The Obligation of Human Laws and the Authority of the Magistrate, Case – Postscript
TWO POINTS OF GREAT MOMENT, THE Obligation of Humane Laws, AND The Authority of the Magiſtrate about Religion DISCUSSED.
Together, with the Caſe which gave Occaſion to the firſt Point.
In Oppoſition to the Two Authors, of the Friendly Debate, and of the Preface to a late Book of Biſhop Bramhalls.
By J. H.
foreign
Printed Anno Domini, 1672.
TO THE BOOKSELLERS.
SIRS,
BE not Offended, that I have Printed the late Book, A Rebuke to the Prefacer my ſelf: for it being againſt one of your Licencers, none of you durſt do it. I had reſerved ſome of the former Book, The Obligation of human Laws, in Quires, for ſuch a purpoſe as this. I have Corrected them with my own hand, and Printed the ſheet called The Caſe, which was ſeized, for this end only, to be Bound up with theſe remaining Copies. I entend to give part of them to my friends, and have but Sixty or Seventy to ſell. If the Buyer gives you not your firſt price, raiſe it at next Asking: for they are not like, in all theſe Circumſtances, to get one of them again upon any Termes. The Price of theſe few muſt be to You 20. d. to the Buyer 2. s.
The Author.
The Caſe.
WHether a Non conformiſt, before the KINGS DECLARATION, who hath not taken the Oxford Oath, might come to Live at London, or at any Corporate Town, or within Five Miles of it, and yet be a good Chriſtian?
How can that man be a Miniſter of Christ, who is diſobedient to his Soveraign? And that, even in thoſe things wherein Chriſt and his Laws are not concerned. The Law of the Land forbids the Nonconformiſt to live in London, or within five miles of it: But that is not repugnant to the Command of Chriſt, and therefore he is not a good Subject, and conſequently not a good Chriſtian; much leſs ſuch a Miniſter of Chriſt as he ought to be. The Friendly Debate between the Conformiſt and Nonconformiſt.
By this one Paſſage in that Book, I did take my Conjecture of the Author, to be a perſon happy in his Expreſſion, and ingenious in his Diſpoſition, rather then deep in the Things he delivers, or ſtudious and reflective. on thoſe more Removes than one, he ought to ſee, who will play ſuch a Game as this at once with all the Non-conformiſt Miniſters in the Nation. To bind the obſervation of all human Laws (not ſinful in the Fact) upon the Conſcience, without diſtinction, is the doing he knew not what. An unmerciful Determination! which being paſſed too upon that particular Oxford Act, engaged me upon this point, as ſeeming to me the moſt material to be conſidered of any in the Book, both in regard of the loſs the moſt were at what to Anſwer, and the neceſſity of their Satisfaction: ſeeing if we act not in Faith in what we do, we ſin. The Paper, beſides ſome little more in the preamble then this, was as follows.
I am ſorry that any Perſon of ſo much candour, latitude, and ingenuity, as I believe the Writer of this Book to have, ſhould be ſo unkind to his Brethren, ſo unconſcionably untender (to expreſs the thing as it is) as to account, That no man who tranſgreſſes an Act of Parliament (ſuch as for the Nonconformiſt to come within five miles of London) can be a good Chriſtian. Alas! how preciſe are ſome men, as to the Law of the Land, who are yet ſo angry at others for being ſtrict to the Laws of God? But does this Reverend Perſon indeed think, that every tranſgreſſion of a Statute of the Realm is no leſs than a deadly ſin? Or dare he wilfully judge here, any otherwiſe than himſelf would be judged? What then if a man ſhall live and die in the breach of Many Statutes, which he knows, and yet thinks nothing of it, muſt ſuch a one be certainly damned? Or may a man live and die in a wilful known ſin, without Repentance, and be ſaved? Too rigorous were it (ſayes Mr. Hooker, that underſtood himſelf here no doubt a little better) that the breach of every Law ſhould be ſo held; a Mean there is between theſe extremities, if ſo be we could find it out. I muſt confeſs I have not read any, to my remembrance, that have ventured on the chalking out this Mean, that I ſhould gather ſatisfaction from it; ſo that I muſt content my ſelf with my own Sentiment, which I ſhall readily deliver, being glad at my heart if I can unlooſe any burden, which many that are tender may be apt to bind on their Conſciences, when ſome that tye the ſame, would be loth to touch them with their little fingers.
