The Obligation of Human Laws, Chapter 3
CAP. III.
IT will be time now to come to ſee what he hath objected againſt this Determination. The propoſition I am to maintain, and he to oppoſe, is this. That the laws of a common wealth, and particularly an act, or the acts of Parliament in this nation, that are nor for the common good, do not obleige the Conſcience of the ſubject. Though we acknowledge in the mean time, our alleadgiance and ſubjection to his Majeſty as the executioner of the laws, that our outward man is bound ſtill, and ſpared through his clemency. It is true that there is a queſtion fallen in, who ſhall be judge, whether that which is commanded in a law be for the common good? and I ſhall be ready to ſpeak with the Debator about it, in its order: but in the mean while if it were not for that, what would this reverend man have had to ſay againſt the main determination.
In the firſt place he tells us, that I am a notable inſtance of my Lord B…ns obſervation, that there is a little dry Light in the World. I remember Plutarch hath a tract of ſelf praiſe, and among ſeveral things he hath againſt it, one thing he ſayes for it, that there is ſome caſes, and particularly in the caſe of a juſt defence, a man may ſpeak of himſelf, or any thing of his own, as of another. VnderUnder Plutarchs Apology, I will ſay I do believe this, that in this particular I am indeed an inſtance that there is but little dry light in the World. For let this Debater ſet himſelf to read as many books as he can, yet I ſuppoſe he may find but few, if any that determine this caſe altogether as I do. I know the ſame Light hath ſhone in on Dr. Taylor in ſeveral paſſages, when yet it is mixed with ſuch abundance of other matter, that if this Man may be judge he would be ready to cite him as of opinion againſt me in it. There is lumen ſiccum therefore, and lumen maceratum indeed. I remember the diſtinction well, my Lord Bacon hath it, in his advancement. And I will ſay yet, that the Light which this Debater pretends is macerated Light, Light ſteeped in a prejudiced mind and fetch… from the conceptions of others, and moſtly perhaps from that Dr. whoſe cleareſt rayes he wont receive: When the determination which I have offered hath been beaten out from my own thoughts, and will be found that lumen ſiccum (notwithſtanding his abuſe) which is to be attended in this matter. I am become a fool in…glorying (ſays the Apoſtle) ye have compelled me.
In the next place he produces two places of Scripture, that to the Romans, Wherefore you muſt needs be ſubject not only for wrath but alſo for Conſcience ſake, and that of Peter, Submit your ſelves to every Ordinance of man for the Lords ſake. I anſwer, theſe Texts ſpeak of ſubjection and not of obedience; ſubjection to the Authority, reſiding in the perſons of the Magiſtrate, and if you will in the Government it ſelf: not obedience which is proper to their commands. I his appears from the firſt and ſecond Verſes. Be ſubject to the powers that be. He that reſiſteth the power, reſiſteth the Ordinance of God. The Powers no doubt are, but the Laws and Commands of men be not I hope the ordinance of God with this Man. VVherefore you muſt needs be ſubject, It is the ſame word and ſpoken in reſpect to the reſiſtance before, and in reference to their perſons: it is not wherefore you muſt needs obey all their particular commands for Conſcience ſake, when for Conſcience ſake we muſt ſuffer, rather then obey ſome of them. So likewiſe in Peter, every ordinance of Man, is every human creature in the Original, that is, ſubmit to every ſort of Governor, or Government, whether to the King as ſupream, or others under him. This is plain. Out of theſe Texts therefore may obedience ariſe, from the conſcience of not reſiſting, but no direct obligation on the Conſcience to obey actively can be deduced from hence. Again the Apoſtle tells us in theſe places, that the Magiſtrate is Gods Miniſter for our good, a terror to evil doers, and encourager to well doing, with the like expreſſions. Upon this account he can be ſuppoſed to command only for the common good, and when a Law or Command of the ſupream Magiſtrate is ſuch, I deny not but it binds the Conſcience no leſs then he. This is ſufficient between us, that no Argument poſſible can be drawn from either of theſe places to ſerve his turn, ſeeing a Law muſt be ſuppoſed to be againſt the common good, and yet to bind the conſcience according to him. Moreover, this I muſt ſay ag…in is moſt evident that obedience indefinite cannot be proved by theſe Texts, becauſe ſome commands of the Magiſtrate may be evil, morally evil (as hath been intimated) and we muſt not obey them: or civily evil, and then though we do obey for the Swords ſake, and becauſe we muſt not reſiſt, the Conſcience is not bound in ſuch a Caſe.
