A Holy Commonwealth, Chapter 11

A Holy Commonwealth · Chapter 11

p. 313CHAP. 11. Of the Soveraigns Prerogatives, and Power of Governing by Laws and Judgement.

THe Reader need not tell me here, either that the whole should have been handled before the parts, and the Genus before the Species, or that Laws and Judgement are parts of Administration, and not of the Constitution of a Common-wealth: For I intend not exactness of Method, and I purposely past over the Jura Regalia generally before, and resolve to say nothing (here at least) of the Administration, but what falls in upon the by in the description of the Power and therefore shall somewhat the fullyer here describe the Power with respect to its acts, which I avoid the fuller handling of, and say no more of the Jura Regalia then is necessary hereunto.

Thes. 271. The Rights of the Soveraign are, 1. His Power of Governing, which is his Office it self. 2. That safety, strength and Honour, as far as the people can afford it, which is sufficient or necessary thereunto.

I know that Polititians use to treat of this part before they treat of the Species of Common-wealths: and therefore I took in briefly so much of it in the fifth Chapter as I thought there necessary: and shall speak a little more fully of it, for the forementioned p. 314Reasons: especially because I omit that part where the nature of Laws should more fully be opened; I know also that Polititians much differ in describing the Jura Regalia; and that those that rather enumerate then describe them, agree not about the Enumeration. They are usually distinguished into the majora & min…ra. I think they may best be reduced all to these two Heads: Of which the latter shall be first spoken of, because it is but for the former.

Thes. 272. 1. It is a Prerogative of Majesty, that the Soveraigns life have a special Guard; and that the crimes that tend to his destruction be Treason, and have the severest punishment.

For the Common good is so much concerned in the Soveraigns life, that it is not to be left so open to the stroak of malice as another mans. It is requisite therefore for the safety of the Commonwealth, 1. That there be special Laws against Treason; and 2. That the Soveraign have a sufficient safe-guard.

Thes. 273. 2. Another Prerogative is, to have power to bind all the subjects in an Oath of fidelity.

As the welfare of the people lyeth much on the Soveraigns life, so will it therefore have more enemies: and therefore there is reason that those especially should be engaged to the utmost to fidelity and defence, for whom it is that he incurs the danger. As he is sworn to Govern them faithfully, so must they to defend him.

p. 315Thes. 274. 3. Another Prerogative is, to declare enemies to the State, and to have the power of war and peace.

Though some peop…e limit their Soveraigns in this, because their welfare lyeth so much on it; yet when a Parliament of their own choosing have a part in the Soveraignty, it is not fit at all to limit them. For it is not to be supposed that so many persons chosen by themselves should willingly sell their lives to the enemy, or ruine the Common-wealth: And its known that all men are too selfish, and ready to prefer their private good before the publike: & therefore the common Subjects must be forced to …ecure the Common-wealth, and not be suffered to put in such Reserves as may endanger the whole, under pretence of securing their several private Interests.

Thes. 275. 4. Another P…ative is, to have the power of the Arms and Forces … Nation, for defensive and offensive wars.

This in some respect belongs to this Head of security and strength, and in some respect to the other Head of Government. For the commanding of Armies is a part of Government. Though where the Soveraignty is divided between a Prince and Parliament or Nobles, there may be contests about the Power of the Forces; yet between the Soveraign and the Subject there can be none, save only about the securing of any Liberties, which by Limitations in the Constitution by his own consent he is bound to p. 316grant them, and faithfully preserve: No doubt the Soveraign hath the chiefest command of the Nations Arms: And he that may not command them to fight, doth in vain command them to obey in civil cases, and in vain undertake to be their Governor.

Thes. 276. 5. Another Prerogative is, by Crownlands, Tributes, Customs, and other incomes to receive sufficient Revenues to defray the charges of the Government.

Without this the Government could not be exercised. Christ payeth tribute, and so doth Peter: and Paul saith, Rom. 13. 5, 6, 7. [Ye must needs be subject, not only for wrath, but also for conscience sake: for, for this cause pay you tribute also: for they are Gods Ministers attending continually upon this very thing: Render therefore to all their dues: tribute to whom tribute, custom to whom custom, fear to whom fear, honour to whom honour] The …ations I before mentioned.

Thes. 277. 6. Another Prerogative is, to have that Eminency of Honour which is needful to maintain Authority, and to have a power of securing it by special Laws.

If Magistracy be not kept from contempt, the common safety and peace will not be preserved, nor vice restrained: As Majesty is a beam from the Heavenly Majesty, so must it participate of the Splendor in a necessary measure, as well as of the Power. This is principally needful for the honour of God from whom it flows; as an Embassadors Honour is the p. 317Honour of the Prince: next it is needful to the publike good, the end of Magistracy. And therefore the dishonorers of Majesty must be more severely punished, then those that defame or dishonour private men, though personally perhaps of more excellent qualifications.

Thes. 278. 2. The highest prerogative of Majesty is its constituted form, that is, to be the summa Potestas, to have the Supreme Government. This consisteth, 1. In having the supream Legislative power. 2. And the supream power of Judgement, and execution of that Judgement.

