe there is a diſtinction which Dr. Field has, parallell with it, to wit, between ſubjection and obedience, ſubjection is that which is due or proper to the Magiſtrate, or to the authority reſiding in his perſon: Obedience is that which is due to his commands, or to the authority of his Laws. By ſubjection we are to underſtand all that which ſtands in oppoſition to reſiſtance, and ſo ſubjection in one verſe in the Apoſtle, is aequivalent with not reſiſting in the other; and the word in the Original does kindly ſerve this purpoſe. Now ſubjection being what is oppoſite to reſiſtance, and what is due to the Authority which reſides in the Magiſtrates perſon, it is what is; and muſt be always due; ſo that we muſt never reſiſt, but be ſubject, becauſe this authority always reſides there. But obedience which is proper to his Laws, or commands, is not due always, becauſe there may be ſome Laws, or things, commanded, devoid of Gods authority, and then if we obey them not, we do not ſin. This is acknowledged, or very near it, in two caſes, by this perſon; in a caſe of ſin, and in a caſe of intollerable grievance, from whence others will follow.
The other diſtinction is between the obligation of the conſcience, and of the outward Man. Let this learned perſon now take of his eyes from the paper, and conſider but a while before he reads on, what he thinks I mean by, and to what uſe I put this diſtinction, and he may take the beſt conjecture whether he be not ſhort in his comprehenſion of it. The outward Man let us know then is obliged by the penalty, the ſword, or wrath: and by Gods command not to reſiſt, or to be ſubject in reference to his authority reſiding in the Magiſtrate himſelf. There are two things then you ſee go to the binding the outward Man, Gods command of not reſiſting, or being ſubject to the Powers, and the Magiſtrates ſword, and force. If we muſt never or by no means reſiſt, then the Magiſtrate may make us do what he will, or elſe we muſt ſuffer. We cannot avoid ſuffering but by reſiſting or obeying, Reſiſt we never may, obey we muſt then, if we will not ſuffer, unleſs the caſe be in the matter of ſin, wherein we all agree in one, that we muſt always ſuffer. The Conſcience is obliged only by Gods will, which is the adequate Rule of Conſcience. I will explain it farther. There is Gods will, and Mans will, a divine and humane Obligation. When God will have a thing to be done as well as Man, I do accompt the Conſcience is bound, becauſe the Obligation is divine: but when Man will have it done, and God requires it not, but only his will is that whatſoever be impoſed, the ſubject however muſt not rebel, I do account the Obligation to the thing to be humane altogether, and the outward Man bound only. Jus Regis vocatur (ſayes Grotius I remember ſomewhere) non quia Rex ita agens juſte ageret ſed quia it a agenti nemini liceret vim ullam opponere. That is as much as to ſay there is a double right a Magiſtrate hath in his commands or actions; A moral right when he commands, or does, thoſe things which he ought to do, or command: or a Political right, (called by Samuel the manner of the King) when though he commands or does thoſe things he ought not (or what God does not allow, but he is accountable to him for them,) yet the ſubject may not reſiſt him in thoſe commands, or acts, and deliver himſelf from them by force. When the Magiſtrate uſes the firſt of theſe Rights, I account the conſcience is obliged: when the ſecond the outward man onelyonly. The termes are uſed we know by grave Divines ſuch as Biſhop Downham (to name no other) in his tract of Chriſtian Liberty: and it will be one benefit of theſe papers, if we can retain with good diſcretion, and ſenſe, what is ſo uſefull, as rather then be without, we ſhall ſtill uſe though with none. And by this diſtinction it does appear, how all that danger which hitherto this man hath fancyed conſequent to my determination, does fall away as the leaves from the trees in ſummer. For ſo long as we do all acknowledge the authority of the preſent Magiſtrate in his perſon with our ſubjection thereunto, that in no caſe it is lawfull to reſiſt, whereby the outward man comes to be bound, ſo that if he will, and when he will, he can force it to obey by his ſword, there is not ſo much as any certain diſobedience, and much leſs is there any danger to his Government, through Inſurrection, or Rebellion, that follows from my opinion.