It is therefore a pieviſh obſtinacy in this perſon to perſiſt in theſe following words. VVe are no conſidering when and in what caſes a Law may ceaſe to obleige and quite alter its Nature, but whether while it doth obleige and is in force it lays a tye on the Conſcience or no? and to this we ſay yes. Laws while they are obligatory bind the Conſcience. Becauſe the Scripture faith ſo, and we ſay ſo indefinitely, becauſe that is the Scriptures language alſo. Firſt it's certainly falſe that all Laws of Men do indefinitely tye the Conſcience, and therefore the Scripture doth not ſay ſo, nor can ſay ſo, which muſt be granted by him in the caſe of moral evil. Secondly this Debater is utterly loſt that he would not learn of me to diſtinguiſh between the obligation of the outward man, and the Conſcience; an obligation in foro extertori ſive politico, & in foro interiori ſive conſcientiae. For it is falſe again that he ſayes we are not conſidering when and in what caſes a Law doth ceaſe to obleige, for this is the very thing we are conſidering, in reſpect to the Conſcience; and as for the obligation of the outward Man, he hath not yet thought of it. And I ſay as Dr. Taylor hath again and again, that ſuch a Law, as is not for the common good, hath none of Gods authority, and ſo ceaſes to be any Law as to the Conſcience, when yet we being not to reſiſt, (as is and muſt be often ſaid) the outward man by the Sword may be brought to obey. Thirdly the ſpeaking that Laws while they do obleige (or are of force) do tye the Conſcience, in this Man, who hath not received yet the diſtinction of the obligation of the outward Man Politically, and the inward Man which is morally, is extreamly ſenſl…s, and conſequently falſe if he underſtood the ſenſe. For Laws that are obligatory or do obleige the outward man, that is are Politically in force, may yet be morally null, as to the Conſcience, that is, obleige it not, when being not for the common good I ſay they are without the authority of Gods will. Fourthly there is a manifeſt bar and contradiction in theſe words to his own determination after, if he durſt been plain in it. For here he will be ſo obſtinate to ſay ſtill that human Laws bind indefinitely, nay and ſuborn the Scripture to falſe witneſſing in affirming that they ſay ſo, when they ſay only be ſubject indefinitely (while he makes all Laws (that is Univerſally) and indefinitely aequivalent here, leaſt he come off upon that word,) which we muſt not do, and yet in the end he is forced to come to confeſſion and acknowledge (ſeeing Dr. Taylor will tell him ſo, from whom he will borrow that he has) that moral Divines and Lawyers (and I had hoped he were one of the firſt) do determine that human Laws bind not in the caſe of intollerable grievance. I have cited theſe words in the way ſomething more acrimoniouſly then any other paſſage hitherto, not that I have cauſe to be angry at them, as I have at others, but to ſhew occaſionally how I might take up this Gentleman likewiſe in the reſt of theſe raw Sheets, if I had a mind to exagitate that weakneſs which hitherto (till his eyes be opened farther by this controverting the point) is ſuch as may have that epithite given to it at preſent which the Scriptures does in one place give unto darkneſs (though I acknowledge his ſufficiency otherwiſe,) even weakneſs that may be felt.