Some call this Essence of Majesty its Prerogative, and some think that Title belongeth but to the Accidents: but it being the principal Jus Majestatis, Magistracy it self being essentially a Jus Regendi, we shall therefore so call it, leaving to all the Liberty of their own phrase. And though it may be thought to be out of place, I shall here stay a while, and enquire into the nature of Laws, under this Head of Legislative Power, and then speak of the Properties of Supremacy herein: and then of Judgement, but very briefly.

Thes. 179. A Law is an ambiguous term, and is taken, 1. Sometime for the internal mind of the Law-giver. 2. Sometime for the external products. In the former sence Gods mind and will is called Lex aeterna; which properly is but the Fountain of Law, unless you take it as the Significatum. In the latter sence, 1. Sometime it is taken for a means of effecting; and sometime p. 318for the thing effected on the Subject. In the former sense, sometime it is taken Metaphorically for a connexion of Physical causes; and sometime for meer moral potestative Rules: And sometime it is taken Metaphorically for the orderly disposal of inanimates and brutes; and sometime only for Rules to the rational free Agent.

Thes. 280. I take the mind of the Law-giver, the setled order of Nature among inanimates or brutes, or man as a Natural agent, and also the impress on the soul, as such, to be improperly called Laws: and therefore take not the word in any of these senses.

Thes. 281. The Law of Nature and of Grace, are sometime taken for the imprinting signs, and sometime for the Impressed Image: In the latter sense I take them improperly to be called Laws.

Yet even the Internal Disposition, considered not as a Disposition, but a sign of Gods Will, I number with the Laws of Nature. But In…ernal Acts or Disspositions as such, are but figuratively called Laws: But properly the Nature of things (within us or without us) as revealing the will of God de Debito, is the Law of Nature: and properly no other.

So the Law written on our hearts and put into our inwards parts; that is the holy effects of the Law upon us, in themselves are no Law, but the effects of a Law; unless as secondarily, they become the signs of the will of God imposing further duty.

Thes. 282. The word [Law is also sometime taken so largely as to comprehend meer Directions or precepts p. 319of such as have no Governing power, and also contracts: But I take it not thus improperly.

Thes. 283. By some also it is taken so narrowly, as to exclude verbal Precepts, Commissions, Priviledges, temporary Constitutions, p…emiant Laws, and all such as meerly constitute the Jus Possidendi, or debitum habendi, as such: and is made only to signifie those Laws that are by eminency so called; and to comprehend no acts but obligare aut ad obedientiam aut ad poenam. But I follow not that too strict acceptation.

Let those men that are not the Masters of Language, be content to express their own minds by their own terms, and give us leave to do the like. If any think that the [Name of a Law] should be used more Laxely or more strictly then I use it, he hath his Liberty: Let him have the patience also to suffer me to use mine: and to tell him that my words are to explain my own mind, and not his. It is Things and not words that I am here to open: And it is that Thing which I here define that I treat of, and mean by the word Law. So various are the Definitions of Laws among Polititians and Lawyers, that its not easie to meet with many that agree in one and the same Definition. And therefore among such variety I may have the freer leave to thrust in mine, then if the gowned Tribe had been agreed on some other: especially when 1. I never yet saw many, if any other that I could see reason to be satisfied in. 2. And yet I pretend to no Infallibility; or that mine shall be more perfect then other mens, but only that it is more satisfactory to me: To confute other mens p. 320various Definitions would be but odious & tedious.

Thes. 284. A Law is a signification of the Rulers will const…tuting the Subjects due: Or, Potestativa constitutio debiti subditorum.

Because the word [Law] is sometime taken for the sign or eff…ct alone, and sometime as comprehending the act of Legislation, I use the word [Signification] as appliable to both acceptions. But it being not Legislation (the efficiency being presupposed) but [the Law] as the effect that I define, therefore it is Passively, or pro ipso signo that I here take the word [signification.] Were it Legislation that I defined, I should make the Genus an Act of the Ruler: But I judge [signum] to be the true Genus of a Law (whether prae…icamentale, or transcendentale. Lawyers would not thank me to discuss.) It is not the will of the Ruler in it self, for thats unknown, but as Revealed; And the will of God or man can be no otherwise revealed to another but by some sign, whether it be word, writing, fact, or whatever, saith Fr. Su… riz truly (de Legib. lib. 1. c. 5. pag. 20.) Assero, resp…ciendo ad nominis Legis Impositionem, videri prius positum ad significandum externum Imperium & signum ostensivum voluntatis praecipientis. Ideo enim Aristot. 10. Ethic. dixit Legem esse sermonem à sapientia profectum, &c.]

So cap. 4. pag. 14. Lex consideratur—3. in aliquo alio signo, seu alia materia exteriore, ut in scripto, vel etiam in voce manifestante voluntatem superioris.

So Gabriel. 3. d. 37. q. un. calls it [signum verum creaturae rationali notificativum rectae rationis dictantis, ligari eam, &c.

p. 321Object. Signum is an adjunct, and belongs to Logick, but a Law doth properly belong to the second part of Politicks, and ought to have its Genus thence as being an act of the supream power, &c.

Answ. 1. If Politicks banish Logick, they must banish Definitions and rational debates. Wesenbechius and others have evinced, that the Civil Law it self is not fallen out with Logick. 2 An Act is a Logical term as well as a sign. 3. I say not simply [a sign] but [a sign of the Rulers will] which are terms that Law abhors not. 4. I never saw any fit one put in the stead of this, but what doth more darkly express the same thing, which is therefore less fit.

