The Obligation of Human Conscience, Lecture 10
THE TENTH LECTURE In which that moſt vulgar Speech (The ſafety of the People is the Supreme Law) is more largely examined, and unfolded, that it may more rightly be underſtood.
1 TIM: 2. 2.
For Kings, and for all that are in Authority, that we may lead a quiet and peaceable life in all Godlineſs and Holineſs.
I At this time and place, if peradventure you do remember it (Courteous Readers) did intend to finiſh & compleat this Treatiſe, concerning both the obligations of Conſcience, to wit, the Paſſive, and the Active; In the unfolding of the former, having in firſt place, and in a Scholaſtical manner excuſſed the Definition of Conſcience, I was as elabourate as I could be in examining, and diſcovering that proper, and Adequate Rule of Conſcience, from the directions whereof, it ought to exerciſe all, and every one of its Acts, both of Dictating, and Judging. It was then repreſented to you, that the Holy Scripture was the principal part of that Rule we held forth, but the Adaequate part was that Will of God (which the School-men call the Will of the ſign) in ſome degree made manifeſt to every man, whether, firſt, by an inbred light, by Practical Principles preſerved in the Syntereſis, and known by themſelves, which the Philoſophers … Common Notions, and the Apoſtle, the Law of God written in our hearts; Or ſecondly, by an inferred Light, by ſome external Revelation, partly extraordinary, and private, to ſome ſingle perſons, by viſions, dreams, &c. at ſundry times, and in ſundry manners; Partly ordinary, and made publick to all mankind in the written word; Or laſtly, by an acquired light, by concluſions rightly and duely drawn from thoſe practical principles, or from the written word of God, or from our own meditations, or the Inſtitution of other men.
II. I affirmed, that all theſe, and every one of them do oblige the Conſciences of men, and only theſe, abſolutely and primarily by themſelves, and by their proper virtue: for all theſe, and theſe alone do exhibite to us the will of God, who alone of himſelf, hath an abſolute, and a direct command over the Conſciences of men; But I gave you to underſtand, that there were many other things which Secondarily, and relatively, and by Virtue of the Law, or the Divine will in which they are founded, do in their manner oblige the Conſciences; And all of them do agree in this, that they owe all the force of obliging which they have to the Divine will, for otherwiſe the Divine Law would not be the Adaequate Rule of Conſcience; nevertheleſs they do all differ among themſelves, both in the Species, by reaſon of the diverſity of the matter, and alſo in the degree, according to the power of obliging. Moreover, there are three degrees of thoſe who do thus oblige. The firſt is of thoſe things whoſe obligation doth ariſe from the Authority of another having a right or power, in which number are Humane Laws. The ſecond is of thoſe things whoſe obligation doth ariſe from a free act of the proper will, ſuch as are Vowes, Oathes, Promiſes, and Spontaneous Contracts. The third degree is of thoſe things whoſe obligation doth ariſe from the intuition of brotherly Charity, in which claſſis is ranked the Law, or the Conſideration of Scandal, or offence.
III. As for the obligation of Humane Laws, I have ſpoken much more than at the firſt I propounded to my ſelf, yet it may be much leſs than the weight of the thing deſerved (of which in our dayly Converſations there is a moſt frequent Uſe) or the Abundance and Variety of thoſe Doubts required, which might caſt a ſcruple into the minds of men; In the reſolution where of I proceeded ſo far in the former Terms, that having gone over thoſe difficulties which I thought could not improperly be reduced to the material, efficient, and formal Cauſes of Laws, in my laſt Lecture I came to treat of thoſe which more properly did pertain to their final Cauſe; where at firſt having laid this foundation for the whole following Diſcourſe, That the good of the Commonalty, or which is the ſame, that the publick Peace and Happineſſe is the End of Humane Laws, with what brevity and perſpicuity that I could I anſwered to the ſix following Queſtions. Firſt, Whether there be any Uſe, or at leaſt any neceſſary Uſe of Humane Laws in a Common-wealth in order to the Common Good? Secondly, It belonging to the Common-wealth that Vertue be reverenced, and Vices reſtrained, whether a Law-maker could command all the Acts, and Offices of all Vertues, and prohibit all Vices, and Enormities whatſoever? Which if he were not able to perform, whether he were at leaſt bound to command and prohibit as many as he could of either kind, by Laws which might oblige his Subjects in their Conſciences? Whether, and how far it be required to the effect of the obliging of the Subjects, that the Intent of the Law-maker be carryed to the publick Good? Fourthly, If the Laws made already ſhall appear leſs profitable to the publick, whether, and how far the change of them is either to be attempted by the Prince, or to be urged by the Subject, Fifthly, The Common good being the end of Laws, and even of Government it ſelf, whether it be lawful, and how far lawful, for the ſaid Common good, to change the form it ſelf of the whole Government, or to attempt the change thereof? Laſtly how that common ſaying, The ſafety of the People is the ſupreme Law is to be underſtood.
