The Obligation of Human Conscience, Lecture 7

The Obligation of Human Conscience · Lecture 7

p. 236THE SEVENTH LECTURE Concerning the obligation of humane Laws, in relation to the Efficient Cauſe thereof.

PROV. 8. 15.

Per me reges regnant, et Legum conditores juſta decernunt.

By me, Kings reign, and the makers of Laws do decree juſt things.

IN the laſt Term we did treat of the obligation of humane Laws, both in the Generality of them, to wit, that Laws rightly conſtituted do oblige the Conſciences of the Subjects to obedience, ſo alſo in the Species as to thoſe doubts which ſeemed properly to pertain to the material cauſe, to wit, how humane Laws do oblige them. Firſt, we treated of p. 237things impoſſible; Secondly, of things poſſible but very burthenſome; Thirdly, of things neceſſary; Fourthly, of things unlawfull and diſhoneſt; Fifthly, of Evils to be permitted; Sixthly, of Things of a middle Nature, & indifferent in general; Seventhly, of Eccleſiaſtical Rites in Special; of all theſe things which have been ſpoken (that I may not appear too tedious in repetition) the Sum is this; That Subjects are obliged to obey juſt Laws, but they are not obliged to obey Laws that are unjuſt; And ſo Solomon in this Text requireth of the makers of Laws, that they do decree nothing but what is juſt. I muſt now proceed to proſecute thoſe things which are yet remaining to be ſpoken of; In the handling of which I will uſe as much brevity as the ſubject will permit, that ſo in its due time I may finiſh the whole work, or at leaſt ſo much of it as pertaineth to the obligation of Laws.

II. In the order of Cauſes (according to the method which I have elſewhere obſerved) the Efficient Cauſe doth follow next to the Material; And the Formal next to that, the Final Cauſe is the laſt of all, and doth both head the Rear, and ſhuts it up. Concerning the Efficient Cauſe of Laws, I have already ſufficiently ſhewed, in the third Concluſion of the fifth Lecture, That humane Lawes do not oblige unleſs they are made by a perſon inveſted with a legitimate Authority. This in the firſt place is now remaining to be conſidered of, In whom is the juſt and lawful power of making of Laws, or who are thoſe makers of Laws, to whom according to the mind of Solomon, The Right of diſcerning righteous things belongeth. To give a full Anſwer to this firſt doubt, which is the chiefeſt of all p. 238by farr in this kind of Cauſe, two things are to be ſuppoſed; In the firſt place, I ſuppoſe the legiſlative power, to be the power of a Superior, as to give a Command (in which appellation, I do alſo comprehend a Prohibition) which is a proper Act of the Law, to be the Act of a Superior. You are to obſerve, that in this conſideration there is not a little difference betwixt theſe three; A Promiſe, A Petition, and a Command. Without the leaſt diſtinction it is common to all Superiors, Inferiors, and Equals, to promiſe; For a Father may promiſe ſomething to his Son, and the Son to the Father, and the Brother, or a Neighbour, to his Brother, or to his Neighbour; But to Crave, or to Petition, belongeth properly to Inferiors, and ſometimes in ſome reſpect to Equals, As the Son beſeecheth his Father, or the Neighbour his Neighbour, to excuſe him, or to receive the acknowledgment of his thankfulneſſe, but this belongeth not unto Superiors, unleſſe it be very improperly, and by diſcending to a lower degree than their condition is; But it is ſo peculiar to Superiors, and of Men placed in a preheminence of Dignity to Command, that he would be altogether ridiculous whoſoever he is, whether an Equal or an Inferior, that ſeriouſly ſhould command his Superior or Equal to the performance of any thing; For every Act doth require a Beginning proportionated to it, And an Equal hath no Command on an Equal.

III. Now as to an obligation concerning theſe three, it is thus to be Stated; He who craveth one thing of another man, obligeth by that petition, neither himſelf, nor the party of whom he craveth it: for it is a petition, and a petition is p. 239an Act of Indigence, and not of power, whoſe effect, becauſe it depends on another, and proceeds not from the Agent it ſelf, cannot induce any obligation. But he who promiſeth ſomething to another man, doth by his promiſe oblige himſelf, but he obligeth not him to whom the promiſe is made; for a promiſe being the Act of a free will, every man as he is a free Agent, and hath a power over his own will, as the Apoſtle ſpeaketh, 1 Cor. 7. 37. can exerciſe on himſelf that Right and Power which he hath over his own will, but not on another; For by the force of Free will, a man is maſter only of his own will, and of his own Acts, and not of anothers; Now on the contrary, he who layes a precept upon, or who doth command another, if he hath right to command, he obligeth by commanding that man whom he commandeth, but he doth not oblige himſelf; Becauſe a command is an Act of power and Authority, and of right upon another; and is fit and proper, unleſs peradventure there be ſomething that hinders it, to induce an obligation; ſo the Father with Authority commands the Son, the Maſter the Servant, the General the Souldier, the King the people, and God as a Superior commandeth man to ſuch and ſuch duties, and by commanding doth oblige him to the performance of them.

IV. In the ſecond place I ſuppoſe, that the Legiſlative power is a power of publick Juriſdiction: for it ſufficeth not to the power of making Laws, that a man hath a Right, and power over others to preſcribe unto them what is to be done, unleſs he be inveſted with an external power to compel them to the performance of it, and to afflict p. 240puniſhments on the Refuſers; foreign ſaith Ariſtotle, Ethick. 10. The Law hath a neceſſitating power; The Schoolmen therefore do diſtinguiſh that power which a Superior hath over an Inferior, into that power which they call Dominative, or the power of Maſterdome, and the power of Juriſdiction; The firſt whereof is leſs and more private, and not admitting an external Juriſdiction, the other greater and of a more inforcing Authority. Theſe two powers do not a little differ between themſelves, 1and that in a three-fold conſideration. Firſt in reſpect of the matter or object, for the Power Dominative or of maſtery, is properly exerciſed on the more imperfect and private Commonalty, as a Houſe, a School, or a Family, but the power of Juriſdiction on the more perfect and publick Commonalty, as a City, an Army, a Common-wealth. 2Secondly in reſpect of the End, for the power Dominative, by it ſelf, and Primarily is ordinated to the profit of the perſon indued with that power, that is the maſter, and but Secondarily and by Conſequence to the good of the Commonalty, as it is profitable for a Family that the maſter of it ſhould grow rich; Now the power of publick Juriſdiction is Primarily ordinated to the publick good of the Commonalty it ſelf, and but Secondarily, and Conſequently to the good of the perſon indued with that power, which is the Magiſtrate himſelf, it being profitable for a Prince that the Common-wealth ſhould flouriſh. Thirdly 3in the reſpect of the more effectual Adminiſtration, which is greater in the power of juriſdiction than in the Power Dominative, by reaſon of a greater p. 241coactive Power; for examples ſake, The Maſter of a Family cannot ſo efficaciouſly prevail that his Commands may be put in Execution by his Sons, or Servants, whom he cannot correct but with a rod, or Cudgel, as may the civil Magiſtrate, who by his Power may enforce his Subjects to Obedience, by impriſonment or baniſhment, by confiſcating their Goods, or by Death it ſelf; foreign, The fatherly Authority hath nothing in it that is enforcing, nothing that is neceſſating, ſaith Ariſtotle, in the place newly quoted. Therefore to the making of Laws every ſuperiority is not ſufficient, but beſides that Dominative, there is required the power of Juriſdiction ſo properly called, for the Laws cannot be made or eſtabliſhed, unleſs by a Perſon that hath a publick coactive power; by this time you underſtand I believe (that I may need no more to admoniſh you of it) that what here hath been ſpoken by me concerning Laws, doth abſolutely pertain to the chief Laws of a Nation, and not to any others unleſs analogically, & after their way & the proportion that is due unto them, as they come near or are more remote from their perfection.