Object. That it is signum, is better expressed by mentioning the Promulgation.

Answ. Not so: Promulgation is usually taken for the act of Publication, which followeth the Enacting and Essence of the Law; and is implyed as necessary to the effect of the sign; Of which I shall next speak.

Thes. 285. Though to be an Aptitudinal sign, b… all that is of the Generical Essence; yet to be Promulgate and thereby made an Actual sign, or to be so far revealed, that the subjects may be informed by it that are not culpably negligent is a condition necessary to the Obligation or Constitution of duty.

Some had rather distinguish between the Representing and Informing act of Laws, and make the former essential to them, and not the latter, and so reject the distinction of Aptitudinal and Actual signs here: but groundlesly. To Represent, is as ambiguous as to p. 322signifie, and is of the same importance: And therefore if we have need to distinguish of one, so we have of the other. To Represent Aptitudinally, by containing that expression of the Superiours will as is Apt to Inform if Revealed, is one thing; and to Represent actually to another by the means of Revelation or fit approximation, is another thing. A shilling in my pocket Aptitudinally signifieth, or Representeth the Soveraign whose Image it beareth: but not actually till I take it out and shew it; Nor then neither, nisi ex parte revelantis, that is, it is but in Potentia proximâ, till the beholder perceive it. So here, 1. A Law Enacted is truly a Law, as a signum aptitudinale is a sign: but it obligeth not yet. 2. A Law Enacted and Promulgate obligeth, because the Law-giver hath done his part to the full effect. 3. A Law Received is yet in a nearer capacity for the full effect; but Reception or Actual understanding it, is not necessary to the obligation.

Some affirm that Promulgation ls essential to a Law. Let them that think so, define it accordingly: I quarrel not with them, because I come so near them as that the difference is of no great moment: But yet I consent not: For its one thing to make a Law, and another to promulgate it. Yet the last is a Condition sine quanon, as to obligation. As in Belief, the Revelation it self is not the formal object of Faith, (that is Veracitas Revelantis) nor part of it; nor yet the material Object (that is the Truth Revealed) but a naturally necessary condition of both, which some call the vinculum; so promulgation is not essential to Law, nor is it the formal object of our obedience (that is, the Power of the Law-giver) nor the material p. 323(that is, the Law it self) but a necessary means and condition to induce the Obligation; the enacted Law having but the Potentiam & Aptitudinem obligandi, which must thus be made actual.

Thes. 286. When I say a Law is a sign of the Law-givers Will, I imply his understanding signified also: As Right, it proceedeth from the Legislators Intellect, and as Imposed, it proceedeth from his Will, and so is to be received by the Intellect and will of the subject for Regulation and Obligation or Obedience.

It is a great controversie whether it be the Reason or the Will as signified that informeth Laws. On the one side are T. Aquin. Cajetan. Alens. Richard. Antonio, Sot…, and many more: and on the other side, Henric. Gabr. Occam. and others, as Suarez reckoneth them: but doubtless many of them hold as he doth, and as the plain truth is, that it is both: As a man is not man without an Intellect and Will, and as an act of command is not humane that proceedeth not from both: and as the Law it self hath both an Informing and Compelling power; and as it is by the subject to be received both by the Intellect and Will; so must it proceed from both in the Law-giver, add signifie both; Yet differently: For it proximately proceedeth from his will, and signifieth that as Obligatory, not suspending mens Obedience upon their discerning the Reasonableness of the Law, which is to be supposed.

Thes. 287. In the essence of the sign there is a threefold Respect of the matter of the sign, 1. To the thing signified. 2. To the will of the Law-giver. 3. To the p. 324subjects, to whom his will is signified. The thing signified consisteth, 1. Of the matter. 2. The form; that is, Right or Dueness.

The Law 1. Signifieth the will of the Legislator, as words express the speakers mind. And therefore some make [the will of the Governour] to be the Genus of a Law; and as signified, so it is: but not as existent in it self. 2. The Law is a sign respecting the understanding and will of the subject, as the Terminus or finis cui: It notifieth to the subject the Legislators will. 3. It respecteth the matter signified, e. g. that Chastity, Sobriety, Temperance, or this or that duty is the matter to which we are obliged. 4. The Law respecteth the form produced by signification, that is, the Debitum or Right, that is or that shall be Due: All these significations are essential to a Law; supposing that as to the subject, the Aptitude is enough, and the Representation, whether the person receive information by it, or not.

Thes. 288. All Laws being nothing else but the expressions of anothers Reason and Will, it is certain that subjects are not to esteem themselves self-sufficient or Independent, nor enslaved by being Ruled by the Reason and will of others.

Gods Reason and will revealed, is the Universal Light and Law of the whole world: The Soveraigns Reason and will, is the subordinate Light and Law of that people whom he governeth; and is the publick Reason and Will of the Common-wealth: Yet with this two-fold limitation. 1. That he have no power p. 325against the Light and Law of God. 2. That all the people have a Reason and Will that is private and personal, for the discerning their Duty, and choosing accordingly. But doubtless Gods appointing that the Laws, that is, the Reason and Will of the Soveraign, shall rule the subjects, doth hereby require much submission in us, even so far as that we disobey not his highest will.