IV. Theſe things I thought neceſſary to repeat more fully to you, that after ſo long an interruption of Academical exercitations, my whole proceedings in theſe Lectures, and the order I have obſerved therein, might better appear unto you, and that I might recall into your memory the heads of thoſe things which having heard before with ſo much humanity, I juſtly do believe that in ſo long an interval of time, you have almoſt forgotten. You will expect I conceive, and not undeſervedly, that I ſhould now proceed in my intended courſe, and go directly on to thoſe next Doubts which yet remain to be reſolved; As of thoſe of Privileges, of Diſpenſations, and to others which ſome ways do belong to the final kind of a Cauſe. I do confeſs it indeed and I ought to do it; But my friends do interrupt me, they adviſe, me that the ſtubborn and intolerable boldneſſe of ſome men do rather efflagitate, that ſeeing ſo preciſely and ſo impudently they abuſe the Aphoriſm to the publick ruine, although I expounded it but in my laſt Lecture in the former Term, yet that I would take it under examination again, and open the genuine ſenſe thereof more clearly and fully than before I had done; This in my Conſtruction was nothing elſe but in a new pomp of words, to do over that, which I had done before, and to the loathing of your Stomacks to give you that meat you before were cloyd with. This deſire was not pleaſing to me, but they did grow upon me with new importunities to take it in hand again. It will be your humanity to reſent and excuſe that modeſty which I granted to my perſiſting friends, eſpecially having uſed ſuch a prevalent Argument to overcome me to it, not doubting but it would be grateful to the moſt of you, if I ſhould again undertake it.
V. It is therefore my preſent buſineſſe to declare unto you what is the meaning of that common Axiom, The ſafety of the people is the ſupreme Law, and how it is to be underſtood. Some men within theſe few years, not well imployed, have invented, and brought at laſt into the Common-wealth a new ſtate of Government, as before they had brought into the Church a new Religion, and as they have earneſtly endeavoured under the pretence of Conſcience, or of Chriſtian liberty, to overthrow all the force and frame of the Eccleſiaſtick Government, ſo under the pre…ence of Civil liberty, or the liberty of the Subject, they labour in this confuſion of times, and with incredible heat of ſpirit, and military terrour, to ſhake, and from the very foundation of it to pluck up the whole Fabrick of the Government of State. Theſe as often as they are accuſed of the Royal Dignity trod under feet, of the deſpiſed Authority of all holy Laws, of the diſturbance of the publick peace, of an unbridled and horrible tyranny exerciſed on their fellow Subjects, all barrs of Right and Juſtice being broken down, of an affected parity in the Church, and in the Common-wealth, all difference of birth, and honours, and States being taken away, and many more ſuch Anabaptiſtical impieties, they preſently defend themſelves, and their manners, with this ſafety of the people, as with a Buckler, and think this alone to be preferred to all Laws, Kings, Ordinances, and Cuſtoms whatſoever.
VI. From ſo looſe and dangerous an Interpretation of this vulgar Axiom, not only a window, but a ſpacious door being opened to ſeditious tumults, and all manner of popular licence; It is manifeſt that they who defend their horrible wickedneſſe with this forbidden buckler, do not entertain the pure and genuine conſtruction of that Axiom, but do feign another to themſelves, which by an inforced Interpretation, may give ſome ſhew of Patronage to their depraved Counſails, and their Cauſe; For as often as any man to ſerve his Avarice, Ambition, Hatred, or Anger ſhall attempt new deſigns, and fill all things with Rapine, Blood, and Plunder, he incontinently may pretend the Safety of the People for his nefarious Villanie. Examine I pray you the Annals, and Chronicles of all times throughout the world, both ſacred, prophane, antient, modern, exotick, or our own, you ſhall every where find that the Catilines, and Cethegi of all times, and places, did conſtantly practiſe theſe things, under the pretence of liberty, and popular ſafety, ſo that he may ſeem to have a Melonin ſtead of a Heart, (they are Tertullians own words) that will ſuffer himſelf to be thus Circumvented, and deluded; But whether unwarily, hath this Tempeſt hurried me, whiles I let looſe the reigns to my juſt Indignation? I therefore do contain my ſelf, and that I may appear a Diſputant, and not an Orator, I return to the matter in hand.
VII. Where in the firſt place this is to be conſidered, what in that vulgar Axiom is meant by the word Safety; For it any man finds his dignity, or liberty, affronted, or injured in ſome ſmall thing, nay, and if it be a great one, he is not preſently to complain that he hath endangered, or loſt his Safety; For every Hurt, or Blemiſh is not directly oppoſed to the Safety of any thing, or perſon, but the Ruine or Deſtruction of it. It is altogether the ſame thing (a due Analogy being reſerved) in a body Politick and Republick, as it is in a humane body, and a ſingle perſon; By reaſon of the jarring of the contrary qualities in a mans body, becauſe of the defect or exceſſe of inward Heat, and Cold, and a various Immutation of extrinſecal Accidents, it may ſo come to paſſe that a man may hardly enjoy his health, but very often in one part or other of his body, he may endure that, either within, or without, which may be very troubleſome to him, it may alſo come to paſſe, that by the Stone, the Tooth-ach, or the Gou…, or by ſome other diſeaſe in ſome other part, he may feel an extreme pain, or be ſo ſick in every part that he may lye down, yet in the mean time it may be neither neceſſary, nor ſeaſonable, to have recourſe unto extraordinary Remedies, as if he were in apparent danger of his life, and ſafety. So in a Common-wealth, we muſt not preſently attempt againſt the Laws, and Ordinances; We muſt not gather together a rabble of the vulgar, and raiſe tumults; we muſt not preſently cry out Arms Arms for the ſafety of the people, as ſoon as any popular Souldier, or bold Babler, ſhall complain unto the people, and accuſe the Prince, the Peers, the Magiſtrates, and Judges, or their Miniſters, or any one of them, of violating the Laws, doing Injurie, or neglecting their duties, although peradventure they have deſerved it. There ever were, and will be under the beſt Kings, and the beſt govern'd Common-wealths, ſome oppreſſions of the meaner Citizens, proceeding from the abuſe of Power, and many other grievances, for the preventing or redreſſing of which, no care or induſtry of the Governours, no ſeverity of the Laws could prevail, for if it ſhall be lawful for the factious Citizens, as ſoon as ever they ſee one or another example of this nature, to deſpiſe all Laws and Ordinances, and under the pretence of the publick ſafety, to revenge themſelves upon the oppreſſors by force of Arms; Kingdoms and Common-wealths will never be free from troubles and tumults; Our Saviour ſaith, Luke. 17. 1. It cannot be avoyded but that offences will come, and we muſt go out of the world, as the Apoſtle ſaith, 1 Cor. 5. 10. or ſeek ſome Eutopia or Platonick Common-wealth to preſerve us, if we ſhall make ſuch an Interpretation of the ſafety of the people, that unleſs every one of the loweſt degree of Citizens be altogether ſecure from all unjuſt force, and unrighteous Domination of ſome Superiour or other, there ſhall be no publick peace at all. The ſafety of the Common-wealth is then indeed in danger, when by the incurſions of Exotick Enemies, or by the depraedations of wicked Citizens, the affairs are brought into ſo manifeſt a danger, that unleſs ſome timely help be provided, the City and Country undoubtedly will be deſtroyed.