The Magiſtrate I account with the Apoſtles Apoſtle, is the Miniſter of God for the Peoples good. If he command in order to that end, I think his Commands ought to be obeyed, not only for fear of his Sword, but for Conſcience ſake: But if he command any thing for the Peoples hurt, or that which evidently is not for their good, I think his Command (if the matter be not ſin) is yet to be obeyed for Wrath ſake, and ſo not to be contemned; but I think not any obligation lyes on the Conſcience, if it can be avoided without contempt or ſcandal, that it ſhould be done. We muſt diſtinguiſh here between the authority that reſides in the Perſon, and the authority of this or that his particular Command. I do apprehend, that when any Command or Law does require that, which is Morally or Civilly evil, every ſuch Command or Law, is really diveſted of authority, and ſo may be left undone without breach on a man's Conſcience; yet if a man be brought to queſtion about it, he muſt ſuffer, becauſe the authority which reſides ſtill in the Perſon muſt be ſubmitted to, as to the Ordinance of God. He muſt not reſiſt, that is expreſs; and rather than reſiſt, he muſt ſuffer; whereas if he could avoid it without reſiſtance, he was not bound in good earneſt, either to do or ſuffer. Where we are not obliged ad agendum, ad patiendum ſayes Grotius, tum demum ubi poena evitariniſi vi oppoſita non poteſt. De Imp. ſum. pot. c…rou ſac. p. 98.
The reaſon of this at the bottom, lyes here, and is firm. Power in the Magiſtrate, or Civil power, which is the ground of ſubjection, does not lye in might, ſtrength or force, but in right. Poteſtas (ſay Political writers) is jus imperands. 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 weale (He is the Miniſter of God for our weale, ſayes the text), it muſt follow, that whatſoever is not indeed for the Peoples weale, the Magiſtrate is not to command, becauſe it is God's will that he commands only for their weal. And if 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 God's will. This is ſuch Doctrine, which is plain, bottom'd, and irrefragable; He is the Miniſter of God for thy good, ſaith St. Paul, otherwiſe he is not God's Miniſter, and hath to other purpoſes none of God's power. Dr. Taylor in his Caſes, l. 3 p. 35. Quod neceſſariam non habet conjunctionem cum fine publici commodi non potest praecipi lege humana, ſayes Suarez from the Schools.
One difficulty onelyonly there is, which is this: Who ſhall judge whether a Law be for the peoples Weal, or not? I anſwer, The Magiſtrate muſt judge as to the Making the Law, and we muſt judge as to our Obedience to it: My Reaſon I give as readily, Becauſe God hath made every man the Judge of his own Actions, and conſequently of all the Circumſtances, whether they are agreeable, or not agreeable to his will, for his forbearance, or doing of them: ſo that it is not according to the reſolution of any others Conſcience, but of his own, or the Judgement of Private Diſcretion, he ſhall be juſtified, or not juſtified in his walking before him. Let a Law then be promulgated wherein a man is concerned, I thus determine: If he deal uprightly, that is, as a Christian, (to uſe induſtriouſly this perſons word) and in his Conſcience does judg that the Law is good, I mean good for the general (whether their ſpiritual or temporal good), I do apprehend he is obliged in Conſcience to the obeying that Law, (at leaſt ſo far as his particular obedience is conducive to that good) though the keeping of it otherwiſe be to his own diſadvantage or private loſs. If he judges it not good, I do ſuppoſe he may do well in prudence to be wary, and do perhaps as others do, and not run himſelf into harm's way: But really if he obſerves it not, he is to make no Conſcience of it, as if the thing offended God, whether he does it, or leaves it undone. And here is that very Mean indeed it ſelf, for ought I know, quod deſideratur. To wit, That the Laws or Commands of the Magiſtrate (even in political and indifferent things) does no leſs than 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 obliged, and ought to be ſtill kept free, when he is the Executioner only of his Own-Humane Laws (ſays the fore-mentioned excellent Doctor and Biſhop) bind the Conſcience of the Subjects, but yet give place to juſt and charitable Cauſes: Which are competent and ſufficient, is not expreſly and minutely declared, but it is to be defined by the moderation and prudence of a good man.