And consequently, in many doubtful cases, the Soveraign may be guilty for mis-commanding, when the subject is innocent that obeyeth him.

Thes. 289. It is no Law that is not the effect of Governing Power, or the sign of the Rulers will.

Authority is the efficient cause of Law, or is the Power of the efficient. Authority is sometime taken for meer Interest, by Wisdom, strength, goodness, &c. by which one man can prevail with others. This is no Law-giving Power. But the Authority that must make Laws is nothing else but Jus regendi, a Right to Govern, which is originally and primitively in God, and Derivatively in the creature. Remember still, that this is it that I mean by Authority, or Power; and not meer power of Interest by Reputation, nor yet meer nature, strength or force. Jus pracipientis, the Right of commanding is the only sufficient cause of Jus praecepti, of imposed Right. Yet Jus concessum may arise from a more private cause.

Analogically as man is called a Governor of himself, so his will and word are called a Law to himself: But this is no such Law as we treat of.

If Ly…urgus or any wise man draw up the System p. 326of Laws for Governing a Common-wealth; or if in any Nation, some that have no part in the Soveraignty may be the Proposers, these are no Laws, till they have the stamp of Soveraign Command. But as a Prayer in a Book is usually Called a Prayer, which indeed is no Prayer (for the name is given it ftom the matter, which should follow the form): So also a Law proposed is no Law, but the matter of a Law without the form.

Contracts are but self obligations, and such as may Occasi…n a divine or a publick humane obligation, but are no proper Laws. But if any will call his buying and selling or any other Contract a L…w, as he hath the liberty of mispeaking, so let him grant us the liberty of more strict expressions. Hence we say, that Fundamental Constitutions, as by man, are by meer Contract, and not by proper Laws of men, because they are antecedent to Governing Power, the cause of Laws.

Thes. 290. Hence ariseth a double distribution of Laws. 1. Some Laws are but Oeconomical, and some are Political.

The Laws of a Father to his children, and a master to his servants, are truly and properly Laws: Yet, 1. They are not eminently such as Political Laws are. 2. And custom hath (but causlesly) confined the name to Political Laws: All that is Essential to a Law, is found in Laws Occonomical.

Thes. 291. 2. Laws are either Universal for eht whole Commonwealth, or Local and particular; and p. 327made either by the Soveraign Immediately, or by a subordinate power Immediately, and only mediately by the Soveraign.

Some make a great Question of it, Whether Legislation be not proper to the Soveraign. 1. Universal Laws for the whole Commonwealth in the main parts of Government, must be made Immediately by the Soveraign: (Though its possible, e. g. a modal or circumstantial universal Law, as about Excise, Meetings, &c. may be made by a derived power.) 2. Local and subordinate Laws may be made by others; but only by a Power so Derived from the Supream Ruler, that Originally and mediately they are his Laws, though proximately theirs. That subjects may make such Local Statutes by the Soveraigns grant, is maintained by Polititians commonly (Bocer. Camman Besold. and abundance more;) But still it is but by a Derived Power; and it is but pro modo propriae jurisdictionis; and it must not be against the Common Laws. So Maiors with their Corporation-Burgesses are enabled to make Corporation-Laws: And Physitians, and other students in Colledges, may make Colledge Laws: And a General by Commission may make Laws Military for his Army.

Thes. 292. Laws may consist in writings, words, customs or actions, or whatever may truly be called a sign of the Rulers will; and they are not confined to any one sign only.

Some will needs call nothing a Law but whats in writing: and some will add custom only: By which p. 328the Law of nature it self is made no Law. But how are Nations Governed that have no writing? Doubless any signification of the Soveraigns will de Debito, may be a Law.

Thes. 293. A Commissi…n or Precept to a single person or more, is truly a Law, having all that i… essential to it; but it is the least of Laws, and not a Law as the word is confined to such as are eminently called Laws.

The Command of a Parent is an Oeconomical Law: the Command of a S…veraign is a Political Law. Where there is no writing, this is easily perceived. They take the word [Law] abusively, too strictly, that exclude these smallest Laws that have somewhat of the common nature. If a commission or precept to a single person, be not a Law, they will find it impossible to determine just how many must be the subjects of a Law. Its not necessary that it be the whole Common-wealth. Laws are oft made to enable a particular person to sell his Lands, to innaturalize him, &c. It doth not therefore prove it no Law, because it is about but a single person, or case, or fact.

Thes. 294. Laws may be either permanent or temporary: Even that which is but for an hour or a day, may have all essential to a Law, though of the Lowest kind.

Some will call no temporary Precept [a Law]: They may use their liberty, though without Reason. It is not Essential to a Law, that it be for continuance. If not for a thousand years, then not for an hundred, p. 329not for seven, not for one, not for a day. The Prince and Pa…liament may make a Law for a certain fact (as the beheading of a Traitor, dispossessing the Governour of a Garrison, a Commander in an Army, &c.) which may be executed, and ended in an hour, and yet be a true Law. And if the same Prince and Parliament speak the word by way of Command, it is as truly a Law, though not so eminent.

Thes. 295. The specifick form of this sign which we call a Law, consisteth in Constitution of Due: so that a Law essentially is an Instrument of the Soveraigns will; which the word [Constitution] doth express.

