The Obligation of Human Conscience, Lecture 9
THE NINTH LECTURE Of the Obligation of Humane Laws, in reſpect of the Final Cauſe thereof.
1 TIM. 2. 2.
For Kings, and for all that are in Authority, that we may lead a quiet and peaceable life in all Godlineſſe and Honeſty.
IN our former Lectures we have treated of the Obligation of Humane Laws, as to their Material, Efficient, and formal Cauſes, in ſome places peradventure more largely, and in others again peradventure more conciſely than was requiſite; It remaineth, that we ſhould proceed to the explication of thoſe things which do pertain to the final Cauſe of Laws; But before we do come to diſſolve theſe doubts, we are firſt to premiſe, and pronounce as an undoubted Truth, That the ultimate end of the Laws, is the good of the Commonalty, or the publick peace and tranquillity; This is proved firſt from thoſe very words of the Apoſtle, that we may live a quiet & a peaceable life. The Apoſtle doth here exhort, that both privately, but eſpecially in publick Congregations (for ſo I conceive this place to be underſtood, and the beſt Interpreters are of the ſame opinion with me) Requeſts, Prayers, and Supplications, with thanksgivings, may be made, as firſt for all men in general, out of Charity, and in order to a Spiritual end, viz. Eternal happineſs in the life to come, as they are men, and either in Act, or in Power, Members of the myſtical Body of Chriſt, ſo more eſpecially for Kings and others inveſted with ſupreme Authority, and this out of Prudence, and in order to a Temporal end, to wit, external felicity in this preſent life, as they are the chief Members of the body politicks, from whoſe legiſlative, and executive power, accordingly as they have adminiſtred it, whether rightly or unjuſtly, either the chief happineſs, or unhappineſs of the reſt of the Members, and by conſequence of the whole Body, doth depend; Therefore the making of Laws being the chief Act of the ſupreme political Juriſdiction, that which is the ſupreme End of that ſupreme Juriſdiction, is alſo the ſupreme End of the making of Laws, to wit, the good of the Commonalty; It is proved ſecondly, from the Nature of the End, as by a Demonſtration a priori; That, in its order, is the ultimate End of everything, to which all the Acts of that thing are reduced,foreign. Ariſt. 8. Ethic. 11. as to their firſt regulative principle, and to which they are referred as to that for whoſe ſake they are ultimately ordained, Therefore the Final Cauſe is commonly called by Ariſtotle That for which; But all the Acts of Laws, are regulated by the Common good, as by their firſt Rule and Principle, and are referred to the Common good, as to that for whoſe ſake they are made, as may appear by running over the ſeveral Acts, Therefore, &c. For wherefore are good things commanded, or evil ones forbidden, and things indifferent, and of a middle Nature permitted? Or wherefore are Rewards decreed to men that have deſerved well of the Common-wealth? or wherefore are puniſhments appointed to the Violators of Laws? or wherefore are the Laws in the Courts indifferently pleaded unto both? of which thoſe are the firſt Acts of Laws, and by the way of Form, and the other more remote, and by the way of Effect; Is it not for that end, that the Common-wealth may flouriſh in peace and ſafety, and that private men according to their meaſure and degrees, may partake, rejoyce, in the publick happineſſe, in a word, that they may be all inſervient to the Common good? Thirdly, it is proved a poſteriori, from the poſterior, by the ſence and conſent of all men; For the Law-makers who do decree juſt judgements, do indeed appear, and thoſe who meditate on Evil as a Law, do notwithſtanding deſire to ſeem to have an Eye to the Common good and profit in the making of their Laws, and to preferr the publick intereſt above their own; Whether they ſincerely intend, or craftily pretend, they all profeſſe that in the making of their Laws, their chiefeſt Intention was the publick Good.