If in Religious things, or moral, when the Magiſtrate commands any thing againſt a mans conſcience, and the Subject does not obey, his authority nevertheleſs is preſerved, though he cannot force them in that caſe to obedience if he would: how ſhall we think but in things which are ſecular, where be can force them to obey if he will, that there is any danger to his Government, for their obeying ſuch and ſuch a Law only becauſe they dare not to reſiſt (I mean for Gods ſake that they dare not) and not out of conſcience elſe? I would have this worthy, and intelligent, but at this time over engaged perſon, who yet ſees not all the removes which are to be ſeen in this buſineſs, for all his anger at me for my thinking ſo, to conſider whether there be not many learned Men, Writers and others, who hold that the Laws of Men do not obleige the Conſcience at all; and that they cannot, ſeeing Conſcience is Gods Throne, but the external man only▪ and does he think that all ſuch muſt be ſo ſhallow that they are not able to avoid his extemporanous conſequences, or that they ſee not the weakneſs of ſuch a Gameſter (ſeeing he calls himſelf ſo, for it was not I uſed that word) who hath not come yet ſo far here, as to conſideration with himſelf? For I ſay, is there any Men of parts or learning thinks he, that fear God and are Chriſtians, who hold it lawful to rebel, or to deſtroy all Society and Government. … And if not, how comes it to paſs he ſhould not reſolve with himſelf, that certainly if ſuch conſequences which he would faſten on me will be avoided and denyed by thoſe that hold that human Laws do never bind the Conſcience, they may and muſt be denyed by me with more facility, who have determined that human Laws do with a diſtinction bind it, but not indefinitely as he does.
And what is that diſtinction then which after theſe two other not comprehended by the Debater, does determine the queſtion in hand? That we are to be always ſubject as to the Authority of the Magiſtrate himſelf I have ſaid and yet that we are not bound always to obey his commands, that is, we are not bound always in Conſcience, when yet we are bound in the outward Man. This being ſaid, the determining diſtinction concerning his Laws or Commands, which do bind, and which do not bind the Conſcience is this. The commands of the Magiſtrate are either ſuch as are agreeable to Gods will, or not agreeable to his will. Thoſe that are, bind it: Thoſe that are not, bind it not. The Reaſon is, becauſe the authority the Magiſtrate hath to command, is derived from, and to be founded in Gods will. In the way, The Caſuiſt (ſayes this benign Debater) ſeems to have no low op…nion of his own performance, but rather thinks we may chance to be beholding to him for a new Invention. Here ſayes he, is that very mean indeed for ought I know which is wanting. A great diſcovery! and for ought I know may any body reply that which is not wanting but the very dangerous extream into which the people are apt to run, as he is to follow thoſe with whom I have had to deal. As for thoſe with whom he hath been dealing I preſume it will be found there is nothing of this determination in what they have ſaid; if & I did not eſteem it uncommon, I ſhould (I muſt confeſs) have reſtrained it. Or if I did not think it conſiderable, I ſhould have held my peace alſo. But after this ſcornfulneſs of his why did he not preſent us with that mean which follows in the words of the Caſe, that the Reader might judge, whether it be any diſcovery indeed, or none, or whether it deſerves this Mans contempt or not? For as Cato ſaid of Cicero when he played upon the Stoicks opinions (which another hath noted) Cicero makes others laugh, but is himſelf ridicuculous: So ſay I, this perſon ſtrives here to offer me and my determination to contempt, but the things I have ſaid will bear themſelves out, and he does but diſcover hereby his own deſert. What is that mean then which follows? The words in the Caſe are theſe. That the Laws or Commands of the Magiſtrate (even in Political and indifferent things) does no leſs then bind the Conſcience, when he is the executioner of Gods will, but though the outward man (out of the Caſe of ſin) may be bound if you will, the conſcience cannot be obleiged, and ought to be ſtill kept free, when he is the executioner only of his own. It may be the Debater will not yet be beholding to me for this, and he may chooſe, when perhaps others will, and take it never the leſs kindly for that. It fares with thoſe that beat their heads about notions, as it doth with Miners; they are the condemned Men, and the Gold they dig becomes others: Never the leſs the Man that hath been digging & finds a Veine, may ſay, what he hath found is Gold as well as another, and without pride. He doth not commend himſelf, for his commending the Gold. I think verily that that which I I have here digged is the mean, the Golden mean we are to find in this caſe, and not an extream wherein I follow any as he ſayes: but the avoiding both extreams. The one is of thoſe who hold that human Laws do not bind the Conſcience at all: and the other ſuch as hold as this Man did when he firſt unadviſedly ſet out, and therefore will continue of the mind ſtill, that they bind indefinitely without diſcrimination, at leaſt ſo far by all means, as Dr. Manton his good Neighbor, and every one ſuch as he (whatſoever the breakers of other Laws may be) might be none of Chriſts Miniſters or good Chriſtians on that account.