The word [Law] is taken Actively or Passively: and so may the word [Constitution] accordingly. Most properly it is taken both passively in respect to God the principal Cause: and Actively (by Moral action) as to the Constitution of Right: It is signum Arbitrarium, & Instrumentale, non formale; and so it is not only signum theoricum, sed practicum. So that it is essential to it to be both signum notificans, vel manifestans, and also Constituens vel Instrumentale.

Thes. 296. This differenceth a Law from a Judgment: A Law doth Instrumentally constitute the Right by way of Regulation: The Judgement doth but Determine of it when Controverted by way of decision, or in order to execution.

Thes. 297. As Debitum vel Jus, Due or Right, is the Common nature of Morality (directly, as injustum indirectly) so is it the essential terminus of a Law.

p. 330The very summ of Morality, and therefore of all Law, is in this one word [Debitum] (to which [indebitum] is reduced) more exactly expressed then in the usual Metaphors and Circumlocutions. Right and wrong is the summe of all: which are themselves Relations resulting from the Instrumental sign, (for we speak not of them as in the acts of men.)

Object. Debitum constitutum is but the effect of a Law, and therefore not to be put in the Definition.

Answ. 1. Then your obligatio ad rectum must b… left out, which is the same: For it is in obligation all contained. 2. As if the Terminus must not enter the Definition of a Relation! Or as if [the Law] must not be put into the definition of Legislation; nor a Son be in the Definition of humane generation; not the Creature be in the Definition of Creation; nor health in the Definition of Healing; because they are all effects! This is new Logick, to make new Politicks. Debitum is the Product and Terminus of Law, and must be in its Definition.

Thes. 298. The common word [Obligation] is a tolerable substitute of [Constitution of Due] which I willingly use, but choose the other in a Definition rather, 1. because Obligation is but a Metaphor. 2. And defective of fit expressing the whole essential Act of Laws.

1. Metaphors may be used in cases of Necessity, or for Ornament: but not in Definitions without Necessity.

2. I conceive it defective. 1. because obligare ad poenam] is an unmeet or harsh expression. It is not ad poenam inferendam: for that were but to oblige to Duty: but ad poenam forendam. And [to bind a man to suffer] is nothing so fit an expression as to make it due to him.

2. Because there are many proper Laws that constitute the Jus habendi vel possidendi, and do not properly oblige at all, either ad obedientiam, aut ad poenam, (unless by some other conjunct act or part) 1. So God did divide the Inheritance of the Tribes of Israel by Law; and Laws of Possession in a new Plantation, are ordinary: which constitute only (by this act) the Debitum habendi, or give Right to such and such Land; but oblige not ad obedientiam, aut ad poenam, by this act.

Object. These Laws do also constitute the Jus non auferendi, and so oblige. Answ. 1. Thats done by another Law against Theft, which was pre-existent or concomitant. 2. If such an act were found in this, that nothing to the Question. The Question is, Whether the act of the Lawgiver constituting meerly the Jus habendi by a distribution, or setling division, be not a Law?

2. Is not Lex pramians, as such, a Law? As if … King make a Law that every man that discovereth any new art, or Engine for the Common good, as Waterworks, Military Engines, &c. or doth any notable act against the enemy for the Commonwealth, shall be made a Knight or Lord, or be thus or thus rewarded.

Object. These bind himself to give, and are but publike Promises. Answ. But they bind not the Subject to obey or suffer: They only constitute the Debitum prae…j; and such publike Promises being made by a Legislator for the Common good, are properly publike Laws. p. 332The same I say of abundance of Priviledges; As if there be a Law that he that hath served so long in the Wars, shall have such Priviledges in the Common-wealth: He that hath served seven years Apprentiship, shall be free to set up the Trade: He that is of so long standing in the University, and Learned, shall be free to profess Law, Physick, &c. He that hath so many children, shall be exempt from Taxes; &c. These oblige not at all, either to duty or punishment: but constitute the jut habendi only, though consequentially, or by other acts, the Subjects be obliged not to disturb them in their just possessions. And such acts as these I think are the [Permission] that is commonly said to be an act of a Law; For if a Concession be not meant by a Permission, it will prove no act of Law, but the Negation of an Act, as Grotius, Suarez and others truly Note. But certainly Permission is not Obligation.

Such also are the Laws for Naturalizing, enfranchising, &c.

And it is no wonder if some Politicians know not whent to place Priviledges and acts of grace, when they have thrust them injuriously out of the number of Laws, by confining the word to the eminent sort of Laws.

Nay in some cases, (as in the first Dividing of Countries, in a General act of Oblivion after a civil War, &c.) I think that may be a most eminent Law, that neither obligeth ad obedi…utiam, aut ad poenam, but only constituteth the Debitum habendi.

But it is objected that I contradict the Scripture that excludeth all works of supererogation, &c. Answ. 1. I contradict it not: for I assert upon such towards p. 333God: but there may be such towards men. 2. But what though the work be not commanded by a Law; may not the Jus habendi be constituted by a Law?

3. Yea moreover in the same Laws that do command Duty, and second it with a premiant Sanction, the premiant acts is part of the Law: And premiare as well as punire is commonly called an act of a Law.

But (saith the Objector) A Benefit is the act of a Benefactor as such, and not of a Legislator.