In the third place he wont allow my little comment on Paul. The Scripture ſayes the Magiſtrate is Gods Miniſter to us for good. Very true, and the Apoſtle makes that an argument why we ſhould be obedient to him becauſe it is for our benefit. But this Caſuiſt turns the words another way, and makes them an outlet to diſobedience, by taking that to include an exception to the general precept of ſubjection, which is in truth nothing but a reaſon to enforce it. By this paſſage and ſuch as this I take my conjecture of the happineſs of this mans expreſſion, which makes what he ſayes very often to look conſiderable, when if it be reflected upon with more thoughts (but that this Man himſelf tells the Apologiſt ſomewhere that he is no melancholly Man) it ſignifies nothing. If there be any thing ſubſtantial in theſe words it muſt hold, if it he put into others; and then muſt this be denyed that when the Apoſtle tells us the authority the Magiſtrate hath from God is for the peoples good, we may not argue thence that he hath no au…hority from God for their hurt. But this arguing is good, and therefore this paſſage is but words. For indeed, is there any man that ſerves not Levi…than but God, will maintain that the Magiſtrate hath any au…hority committed to him of God but for the publick benefit? Let this perſon take heed he turns not God into the Devil, and deſtroyes all. If he dare not maintain that, then whatſoever is commanded againſt the publick benefit hath no authority to bind the conſcience; and it will be in vain for him to talk idly of the danger he apprehends from my determination which hath none in it, when if he look not better to himſelf he muſt be upon the juſtifying Tyrann…, and bring ruine upon the World. Again ſuppoſe we build nothing on the very Text, this is a principle in the law of nature, as c…ea…ly written in mans heart as that he is a ſociable creature to wit, that the end of Government and Laws, are for the good of the community, and conſequently that there ſhould be none, but for that end. From hence then, that the good of the community being the ſupream Law as the general and ultimate end, of whatſoever is commanded, it muſt irrefragable follow, that whatſoever Law is made or is to be made, it muſt be over ruled by this ſupream, and have its obligatory power originally from thence. We know in all Laws or any other things in the world, the inferior muſt give place to the greater or to the chief. God requires ſacrifices and mercy, both are his Laws, it theſe interfare, mercy muſt be exerciſed and ſacrifice binds not. It is no plainer in the earth that the elements give way from their own natures to ſerve the World, then that the greater or chief obligation muſt vacate the leſs. I might fill a ſide with inſtances, if any elſe could not do it. Whereas this matter then is written with a ſunbeam on the heart of man, and the Apoſtle hath an intimation of it, it is but very ſit and agreeable to reaſon, that we fetch a comment on the ſex from that book he hath touched, that is the book of nature, or this natural Light which will convince every man, that the publick good being the end of ſociety, there can be no power from God but for that end. Again it is true the Apoſtle from hence argues for ſubjection, and he may ſay that he does not argue for any thing elſe. But what then? when Paul argues one thing from this truth, may not another argue from thence alſo ſomething too? St. Paul argues well, the Magiſtrate is the Miniſter of God for our good, therefore we muſt be ſubject: And Dr. Taylor argues well, and therefore he hath none of his authority for other purpoſes; or that Law that conduceth not to the publick good cannot bind the conſcience, becauſe it hath none of Gods authority. Moreover, the Apoſtle argues for ſubjection, and that indefinite, but I ſay he argues not, nor may be conſtrued to argue for obedience indefinite, and therefore howſoever theſe words tinckle, there is no doubt but we may and muſt make an outlet from theſe and the like Texts, that in ſome caſes of the Magiſtrates commands, we may not think our ſelves bound to obey in point of Conſcience, though in regard of non-reſiſtance and ſubjection, there is no diſobedience does follow in the caſe. We ſay not that this paſſage of the Apoſtle doth include an exception to ſubjection for that is Univerſall and indefinite; but we can ſay it muſt include an exception to indefinite or Univerſal obedience, that is as to all the Magiſtrates commands, becauſe there may be many of them wicked, unjuſt, or morally evil, unto which we are not bound, and conſequently, ſay I, nor to ſuch as are civilly ſo.