II. This foundation of the preſent diſcourſe being laid, to wit, That the End of Laws is the good of the Common-wealth, I proceed to the Doubts, whereof let this be the firſt, Whether there be any neceſſary uſe at leaſt of Humane Laws? And indeed we ſhould not have needed to have made any Doubt of it, did not the mad errors of the Anabaptiſts, and ſome others of their faction, make this buſineſſe for us, from whoſe Principles, ſeeing they affirm, it is not lawful for a man that is a Chriſtian to be a Magiſtrate, or to contend by war, or by ſutes in Law, to ſwear, or to adminiſter an oath to any one, it ſeems to follow, that there is no need at all of Humane Laws; For take away but Juriſdiction, there will be no man to make Laws, and take away the Seats, and Courts of Juſtice, there will be no man that will fear them. What need ſad complaints, if the offence be not redreſſed by puniſhment, what will vain Laws profit without the execution of them? The Directive power of the Law muſt of neceſſity fall unto the ground, if the Coactive power doth not aſſiſt it. The reaſon of this Doubt is, for the Law of Nature may ſuffice to leave the Gentiles inexcuſable, which dictates to them to eſchew all Sins, and treſpaſſes, to injure no man, and the like; But if that be defective, the Chriſtian hath at hand a more ſublime, and a more perfect Law, to wit, the Law of Faith, Juſtice, and Charity, made by our Saviour Jeſus Chriſt, whom St. James acknowledgeth to be the only Judge and Law-giver.James. 4. 12. This place in my Judgement, doth neerly touch our Innovatours, who have derived and drawn moſt of their opinion from the unclean wells of the Anabaptiſts, whilſt they collect from that place of the Apoſtle, that it is lawful for no man beſides Chriſt alone to make Eccleſiaſtical Laws, for it no wayes appeareth either by the force of the words, or by the ſcope and order of the whole perioch, that the Apoſtle hath ſpoke more there of Eccleſiaſtical Laws, then of Civil; And unleſs they had rather deal unfaithfuly and deceitfuly with us, than be ruled by reaſon, they muſt do one of theſe two things, which they pleaſe, either turn abſolute Anabaptiſts, and take away altogether from mankind all the power of making Laws, or grant unto ſupreme Magiſtrates, as it is fit they ſhould, the power of making Eccleſiaſtical Laws.
III. But how theſe our Brethren can diſintangle themſelves from the ſnares of the Anabaptiſts, it doth not much concern us, let them look unto it themſelves; We eaſily do anſwer, that the Law of Nature is written in our hearts, and the Law of Chriſt is revealed in the Goſpel, and that both of them in their kind are moſt perfect, but ſo, that for all that, it is moſt manifeſt that the profit of humane Lawes is very great, and their uſe as neceſſary. Becauſe thoſe divine Laws do contain only general Principles of things to be done, From which, as Concluſions from their Principles, more ſpecial Rules are to be deduced, accommodated to the right Inſtitution of publick Societies, & of the manners of ſingle perſons. Neither is it any way to be feared that it may derogate at all from the perfection of the Law of God; For the makers of humane Laws do not go about to add any new ſtock to the moſt rich Treaſure of the divine Law, but they rather take from thence what they judge moſt profitable to themſelves, and to their people, and the good of the Common-wealth; Humane Laws therfore, if they are juſt, are nothing elſe but the Relicts of the Law of God, that is, particular determinations of the general Rules which the Law of Nature, and the word of God have exhibited indeterminatly, wiſely accommodated to the Condition & Utility of certain people, according to the conſideration of Times, and Places. For Examples ſake, The Law of Nature doth teach in general, that we are to offer an Injury to no man, and he who doth ſo is bound to make reſtitution; but to deſcend to the ſpecialty, what injury he hath done unto his neighbour who hath broke down the Hedge, and let in his Cattel into his Grounds, and what is the reſtitution to be made for ſuch an Injury, is not determined by the Law of Nature, but by the Civil Law; And the Scripture doth openly hold forth, that wicked men are to be puniſhed by the Magiſtrate. Rom. 13. 4. and in other places; But what kind of wickedneſſe the Magiſtrate is to puniſh, what puniſhment to afflict, and after what proportion, is no where defined in the Law of God; Power being tranſmitted to Princes & Law-makers, by God, to define of themſelves, by Laws well conſtituted, what accordting to their wiſdome they ſhall find moſt ſafe and profitable to the Common-wealth; The Rights therefore and the Laws of God, and of a Legiſlator, and a Judge, are diſtinct, and proper to themſelves, and diſpoſed in ſo excellent an order, that the Precepts and Commandments of God, which are general, and indeterminate, are by the Law-maker determined, and accommodated to certain Species of perſons, and actions, and being ſo determined by the Laws, the Judge doth effectually apply them to the particular cauſes of perſons, & actions; ſo that if a Legiſlator ſhould make a Law which is not complacent to the Law of God, he is to be adjudged to have made an unrighteous Law, and if a Judge in any particular Cauſe ſhall pronounce Sentence which is not congruous to the Law conſtituted by the Prince, he is to be judged himſelf to have pronounced an unjuſt Sentence.