Answ. And so beating and killing in Revenge, is the act of a Revenger as such. But yet as it is part of the sanction of the Law, you confess that obligare ad poenam is an act of Law. And you can give no Reason, why the premiant part, as well as the Comminatory, is not a proper act of Law; and why the making a Reward for Obedience, is not an act of Law as well as making suffering Due for Disobedience. The same man that is a Benefactor, is a Prince: And as a Benefit, it proceedeth from him as a Benefactor; But as constituted Due by a Law-giver for the ends of the Law, so it is a effect of Law.

It is added by the Objector [If any by giving a Benefit dotb constituere Jus publicum, then he doth this as Legislator, and the Subject is bound observare Jus à Legislatore constitutum, non beneficium, quatenus à Benefactorc Collatum.] Answ. 1. I shall yet believe that a publick Law may give many personal Rewards as a Law, that are all terminative private. 2. If it be but a Jus habendi that is constituted, it is no Obligation to obedience or punishment (though such acts may be concomitant.)

I instance in Gods own most excellent Law of Grace, when Christ and life eternal are given by a Promise, p. 334which yet is truly a Law, and will be the Rule of Judgement. To this is answered, that [To give Christ was to give a Benefit, and a Law-giver, not a Law: and to make a grant of Eternal life with a precept of faith as a Condition, was to give a Law, and not a meer benefit] To which I reply. To give Christ to the world in his Incarnation, was to give a Benefit absolutely, and not a Law (who dreamt of that?) To give Christ to particular souls for their justification and salvation on condition of Faith, and to give Heaven on condition also of persevering obedience, is an act of Law, though a Gracious Law. And it is not only the Obligation to believe that is an act of Law, but also the Constitution of the Jus habendi or Debitum praemij.

But all this I speak with submission to better Judgments about Laws.

Thes. 299 The Due that is constituted by Law is twofold: 1. What shall be the …ubjects duty, that is, the Debitum officij. 2. What shall be Due to him upon obeying or disobeying, or otherwise, for the ends of the Law; that is, the Debitum praemij vel poene; or the Jus habendi vel ferendi.

The first act of most publick Laws in order, is the constituting (primarily, or by confirmation) the Right of possessions as Antecedent to obedience or disobedience: The next is de officiis in the Precepts and prohibitions. The last is de poenis & praemiis, annexed to the second for the promoting of obedience.

Thes. 300. Lastly, it is only the Debitum subditorum p. 335as such, that is constituted by a Law; and so it is distinguished from Rulers acts about their own or aliens duty.

It is no proper Law by which any Soveraign binds himself, unless he have also a private or Inferiour capacity. To himself it may be a Promise or Covenant; but to himself as Soveraign it can be no Law: God binds him to keep his Covenants: and he binds his Subjects to their duties. His Commands also to men of another Land, that are no Subjects, are no Laws.

Thes. 301. The will of the Law-giver doth alwayes attain its nearest end; which is, To oblige, or to make Due; but its ultimate ends depending on the Subjects will, are often frustrate.

To make this or that a Duty, is his work, to which his Law is presently effectual: but to perform that Duty, is the Subjects work; and the best Laws of the wisest Lawgiver may be broken: yet must he endeavour so to compose his Law as may amend or restrain the Subjects: for they are not only Directing Rules, but compulsive for obedience.

Thes. 302. Laws are the Rule of Duty & of Judgment.

Justice will punish but by the Law that is violated: It must be a Rule of Life, before we can be judged by it. Its the Judges Rule too, though in a different sort, when the Lawgiver himself is Judge, of which more afterwards.

p. 336Thes. 303. As the Soveraign Power maketh Laws, so may it Abrogate, or correct those Laws.

Quest. What if a Soveraign make a Law for perpetuity, and call it fundamental, may his Successour change it? Answ. As a Law, they are not obliged by it from a change, but have the same Power to alter it as he had to make it. But yet his Promise expressed in that Law, or his Consent, may oblige his Successors, if they succeed upon his terms, before a Change in the Constitution; if he pass a Law of great necessity for the Publike good, and oblige himself and posterity not to change it, his Covenant obligeth him and them. If the Subjects Covenant must oblige their Posterity, the Princes must also bind his Successors.

Quest. But where the Soveraignty is in Prince and Parliament, may they not change a Law which a former Prince and Parliament obliged Posterity not to change? Answ. If it be Parliament that hath meerly a part in the Supremacy, they may not; because their Predecessors Covenants bind them till God or the People (to whom they are bound) shall disoblige them. But if it be a Parliament that also Representeth the People, and is thereby enabled to act in such cases on their behalf, then they may change any Laws or Contracts, (except when a Divine Obligation doth prohibite) Because the people can acquit the Prince of his promises to them, and he can discharge them of theirs to him. But when any Law appeareth to be inconsistent with the Laws of God, or End of Government, God himself then doth dissolve it by p. 337his dissent, without whom it can be of no true Authority.

Thes. 304. It belongeth to the Soveraign Power to make a state a universally-obliging Interpretation of the Laws.

Judges make particular Interpretations, in order to the Decision of particular cases. But to make an Interpretation which shall be the stated sense of the Law, obliging the subjects as subjects universally, or per modum Legis, Regularly, this none but the Law-givers themselves can do.

Thes. 305. It belongeth to the Soveraign to dispence with Penal Laws, by pardoning offences▪ and also to dispence with Positive Laws about Duty, when the End and Reason of the Law requireth it: Because his Laws are to bind the subject, and not himself.