In the fourth place we have this paſſage wherein appears the greateſt weight. A Law is not meerly the ſignification of the Magiſtrates judgement what is good, but the declaration of his will, that we do it, and God having given him his authority to command us, this declaration carries with it an obligatory vertue, to bind us to the execution of his will under the pain of ſin. As for this, The declaration of the will of the Law-giver does indeed immediately bind the outward Man againſt diſobedience by reſiſting, or to whatſoever is contrary to ſubjection (that is it binds us Politically) but as for doing the thing out of conſcience (that is to be bound morally) I like well that this learned Man hath delivered himſelf ſo judiciouſly as to put in that, which is the true & only ground of all the obligation that the Conſcience can be capable of under the command of Man, and which does adminiſter therefore the ſolution to what he offers. I anſwer then to that branch which he hath of Gods having given the Magiſtrate his authority, and we ſay that God hath given the Magiſtrate no authority to command any thing but for the common good, which is a truth for which I need not again quote Taylor or Hooker, as I remember well that I might, or twenty learned Schoolmen perhaps and others to this purpoſe, but that it were not worth my time and trouble to go to their books, Seeing there is indeed ſcarce any truth can ſhine more clearly from the Light of Nature and the end of policy. And the Law of nature muſt be acknowledged the foundation of all Laws, and the meaſure of their obligation. I do therefore advance here this argument which I think is a ſtone that cannot be removed, and it is the Sum of my determination. Whatſoever is not agreeable to the will of God, or carries not with it Gods authority cannot bind the Conſcience, becauſe the Conſcience hath an abſolute and immediate dependence on the will of God, and his will is the adaeq…ate rule of Conſcience. But for the Magiſtrate to command any thing that is againſt the common good, is diſagreeable to Gods will: or ſuch a law carries not with it Gods authority. E…go whatſoever is commanded, or what law ſoever is not conducive to the common good, can not obleige the Conſcience. So that it muſt not be under the pain of ſin, but under the ſence of wrath, and neceſſity that we muſt not reſiſt, that we actively obey in ſuch a caſe.
In the laſt place he quotes Dr. Saunderſon and I muſt confeſs I ſhall put the leſs truſt hereafter on this man for any matters of controverſie, or caſes of weight for this preſumption he ſeems to have upon one great name, when nothing elſe for ought appears, but Dr. Saunderſon having reſolved this caſe, hath given him the confidence to write in ſuch an Imperious faſhion as he hath done theſe ſheets, upon a ſubject whereof he ſeems to have had ſo few thoughts before. As for that Dr. I have read his Lectures de obligatione conſcientiae, and dejuramento, and the firſt body of his Sermons. I do believe him an excellent Caſuiſt, and to ſpeak freely wherein that excellence lyes, a man of a clear head, but yet not for all that, of ſo ſearching a head, nor quite ſo learned as ſuch a one as Rutherford, in his way; and by no means on the Earth, of ſo large a head, ſo great a wit, and incomparable ſufficiency as Dr. Taylor. Well Dr. Saunderſon in his ninth prelection puts this caſe, what if a Magiſtrate intends only his own profit or ambition in a law? does that bind? he anſwers yes. Becauſe that though the Law-giver may have an ill intention? the Law may tend to the common good. This is well reſolved. In a caſe or two farther then he puts this other, what if a law be unprofitable to the publick and ſomething noxious? he anſwers it doth oblige, if the thing may be done without ſin. This reſolution is ill; for if the reaſon of the obligation in the former caſe was good, and the true right reaſon, then when there is not that reaſon, a law obliges not. If we muſt obey out of Conſcience when a law does tend to the common good though the Law-givers intention be bad, then though the Law-givers intention be good, if the thing commanded tend not to the publick advantage, the Conſcience muſt not be obliged upon the ſame account. And thus Dr. Taylor reſolves them both, it is in ſome tranſient paſſages, which I will not ſtand here to find out. But let us hear Dr. Saunderſons reaſons. The firſt is, Becauſe every man ought to mind what belongs to his part and duty, and not trouble himſelf about other mens. But what reaſon is this? it does belong to every man to mind, yea and to conſider and determine whether his Conſcience be obliged by a law or no. His ſecond is, Becauſe our duty is to obey, not to command or ordain. And what reaſon is this? our duty is to obey if what is commanded be agreeable to Gods will, elſe we cannot be obliged to it in Conſcience though we do it. Theſe two reaſons indeed are twins, both Stillborn, and ſay nothing. The reſolution is ill, and nothing is to be ſaid for it. But what means he by theſe reaſons? The ſubject is to obey the Law, not make the Law, and he troubles not himſelf to judge whether a thing be good in reference to the Magiſtrates act, but his own. If the law paſs, he may obey it in the outward man whether it be civilly good or no, and not trouble himſelf. But if he come to the point, whether it bind his Conſcience or no, he muſt conſider, whether it hath the authority of God in it, and conſequently, whether both it be Lawfull, and conducive, to the publick advantage. I may add (ſays the Debater himſelf,) though the Magiſtrate ought not to ordain any thing but what is for the peoples good, yet when he doth otherwiſe, it will be more for their good to obey him, then refuſe obedience. I anſwer if the Magiſtrate ought not to ordain any thing but what is for the peoples good, then muſt the ordaining any thing not ſuch, be againſt Gods will. But the Conſcience cannot be obliged by any thing againſt Gods will; or the Conſcience is obleiged by nothing but by Gods will only. Ergo no Law or thing commanded us which is againſt the common good can obleige the Conſcience; and ſo hath he cut his own throat here out of ſelf conviction. Nevertheleſs as to what he ſayes elſe, there is one remove yet this Debater ſees not, and that is we diſtinguiſh between non obligation of Conſcience, and diſobedience; it may be that prudence, and ſuch conſiderations as he urges, or others may prevail with a man in the outward action to o…ey, when yet he accounts himſelf free from any obligation on his Conſcience.