I know not how this Author may receive this, from whom I expect more ingenuity than from many others: that is, to yield to ſecond conſiderations. But methinks, if he had not thought at firſt (when he wrote) of any thing beſides, he might at leaſt have conſidered that there be Laws, which of themſelves grow out of date; and that it is not Time ſo much that brings on them their decay, as the apprehenſion of them to be unreaſonable, unfit, or unprofitable to the Land. When a Law therefore is by general tacit allowance, and practiſe of the Nation, had no longer in regard, it is to be accounted as virtually obſolete, and ſo it binds not. There was a Law made this Parliament about Carts & Waggons, for the better keeping the High-wayes; which being found quickly inconvenient to the Waggoners, & unanſwerable we may ſuppoſe to the End, it was ſcarce a Month or two, but they heard no more of it. I will put a Caſe now of Conſcience to this Perſon, Suppoſe a man whoſe living conſiſts in his Waggon, and unleſs he puts more Horſes in his Team, in his coming up to London, than this Law will allow, he muſt give off his Trade, or be undone. I ask, What ſhall this fellow do? By the Doctrine of this Book, for ought I can ſee, he can be no good Subject, and conſequently no good Chriſtian, if he goes on. I will ask again. What thinks the Author of thoſe that die and are buried in the iniquity of Linnen? Whether the Women generally of this Nation who cannot abide to have the dead wrapt in Flannel (but being uſed ſo much to controul their Husbands at home, will not be ruled by both Houſes, to do any otherwiſe herein than what they think is handſomeſt for all them), are in capacity, without their amendment in this point, to be ſaved? For my own part, I think verily the latter of theſe Laws being intended, and tending directly to the particular good of the Nation, it ought in Conſcience to have been kept: yet ſeeing the very humour only of the Women hath diſcountenanc'd it, ſo that in the general uſage it is annull'd, I dare not ſay that any man does ſin, that obſerves it not. I dare not ſay, that Wife can be no good Chriſtians that buries here Husband in his ſhirt.
As for the Act it ſelf of Oxford, I cannot paſs methinks, without the obſervation of God's providence, toward that great Perſon, who in his Speech that Seſſion, ſo induſtriouſly declared himſelf the Deſigner: Since the Parliament at Oxford, it hath been viſible (ſayes he) that my credit hath been very little. He who had contrived the Baniſhment of others from their houſes by that Act, leaves this paſſage in his Letter, at his own departure out of the Realm.
For the Oath impoſed, as the condition of the Nonconformiſts lawful coming to this City, or any other Corporation, by that Oxford Act, there are the Nonconformiſts Exceptions againſt it propoſed in that Book entituled, A Defence of the Propoſition. If the Author of this Debate, or that ingenious Perſon, who (they ſay) is writing ſomething about Eccleſiaſtical Polity, for the juſtifying preſent Impoſitions; or that worthy Perſon his aſſociate, who is particularly engaged to it, can Anſwer them, let them try. This I muſt ſay, that I ſuppoſe the chief of thoſe things which ſtick in good earneſt upon the ſober Nonconformiſt, and which others do not, or dare not ſpeak out, are there offered, againſt that Oath, and againſt Ʋniformity. If they ſhall ſet down the words fairly and candidly, and anſwer them ſatisfactorily, they ſhall do well: But if they do not (after this notice) the world ſhall account indeed they cannot, and what they ſay otherwiſe, muſt ſignifie nothing. I will conclude with Grotius, and return to my Theme. Leges humanae vim obligandi tum demum habent, ſi latae ſint ad humanum modum, non ſi on us injungant quod a ratione & natura plane abhorreat.
If you ask at laſt, How this Sheet comes out thus alone without others againſt this Debate with it? I muſt ſay, What ſhall a man do, when the Preſs is become ſo like the Hedge-hog's Den, that when they have one door open ſtill for themſelves, they will be ſure to ſtop the other, where the leaſt wind can but come in to blow upon them.
FINIS.
☞ This ſhould be put at the end of the enſuing Book.
THe Office (to wit, of the Magiſtrate): and exerciſe or adminiſtration being diſtinguiſhed, you truly ſay, that he that is not bound in a particular caſe … obey, yet may be a Subject ſtill (which is the relation of one bound to ordinary obedience); and Rebellion which is the caſting off this ſubjection, is forbiden notwithſtanding a particular law may be diſobeyed.
A Law made againſt God or the ſafety of the Common-wealth, is no Law in ſenſu univoco, but it is in ſenſu aequivoco vel analogico, and does not properly bind the Subject.
All men in their wits (that are maſters of ſuch diſcourſe) are agreed that, Judicium eſt vel publicum vel privatum. Publicum eſt vel Civile, Magiſtratus, per gladium exequendum: Vel Eccleſiaſticum, Paſtorum, per verbum & claves exequendum. Et privatum diſcretionis, eſt omnium. No Man ever obeyed without it, for authoritas imperantis agnita, is the objectum formale obedientiae, and anſwereth the queſtion, Quare obedis?
The Magiſtrate being by Office intruſted with the bonum publicum, the Subject is not called to try every one of his Laws, whether they are ſuited to the bonum publicum or not, much leſs to be critical and buſie out of his place.
But being not bound to be blind or careleſs in a notorious caſe, or ſuch of which he hath full and lawful cognizance, he may and muſt diſcern what commmand is againſt the common good.
Richard Baxter.
End of the text · John Humfrey, The Obligation of Human Laws and the Authority of the Magistrate (1672)