Well! The will of God which determines the commands of Man to be obligatory or not, upon the Conſcience, muſt be conſidered in the concerns of Religion: in things morall: and in things civil or Political. The rule or Law of God in things Religious, is the Scripture. The rule or Law of God in things moral is the Light of Nature, which alſo is the will of God, as the word is. The Rule and ſupream Law which God hath appointed for things Political is the common good. If the Magiſtrate command any thing in Religion and it be not according to Gods word, then Conſcience cannot be bound to it as Religious, though the outward Man I think therein alſo is bound, if it be not againſt Gods word. It the Magiſtrate command any thing of moral concern, if it be againſt the Law of nature, or common principles of Light in Man, that is the moral Law in the heart, the Conſcience cannot be bound but muſt refuſe it. If he command any thing which is civil or Political, and it be againſt the common good, then is it not agreeable to Gods will, being not conſonant to the rule he hath commanded for civils, and conſequently the Conſcience cannot be obleiged by it upon that accompt. In the mean while ſo long as it is not againſt conſcience otherwiſe, that is ſo long as it is not ſin, the outward man is bound, and if the Magiſtrate will conſtrain a perſon to it, rather then ſuffer he will obey.
There are ſeveral books and Sermons of Miniſters about Religion, which do bind the Readers and Hearers by vertue of Gods will: but the ſupream Rule is Gods Word, unto which conſequently, if what they have ſaid; or writ, be not conſonant, the Conſcience is not bound, and according as the Conſcience of a Man is convinced, whether that which the Miniſter ſays be agreeable to the word or not, ſo is it bound, or not bound by it. The caſe is the ſame in Laws. The Magiſtrate doth give us ſuch and ſuch particular commands, or Laws. His authority he hath from God. The will of God as the ſupream Law, or Rule, in Politicalls, is, that the common good be attended and advanced. They are Gods Miniſters a ſending continually upon this very thing. So far as his Laws, or commands then are agreeable to the common good, ſo far is his Authority good, and muſt obleige the Conſcience being from God. And ſo long as a man is convinced in Conſcience, that they are agreeable thereunto, he muſt be in Conſcience obleiged: but if he be ſincerely perſwaded that ſuch or ſuch a thing commanded, be not for the publick good, the caſe is but the ſame with what I ſaid in Religion, when the Miniſters exhortation diſagrees with the word. The Magiſtrate is but Gods Miniſter in Politicals, and his commands diſagreeing, with the ſupream Law, the common good, the Conſcience cannot be obleiged in this Caſe. Nevertheleſs, ſo long as the outward Man is in the Magiſtrates power, and the Subject may not reſiſt, he can command obedience, out of the caſe of ſin, when he pleaſes to exert his Sword.