VIII. We have ſeen what our Innovators do mean by the word Safety; In the next place we are to obſerve how rightly that word People is interpreted by them. The People as St. Auguſtine defines them from the loſt books of Cicero in his Repub. is Coetus multitudinis Hominum juris conſenſu & utilitatis Communione Sociatus; *De ….A multitude of men aſſociated by the conſent of Law and Right, and the Communion of profit; … in this appellation of people, all the Roman Citizens of every Order and Condition were contained; For beſides Kings in their firſt times, and Emperors in their laſt, the Romans had a threefold degree of diſtinction; Patricians, Knights, and the Common people; But in what a latitude this word is to be received amongſt the Latine writers whereſoever it is found, the Reader may collect by the adjoyned circumſtances, which for the moſt part for a moſt ſure argument for this purpoſe may beſt be done by thoſe words which are annexed, viz. the oppoſite Terms. The word People is taken three wayes by the Roman Writers; Firſt (and of all the moſt unuſual) it is taken for the Common People alone, which was the loweſt order of the People of Rom…, as in that of Martial, Dat populus, dat gratus eques, dat thura Senatus. Where the word People being oppoſed to the Senate, and the Knights, can ſignifie nothing but the Common-People. Secondly, for both the inferior orders of People, viz. the Common People, and the Knights together, the Supreme or Patrician order being excluded; For in the beginning of the conſtitution of that Common-wealth, the Kings being expelled, the Fathers thought good to retain among themſelves, a kind of Prerogative of Honour, and Dignity above other Citizens, and for the ſignification of it, to ſeparate themſelves by that name from the reſt of the Turba of the People; From whence came thoſe ſolemn Forms; The Senate, and the People of Rome; It ſeemed good to the Senate, and the People of Rome; In which the name of People doth comprehend all the other Citizens, both Knights, and Common-People, the Senate excepted. Thirdly, it is taken for all the Citizens of all degrees without difference, both Fathers, Knights, and Common-People, for of theſe three orders, after that Kings deſiſted, and there were as yet no Emperors, the whole City did conſiſt; And in this ſence (for in the whole duration of that Common-wealth, the State was popular) the Roman writers are to be underſtood, as often as they make mention of the preſerving of the Safety, Dignity, and Majeſty, of the people.
IX. I have the more diligently expounded theſe things, not only becauſe the proper ſignifications of many words of this kind do depend on the uſe of that people, from whom the words themſelves are derived to us, but for another two fold Cauſe; The one, that we ſuffer not our ſelves to be deceived and circumvented by a leſſe proper interpretation of a doubtful word; The other, that in the bare appellation of the word people, there may be no force to the prejudice of him who is Prince of the Commonalty, and the head of the people; Either of which, of what moment they are to our preſent purpoſe, you ſhall preſently underſtand by thoſe things which I am to prefer unto you.
X. I ſay therefore that this word people (as many other words, ſignifying an aggregate multitude) may be taken two wayes; Either collectively, as it ſignifieth the whole Commonalty of the Republick, that is the Prince and Subjects together, or diſcretively and preciſely, as it ſignifieth the Subjects only, and ſevered from the King; In the very ſame manner, as the Body either implyes the reſt of the Members with the Head, or the reſt of the Members without the Head; And the appellation of a Family, doth ſometimes comprehend all who are within one Houſe, Wife, Children, Servants, and the Maſter of the Family himſelf, who is over them all, and ſometimes again thoſe only who are under his command, and of whom he hath care; And in the name of an Army, ſometimes the General is comperhended with the Souldiers, ſometimes he is not comprehended; And the like is to be obſerved in the words of Parliament or Kingdom, and other words of the ſame kind, which ſignifie indeed a collection of many, but with order and reference to one as their principal, or their Head. Therefore if not with a malignant intent, yet certainly by a moſt dangerous Error it comes to paſſe, that that which is ſpoken of the people collectively in the former ſenſe, incluſively to comprehend the whole Commonalty, that is, the Prince with the Subjects, ſhould be ſo wreſted, that it ſhould be applyed to the people in the latter ſenſe, that is, to the Subjects alone, the King excluded.