IV The ſecond Doubt is, whether a Law-maker be obliged, if poſſibly he can effect it, to command all the acts, and offices of all Virtues, and to forbid all Sins of whatſoever nature they are, or if he cannot all, whether he be bound to command and forbid as many of both kinds as poſſibly he can? The Reaſon of the Doubt is, becauſe there is nothing more conducing to the proper end of the Law, which is the common good, than as much as poſſibly may be, that all the Citizens may be good, and none of them evil. Therefore it is the part of a Law-maker, who always is to have before his eys this end which is the common good, to take all poſſible care he can, to command the practice of all Acts of all Vertues, that ſo all his Citizens may be good, & to forbid all Sins whatſoever, that there be no unrighteouſneſſe amongſt them; and the two chief of the Apoſtles doe ſeem to require this of the political Magiſtrate, Rom. 13. 3, 4. St. Paul hath theſe words, Do good and thou ſhalt have Praiſe, but if thou dost evil, fear, for the Magiſtrate is a revenger to execute wrath on him that doth evil, that is, on him who doth any manner of evil; And St. Peter in his firſt Epiſtle, ſecond Chapter, and fourteenth verſe foreign, for the puniſhment of evil doer…, but the Praiſe of them that do well, that is, of all well-doers, and of all evil-doers; For that which is pronounced indefinitely is equipollent to an univerſal & it is conſonant to the Rule of the Logicians, (in a neceſſary matter) and to the will of God, who forbiddeth the Magiſtrate the acceptation of Perſons.
V. For anſwer, I ſay firſt, and generally that the Law-maker is bound to uſe his utmoſt Indeavour that his Citizens be all of them good men, and none of them evil, and by conſequence to command all Acts of Vertues, and to forbid all Vices ſo far, as the Reaſon of the Beginning from whom, and the End for which he worketh, doth require, but beyond that he hath no obligation at all; For the Beginnining and the End in the operations of all, work they naturally, or work they freely, are the adaequate meaſure of all Intermedial Acts, ſo far as thoſe Acts are proportionate, & conformable, with the Beginning from whence they proceed, & with the End to which they tend. The Acts therefore of Commanding and Forbidding, and others in which the Exerciſe of the legiſlative Juriſdiction doth conſiſt, muſt be proportionated both to their Beginning in whoſe Vertue they are done, to wit, the Higher Powers granted by God, and to their End for whoſe ſake they are done, to wit, the Common Good. A Law-maker therefore ought ſo far to command, prohibit, permit, and to perform all other Dutyes, as they are agreeable to the power granted to him by God, and is expedient for the Commonalty which God hath committed to his change.
VI. But theſe conſiderations are general, and indefinite; To ſatisfie therefore the Doubt propounded, we muſt deſcend to ſomething which is more particular, but which howſoever may rely on this general foundation. I ſay therefore in the ſecond place, the acts of Virtues and Vices, ſome of them being internal, of which nature are the freer acts of the Will, as to will and not to will, and the movings of the affections, to love, to hate, to grieve, and if there be any other cogitations, and intentions of the heart, and mind; and ſome of them being external, of which ſort are all the commanded acts of the will, and the indeliberate motions of the affections, which are exerciſed by bodily Organs, as to ſee, to ſpeak to ſtrike, to plunder, and innumerable others; the Legiſlative power is only exerciſed on the outward acts, but not on the inward. A Law-maker may therefore command the payment of a debt, the reſtitution of ſtollen goods, and the outward worſhip of God; He alſo may forbid Theft, Adultery, Manſlaughter, Blaſphemy, and the like; But he cannot command the loving of his Neighbour, the confidence to be had in God, the contempt of the world, nor prohibit the coveting of his Neighbours goods, unchaſt cogitations, the hate of his Neighbour, and the Atheiſm of the heart. The reaſon is, becauſe to determine of internal actions is neither proportionate to the beginning from which, nor to the end for which the Legiſlator worketh; For Almighty God hath only permitted to the Magiſtrate the Government of the external man, and hath reſerved