V. To theſe two ſuppoſitions (which to what ſenſe they tend, you ſhall eaſily underſtand from thoſe things which preſently I ſhall repreſent unto you) I in the third place do now adde a reſponſive poſition, viz. That the power Legiſlative is a power autocra…ical, That is, the power of making Laws, which may oblige the Commonalty, doth conſiſt in him alone (whether he be a ſingle perſon, as in the ſtate of Monarchical Government, or whether they be more, as in other Governments) who exerciſeth the chief power over the whole Commonalty; p. 242I will in the firſt place explane this poſition, and afterwards I will confirm it; And for the explication of it we are in the firſt place to underſtand, that for the happineſs of humane ſocieties, and the more commodious Adminſtration of Commonwealths, it hath pleaſed Almighty God, the Author of Order, not only to conſtitute a political Government, that there may be Magiſtrates to be ſet over the people, but alſo in that very Government to conſtitute a political Order, that amongſt the Magiſtrates themſelves there might be divers degrees, as well of Dignity, as of Power; And it is likely that the military word of foreign, which the Apoſtle uſeth in the Romans, hath a relation to this ſence, to ſhow that there is not only an ordination of Magiſtrates from God, but a ſubordination alſo, ſuch as is ſeen in a military Army.

VI. In the ſecond place we are to know, that in all things in which there is order, to avoid a proceeding to an infiniteneſſe, which Nature doth abhor, we muſt at the laſt come neceſſarily to ſomething which is the firſt and chiefeſt in that Order, where we are to make a ſtand. Therefore ſeeing that Magiſtrates of the ſame Commonalty are ſome of them ſuperiour unto another in Dignity and power, it muſt of neceſſity ſo come to paſſe, that ſome one of them muſt be tranſcendent above the reſt, that the others may depend on him, and he on none; In the ſame conſtruction, the head is the higheſt in the body, the Admiral in a Fleet, and the Emperour in an Army. The ſupreme Magiſtrate is only leſs than God himſelf, and in governing the people committed to his charge, hath neither a Superiour nor an Equal; St. Peter calls him foreign, the Superiour; p. 243St. Paul foreign, the higher power,1 … 13. and foreign,Rom. 13. 1.Rom 13:1 the man in Authority; And the Schoolmen,1 Tim. … ▪ 2. caput communitatis, the head of the Commonalty, in whom ſolely the chief command, and the Majeſty of the Empire doth conſiſt, and to whom all inferiour Magiſtrates do owe all that power which they do exerciſe over the people, foreign, as being ſent from him, 1 Pet. 2. 14.

VII. In the third place we are to know, that this ſupreme power, which we call Majeſty, or Autocratical, that is governing all by it ſelf, according to the diverſe form of Commonwealths, is placed either in ſome one perſon, or in more; In a popular ſtate which is called Democraty, the chief and Soveraign power conſiſteth in many Magiſtra…es, yearly choſen by popular Suffrages, or by certain other Intervalls of time, and this heretofore was the ſtate of the people of Rome, when they were governed by Conſulls, Praetors, Tribunes of the people, Aedils and other yearly Magiſtrates, and from hence proceed thoſe Expreſſions which oftentimes we find in Tully, Populi Romani Majeſtas, laeſa populi Majeſtas, Viſum eſt Senatui, populo que Romano; The Majeſty of the Romane people, The injured Majeſty of the people; it ſeemed good to the Senate, and the people of Rome &c. In a ſtate Ariſtocratical, the ſame Majeſty reſideth amongſt ſome of the Lords, and Nobles, whom in ſome places they call Illuſtriſſimoes, in others the Peers of the Land, and in other places again, they receive other titles and appellations, according to the cuſtom of the Nation; Amongſt whom, although peradventure but one (as in the Common-wealth of Venice) or more of them may have a preheminence of place and dignity p. 244above the reſt, being as it were a certain Primacy of Order (which heretofore was the Honour of the Biſhops of Rome, and ſome Patriarchs in their Councils) yet no man was ſo ſuperiour above the reſt in power, that by his own authority he could judge any one of them, neither could he himſelf be judged unleſſe it were by all of them altogether; Some form of this Government is ſtill retained by our Mayors and Aldermen in our Cities, and by the Heads and Fellows of Colleges in our Univerſities, and although as it were but in a ſhadow, yet in ſome manner they do repreſent it to us; But in a Monarchial Government (as the Name it ſelf implies) the chief Power is reſident in the Perſon of the King alone, whereupon St. Peter, a moſt excellent Interpreter of St. Paul, doth admoniſh the Chriſtian People to obey the King, as their ſuperior, that no man might any more doubt of whom St. Paul ſpeaketh when he maketh mention of the higher Powers Ro. 1. 3. 1. Samuel alſo the Prophet of God doth ſo propound unto the people the fulneſs of the Kingly Power to be conſidered of, by them, 1 Sam. 8. That if a King, the ſupreme in his Kingdom, ſhould act all thoſe things which in that Chapter it is manifeſt that it is lawful for him to do, upon no juſt Cauſe but upon the meer deſire of Domination, and to ſhow himſelf a Tyrant, and not a King, although he wanted not Sin before God, yet he ought not to have any force to be put upon him by the People, nevertheleſs he may juſtly be ſaid to have abuſed his Power but his own Power. Amongſt us Engliſh, what more certainly or more cleerly can appear (unleſs at noon we chooſe rather to be blind than open our eyes) than that the ſupreme Power p. 245of the three Kingdoms doth intirely appertain to the Kings moſt excellent Majeſty, whom we are accuſtomed to render more remarkable by the title of Majeſty, not only according to the common uſe of ſpeaking, but in our ſolemn Ordinances, and in all our forms & actions of Law, & in the taking of an oath, laying our hands upon the Goſpel of the eternal God we acknowledg him the ſupreme yea & the only ſupreme Governour of all perſons and Cauſes in his Kingdoms.