Before I paſs off, I am made a little ſenſible how apt our queſtion may be wreſted into a diſpu…e about Terms. It is hardly proper to ſay this or that Law binds the Conſcience, for Conſcience is the diſcerner of my duty, and it were more proper to ſay my conſcience binds me to this Law, then that this Law binds it. It is ſcarce proper neither to ſay the Conſcience is bound, ſeeing it is the perſon is bound. Conſcience is placed in the underſtanding, and when a thing becomes a Mans duty, the will is obleiged rather then the underſtanding. It is not eaſie likewiſe to apprehend how the outward man is bound with diſtinction to the Conſcience, conſidering that this obligation hath it's riſe, and vertue, from our duty of not reſiſting, unto which we are always bound in Conſcience. The term Reſiſting likewiſe is liable to diverſity of acceptation.
It is convenient therefore for me, in my way to give the ſenſe of my Terms (if it be not yet done enough) to prevent needleſs contention. By human Laws I underſtand the declaration of the will of the rightful Governor, what he would have his Subjects do, I will not alſo put in the end of Laws, in order to the common good, becauſe that will preſently ſpoyl the queſtion. For where the efficient is our rightful Ruler, and the Law ſerves indeed for that end, or hath it's right final cauſe alſo, there is no queſtion of its obligation. Yet if I leave out the end the queſtion indeed may be whether ſuch a declaration be a Law, rather then whether it binds. Nevertheleſs as I make a caſe of conſcience of it (and count all our Acts of Parliament Laws) it is all one in effect to me, whether you ſay, ſuch a Law binds not, or ſuch an Act or Law is no Law, and binds not. Ex quo intelliges eos qui pernicioſa et injuſta populis juſſa deſcripſerius, cum contra feceriut quod polliciti pro feſſi que ſlat…, quoduis potius tuliſſe quam leges. Cicero de legious. By Conſcience I underſtand a faculty in Man of deſcerning Gods Judgement concerning himſelf and Actions. It is more proper to ſay a faculty is obleiged, then an habit, or an Act; and that faculty which man hath hereunto, is charged (whilſt himſelf is) to judge whether ſuch a thing commanded be his duty in relation to God, or not. By obligation I underſtand the conſtitution of a due; Obligare eſt jus constituere. By obligation of the Conſcience I underſtand the conſtituting a thing to bedue from me ſo that if I do it not I muſt account or judge that God will condemn me for the neglect, or the making a thing my duty ſo that if I leave it undone I ſin. The obligation of the outward man I account the conſtituting a thing to be due from me ſo as if I do it not, I may not reſiſt, though I be puniſhed; or I may be puniſhed, and ought not to reſi…t, though I could avoid both the thing, and puniſhment by reſiſtance. The word, lacere, ſays Grotius (from one line of whom, a man ſhall have more Inſtruction ſometimes then from anothers book) is diſtinguiſhed in id quod impune fi…, and in id quod v…tio caret. So muſt we ſay the word obligare, is diſtinguiſhed into that which if we do not the thing makes us liable to puniſhment (in foro humano, or according to the law:) or that which if we do it not makes us liable to ſin. That is, there is an obligation human only (which we have had before) that tyes us to obedience upon the penalty of the law: or an obligation divine alſo, which ties us to the duty upon the pain of Gods diſpleaſure, & eternal condemnation. The one of theſe we call the obligation of the outward man, and the other of the Conſcience. By reſiſtance, laſtly, I underſtand the repelling force with force. The word reſiſtance, may be taken largely or ſtrictly. Reſiſtitur contra Imperium agendo aut vim vi reprim…ndo. I take it in the laſt and ſtrict ſence. Let me yet note one thing more, when we diſtinguiſh in the obligation of human laws, between the outward man and the Conſcience, we do not diſtinguiſh the outward man from the will, when we diſtinguiſh it from the Conſcience. The will is wrought upon under both obligations, through fear of mans law, and through fear of Gods. If you divide the outward man from the will, you cannot bind it, but Phyſically, by putting it in Bonds and Fetters. But the obleiging it by the will, is binding it with an human obligation; and that I account too, is not morally, but politicaly (as I have intimated,) to wit as human laws are, norma humani judicij, the man who breaketh a bad law, is according to that law to be adjudged to its penalty, and in ſenſu politico humano is an offendor of the law ſo that if he be puniſhed by the judge, who judgeth by that law, he muſt ſubmit, yet ſeeing the Law is no other then ſuch, he is not made a ſinner by that breach, or to be condemned by God. To ſum up my opinion then without the terms, that thoſe that will may aſſaile me fairly in my ſence I am perſwaded as Gods will is not mans, ſo every command of man in indifferent things is not the command of God: but that when there is no declaration of the magiſtrates will, but it does make the thing he would have, to be due from us ſo, as he may puniſh us by his law for the not doing if he pleaſe, and we muſt bear it without defending our ſelves by force, and conſequently he may compell us to any thing not ſinful by that means: yet does not every declaration of his will, make the thing he requires to be our duty, ſo, that we are neceſſarily guilty of ſin, if it be not done; but contraily though many a man lives and dyes in the breach of ſome laws and ſtatutes of the realm (ſo long as they offer no contempt to the Ruler, nor ſcandal to their brethren, nor reſiſt if they be brought to ſuffer) they may be good Chriſtians for all that (to come to our firſt lock which our debater) and ſervants of Chriſt.