to himſelf alone the knowledge and judgment of the inward actions, and the inſpection into the hearts of men; for the Legiſlator and the Judge is the ſame, as we have already proved by the teſtimony of St. James, and the Legiſlative power would be altogether ineffectual to obtain its propoſed end if it were only directive and coactive. Firſt therefore, ſeeing an external Court cannot underſtand, nor judge of inward actions; And ſecondly, ſeeing it were a vain thing to command or prohibit that by a Law which when it is committed we are not able to puniſh; And thirdly, ſeeing the external operation of good works, and the external declination of evil ones doth ſuffice to the outward felicity of a Republick, it followeth, that a Legiſlator, or a Law-maker, neither wiſely can, nor rightly ought, either to command, or to forbid the internal actions of Virtues or Vices. In which regard, as in many others, the Law of God and Chriſt which requireth Truth, Purity, Sincerity, in the inward parts, and reſtraineth and checketh the higheſt and firſt inordinate motions of the Will, and puniſheth as well Sins thought on, as Sins committed, doth moſt infinitely excell the moſt excellent Laws of men; And therefore David in the 19 Pſalm ſaith, that the Law of God is perfect and undefiled, and the Law of Chriſt, is as the maker of it is deſcribed to be in the fourth of Hebrews, A word lively and mighty in operation, and ſharper than a two-edged Sword, and entreth through, even to the dividing aſunder of of the heart and Spirit, and of the Joynts and Marrow, and is a Diſcerner of the thoughts and intention of the hearts.
VII. I ſay in the third place,, that Humane Laws may de Jure, or by Right command all the outward Acts of all Vertues, and forbid all the outward works of ſin, but they cannot do it de facto. The Reaſon of the firſt member is, becauſe there is no external Act of Vertue or of Vice, in the whole Nature, and in every Species of, it ſo diſpoſed, but that the commanding or the forbidding of it (according to the Condition of Affairs and Times) may be ordinated to the publiek good. Therefore not only the Acts of Juſtice, properly ſo called, (as ſome will have it) but the acts alſo of all other Vertues whatſoever may become the due object, and matter of the Law; And this I remember to be the obſervation alſo of Ariſtotle, and if I be not much miſtaken, he giveth Inſtances of it in the Acts of Fortitude and Temperance; As if, by a military Law it were ordained, that none of the Souldiers ſhould run from his Colours, or from his ingaging with the Enemy, or throw away his Arms, or as if, by another a Law of frugality, or moderation, the exceſs in banquetting were prohibited or as if, there were a Command that none ſhould; exceed in the bravery of his habit, or in the greatneſs of his retinue, or in the Ornaments of his Houſe. The Reaſon of the latter member is, becauſe there is ſo great a variety even of the Species themſelves, much more of the Degrees, both of the Offices of Vertues and the Acts of Sin, that if the Law-makers ſhould provide a Caution for every one of them, the very multitude of the Laws would be a burthen to the Common-wealth not to be endured.
VIII. I ſay in the fourth place, that a Law-maker is not obliged to this, viz. To forbid all the evil that he can forbid, or to command all the good: It will ſuffice, that the greateſt and moſt remarkable of both kinds are to be contained in the Laws, and which are ſo conjoyned with ſome extraordinary publick profit, that unleſs ſomthing were determined of them, there muſt neceſſarily follow ſome great and grievous Evil which would prove extremely incommodious to the Common-wealth; for amongſt the luſts of the Fleſh, the Allurements of the world, the temptations of the Devil, and the di…poſitions of men ſo fruitful of all manner of Iniquities, may we ſo much as dream of a Platonick or an Eutopian Commonwealth; we are to think we have done well enough, if we ſtick not too deep in the mire; For it is neceſſary that in every Common-wealth ſome evils ſhould not be prohibited, but tolerated, and many good things not commanded, but left to every mans diſcretion, and that many things of both kinds ſhould be paſſed by, by the Laws, leſt being too unſeaſonably active to remove one evil, we peradventure make way for more and greater to ariſe.