VIII. In the fourth place we are to underſtand, That when we ſay, the Power of making Lawes is in the King alone, It is not ſo to be underſtood, as if we meant that whatſoever the King is pleaſed to command ſhall immediatly obtain the force of a Law, for by and by I will ſhow unto you that ſome Conſent of the People themſelves, and many other things are required to the Conſtitution of Law, but this is that, which I would hold forth unto you, that the Counſels of the People & Senate, and other Demands of the Peers, People, or any whomſoever, doe not oblige the Subjects, nor do carry with them the Power of a Law, unleſſe they are ſtrengthened and eſtabliſhed by the Authority of the King, to which being maturely and duely prepared, as ſoon as the Conſent of the King accedeth they immediatly receive the Name, the Form, and Authority of a Law, and forthwith begin as ſoon as they are publiſhed, to oblige the Subjects; Therefore, ſeeing that only is to be eſteemed to be the Principal and the efficient, Cauſe of any thing, which by it ſelf, and immediatly produceth, and into a prepared matter introduceth that Form which giveth to that Thing both the Name and the Being, although other things p. 246ought to concurre to the production of that Effect, or to go before it as ſo many praevious diſpoſitions, that ſo the matter may be rendred more apt to receive the Form intended by the Agent, It is moſt manifeſt, whatſoever thoſe things are which antecedently are required to the Conſtitution of a Law, yet the will of the Prince, from whoſe Arbitration and Command alone, all Rogations of Lawes are either eſtabliſhed, or made void, is the only adaequate, and efficient Cauſe of Publick Laws.

IX. Theſe things being premiſed, The Poſition is confirmed by many Arguments, And firſt by the Teſtimony of Holy Scripture; Firſt, Gen. 49. 10. in that remarkable Teſtament of the Patriarch Jacob being about to dye, The Scepter ſhall not be taken away from Judah, nor a Law-giver from his Thigh▪ is a Prophecy of the future Royal Dignity of that Tribe, which the holy old man doth periphraſtically deſcribe, and to the Confirmation of it, he mentioned the Scepter, the moſt remarkable witneſſe of Kingly Authority, and the Legiſlative Power the chiefeſt Perogative of it: Secondly Deut. 33. 4, 5. Moſes was ſaid to be a King in Iſrael, becauſe having gathered together all the Tribes of the People, he gave them a Law to obſerve. Thirdly Pſal. 60. 7. Judah is my Law-giver, that is, King. And the vulgar Interpretation reads it, Judah is my King. In the Text now in hand, Prov. 8. 15. By me Kings reign, and the makers of Laws do decree juſt things, where (which is uſual with Solomon in the whole Book of the Proverbs, that the latter part of the verſe doth contain an Amplification or Antitheſis) the very ſame Perſons who in the beginning of the verſe are called Kings, in the latter p. 247part by way of Amplification are called, Makers of Lawes. Fiftly, In the new Teſtament St. James alſo maketh mention foreign of the Royal Law.

X. Secondly, It is confirmed by the Teſtimonies of Philoſophers, and Hiſtorians, and by the Authority of the Civil Laws, and the municipal Laws of our Nation. The thing being ſo manifeſt we ſhall be content to give you but few Examples; Ariſtotle, Plutarch, and almoſt an infinit Number of other Authors of great Eſtimation do all affirm, that we muſt have a Law, and the Law of the Prince; But that of Ulpian, is very remarkable which he hath in his Book of the Roman Laws; Quod principi placuit Legis vigorem habet; What pleaſeth the Prince hath the force and Vigor of a Law; which leſt it may ſeem to make a way for tyrannical Domination being ill underſtood, hath heretofore been thus expounded by our Countryman Bracton, What pleaſeth the Prince, that is, not every thing which headily and out of the heat of his troubled mind is ſuddenly conceived, and reſolved upon, but that which by the Counſel of his Peers, (his Royal Aſſent giving Authority unto it) and deliberation, and a debate being had thereon, ſhall maturely and rightly be defined.Cui foreign legibus ipſis legum vim imponendi poteſtatem Deus dedit. Finch. Nomotech. in Epiſt. dedic. And in our Laws, In the dayly proceedings in our Courts of Pleas, the Laws, according to the ſolemn Form of Appellation, are called the Kings Lawes, for no other Cauſe, as our Lawyers have informed us, but becauſe the Kings of England are the Fountains of Juſtice, and Laws, and (the Laws themſelves in the reading of them profeſſing it) becauſe from Almighty God they have granted to them an autocratical or a ſelf-Ruling Power of giving force unto p. 248the Laws themſelves, that they may paſſe for, and be eſteemed as Laws; This is ſo plain, that we need not take any further pains in producing more witneſſes.

XI. And indeed this were enough, and might give abundant ſatisfaction, were it not for the impudence of an idle perſon that conceals his own Name, who by a ruinous and a naſty fiction, and which was never heard off in the world before theſe unhappy times, hath endeavoured to caſt a miſt over ſo clear a light, by raiſing an Invention of I know not what coordinate Power: And to flatter the nefarious Counſels and Endeavours of ſome Neotericks in theſe dayes, which being deſtitute of all defence of Right, were nevertheleſs for the time to be ſupported by ſome ſpecious pretence although never ſo weak and ſlender, he doth in a Book publiſhed for that purpoſe, earneſtly labour to make the people ſenſible of that wild Philoſophy which hither to had been impoſed on them by way of contradiction, viz. That the King being ſupreme and having no equal, is notwithſtanding at the ſame time not ſupreme, and hath an equal: yet is it not ſo much to be admired, as lamented, that there were found ſome who greedily ſnatched at and imbraced this ridiculous Invention, as ſlid down from heaven, and indeed becauſe it concerned their Intereſt, that the people ſhould be ſeduced into ſuch a falſe Belief, they therefore ſuffered themſelvs to be ſo inſnared by this groſſe Sophiſm, as to become guilty of the fouleſt Perjury: For what can deſerve to be called Perjury, if this be not Perjury in the higheſt Nature? As to acknowledge, and conſtitute a Power equal to him in his Kingdom, whom in expreſſe words you have p. 249ſworn to be the only and the ſupreme Power in the Kingdom. Away then with this our ſo abſurd Coordinator, and with all his portentuous Jugglings, and having ſo cleanly rid our hands of him, let us proceed.

XII. The ſaid poſition or Concluſion is thirdly proved by reaſon; the chiefeſt Act of Governing doth require the chiefeſt Power, for every Act being the exerciſe of ſome Power doth preſuppoſe in the Agent a Power proportionate to it; foreign, or the making of Laws is the ſupreme, & chief Act of Governing; It cannot therfore be excerciſed unleſs by a perſon who is inveſted himſelf, or who by his virtue and authority doth derive unto another the ſupreme power and juriſdiction over the Commonalty ſubjected to him; For ſeeing there are two moſt noble parts and Species of juriſdiction and publick power, and remarkable above the reſt, viz. the Legiſlative power, and the power Judicial, both of which conſiſt in jure dicundo, that is in pronouncing the Law, from whence the name of juriſdiction doth proceed, but with this difference, that the juriſdiction of the Judge, is the ſpeaking of a Law only as it is already given, or exhibited, but the Juriſdiction of the Lawgiver, is the ſpeaking of a Law that is as yet unmade, and remaineth ſtill to be exhibited, it followeth, that the power of the Judge is far more narrow, and not of ſuch a noble extenſion as that of the Law-giver. It is the office of the Judge to ſpeak and give Laws unto the people by a Law already made, but it is the office of the Lawgiver, to give Laws unto the Judge himſelf, and to ordain a new Law which may be a Rule unto him in his ſeat of Judicature; the Judge is obliged to pronounce according to the preſcript of the Law p. 250conſtituted, The Law-giver out of the plenitude of his power doth preſcribe and conſtitute the Law, which the inferiour Judge is no leſſe bound for the future to obſerve than the people themſelves; It is therefore no wayes inexpedient that the judicial power being a power of an inferiour nature be ordinarily exerciſed by an inferiour perſon, but it is as neceſſary as expedient, that the ſupreme & architectonical power of making Laws ſhould be excerciſed by none but only by that perſon who hath in his hands the ſupreme power; and ſo much of the firſt Doubt.