The Law-giver is above the Law; yet not so that he may dispence with it at his pleasure, because he is not above the End of Laws. The Law is but the will of the Law-giver signified: If he have power of his own will, he hath power of his Laws. He may not alwaies revoke the Decrees of his own will: but that's by accident. It hath ever belonged to the Soveraign to grant a pardon, even for Life: And this is to Relax the Law: and to Dispence with it as Penal. If Soveraigns are limited from pardoning in certain cases, that is because those cases are exempted from p. 338their Power, and so their Soveraignty extends not to them: None but God is an Absolute Soveraign: Man is but Analogically called so, in respect to God: And therefore where he is limited, his Power faileth.

Penal Laws do make the Penalty Due to the offendor; but do not bind the Law-giver to inflict that penalty directly: but yet à fine, &c. he may be obliged.

Thes. 306. A Law being the Instrument of Government, and the Rule of Duty and Judgement, the Law-giver by making it doth oblige himselfe, ordinarily to Govern by it; So that he is engaged in point of Prudence and Fidelity, for his Honour, and for the Common good, not rashly to pardon crimes, nor dispence with Laws; but still upon grounds of security as to their ends.

He that makes an house, doth not say expresly, that it shall be inhabited: but interpretatively he doth: For being a wise man, it is supposed that he laboureth not in vain, nor useth a means when he intendeth not the end; which is indeed not to use it as a means. He that maketh a Law, doth interpretatively say, By this I will govern: And therefore he doth in prudence and fidelity oblige himself to Govern by it, and not to dispence with it, but seldom, and upon weighty cause, and alwaies with a sufficient salvo as to the end of the Law and Government.

Thes. 307. He that dispenceth with a Law upon just occasion, doth not thereby become a Lyar, nor make the Law speak falsely: because it speaketh but de Debito, p. 339and not directly de Eventu, as it is a Law.

1. A clause may be joyned to a Law that speaketh de Eventu; as well as de Debito; and then the veracity of the Speaker lieth on the fulfilling of it. 2. As was last said, interpretatively the Governour intimateth that ordinarily he will Govern by it. 3. But yet a Law as a Law doth not speak directly de Eventu, nor engage the Governour in point of Veracity alway to fulfill it. As for instance: The Law that saith, [He that committeth Treason, Felony, &c. shall be put to death:] doth not mean de eventu, that it shall …o come to pass: but doth only say, [Death shall be his Due: and all Judges shall proceed according to this Rule in administring Justice, till it be dispenced with.] So that if a Traytor be pardoned, the Prince or Parliament are not therefore Lyars, much less offenders against that Law: For as they did constitute this Due, so Due it is; and the Law is verified: And as they obliged Judges and Magistrates to administer Justice according to this Rule, so are they obliged, till they that have power disoblige them.

Thes. 308. As no Law-giver can dispence with Gods Laws, nor with the necessary means of the common safety, so neither may he dispence with his own Covenants, nor deprive any causelesly of their Right, nor ordinarily or causelesly dispence with his own Laws, nor when the ends of Government forbid it.

Here are many cases in which a Ruler may not dispence. 1. He may not dispence with Gods Laws, because he hath no Authority thereto. 2. The common p. 340Good he may not overthrow, because it is also above and contrary to his Authority. 3. His Covenants he is bound to obey in point of fidelity, to which he is obliged by the Law of God. 4 He cannot take away any mans Right from him: for that were injustice and injury to the person: And therefore he cannot Dispence with a Donation or full promise, as he can with a Penal Law. A Pollicitation may be revoked: for it doth but express a Purpose to Give such or such a Benefit, and doth not give it: And a man upon sufficient cause, may change his Purposes: But a f…ll promise is of the nature of a Donation, and alienateth the Right, or obligeth in point of fidelity to do it. Grotius de jure Belli, l. 2. c. 11. sect. 2, 3, 4. distinguisheth, 1. Inter assertionem explicantem animum de futuro qui nunc est. 2. Et pollicitationem. 3. Et promissionem perfectam quae jus proprium alteri confert. The first obligeth no man further then as he is bound to constancy. The second may bind him in point of meer Fidelity or Veracity▪ The third bindeth in point of Justice, and allows a man an Action, as for his Right. See also Grotius de jure Belli, li. 1. c. 3. sect. 7. p. 61, 62. 5. The Soveraign may not ordinarily (for the Reasons, Thes. 304.) dispence with his own Laws; but that is not for want of Power, but because Prudence doth prohibit him. 6. Unless the common safety would be overthrown by the Relaxation, and then he hath not Power to that.

Thes. 309. It belongeth to the Soveraign to grant Priviledges; which he may reverse, unless he have expresly or implicitly disabled himself thereto.

p. 341When the reason ceaseth, he may withdraw the Priviledge, unless he be restrained by promise, plenary grant, or otherwise, of which Politicians commonly treat.

Thes. 310 To blot out infamies (as in case of bastardy) and a perire asyla, and other inferiour Jura Majestatis, are reducible to the greater, and need not be enumerated.

Its easier to agree of the number as well as nature, in Generals, then in particular: And its as found in the General, that the Particulars may best be judged of.