XI. But you will ſay, how may it appear to us that the Appellation of people in the firſt ſence, may in that Axiom be underſtood collectively for the King and people, and not diſcretively, in the later ſence for the common people alone? I anſwer, that moſt manifeſtly it doth appear by the common uſe of ſpeaking, and the Analogy of other words of the ſame ſignification; In which the moſt certain rule of Interpretation is, that words collective are alwayes to be taken collectively, unleſſe the Adjunct which is oppoſite to it, doth require it. For examples ſake, where it is ſaid, 1 Col. 1. 18. Chriſt is the Head of the Body of the Church; It is manifeſt by the Adjunct oppoſite to it, to wit, the mention of the Head, to which the Body is there relatively oppoſed, that the word Body is there taken diſcretively for the other Members of the body, preciſely ſevered from the Head; So if any man ſhould ſay that the General had advanced with his Army into the Fields, or had ſent them to their winter quarters, or that the Maſter of a Family had forbad any belonging to him to go out of his doors at twelve of the Clock at night; Or what is written of David, That whatſoever the King did, was acceptable to the people; It is manifeſt by the Adjunct every where oppoſed, that in the word General, maſter, and King, thoſe collective words of Army, Family, and Subjects, are not to be underſtood collectively, but diſcretively and excluſively that is, by the appellation of the Army, the Souldiers are only comprehended, and not the General, and by the appellation of Family, the Servants or Children are comprehended, and not the Maſter himſelf, and by the appellation of people, the Subjects are only comprehended, and not the King; The reaſon is, becauſe the Oppoſite, which is one of the correlatives, being adjoyned, doth neceſſarily imply the word collective, anſwering on the other ſide, and relatively oppoſite unto it, to contain preciſely its correlative, that is, the multitude only annexed and conjoyned to the Head, and chief, and not the whole Commonalty aggregated as it were from both the Terms correlative.
XII. But when an Oppoſite is not added which may neceſſarily carry its ſignification to the other part of the Relation only, it were incongruous to ſence and reaſon to take the word collective. otherwiſe than collectively, and in its juſt latitude, ſo that …t may thereby comprehend both the Terms of the Relations, eſpecially when the ſpeech is concerning ſafety, profit, or any other good or advantage which is or mat be common to them both; for examples ſake, if it were commanded that tomorrow the camp ſhould march becauſe the Army ſhould not be invironed by the Enemy, or that Corn ſhould be bought for the preſent uſe of a Family, Orectes himſelf would ſwear that the man was not of a ſober underſtanding, who ſhould apprehend that what was ſpoken either of the Army or the Family had relation only to the good of the Souldiers, and the Servants, no account or care being had of the General who commanded the Army, nor of the Maſter who governed the Family; which is all one as if a ſick man being admoniſhed by the Phyſician to have a greater care of his body for the future, ſhould with a great diligence begin to keep warm his Breaſt, and his Thighs, and other members beneath his neck, but take no care at all to provide for his head, becauſe the Phyſicitian did only put him in mind of his body but not of his head.
XIII. But I come yet nearer to the point in hand, if Peradventure a whole company of common Souldiers ſhould affirm that the ſafety of the Army was the ſupreme Law military, but they had a General who did put them upon ſuch hard ſervice, by his unſufferable commands that unleſſe they timely ſhould ſhake off the yoak of obedience to him, the whole liberty of the Army would be in great danger to be loſt, and thereupon from this Principle of aſſerting their own liberties by force of Arms, they ſhould conſult and agree amongſt themſelves, no longer to obey his commands, but to take away the life of their General; Or if houſehold Servants, (whom the Apoſtle 1 Peter 2. 18. would have obedient not only to thoſe who are good, and favourable to them, but to thoſe alſo who are rough and rigorous,) ſhould combine amongſt themſelves, to refuſe his commands as too burthenſome, and therefore becauſe too inſolently he domineereth over them to drive him out of his houſe, to ſeize upon his Keys, Truncks, and all his goods, and to mannage themſelves the Government of the Family at their own pleaſure, under this pretence only, that The ſafety of the Family is the ſupreme Law oeconomical, There is no man but will confeſſe but that theſe wicked and nefarious Counſels, may by ſome lawful conſequence be deduced from theſe Principles, which Principles being rightly underſtood are moſt true and profitable; And yet an egge is not more like unto an egge, than the Arguments of thoſe men, who by pretending the peoples ſafety fill all things with ſedition, are to this wild kind of reaſoning, as if (and that very eminently alſo,) the ſafety of the General were not contained and included in the ſafety of the Army; and the ſafety of the Maſter in the ſafety of his Family, and the ſafety of a Prince in the ſafety of his people. To be ſhort, we muſt acknowledge, the ſafety of the People, that is of the King and People together, is the ſupreme Law, but the ſafety of the People, that is, of the Subjects, the King being excluded, is not ſo.