XIII. The ſecond demand or Quaere is, Whether the conſent of the people be required to the obligation of the Law? For by what hath been already ſpoken, a man may peradventure conceive, that the power of making Laws doth pertain unto a Prince by ſo abſolute and full a power, that the Subjects have no part in this great affair, and in whatſoever he determineth there remaineth nothing for the people to do but to perform his commands, and to humble their necks under the yoak of his obedience; And indeed according to the luſts of thoſe who heretofore bore ſway, it may appear by their ſic volo, ſic jubeo, that this exceſſe of command did take ſuch place amongſt the Kings of former ages, when the meer arbitrations of Princes ſtood for Laws, that the name of a Tyrant, of an innocent, at the firſt, and of an honeſt ſignification, did grow at the laſt into a great ignominy by the foul abuſe of ſo ſaving a power, and even in our days it doth convey ſomthing that is horrid into our ears as often as we hear it ſpoken. But that ſome conſent of the people is at leaſt required, I have both heretofore manifeſted, and it is granted by all of the moſt approved Authors that I have read; Inſomuch p. 151much that the Jeſuits themſelves, the moſt ſtout Defenders of the Popes oecumenical omnipotence, and which by them is by no limits to be included, do yet hold, that many in Germany and other places are to be excuſed for the non-obſerving of the Laws of the Council of Trent, and the Bulls of the Sea of Rome, only upon this Account, that thoſe Laws were never received into uſe amongſt thoſe Nations; I affirm therefore, and it is the common received opinion, that the Laws propounded and inſtituted by a Prince, or the Head of a Commonalty, do not oblige the Subjects, nor have the Power of a Law, unleſs they be received by the Commonalty themſelves, and are allowed by the Cuſtoms and Suffrages of thoſe that uſe them. According to Demoſthenes, the Law is foreign, The Common Ingagement of a City, and if peradventure his authority be of leſſe value, becauſe he lived in the popular Common wealth of the Athenians, will you be pleaſed to hear the great Lawyer Julian, who lived when the Roman Emperours had the fulneſs of command? his words in his two and thirtieth Book de legib. are theſe, Ipſae Leges nulla alia ex cauſa nos tenent quam quod judicio populi receptae ſunt, The Laws do oblige us for no other cauſe, than that they are received by the judgement of the people.

XIV. But though all acknowledge the neceſſity of that reception or conſent, yet all men do not derive it from the ſame Fountain. There are ſome who think that the conſent of the People is therefore required in the making of Laws, becauſe that Princes have all their power flowing to them from the people, which if they do abuſe (as they are to be eſteemed to abuſe it, if they ſhall extend it further or longer than it ſhall pleaſe the people) the p. 252people by their own right may again re-aſſume that power which before they had granted to them. This is a moſt erronious and a dangerous poſition, and which all thoſe who are not enemies to mankind and the publick peace ought deſervedly to abhominate; All their reaſon relyeth on a double foundation, but both of them very weak, and abhorring to ſober ſence; The firſt is, that Princes do owe unto the people for all their power; the other, that whoſoever he is who granteth power to another, it lyeth in his power to revoke that power when he pleaſeth. O moſt egregious Sophiſtry! if this were ſo, Were Samuel more to be condemned for his Oratory, who the more to affright the people being weary of their Theocracy, or Government immediately from God, and to deterre them from their perverſe affectation of innovation, had enough to do to lay before their eyes the vaſt extent of the power of Kings; Or were the people of Iſrael more to be condemned for their folly, who ignorant of their own right would ſuffer themſelves to be circumvented and baffled by ſo groſs a pretence, and return nothing back unto the Prophet, no not ſo much as a word? Were they all ſo dumb, and ſtupid, and void of reſolution as well as underſtanding, that not one in ſo great a multitude could be found, as had either ſo much acuteneſs or confidence, as readily to make anſwer to theſe objections of Samuel, it being ſo eaſy for them to give ſuch a ſudden check unto them? Tell Boys theſe tales who have the leiſure to hear them, and not the wit to underſtand them; We, if (our King ſhall thus begin to domineer) will uſe our own privileges, and preſently take away that right from him which we have given to him. In p. 253how few words had they done the whole work, and ſtopped for ever the mouth of the Prophet, if theſe fictions of new Magiſtrates had been ſo much believed in former ages, as they now are confidently ſuggeſted to new Diſciples, and willingly entertained by the unadviſed multitude.

XV. But to be in earneſt, and to draw more near unto the thing it ſelf,foreign. Homer. in hymn. I ſay in the firſt place, That the power of Governing in a Common-wealth, by what means ſoever men arrive unto it, proceedeth only and immediately from God himſelf. The Teſtimonies of holy Scripture to prove this are moſt manifeſt:bbNon alio animo populus rectorem ſuum intuetur, quàm ſi Dii immortales poteſtatem viſendi ſui faciant. Seneo. 1. de clem… 19. By me Kings reign, Prov. 8. That is by my authority alone, and not by any authority of men; The Powers ordained, are ordained by God, and not by the people, Rom. 13. 1. The Magiſtrates themſelves which are ſet over the people are the Miniſters of God, Rom. 13. 4, 6. And therefore they are called Gods, Pſal. 82. 6. becauſe they are his Vice-gerents on Earth; God himſelf, and not the ſuffrages of any people conferring this honour on them; I have ſaid you are Gods. Can any people conſtitute Gods unto themſelves without the filthy Crime of Idolatry? Seeing it belongs to men by their own authority to make choice of their own Vice-gerents and to intruſt them with places and power according to their own, and not anothers arbitration. Will any mortal man be ſo bold as to arrogate that right unto himſelf, as to affirm that the Miniſter of God on Earth, and as it were a Vice-God, is made ſo by his authority, and by a power which his wretchedneſs hath conferred on him? although peradventure there may be ſome references or parts of the people concerning the perſon p. 254of the King as he is the Subject of Power, as by and by you ſhall ſee, juſt ſo as in the Generation of natural things there are ſome praevious alterations which may prepare and diſpoſe of the matter to receive the Form to be introduced, yet the conferring of the Kingly Power, and the application of it to the Perſon, is not the work of the People, but immediatly of God himſelf, as the Production of a Form into the matter ſubjected is the immediate work of the Agent or Perſon generating.Lib. 5. contra haereſ. cap. 20. That is elegantly ſpoken of Irenaeus, Cujus juſſu homines naſcuntur, hujus juſſu et Reges conſtituuntur; By whoſe Command men are born, by his Command Kings are alſo conſtituted.