IX. The third Doubt is, concerning the Intention of the Law-giver, whether, and how far it is required to the effect of obliging? Which is to demand, If a Prince, out of no foreſight, or intent to Juſtice, or to the publick good at all, being either carryed away by hatred, or ambition, and the meer luſt or ruling, or by avarice, or any other depraved deſire of an impotent mind, ſhould give a Law to his Subjects, whether they are bound in Conſcience to obey it? The anſwer is eaſy, they are obliged to obey it, if there be no other impediment, that is, if he who made the Law hath a lawful Power, and the Law it ſelf be otherwiſe juſt, and according to the Law of the Nations duely debated, and ſufficiently promulgated; I ſay therefore in the firſt place, that as in Artificials, the End of the work, and of the perſon wotking, is not always the ſame; as in the building of a Houſe, the End of the work (that is of the Houſe) is that it may be a commodious habitation for the maſter of it; but the End of the Carpenter is, that he may get ſome gain thereby; Juſt ſo in a Common-wealth, it may come to paſſe, that the Law-maker may intend his own advantage, and yet the Law it ſelf may tend to the publick Good.
X. Peradventure you will object, that an indirect End or Intention doth always corrupt the work, and therefore the evil Intention of the Law-maker doth vitiate the Law which was his work. To anſwer this objection, I ſay in the ſecond place, that an evil intention doth always blemiſh the work as the work ſpeaketh the action of the perſon working, but it doth not always blemiſh the work as it is the effect of the operation. Theſe two therefore, the Action it ſelf, and the Perfection of it, differ not a little amongſt themſelves, although they are commonly called by the ſame Name; In the ſame manner as the Effecting and the Effect it ſelf. The building of the Houſe, and the Houſe builded, are both of them called the work of the Carpenter, although the one of them is but an action tranſient, and the other, after the houſe is finiſhed, an action permanent. A bad Intention therefore doth corrupt the work of the Lawmaker, that is, his own Act which makes the Law, and which for the defect of a good end is not without fault, but it corrupts not the work of the Legiſlator, that is the Law made by him, if that which is commanded by the Law is reducible to the Common good, So, for all the evil intention of the Judge, a Sentence pronounced by him either for favour, or for hatred, is firm and valid, if the ſaid ſentence in it ſelf conſidered, appeareth not to be unjuſt. For as rightly St. Auguſtine hath it, poteſt ex libidine imperantis ſine libidine obtemperari, We may without any luſt, obey the luſt of the Commander.
XI. I ſay in the third place; Suppoſe that a Law be not only made with an evil intention, but unprofitable to the publick, nay in ſome ſence obnoxious, yet the Subject is bound to obey it, provided it be made by juſt Authority, and the matter of the Law, or the thing commanded, be ſuch that it may be done without Sin: The reaſon is, becauſe every man ought to be careful and diligent in the performance of that which belongs to his own part,Gal. 6. 5. and not too ſcrupulous of what concerns another; For every man ſhall bear his own Burthen. If a Law-giver ſhall be wanting in his Duty, what is that to you? Do you perform your Office howſoever; As for his intentions whether they be right or not, let himſelf look to it, for he muſt give to God an account of all his actions and intentions; And do you look to your ſelf, for if you ſhall refuſe to obey him, you ſhall give to the ſame God an account of your diſobedience.
XII. The fourth Dout, of the Changing of Laws, if they ſeem to be unprofitable or obnoxious to the Common-wealth; whether, and how far the Change of them is either to be attempted by the Prince, or to be required, and urged by the People? The reaſon of the Doubt in one reſpect is, becauſe in a body Civil, as in a body natural, every change, eſpecially if it be ſudden and great, is dangerous, and on the other ſide, becauſe it concerns the Common-wealth that the Laws be accommodated to the Times and Cuſtomes, foreign. Ariſtot. 4. Phyſ. text. 128.and if the one doth change, that the other be changed with them; For anſwer to this, I ſay in the firſt place, it is certain that the Laws may be changed, yea, and ſometimes that they ought to be changed, for they have heretofore been changed with great profit to the Common-wealth, therefore they may now be changed again, and may be ſo in all future times, if occaſion ſhall require, & it ſhall be found profitable to the Commonwealth; And why may not that be lawful to be done again which hath been lawful heretofore? There are every day new emergencies, new inconveniencies, new evils, and if there are not new Laws made to redreſſe them, there will be no remedy.Ariſt. 2. And all men ſaith Aristotle ſeek not foreign.Polit. 8. And if heretofore it were expedient that a Law ſhould be made becauſe it was profitable to the Commonwealth, it being found afterwards by the change of the conditions of Times and manners to become unprofitable, why is it not expedient that it ſhould be taken away again?