XIV. In the ſecond place I am to add ſomething more; And though I conceive that I have clearly enough proved, that in this Axiom by the word People neither the Subjects without the Prince, nor the Prince without the Subjects ought preciſely and by themſelves to be underſtood, but both of them conjunctively, yet if any man will more exactly conſider either the dignity of the perſons, or the original of this Aphoriſm, he will willingly grant it to be underſtood more preciſely of the ſafety of the King, than preciſely of the ſafety of the People; For firſt, that the Kings Majeſty is ſacred hath not been only moſt copiouſly acknowledged by all the Fathers of the Church even at that time when there were no Chriſtian Kings, who have reverenced them as men ſecond to God, and leſſe only than God himſelf, and have offered Vows, and Prayers unto God for their ſafety, and have taught that on their ſafety, the ſafety and happineſſe of the whole people did depend; But God himſelf (as largely may be ſhown if need required) hath been pleaſed that abundantly it ſhould be teſtified in the holy Scriptures; From whence it came to paſſe, that all good Subjects and endued with a right underſtanding, in the height, and heat, and the extremeſt danger of Battel, have judged that the ſafety of the King alone, was to be preferred above the ſafety to them all, which as it became good Subjects, thoſe Iſraelites gallantly profeſſed, who at the time of the execrable Conſpiracy of Abſolon, preſerved their fidelity which they vowed to King David, 2 Sam. 18. 3. And of the ſame mind were they, who (not baſely flattering a mortal man for their own profit, but ſpeaking according to the Dictates of the Spirit of God) have called the King the breath of their noſtrils, for ſo that godly Prophet, and ſanctified from his mothers womb, the Prophet Jeremy ſpeaketh it, Lamen. 4. 20. In a moſt apt ſignification, That breath which is attracted, and emitted through the noſtrils being that vital breath,Animus R…publica tu es: illa corpus tuum. Senec. 1. de clem. 5.—Ille spiritus vitalis, quem haec tot millia trabunt. Ibid. c. 4. with which the ſoul as with a Bond is united to the Body, and which failing, the living Creature muſt forthwith neceſſarily expire and periſh; His Breath goeth forth, he returneth to his Earth, Pſal. 146. 4.
XV. This alſo is worthy your obſervation, that the Axiom of which we now treat, hath been brought unto us from the Roman Nation, and then in uſe with them, when Rome did moſt flouriſh in a popular ſtate. And there is no reaſon we ſhould wonder, That the ſafety of the people was to them a ſupreme Law, to whom the people themſelves were the ſupreme Power. The Lawes were then the Peoples, the judgments the Peoples, the whole juriſdiction the Peoples, the entire Government and autocratical Majeſty was the Peoples. And from hence it is, that amongſt all the Hiſtorians, and in Cicero alſo and other Writers of that age, ſo frequent a mention is made of the majeſty of the Roman people, as being in a ſtate Democratical, which in a ſtate Monarchical is not the Peoples but the Kings. Therefore, as much as the ſafety of the People was to them, with whom was the Majeſty of the People, which how much it was, by the Aphoriſm they would it ſhould be teſtified to the world, ſo much unto us if we will make uſe of of that Aphoriſm (an Analogy in the ſo different forms of both Republicks being rightly obſerved, as fit it ſhould be ſo) ſhould be the ſafety of our Kings who acknowledge no other majeſty but the Kings, only.
XVI. From theſe things which have been ſpoken, I believe it is manifeſt enough, that neither in the appellation of Safety, nor in the appellation of People there is any force at all in this vulgar Axiom, as to wreſt it to the prejudice of Kingly dignity, unleſs with the greateſt injury that can be done unto it; And if the two other remaining words of it, viz. The ſupreme Law ſhould be rightly weighed, they would acknowledge I believe if they had but any Modeſty, or Reaſon, that nothing can be ſpoken in this Axiom which is more ample and illuſtrious to eſtabliſh the ſoveraign Power of Kings; For theſe words the ſupreme Law do ſuppoſe that in every Common-wealth there ought neceſſarily to be ſomewhere a ſoveraign Power which is above all humane Laws poſitive,foreign. Ariſt. 5. Ethic. 14. Nulla tanta providentia potuit eſſe eorum qui leges compo…ebant, ut species criminum complecterentur. Quinti…. declam. 331. to which he ought to look, and by his Authority to take care, that neither by the defect of Laws, or the too ſuperſtitious obſervance of them, the Common-wealth may receive any dammage. And the reaſon of this is plain enough, for the wiſeſt Law-maker cannot ſo foreſee all circumſtances of events to come, neither can he make ſuch a ſufficient precaution by the Laws, as to prevent all thoſe Evils, & inconveniencies which he ſuſpects may come to paſs; and this is not by the fault of the Laws, or of the Law-makers, but as Ariſtotle hath excellently obſerved it, it is by reaſon of the nature of thoſe things that are to be defined by the Laws which being indefinite by Reaſon of their variety, and uncertain,foreign Ibid. becauſe depending on futurity, cannot be comprehended within ſome certain Rules of Limitation. The Law-maker therefore hath diſcharged his part, if by his Laws he hath ordained thoſe things which are for the moſt part juſt,Ariſtot. 1. and profitable to the Commonalty,Ethic. 14. although it may ſo fall out, as indeed often times it doth, that on ſome ſuddain and unexpected Emergencies, thoſe Laws may be defective in ſome particular caſes not foreſeen; And in this Caſe, if there be not a perſon, orſome perſons to exerciſe a kind of an arbitrary Power, there will be no other effectual Remedy to relieve the endangered Country, and provide for the publick ſafety; And this is the reaſon why wiſe men have always determined, and Reaſon alſo perſwadeth to it, that in exigent points of neceſſity, Legal Juſtice ought to give place to Equity, Equity according unto Ariſtotle being nothing elſe then the rectifying,foreign Ariſt. ib…d. or the correcting of legal juſtice, or even of the Law it ſelf, (as preſently afterwards he explains that Definition) by ſupplying its defect in particular caſes, in which it comes to paſs that by too much generality it falls ſhort of either Juſtice, or the publick Profit; For it is neceſſary that Laws ſhould be conſtituted generally out of a reſpect to thoſe things, which generally, and for the moſt part are done, but not out of a reſpect to all thoſe things which may be contingent in particulars, in many of which, if Laws were ſtrictly and by a praeſ…ript of words accommodated, they muſt neceſſarily be defective alſo, and fall ſhort of either moral Juſtice, or of Common Profit, or of both of them.