XVI. I ſay in the ſecond place (to point directly to the Fountains Head) that political Domination at the beginning was only the off-ſpring of paternal power; Thoſe who have the leiſure to look more diligently after the beginning of things, will find that the Nations did not grow up into Kingdoms and Commonwealths by the mutual conſent of the people, but that all Empire amongſt the poſterity of Noah, did for a while conſiſt within the bounds of paternal Authority. At that time there were neither Kings, nor petty Kings, much leſſe Monarchs of vaſt Continents, nor ſo much as the leaſt ſignes of any Ariſtocratical Government, or popular State, a word not heard of throughout all the world in thoſe antient times, and firſt of all brought into Greece (a moving Nation, and deſirous of novelty) by the ambition or fury of ſome who induſtriouſly affected new things. All Domination at that time conſiſted in the power of Heads of Familyes, amongſt which he who was p. 255the firſt born of every Family,foreign. Ariſtot. 7. Eudem. 10. foreign. Id. 1. Polit. …. without any ſuffrages or election, was by a certain Right and privilege of Nature, the Governour of all things both Holy and Civil, and as it were the Prince of all that alliance, who according to his Arbitration, did chaſtiſe Delinquents, firſt with moderate puniſhments, and Families afterwards increaſing into greater multitudes, he afflicted the guilty with more grievous Chaſtiſements, till at the laſt, the numbers of Men ſtill increaſing, and Vices increaſing with them, there was a neceſſity of condemning notorious Offenders unto Death; From hence it came to paſſe, that heretofore the Father had the power of Life and Death over his Children, and his Family,Pater juſſi. Hoc nomen …mni lege Majus eſt. Jus nobit vitae neciſque conceſſum eſt. Quintil. declam. 6. of which power there remained a long time ſome Impreſſions after the Conſtitutions of Kings amongſt the Nations: And from hence, amongſt the Perſians, the too much ſeverity of the power of the Fathers over their Children was ſo much obſerved, but nevertheleſs diſproved by Ariſtotle; And that old and ſolemn form of the Romans of arrogating their Children which Aulus Gellius maketh mention of, Noct. Attic. lib. 5. cap. 19. UTI. EI. VITAE. NECIS. QUE. IN. EO. POTEST AS. SIET. That he hath the power over him both of Life, and Death, &c. From theſe beginnings, by the increaſe of Families, Kingdoms by degrees did every where ariſe; And thoſe who commanded over them were called Kings, and in their Dominions (although but of a ſhort extent, peradventure but one little City with the Hamlets and Villages b…longing to it) they exerciſed an abſolute Authority and Command, Principio rerum, gentium Nationumque Imperia p. 256penes Reges erant, In the beginning of things the Governments of People and Nations were in the Power of Kings, Juſtin. 1. hiſt. 1. Cic. 3. Legib. foreign. Ariſt. 1. Polit.ſo Juſtine begins his Hiſtory; And Cicero before him ſaith, Omnes antiquae Gentes regibus quondam paruerunt, All antient Nations did heretofore obey Kings; And Ariſtotle more antient than both of them doth teſtify, that thoſe Cities which were free in his times (he means the Cities of Greece, and others which followed their Examples) were at the firſt under the Command of Kings. Amongſt many other things, this is no light Argument of this original which I have ſpoken of, that the Dominions of Kings were heretofore incloſed in ſuch narrow limits, that in Canaan alone, which is no great Country, we do read that there were one and thirty Kings overthrown by Joſuah the Captain General of the Hoſt of Iſrael, Joſ. 12. And probably we may conjecture, that he left above as many more unfought with, for not long after the death of Joſuah, we find that Adonibezek did exerciſe a barbarous cruelty on ſeventy Kings whom he had Conquered, Judg. 1. 7. What need many words? ſo little is the difference betwixt the Prince of a great Family, and a King of a ſmall Territory,foreign. Gregor. Presb. in vita Greg. Nazianzeni. that they ſeem to differ more in Name, and Bulk, than in Deed, and Power, ſo that it is not to be doubted (if a true Calculation be made) but that the Domination of a Family in the proceſſe of Time, did by degrees, and by an unperceived inlargement, grow up into a Kingly Name, and Power; And the Original of the greateſt Empire, is no where elſe to be extracted, but from this Head. And thus far there is nothing more plain, nothing more ſure, than that in the conferring p. 257of Kingly power, the people had no part at all, neither indeed could have.

XVII. From theſe things (as I conceive) we ſafely may conclude (to note that by the way which is worthy your obſervation) That the form of Government, by which the firſt-born of the whole Family doth ſucceed into his Fathers rights, as the next Heir, is juſtly to be preferred above the reſt, for many conſiderable reaſons, but eſpecially for this, becauſe it beſt of all anſwers to that Original, to which it ſeems that Nature it ſelf in ſome ſort hath made man; From which moſt antient and congruous Form of Nature, when once we have departed (the impotent and unruly luſt of Domination attempting forbidden wayes to aſcend to the height of Soveraignty) all things are thereby laid open to Tyranny, and popular Indeavours; For they who arrive to Soveraignty otherwiſe than by a legitimate ſucceſſion, muſt neceſſarily be promoted to it by one of theſe three ways, either by open Force, and ſtrength of Arms, or by Craft and Policy, or thirdly by a free Election; Thoſe who by force of Arms have obtained the Soveraign Power, whether it were by meer Uſurpation, without any pretence of Right, or by War made upon their Enemies, who unjuſtly have provoked them (for both wayes it comes to paſſe) it is certain do owe no more their Authority to their Subjects, than thoſe who ſucceed in their Kingdoms by Hereditary Right, nay much leſs, For the one do govern over their willing Subjects, and uſed to the yoak, and the other over an unwilling people, and if they were equal to him in ſtrength, ready to make reſiſtance, and to fight againſt him; So that in p. 258this conſideration alſo, in conferring of the chief Power, the people have no intereſt at all.

XVIII. But in the eſtabliſhing of the Power of thoſe Men, who by Tyranny and Deceit, do exerciſe a Tyrannical Power, it cannot be denyed, but that the people have a great intereſt. For thoſe who affect Tyranny, are accuſtomed above all things to court the favor of the people, potentiam ex vulgi adulatione quaerentes, ſeeking after power by flattering of the Vulgar. Juſtin. 13. 3.The Hiſtories of divers Nations do afford us many Examples to confirm this Truth, I will make uſe only of the Abridgement of Trogus Pompeius, where we may find by what Arts Piſiſtratus of the Athenians, Ibid. 2. 8.Clearchus of the Heraclians, Ibid. 16. 4.Dionyſius Junior of the Sicilians, and others of other Countryes did allure the people to ſide with their factions;Ibid. 21. 1. With invective and envious orations, they would incenſe the Spirits of the credulous multitude againſt the beſt of the Citizens; they would Act and Inact many things publickly to be prayſed, and which carried a face of Clemency, Juſtice, and Benignity to the people; they would inſinuate themſelves into the affections of the Citizens (as if they were the only aſſertors, vindicators, and patrons of the publick liberty) with all kind of flatteries, and allurements with which the Vulgar love, and are accuſtomed to be trepanned. Their pretences and diſſembling of duties, their often-repeated promiſes, the hopes they throw in, of happier times, and of the change of Government into a better, are thoſe egregious artifices by which they who by deceit do ariſe to Soveraignty, do ſolicite, and bend, and lead which way they will, the moving and unwary p. 259people, flattering them with fair words to ſerve their foul Ambition; And Hòs equidem per-rarò haec alea fallit, Theſe are the men who have the Dice that alwayes run upon the Sice; for relying on the favour of the people, and being aſſiſted with their ſtocks, and their indeavours, they at laſt aſcend to that height of Honour, and imperial Dignity, to which their Ambition did ſo long aſpire.