XIII. I ſay in the ſecond place; That the change of particular Laws is not without danger, and therefore not to be attempted unleſſe it be upon ſome great and urgent neceſſity. Ariſtotle acutely and briefly as his cuſtom is produceth divers reaſons, 2. Poli. 8. Theſe three are the chiefeſt, foreign. Theſe often changes do very much derogate from the authority of the Law, and the Law-giver; As we conceive that perſon to be of a very ſlender and weak judgement, who for no ſound or evident reaſon, is eaſily enduced to change his Opinion, Secondly foreign, It maketh the people wanton and petulant (This is true enough, we not long ſince have had the experience of it) and apt to fly at any thing, if they ſhall find their Law-giver eaſy on this account, and departing from his own right to humour the Votes and unſatisfied deſires of the people; Therefore the chief Philoſopher moſt gravely and deſervedly doth reprove the Law of Hippodamus a Law-maker of Miletum, viz. That whoſoever had diſcovered or found out ſomething profitable, to the City, ſhould be recompenced for his good ſervice, with a publick reward. This Law was ſpecious enough at the firſt ſight, and plauſible to the people, but look throughly into it, and you will find nothing in it either of prudence, or ſafety, or Advantage; For what could be found more dangerous to diſturb the publick Peace, than that factious men and of a turbulent and cunning Spirit, under the ſhaddow of a publick good, ſhould not only occaſion the ſubverſion of the Laws, but alſo call in queſtion the Form of the whole Civil Government, and obtrude unto the State a new Idaea of Government, according to the humour of their own Invention. Do you hear, I beſeech you, a Philoſopher famous in his times, or rather a Prophet, and a foreteller of the manners, and the times in which now we live?Grav…ora inſerre vulnera, dum mino…bus mede…i defid… amus. Ambroſ. 2. O…ſic. 2. Thirdly the Innovation of Laws being ordained for the removing of ſome preſent Inconvenience, and being it may come to paſſe, and oftentimes it doth ſo come to paſſe, that from this ſuddain Immutation, many and more grievous Inconveniencies may ariſe, though not peradventure at the firſt diſcovered, the moſt grave Philoſopher did judge it to be far ſafer to tolerate & endure ſome Inconveniencies, and thoſe not ſlight ones neither, in a Common wealth (which may be avouched of the Church alſo which is a kind of a Common-wealth) than in pretence of Reformation either Eccleſiaſtical or Political to cancel old Laws, & Statutes, & turn all things upſide down; Of a far different judgment to thoſe of our times were the wiſe men of former Ages, whoſe Rules & Principles were as are here theſe folowing foreign; Malum benè poſitum non eſt movendum; Imperiti medici eſt pejus malo remedium adhibere; an Evil well placed is not to be removed; It is the part of an unskilful Phyſician to apply a Remedy worſe than the diſeaſe.
XIV. I ſay in the third place, That although the changing of Laws may ſeem to be neceſſary, by reaſon of ſome great, and evident Cauſe, yet it is not to be attempted by the people, without the conſent of the Prince, but modeſtly they are to crave, and patiently to expect it of him; and this may aptly be collected from the Analogy of the Head, and the Members, for how like a monſter were it, and deſtructive to the whole body, if the Arms, the Breaſt, or the Feet ſhould aſſume unto themſelves the office of the Head? This is abundantly enough demonſtrated in thoſe things which not long ſince we declared to you, when we ſpake of the efficient Cauſe of Laws, viz. That the principal Act of Juriſdiction, cannot be exerciſed but by him only who is the Head, and chief of the whole Commonalty; Therefore the Conſtitution, the abrogation, and any Immutation of Laws whatſoever, which are all of them the principal Acts of the chiefeſt Juriſdiction cannot pertain unto the people, unleſs where the people are Prince, as in a State Democratical, but to him only, who doth exerciſe a Soveraignty of Dominion over the whole Commonalty, in a State Monarchical, and who hath the undoubted power of a tranſcendent Command by himſelf; In a buſineſſe of ſo great an importance, the duties of the people are theſe, ſincerely, and openly, but with all due reverence, to preſent their juſt grievances to their Prince, and faithfully to lay before him with what preſent remedies they may cure thoſe evils that oppreſs them; and humbly to beſeech him, that he would be pleaſed to condeſcend to the petions of his Subjects, as he ſhall judge it to be moſt ſafe and advantagious to the Commonwealth, and confirm the grant of them with his Royal hand. And if he being thus petitioned to ſhall refuſe, they are to deſiſt for that time from their purpoſes, and to be content with their preſent affairs, and Laws, and that without all murmuring or the leaſt ſign of force, until their Prince being throughly perſwaded by his Council, and Intreaties of ſome friends; or induced by the arguments of Reaſons ſhall renounce that pertinaciouſneſſe of his Spirit, and give an open Ear to the deſires of his Subjects.