XVII. This being then granted, that the ſafety of the People, that is, the publick profit doth require, that there be ſome Authority in the Common-wealth which is to be above the Laws, and to ſupply the defects thereof, it will neceſſarily follow by Conſequence,Aiſtot. 3. which Ariſtotle aſſerteth in his politicks,Polit II. that this ſupreme Authority cannot appertain to any one elſe than to him alone who is ſet over the whole Commonalty, and inveſted with the chiefeſt Power, Whether he be a ſingle perſon, as in a monarchial Government, or many, as in other Forms of Common-wealths: Shall it be lawful therefore now for Subjects, under pretence of of publick liberty and ſafety, to break all the Bonds, Ordinances, Laws, and Fidelity, and by an intolerable rage of Pride,foreign, to tread under their Feet, the Authority of Laws and Princes, and for the Defence of ſo great a Villany, impudently to abuſe and pervert that Aphoriſm, which tho…e factious men are always boaſting of and repeating to one another, viz. Salus populi eſt ſuprema Lex; Homer. Illiad. ….The ſafety of the people is the ſupreme Law; How comes it to paſs, that on the contrary, they will not underſtand, that even by the very ſame Axiom it is acknowledged, that the Prince hath a Power even over the Laws themſelves; ſo that it is lawful for him out of the fulneſſe of his Power, if neceſſity compels, and the Affairs admit of no delay for the defence of his own, and his Peoples ſafety againſt forein or domeſtick Enemys, to lay aſide for awhile the ſtricter obſervation of the Laws, leſt by a too ſuperſtitious, and too unreaſonable Reverence of them, he ſuffers both himſelf, and his people, and at laſt the Laws themſelves to fall into the power of his Enemies.
XVIII. As to that Queſtion, whether a Ptince be free himſelf from the Laws he hath made, & which are confirmed, and approved by the Conſent of the People, & received by common Uſe, and how far he is bound, ordinarily, to obſerve them, I ſhall hereafter (God willing) give you my Judgement therein; It is now only here demanded, whether it be lawful for him, without order, and in caſe of neceſſity, for the defence of his Country, to do ſome thing either beſides, or againſt the Law it ſelf? That it is lawful for him ſo to do, and that in good Conſcience he may do it, it is firſt proved by the Examples of the beſt Kings, and by the Hiſtories of all Nations that have been remarkable throughout the world. And ſecondly, Reaſon it ſelf doth dictate it from the defect of the Laws in respect of the whole, and from the uncertainty and multiplicity of particular events, both which but even now I mentioned. And thirdly, thoſe things do ſufficiently prove it which are all…ged by Sam. on the Right of Kings, 1. Sam. 6. & which cannot well be interpreted otherwiſe, although many in vain have attempted ſo to do. But that the leaſt ſcruple may not ariſe, nor remain from any thing which hath here been ſpoken, and is miſunderſtood, Give me leave I pray you to call back this ſo divulged an Axiom to its firſt Original; And if I ſhall not ſo perform it, that you your ſelves may confeſſe, that the Care of the publick ſafety, the Laws ſomtimes laid aſide doth according to the meaning and ſence of the Axiom it ſelf, depend wholly on the will of the Prince, and nothing at all on the will of the People, proclaim me to grow dark in the cleare… light, and that I have hitherto been not the Defendor, but a Prevaricator, and Betrayer of the beſt of Cauſes.
XIX I have declared already, that this Axiom was derived from the Romans unto us; I ſhall now add that which firſt of all (as I know of) is written in the firſt Book of Marcus Cicero de Legib. But by himſelf as he affirmeth taken out of the antient Laws of that Nation, and deſcribed by him in the very word of the Law it ſelf; Having therefore in the former explained the Laws belonging to Religion, and the worſhip of the Gods, in his third Book he proceeds to give an account of thoſe which belong to the Magiſtrates, and Common-wealth. Where amongſt other things he hath theſe words, I muſt beſeech you to give due attention to them, Regio Impereo duo ſunto: ii que praecundo, judicando, conſulendo, Praetores, Judices, Conſules appellantor. Militiae ſummum jus habento; Nemini parento; Ollis Salus Populi ſuprema Lex eſto. Let there be two in the Soveraign Command, and for their going before, Ruling or Judging and Counſelling, let them be called Praetors, Judges, and Conſuls; Let the chief Right of the Militia be theirs; let them be under none; Let the Safety of the People be a ſupreme Law unto them; To them, that is, to them that are inveſted with the ſoveraign Command, who had the chiefeſt Power of the Militia, and acknowledged not any Power above their own to which they were to be obedient; That is, to the two Conſuls, who although by the Conſtitution of that Common-wealth did exerciſe only a yearly Magiſtracy, yet for that time, they had the chiefeſt Power over the City, & the greateſt part of the world, which was in Subjection to the Roman Empire; Come hither all you, whoſoever you are, who amongſt theſe or other Nations are aſſertors and Patrons of popular Licence; Read, and… read overagain every period weigh every ſentence, clauſe, and point Examine every word, ſyllable, and tittle. Where will you find, the Prince being unwilling, the leaſt ſign of any Power granted to the Subject, either of judging of the ſafety of the People, or of acting, or determinating any thing againſt the Laws? Doth not the whole courſe of the words in Cicero openly pronounce, that the ſupreme Authority, which is above all Laws, and the whole Care of the publick ſafety, doth properly belong to him who hath the Regal Command, and the chief Right of the Militia,Salutem Reipublicae nulli magis convenire, quam Caeſari. and a tranſendent Power to be ſubject unto none? And that to prove this truth you may have the Conſent of the moſt excellent Writers both Greek and Latin, Ariſtotle doth expreſs the ſame in theſe words, 3. Polit. 2. foreign,Paulus. l. 3. F. de off. praef. vig. That is, He who is ſet over the Common-wealth, whether he be a ſingle perſon or more, hath the Arbitration and Power of determining thoſe things of which the Laws cannot accurately, that is, ſpeak of in particular, becauſe it is no eaſy task univerſally to comprehend particulars.