XIX. But how little this availeth to prove the legitimate power of the people, in conferring of the Soveraign command, he may eaſily obſerve, whoſoever ſhall conſider, that Firſt, it was alwayes 1eſteemed a weak way of argumentation, to diſpute a facto ad jus; From the Deed to the Right of it; Secondly, 2that which was done by the people in this Nature, was not according to Judgment, not in a quiet and a well-tempered mind, but clouded and toſſed with violent affections; And when the 3Tempeſt ſhall be a little aſſwaged, and the people at laſt, though too late, ſhall find themſelves to be circumvented, and over-reached by policy, they will repent of what they have done, they will be aſhamed of their too forward credulity, and they will condemn their own raſhneſs, and imprudency, who being tempted by a greedy Hope of encreaſing their Liberty, have wi…h their own hands, and of their own accords delivered up themſelves into the ſervitude of a tyrannical Domination. All theſe things do breath forth a meer impotency, and a weakneſs of mind, ſo, that he muſt be an admirable Artiſt who confideth that from hence he can extract any Argument for any true Right, or legitimate Power of the People.

XX. There remaineth therefore but one only p. 260Form of a Common-wealth in which there appeareth any ſhew of popular Right, for the conſtituting of a Prince, and that is a Kingdom elective, when in the Place of the deceaſed Prince, a new King ſucceedeth to be choſen by the free Suffrages of the People; And here prolixly we profeſs, that the People have their ſhare, and which indeed is lawful, and by good Right due unto them; but this notwithſtanding is not any ways to be granted, that thereupon the whole power of the elected King, doth depend upon the people, or that it ought to be acknowledged to be due unto them; For it is one thing to conſtitute a power, and another thing to elect a perſon, that is to exerciſe that power; Neither is it only another thing, but for the moſt part, it belongs alſo to another Intereſt. The Mayor or Bayliff of ſuch a Town or City, is yearly choſen by the Towns-men, or the Burgers, and being choſen, he exerciſeth a kind of Juriſdiction within the Subburbs and Precincts of that place, which it were not lawful for him to exerciſe, unleſs he had been ſo elected. In the ſame manner amongſt the Fellows of Colleges, as often as the Preſidentſhip is vacant, they have the Right to chuſe a new Preſident, to whom being ſo choſen, by vertue of the ſaid Election, the whole Government of that College doth pertain; In both places, the right of perſons electing, doth conſiſt wholy in the deſignation of the perſon to be elected, who is to exerciſe the power due unto his Office, not as derived from the perſons electing, but as granted to him upon another account; For the chief Magiſtrate of a City, oweth not that power which he exerciſeth in the City, to thoſe fellow p. 261Citizens of his who made choice of him for that year to ſit at the Helm of Government, but to the Royal Charter, which according to the favour of it hath indulged to the City with ſuch a privilege; neither doth the Maſter of College receive the Authority which he obtaineth in it from the Fellows, by whoſe ſuffrages he is elected, but from the Founder, & from his Statutes, who hath given that Authority to him. In a word, where the election of a Prince is received from the people, either by Laws, or Cuſtoms, there the people indeed do deſign, and nominate the perſon of him who Governeth, but God alone doth confer upon him the Authority of Governing.

XXI. But let us grant to the Flatterers of the people, this their Suppoſition, a little to gratulate their Importunity, it will notwithſtanding nothing prevayl, unleſſe we ſhall grant this alſo, which they had rather take, than ſolidly prove, That whoſoever conferreth a Power on any one, it is lawful for him, as often as he thinks fit, to take from him that power which he hath given him, and to reſume it into his own hands; And this is that which muſt never be granted; for all Reaſon, and Laws, and Courts of Judicature, are directly and Loudly againſt it; They declare That all lawful Contracts are not to be broken, And that a Donation abſolutely made,Populus in cum omne ſuum imperium & poteſtarem tranſtulit Ulpian. F. de constit princip. and without any condition, cannot be revoked, neither in the whole, nor in part, for the right which before the election was fully in the perſons electing, the election being made, doth preſently and in that very deed paſſe into the perſon elected; and many other things, to the ſame purpoſe, are over the whole world the p. 162moſt received Dictates of nature, and of reaſon, and approved and confirmed by the conſent of all Nations, as by the uſe of daily obſervation may abundantly appear. The ſeven Princes of Germany have a full power to elect an Emperour, but to remove him from the Empire being elected, they have no power; The Commonalty of all the Counties and Boroughs of England, that is all the Inhabitants and Free-holders (as we ſpeak it) beneath the degree of the Nobility of the Land, have a right by common Suffrages to elect Knights, Burgeſſes, and in their name to ſend them to the high Court of Parliament, as their Repeſentatives, and to intruſt them with a power in their ſteed, and in their behalf to debate of the publick affairs of the Kingdom; but to abrogate the power which is once committed to them being elected, although peradventure they anſwer not the expectation of thoſe who did elect them, they have no right at all. The ſame account is to be given of thoſe men in whoſe power there is a right of electing a Mayor of a City, or a Preſident of a College, or the head of any other civil Corporation, who, the election being ended, have no more to do at all, the right & anthority of Governing being tranſlated into the perſons elected, whoſe power they are afterwards bound to obey, and to accquieſce in the election which they have made, and if the perſon elected ſhall deport himſelf unworthy of his place, they are not to impute it to any but themſelves.