There is one thing after this. I feel upon my own mind. I find it not in theſe papers: but I cannot hardly be faithful if I omit it. It is this. Suppoſe a Father or a Maſter, bids me do a thing, I conceive it like to prejudice his affaires, and e…ve it undone: If this Father or Maſter be diſcreet, he will commend me for my care, and be ſo far from charging me with diſobedience as that he will account I have done his will better then he declared it. Upon this I have been apt to determine that the commands of men, and Gods, do thus differ; The one binds unleſs I can give a reaſon which is more conſiderable for the forbearance then that which appears for obedience: the other binds both as the rule and reaſon it ſelf for my action. I think again, ſuppoſe I tell this reaſon to this Father or Maſter, and they will not admit it, but require the thing to be done notwithſtanding, the prejudice which ſhall acrue. If it be in heat I may do well yet to forbear, upon my belief that they will take it well; when their thoughts have cooled, and the Wiſdom herein of many faithful ſervants have been proved. But if I be perſwaded fully that they will be diſpleaſed preſently, and not pleaſed after, it ſeems to me here I am bound to obedience in things not ſinful, though they be commanded to my own and their hurt. I anſwer to this. In the firſt place it is ſufficient that a Child, or a Servant is not indefinitely bound to do every thing they are bid, but that when they have ſuch a reaſon as they judge their Parent or Maſter will be ſatiſfied, and better pleaſed that they forbear the command, they may leave it undone. If their reaſon does not ſatiſfie, they may be reckoned in the caſe of ſuch as have no reaſon. In the ſecond place when they have better reaſon to, forbear it then do it, I may hold that they are bound to doing only by vertu… of the Authority reſiding in the Parent or Maſters perſon, and that they may not … hath been ſaid about the Magiſtrate, will that otherwiſe they were free towards God in their Conſciences, who accepts of no other but a reaſonable …vide. In the third place, I offer this, there is a diverſity of Authority. The Government of Parents, and Maſters is not the ſame with that of the Magiſtrates over the People. The Soverainnity in ſome Common wealths is in a ſingle Perſon; in others it may be in the Nobles; in others in the Common body. That Government which i… …y a Monarchy is either Deſpotical or Royal. The Government of this Nation is a Royal Monarchy regulated by laws, Theſe laws are … by a Corporation of King, Lords, and …m…nds, called the Parliament, wherein the three Eſtates are aſſembled to conſult what is for the common good, now though we may ſuppoſe (without granting) that the ſubjects of a deſpotical Government who have no propriety of goods nor liberty of perſon (as children and ſervants are in the houſe) may be bound to do what the Law-giver commands though it be to their common diſadvantage, becauſe he may command any thing for his will and pleaſure onelyonly and not their goods: yet cannot we in our nation be ſo bound, becauſe it is not to be ſuppoſed that the law-giver does require any thing for his own will and pleaſure, but for the common good altogether. To ſuppoſe otherwiſe is to ſuppoſe a change of the Government, from Royal to Deſpotical, which is a ſuppoſition to be abhorred The three Estates are aſſembled (ſays Sr. Tho. Smith de Rep. Ang.) to conſult what is good, that is what is for the common good as before: and ſo long as this is their general end and intention, and the Law is the will of the Law-giver, it appears that if any thing really be not for the common good, it hath none of their will and intention, and conſequently does lay no obligation on the conſciences of the people.