XX. Some peradventure will except againſt this, and ſay; It goes very ill with mankind, if the ſafety of all muſt depend on the Arbitration of one, when in a caſe of the higheſt neceſſity, it is not lawful for any man to provide for his own and the publick ſafety without his Counſel. What, if by ſome ſudden and unexpected caſualty the affair will not admit the delay of one day? Whiles we are going,foreign, Eurip. ap. ap. Stob. foreign. 1. 10. counſelling, and returning, the Common-wealth may be deſtroyed, what will you adviſe us to, if it be neceſſary in ſuch a ſtraight of time, and diſtance … place to expect the leave, and conſent of the King? I anſwer, in this nature, the Subjects may be permitted to act ſomething of themſelves, and without the Princes conſent, if an urgent and unavoidable neceſſity doth require, for neceſſity as the Proverb ſpeaks it, hath no Law. I deny nevertheleſs, that from this aſſertion that may be done which ſome would have to be done. I ſay therefore in the firſt place, that whatſoever right can accrew unto the Subjects upon this aſſertion, viz. That all Laws being neglected they ſhould themſelves provide for the publick ſafety, doth come unto them upon another account, for it can no ways rely on the authority of this preſent Aphoriſm as on its foundation which leaves unto the Prince alone the care of providing for the publick ſafety, and doth not permit it to the people; Again, it is one thing to attempt a thing againſt the publick Laws the Prince not knowing it, and another thing to do it, the Prince not willing to it, for one of the two may lawfully be done upon due conditions, but the other is abſolutely unlawful. I ſay in the ſecond place, that if the Subjects will attempt any thing in order to the publick ſafety, two things above all other muſt moſt preciſely be obſerved, and he who ſhall neglect either of them cannot defend himſelf by any excuſe of neceſſity, and how religigiouſly they have obſerved them, who have been the Authors or Fomentors of the moſt deplorable troubles in this Kingdom, I forbear in this place to make mention of, let them look to that themſelves; The two conditions are theſe; Firſt that no thing be done, or attempted to be done, to the prejudice of the Prince, whoſe perſon & whoſe dignity it pertains to the publick ſafety to be moſt careful to preſerve inviolable; Secondly, that nothing likewiſe be attempted againſt the Laws and Rights of the Kingdom,In manifeſtis non opus eſt interpretatione, ſed executione. Aquin. 2. 2 qu. 120. art. 2. but by the Princes conſent, either his expreſs conſent, where conveniently it may be had, or at leaſt reaſonably preſumed; if he be at a great diſtance, and the affair admits of no delay, the conſent of the Prince is then reaſonably preſumed, when the neceſſity is ſo great and evident that no wiſe or ſober man can doubt, but if the Prince himſelf were preſent he would grant unto his Subjects a relaxation of that Law.
XXI. Theſe two conditions being obſerved, unleſs there ariſeth no impediment from particular Circumſtances,certum est omnia licere pro patria. Quintil. declam. 369. I ſay it is lawful for Subjects for the defence of the ſafety of the Prince, & of themſelves, if it be againſt the Invaſion of Forein, or the Inſurrection of Domeſtick Enemies, to look more to the common profit which is the ſupreme Law, than to the letter of particular Laws, which are therefore made to ſerve the publick profit, and not to prejudice it; The reaſon is evident, for middle things are for the end, and not the end for middle things, and therefore theſe middle things ought to be ſubſervient to the end, and not the end to them; therefore ſeeing the publick ſafety hath under it the conſideration of the End, and the Laws, but the conſideration of middle things, and ſeeing it is certain, that in the Intention of the Agent, the End is before and more to be reſpected than all middle things are or can be, it muſt follow, both that the common profit of our Country is to be preferred above all particular Laws, and that rightly it is to be preſumed, that the Prince is of the ſame opinion, who is Principal Agent in making of Laws, and therefore whatſoever herein is done in his abſence, or to be done, he tacitely doth conſent unto it, (provided his own Dignity and Right being ſaved) a manifeſt neceſſity doth exact it for the publick ſafety.