And here I have no more that I know needfull to be ſupplyed, but onelyonly to do this: to produce what I have in my Caſe it ſelf, that the main notion I offer here, and there may appear to be the ſame: and to vindicate that authority which alone ſufficed me then, and ſhall now, for my confirmation. The words which I offer in my Caſe are theſe. Power (ſay I) is a right to rule or command. This right in the nature of the thing muſt ariſe from the grant or will of the ſupream Lord, which is God; without whoſe will (or that grant or Charter which is an act of his will) no power can be derived to any. Now that grant or will of God which conſtitutes any to rule, or to be his Miniſter, being for the Peoples good, (He is the Miniſter of God for our good ſayes the text) it muſt follow that whatſoever is not indeed for the peoples good, the Magiſtrate is not to command, becauſe it is Gods will that he commands only for their good. And it he do command any matter that is otherwiſe, that command hath no authority as to the Conſcience at all as being without the warrant of Gods will. I know I have ſet down this in a few lines, but it hath been the fruit of ſeverall thoughts and years. I thought good to confirm it with one teſtimony of Dr. Taylor, and I perceive this debater ſeems offended, and to accuſe me of diſingenuity for it, as if I had done him wrong. It is neceſſary therefore that I turn again to that Dr. and ſee; only I muſt ſay that I am glad (I muſt confeſs) that I have here ſuch an authority as this Dr. ſo full for me, nevertheleſs Dr. Taylor is not (as farr as I know in a tittle) the author to me; but a witneſs to the light I offer. In the third Book of his Caſes, and the firſt chapter, he comes to treat of human laws, and what obligation they paſs on the Conſcience. In his firſt rule he tells us, the Conſcience is obleiged directly and actively to obey the Laws of Man. Several learned Authors, together with Nine Arguments to the contrary, are propoſed, which he having very hardly aſſayled, comes to his next Rule, that human Laws bind not when there is any intollerable, or grievous evil in the obedience. To make out this, be proceeds to a third Rule, that the Laws of our ſuperiour, that are not juſt and good, do not obleige the Conſcience, and then ſhewing what Laws are ſuch he tells us, that a Law is unjuſt that contributes not to the publick advantage. What can be more orderly and deſireable to my purpoſe! Only yet to be more ſure, it is fit, I cite alſo ſome few of his expreſſions. This is the limit of a Princes power, ſo far as he relates to conſcience, for beyond this the conſcience is not bound. Again, If a Prince make a Law that is not for the publick good, it hath no ſanction but fear, and no tye upon the Conſcience. Again, all ſuch things as are againſt the good of the ſubjects, the Law it ſelf declares it to be no Law, that is, to be more then the ſuperiour hath right, or leave to do. Again, Laws that are made to purpoſes beyond thoſe meaſures, do no ways obleige the conſcience. He is the Miniſter of God for good (ſaith St. Paul) otherwiſe he is not Gods Miniſter, and hath to other purpoſes none of Gods authority, and therefore cannot obleige the conſcience to an active obedience in ſuch, where his power is in incompetent to command.