Thes. 311. 2. As the Power of making Laws is the first and most eminent part of Soveraignty; so the Power of appointing all Inferiour Magistrates is the second: there being no Governing Power in the Common-wealth, but what is derived from the Soveraign.

As Soveriagns can have no Power but from God, so Magistrates can have none but from the Soveraign; We here take the name [Magistrate] strictly for an Officer to execute Laws, and not laxly as it also comprehendeth the Soveraign. The People in a Corporation may choose their Magistrates, but it is the Princes (or wh…ver is Soveraign's) Charter that giveth him the Power. If the Souldiers might choose their Captains, yet their Power is from the General. Choice (as I have aforesaid) may determine of the person that shall receive the Power from the Soveraign. p. 342But the great Officers he usually chooseth himself.

Thes. 312. It is a matter of exceeding moment to the safety and welfare of the People, that Inferiour Magistrates be. men fearing God, Prudent, just, of publick spirits, and conragious, hating impiety, vice and all injustice: And therefore next to the making of Good Laws, it is the Soveraigns principal work to be exceeding carefull of his choice of Officers, and to keep out insinuating unworthy men.

If we have a just and pious Soveraign, and have impious unrighteous Judges or Justices, &c. the people may groan and languish in continual oppression and misery. Dead Laws will not preserve them against Living Wolves and Foxes. Poverty, and distance, and friendlesness doth usually disable the poor oppressed people to prosecute an Appeal to an higher Tribunal. From whence it comes to pass that Laws themselves grow odious; and poor men think it is at any time better, if a Rich man do but demand of them half their estates, to let him take it, rather then by seeking to preserve it at Law, to lose all. All vice will flourish under impious Magistrates: Piety and honesty will be mens outward calamity. If Soveraigns look not exceeding strictly to their Officers, the people will be unhappy: And discontents will be raised against the Government: and the people will easily think that the Soveraign chooseth such as himself, or as are most agreeable to his mind: And when once the Soveraign is brought into a common distaste with the people, the Common-wealth is sick of such an p. 343Head-ake as threatneth some worse disease. Nothing scarce ever lost Princes more then impious, flattering, unrighteous Officers. And scarce any thing doth more ingratiate a Prince with the People, then to find that he sets faithful Magistrates over them; and also to hear that he enquireth after, and feverely punisheth the unjust: This greatly endeareth him to the people.

Thes. 313. Princes should be very circumspect and sollicitous to find out the worthiest persons in the Land, and advance them to Magistracy and Trust, and to resist such as by flattery, nearness, friends, or bribery, seek advancement.

With most Princes few have Honour and Power but those that seek it, and ambitiously turn every stone to attain it: And few that are Ambitious of it and seek it, are worthy of it: And consequently few worthy persons are in Power, in comparison of what might be, if Princes did their duty. As the Christians were wont to repell the seekers of the Pastoral office, and to seek after them that hid themselves or fled from it, somewhat of this is imitable by Princes in the choice of Magistrates. First they must be sure to choose such as are most worthy: and next, such as are not unacceptable to the people; that is, to the generali… of good and sober men; For the impious and vicious would have Governors like them, that will destroy the common good.

Thes. 314. The Soveraign hath Power to be Judge in his o…n cause; ordinarily, as having no superiour p. 344judge; so the controversie be not with the body of the people, about the very ends of Government.

1. I here determine not this last excepted case, because I leave …t to the next Chapter. 2. An inferiour Judge may judge in his own cause, if such Power be derived to him. But it is not fit that usually it should be so, if it be personal and properly his own. 3. The Prince may depute another to be Judge in his cause, and sometime Prudence may tell him it is best to avoid censures: But the Power is in himself.

Thes. 315. It belongeth to the Soveraign to be Judge of all inferiour Judges.

No subject, and therefore no Judge, is exempted from the Soveraigns Judgement: Supposing still that it is by a civil Judgement proper to himself that he judgeth, and not by Ecclesiastical censure: There he may command the Church to do that which he may not do himself.

Thes. 316. The last Appeal is to the Soveraigns Judgement, and his sentence is final; so that from him there is no Appeal but unto God.

I know that no Sentence is absolutely final but Gods: and that the Judgement of men is of small moment, if it be not the Judgement of God by them. The Judge of all the world is at the door. The judgements of the Princes of the earth shall be there Judged. Thats the day that turns the scales to an everlasting Happiness or misery. It is the Joy p. 345of Believers, that under all the oppressions of the unjust, and the persecutions of the Malignant, they have room for an Appeal to the Barr of God, where no injustice shall find place. But till then there is no removing of our Cause to an higher Court then that where the Soveraign power is the Judge. Though it is not meet for Princes to allow Appeals to themselves too commonly, yet should they do their utmost to relieve oppressed innocency. Of the controversies about the Soveraigns Judgment, I have spoke in part before. As we must reverence the sentence of these earthly Judges, because they are Commissioned by the Lord, and the Judgement is his, who hath promised to be with them in his work: So must we be comfortably patient under all those injuries from men, which temporal judgements will not, or cannot right us against, because that we are the subjects of the Heavenly King, and that the Judge of all the world will do righteously, and that we are near, yea very near the day, when all will be set straight, and the injured shall have full relief: and they that have cryed day and night to God for help and Justice, shall find that he will avenge them speedily: and the expectation of the righteous shall not be in vain, nor will their Rock, their King, their Father fail them.