XXII. Theſe things I confeſſe might longer be inſiſted on, and indeed it would be worth the labour to proceed further in the proof thereof, and to pluck up out of the minds of men all the ſtrings of p. 263ſo dangerous a root, and ſo much tending unto ſedition, did not the reguard of the time, and my intentions call me back from whence I have digreſſed; And peradventure there is no great need of any longer diſcourſe on this ſubject, ſeeing out of the things already ſpoken, I believe it is manifeſt enough, how raſhly, and how dangerouſly alſo, this ſo vaſt a power is attributed to the people; Nevertheleſs there be other conſiderable reaſons to be alleged, which vehemently may perſwade us, that the peoples conſent and approbation is to be had in the making of Laws. Firſt, becauſe the Law ought to 1be as a mind void of any extravagancy of deſire: but the Laws of Princes raſhly ſent forth to the unwary Subjects,Ariſtot. 3. Polit. in the favour and on the behalf of Courtiers and Flatterers, are oftentimes corrupted with the depraved deſires of impotent affections. Secondly, becauſe thoſe Laws which are not allowed when propounded to the Subjects, to ſpeak 2morally, are preſumed to be either unjuſt in themſelves, or too burdenſome to the Subjects, or at leaſt unprofitable to the publick; And therefore it is expedient that they ſhould not be enacted, it being very incommodious to the Common-wealth, that Laws ſhould be multiplyed without a neceſſity. Thirdly, becauſe it is manifeſt, that Laws 3rightly conſtituted, may be ſo abrogated by a Contrary Cuſtome, that they ceaſe any longer to oblige, which Cuſtome is nothing elſe, than a conjoyned conſent of the people, neglecting to obſerve that Law as being unprofitable, together with the conſent of the Prince not exacting an obſervation of it; Therefore it being in the ſame power to deſtroy, p. 264as it is to make, the force of the Laws do ſeem not a little to depend on the approbation, and conſent 4of the people. Fourthly and cheifly, becauſe the conſent of the people in the making of Laws, and their concurrence with the power of the Prince, doth ſo much conduce both to the publick peace of the whole Kingdome, and the ſafety and ſecurity of the people, that there can be nothing more; For moſt likely it is, that all Subjects, will not grievouſly, but readily and cheerfully obey, both thoſe Kings who deſire their conſent, and thoſe Laws to which they themſelves ſhall give their conſent; Neither is it to be feared, that the Supreme and Legiſlative power of the King, ſhall by this means ſuffer any diminution, which is the only argument that the adverſe party do object againſt it: for that theſe two, I ſay, the conſent of the people, and the ſupreme power of the Prince in making Laws, may friendly, and at once conſiſt together, (beſides that there ſeems to be no repugnancy in the things themſelves) may appear by this, that our Kings of England, whoſe ſupreme power the Inhabitants of this Kingdom before theſe late unhappy times, have moſt fully always, and moſt freely acknowledged, did notwithſtanding never ſo exerciſe their Legiſlative power, as to impoſe any Laws on their Subjects without their own conſent.

XXIII. We conceive it therefore to be granted, that at the leaſt ſome conſent of the people is to be required in the making of thoſe Laws which in Conſcience may oblige the Subjects.foreign. But it may be here doubted,Ariſtot. 1. Polit 6. and that not unjuſtly, (I ſhall therefore make this the third Doubt or Demand) how great, p. 265and how much of the conſent of the people may be required to this, that the placit of the Prince may have the vigour of a Law? I anſwer, in this conſent of the people of which we now treat, two things are to be conſidered, viz. the time and manner of conſenting; And both theſe do fall again under a twofold conſideration; For either the Law is conſented to, as to the time, that is before the promulgation of it, or after; or as to the manner, that is, with an expreſſe conſent, or ſuffrages, or with a tacit conſent, or cuſtomes. From the complexion of theſe there do proceed four ſorts or degrees of popular conſent.

XXIV. The firſt and the loweſt, and leaſt degree of all, is the tacit or ſilent conſent before the publication or asking of the Law, which is, when a people have ſo put themſelves, and all that they have, in the power of the Conquerour, or by a long cuſtome of obedience, have ſo entirely ſubmitted themſelves to the will of the Prince, that whatſoever he determineth, they do yield unto it; And this may come to paſſe both ways, for by the Law of Nations, that power of the Prince is juſt, which is either obtained by a juſt War, or confirmed by a continued ſucceſſion as by a right of praeſcription; And this degree indeed, although not very profitable to the people, if the Prince be pleaſed to turn his power into tyranny, yet it will ſo far ſuffice, that the people cannot complain of any injury done unto them, if it ſhould ſo fall out that the Prince ſhould determine any thing too ſeverely againſt them, which peradventure is not unjuſt, but ſuch a thing as they would not willingly have to be done. As amongſt us many of the Presbyterians do importunatly (as p. 266their Cuſtom is) and unjuſtly complain that the election of Parochial Paſtors is unlawfully taken away from the People, when thoſe who ought to be choſen to that Office by the Pariſhoners, are preſented by ſome private perſon, or by ſome College under the name of a Patron without their Conſent; not dreaming all the while, that the right of Electing, if the People heretofore had any, (which is very uncertain, and if denyed can never be proved) for ſome certain Cauſe from the beginning, but by the long preſcription of Time now unknown, was long agoe conveyed unto thoſe whom they call the Patrons of Benefices, and ſo in the election made by the Patrons, the Conſent of the People is virtually involved and contained; which anſwer, if it be of no force amongſt men that are obſtinate in their own opinions, yet of this at leaſt they are to be advertiſed, which may be enough to ſatisfie the moſt importunate Adverſary, which is, that the Rights of Patronſhips, and the Advowzons or Advocations of Churches were long agoe eſtabliſhed by Authority of Parliament, that is, by the common and full Conſent of the whole People. And therefore what is done in this Caſe by a legitimate Patron, the People have already conſented that it is lawful for him to do it.

XXV. The ſecond Degree is the ſilent Conſent of the People to ſuch a Law after the promulgation of it, that is, when the People do not contradict the Law, made and publiſhed by the King, but rather do approve it by their Deeds, by conforming themſelves to the will of the Prince, and by obſerving that which is commanded by the Law; for if he who but holds his peace doth ſeem to conſent, p. 267much more is he preſumed to conſent,Leges conſtituuntur cum promulgantur firmantur cum moribus utentium approbantur Diſtinct. 4. Sect. in iſtis. who expreſſeth an actual obedience. Of this degree of Conſent thus ſpeaketh Julian again in the place above cited. Quid intereſt ſuffragio Populus voluntatem ſuam declaret, an rebus et facto? What difference is it if the People do declare their Conſent by ſuffrages, or by deeds and Acts?

XXVI. The third Degree is the expreſſe Conſent of the People, to a Law propounded to them by the Prince, and they conſent unto it being asked, that is, when a Prince having prepared at home the matter of the Law by the Counſel of wiſe men, and though not perfectly drawn it up, yet he hath run it over, and put it into ſome Form, and tranſmitted it to his Subjects to be further examined, that nothing may openly be contained in it that is either inconvenient, or abſurd, requiring withall that they, or a great part of them, if they find it to be advantagious to the Common-wealth, would confim it with their Suffrages, that ſo by their Conſents it may paſs into a Law, and this, in ſome manner, was heretofore the Cuſtom of the Romans, their Common-wealth yet ſtanding, And from this asking, the Rogation of their Laws received its original, A word moſt frequent amongſt the beſt of the Writers of the Roman affairs.