XXII. The Hiſtories are full of examples to prove this, but the reaſon of it being ſo manifeſt, I purpoſely paſs them by as ſuperfluous; I will only produce one, but an Illuſtrious one, and worthy to be inſerted into the Annals of this Nation for the eternal memory of the Gentleman, and which was done alſo in this age, and in the memory of ſome here preſent; It was the remarkable act of the high Sheriff of Worcesterſhire; To put the Laws in execution, and chiefly for the preſervation of the publick peace, there is an yearly Magiſtrate called a high Sheriff, ſet over all the Shires of England, to this Magiſtrate for the undergoing of ſo great an Office, there is granted by the Laws of the Land, the power of ſummoning the trained Bands to aſſiſt him as often as need requireth, to go with him, to diſcover and ſuppreſſe any Tumults, and Diſorders, that may happen in any place of his County, but ſo, that it is not lawful for him to go with the ſaid trained Bands beyond the Terms and bounds of his own County; After that by the great and wonderful mercy of God the Powder Treaſon was diſcovered, ſome who were conſcious of that Conſpiracy, and one or two of the chiefeſt of them did fly into Worceſterſhire; the high Sheriff, a gallant and prudent man, did follow them as they fled from place to place with the trained Bands, and being come to the uttermoſt confines of his County, he feared if he ſhould make a halt there, and purſue them no further, by reaſon of the fear of the Laws, they might eſcape away, he was therefore ſo venturous that for all the Law he brought the trayned Bands into the County that was contigious to it, where having overtaken the Traitors, he reduced them unto his Power, and took along with him the Ringleaders of them, with the reſt of that deſperate Rabble; He conceived to himſelf (as indeed he ought to do) if he ſhould throughly perform the duty of a good Subject, he could never expreſs it in a more honourable ſervice, and in that point of Neceſſity the more ſtrict obſervance of the Laws was unſeaſonable, he was therefore to obey the ſupreme Law, that is to ſay, the ſafety of his Country, and to diſregard all things in reſpect to the publick profit. The Buſineſs being thus diſpatched according to his own Deſire, the wiſe and active Gentleman, leaſt the Authority of the Laws ſhould be diſparaged by his Example, which indeed was to be imputed to Neceſſity, and being ſenſible withal to how greivous a Puniſhment they are lyable in the Rigor of the Law who are the violators of it, believed he had not done enough to acquieſce in the conſciouſneſſe only of what he had atchieved, unleſſe withal he had made a proviſion for his ſafety for the Time to come, and took as much care as in him lay, that no man ſhould abuſe his Example, by (peradventure) too boldan undertaking of any new Deſign. He therefore poſts away unto King James of happy memory, and proſtrating himſelf at his feet, he humbly craved pardon for the violation of the Law, and as he deſerved, he not only from the moſt prudent King obtained pardon for the not obſervance of the Law, but praiſe for preferring the publick ſafety above it.
XXIII. To give ſatisfaction to ſome friends, I have here (my Auditors) expounded to you a little more largely then my Cuſtome is, what is the ſence of that Axiom Salus populi ſuprema Lex. The ſafety of the people is the ſupreme Law, and to ſtop withal, the Mouths of ſome importunate Men, who to ſpeak with Solomon do force blood from the too much wringed Noſe, that is, by miſinterpreting a pious ſaying, and indeed (if it be rightly underſtood) ſalubrious to the publick, they perverſly render it impious, and deſtructive unto mankind. To be ſhort the ſum of all is this, If ſome private perſons be hurt or injured, If the Subjects have ſome publick Grievances of which they juſtly may complain, they muſt not preſently have a recourſe (as if the ſafety of the people were in the extremeſt Jeopardy) to extraordinary Remedyes, and which are contrary to the Laws; But if there be a juſt fear that the Common-wealth will be ruinated, either by forein Enimyes, or ſeditious Subjects, unleſs ſomthing be effected which is not permited by the Laws, It is then lawful for the Prince by the Prerogative of his own Power, nay, it is lawful for the Subjects by the preſumed Will of their Prince (provided nothing be acted to his prejudice, and the preſent exigence of Neceſſity ſo requireth) to recede from the word and ſence of particular Laws to aſſiſt the endangered Country, and to be ſerviceable to the ſafety thereof, as to the ſupremeſt Law. I ſhall ſuddenly proceed to proſecute the reſt, as God ſhall permit and opportunity ſhall inable me. The Grace of our Lord Jeſus Chriſt &c.
Thus far I have committed the Sayls unto the Winds, although in a bluſtring ſeaſon, and the face of Heaven being masked with many Clouds, (yet God being my Pilot) I ſafely proceeded in my intended courſe, and now I did begin to ſtand more off to Sea, being reſolved if the Times would give me leave, to have reached the deſired Port, when behold a ſuddain and over-powering Tempeſt did over my head admoniſh me, that for the time to come it would be very unſafe to adventure further, or to continue ploughing through theſe unquiet Deeps, I perceived therefore that new Counſels were forthwith to be taken, and unleſs I would be come the reproach and ſport of the Winds, I muſt no longer ſtay on ſuch a dangerous and ſuch a vaunting Sea; I ſuddenly therefore tacked about, and timely brought my Ship into the Haven, for it ſeemed to me more honourable gradually to retreat, than to be beaten back by force, and more profitable for my affairs to live within my own doors with eaſe and umbrage, than to be ſeen in the Market place, or on the Theatre, attended with noyſe, and fear, and envy.
Hinc eadem FINIS diſcriminis, at que laboris,
Therefore till Heaven ſome calmer days ſhall ſend,
The Work, and Dangers, here together END.
THE END.
THE FOLGER SHAKESPEARE LIBRARY
End of the text · Robert Sanderson, The Obligation of Human Conscience (1660)