XXVII. The laſt, and higheſt Degree, which is the greateſt and indeed the true Liberty of the People, by which we Brittans have ſo long been happy even unto envy under excellent Kings, and 3had we not out of our ſtupid Ingratitude made our ſelves unworthy of ſo great a bleſſing, we had continued ſtill moſt happy, is the expreſſe Conſent of the People before the enacting of the Law, when the p. 268preſcribed Form thereof (a juſt and deliberate Debate being firſt had of the words, and the matter of it, and approved by the Houſe of Peers, the Suffrages of the Houſe of Commons conjoined with them) is at laſt exhibited to the Kings Majeſty, to whom alone the chief Power of making Laws doth belong, that being by him confirmed if it ſeem good unto him, it may have the Power and Vertue of a Law, or otherwiſe it may be made void, and be eſteemed no Law; which manner of enacting of Laws being moſt prudently deviſed by our Forefathers, and brought even unto our times by ſo long a Series of Kings and years, hath been found by the Uſe and Experience of all Ages paſt, ſo profitable to the Common-wealth, that if unſeaſonable Counſels had not been taken (to ſpeak no more of it) for the removing of the old Marks and Limits from their right Places, our Churches, Univerſityes, The King, The People, The Common-wealth, and every private Family had by the bleſ…ng of God yet flouriſhed, which now by his moſt juſt Judgment do goe to wrack, and every day do ſuffer more and more. And I do believe that a better way cannot eaſily be thought upon by the wit of man, to moderate on the one ſide the Power of Kings, and to check, and to reſtrain on the other ſide the Licence of the People.

XXVIII. The fourth Doubt followeth of the Laws of leſſe Commonalties, for examples ſake of Cities, Univerſities, Colleges, and Schools, which beſides the Laws common to all the Subjects of the Kingdom, do rejoice in their own private Laws, Rights and Statutes. The Queſtion is, to what Perſons the Power of making their Laws doth pertain, p. 269and being made, whom and to what they oblige? The anſwer is not difflcult, I ſay therefore in the firſt place, theſe Societies, Corporations, 1and Colleges being all Members of the great Body of the Kingdom, and are contained in it as the inferiour orbes of the Heavens are contained in the Superiour, it is not lawfull for any College or Society, or for the Governours or Overſers of them, to make private Laws for their own uſe, which may be contrary or any ways prejudicial to the publick Laws of the whole Kingdom; I ſay in the ſecond 2place, that ſeeing by the grant of Princes, and their ſpecial grace, and indulgence, theſe ſocieties are incorporated, & enjoy no other Rights, Privileges, or prerogatives beſides thoſe which it is manifeſt have been granted to them by a long praeſcription of time, or by the Charters & Letters Patents of the King, it is to be concluded, that all the Legiſlative power which is derived from them, is a derived, & not a primitive power, & is at laſt to be reſolved into the ſupreme power of the King as the true original of it, and therefore the ſaid Societies and Governors of them cannot according to their own will either conſtitute or actually exerciſe any power in the making of Laws, unleſſe according to the manner and the meaſure of that power vouchſafed by the indulgence of the Prince. I ſay in the third place, that Laws made by private Colleges and corporated Societies, according to the tenor of the power granted them by the King, do oblige all the Members of the ſaid Societies, and of all thoſe that 3are under their juriſdiction or Government, and none but thoſe, directly of it ſelf, and by its own force, but by the Virtue of the Kings ſupreme Majeſty p. 270on whoſe authority they rely, and from which they receive all their force, they do in ſome ſenſe, and indirectly oblige all and every Subject of the whole Kingdome; but there is not the one and ſame account, nor degree of theſe two obligations; For theſe Laws oblige thoſe of their own Society to the diligent obſervation of them, but the others unto this, that they do no ways violate, or diminiſh them, or hinder the obſervation of them.

XXIX. The fifth Doubt is of Eccleſiaſtical Laws in the Species of them; And that new Laws may be made concerning Rites, and Eccleſiaſtical things and perſons, and of all Circumſtances of outward external worſhip belonging to Order, Honeſty, and Edification, beſides thoſe delivered by Chriſt and his Apoſtles in the word of God, is a thing ſo manifeſt, and conſentanious to Reaſon, that he will hardly clear himſelf from the ſuſpition of a perverſe and obſtinate Spirit, who being dry, and ſober will deny it; but ſince the time that the Divines have divided themſelves into ſeveral parties, it cannot eaſily be agreed upon amongſt them to underſtand unto whom it doth belong to make Eccleſiaſtical Laws. The Papiſts who would have the Clergy to be exempted from all juriſdiction of the Civil Magiſtrate (of which controverſy we cannot here diſpute) do affirm that Biſhops only, and amongſt them the chief Biſhop eſpecially, whom they call the Biſhop Oecumenical, hath the right and power to make Laws, which may not only oblige the Conſciences of the Clergy, but of the Laity alſo, and that without any conſent, or licence of the politick Magiſtrate. There are ſome who (the perſon only, but not the opinion being changed) p. 271do embrace this Tenet, as alſo many others of the Papiſts, who notwithſtanding do profeſſe themſelves moſt bitter enemies unto Popery, but in the mean time the Diſciplinary Reformers our new Davuſſes do diſturb all things, and having taken away all Power, Authority, and Eccleſiaſtical juriſdiction from the King, they do challenge it only to themſelves, and to their own Claſſes and Conventions. The Eraſtians on the other ſide, and our new Reformers no leſſe than they, under the pretence of Reformation, having altogether diſinveſted the Clergy of all Eccleſiaſtical juriſdiction, do wholy attribute the univerſal right of the external Government of the Church to the Civil Magiſtrate; And moreover as for theſe our own Diſciplinarians at home, Good God! what Monſters of names and opinions, as full of Deformity as of Difformity have theſe laſt ſeven years fruitful of prodiges brought forth, and nurſed under the pretence of Reformation.

XXX. I have neither the leiſure nor reſolution (unleſs I ſhould appear too troubleſom to you) to grapple at this time with both theſe Adverſaries; But in theſe (as in many other Debates) that opinion ſeemeth to be the truer, and is truly the ſafer, which is lodged in the middle betwixt the two extremes, and I am confident you will be ſo much the more willing to imbrace it, by how much it is more agreeable to the Doctrine of the Engliſh Church, as alſo to the Laws of the Kingdom, which is, That the Right of making Eccleſiaſtical Laws is in the Power of Biſhops, Elders and other Perſons duely elected by the Clergy of the whole Kingdom; But ſo nevertheleſs that the Exerciſe of the ſame p. 272Right and Power in all Chriſtian Common-wealth… ought to depend on the Authority of the ſupreme Magiſtrate, both a Parte ante (as the Schoolmen have it) & a parte poſt, on the part precedent, & on the part ſubſequent, to wit, that they ought not of themſelves to aſſemble for the making of Eccleſiaſtical Canons, & Laws, unleſs they be called to it by his Mandate or Command, or at leaſt defended by his Authority; a f…ll & free leave being both aſked, & obtained, and being thus called and warranted, their Laws or Canons to which they have conſented, are not ratified, not have any Power of obliging, untill the Aſſent of the ſupreme Magiſtrate be obtained, by whoſe approbation, and Authority, as ſoon as they are confirmed they are preſently to paſs for Laws, and do oblige the Subject; And theſe things may ſuffice to be ſpoken of the Cauſe Efficient.