XV. The Fifth Doubt, Seeing that the Common good is not only the End of the Laws, but of the whole politick Government, Is it lawful out of any foreſight or pretence of the Common good to change the preſent form of Government, or to attempt the change thereof, and how far, and to whom is it lawful? For Examples ſake, Is it lawful for the people to change a Monarchical Government into an Ariſtocratical, or into a Democratical, or on the contrary? A Queſtion of great difficulty, & concernment, eſpecially in theſe times, & manners, in which we live. For my part I will faithfully repreſent unto you what I think of it, and will leave unto every man the liberty to think what he pleaſeth; I ſuppoſe only what is already granted by many, and what cannot eaſily be denye, dviz. that a Monarchy by Inheritance, or a ſucceſſive Kingdom, is abſolutely the beſt amongſt all the forms of Common-wealth, and highly to be preferred above the other two; This being granted, I think in the firſt place, that the people, if they pleaſe, may change a Democratical into an Ariſtocratical, or into an Monarchical Government; Firſt, becauſe it ſeemeth to be a change for the better; moreover in Democracy, the chief Command is in the Power of the people, ſo that they may determine of themſelves as they themſelves pleaſe, provided that no Injury be done to any man; Now it is moſt certain, that by this Change no Injury is done by the people unto any one; It cannot be to any other, for no Injury can be done to any man in any thing to which he hath no Right, neither can any Injury be done herein to themſelves who of their own accord do make this Change, for no Injury can be ever done to a willing Perſon.foreign. I think in the ſecond place, that for all theſe reaſons the Peers of a Land alſo may turn their Ariſtocratical Government,Ariſt. 5. into a Monarchical one; For it is a change into the better,Ethic. … and by ſo doing, no injury is done to any man; But I cannot ſo eaſily reſolve you this doubt, whether it be as lawful for them to convert an Ariſtocracy into a Democracy, for although they have power to do it, and it may be done by them without any injury, yet it ſeems not to be a Commutation into a better State; Thirdly, I believe, that the Monarchy of an elective Kingdom, may be changed peradventure into any form of Government, but eſpecially into an hereditary and a ſucceſſive Kingdom, and that for almoſt the ſame Reaſons above alleged, nevertheleſs this ought not to be done, unleſſe the Kingdom by the death of him that laſt Reigned be vacant, for otherwiſe it would be an injury to the preſent King; And Secondly, it ought not to be done, unleſſe by the joynt conſent of the Peers of the Kingdom, and People, and of thoſe perſons who have the right of electing. I think fourthly, that a Monarchy by inheritance cannot lawfully be changed into an Elective Kingdom, or into any other form of Government, either by the people alone, or by the joynt conſent of People, Peers, and King, which is the whole people in their greateſt latitude, unleſſe peradventure there ſhall be ſuch a defect in the Royal Progeny, that there is not one of them remaining to challenge the Kingdom due by inheritance to him. The Reaſons of this opinion are, Firſt, Becauſe according to our former ſuppoſition, it were a change from a better to a worſe; Secondly, Becauſe by reaſon of that exchange, an apparent injury would be done to the lawful Heir; Thirdly, Becauſe that not only the Exchange, but becauſe ſuch a deſire, and indeavour, doth ſeem to be quite contrary to the words of Salomon, Prov. 24. 21. My Son fear God, and the King, and have nothing to do with them who affect new things. What before I ſaid, I muſt in this place again repeat, viz. I do not urge this as too confidently to affirm it, or to cauſe a diſputation with any man in the proof of this particular, if he be of another judgment.
XVI. The ſixth doubt, How may that be underſtood which ſo commonly is ſpoken, Salus p… puli eſt ſuprema Lex, The ſafety of the People is the ſupreme Law; The reaſon of the doubt doth proceed, from that which we propounded, and proved in the beginning, viz. That the End of Laws is the publick good; From hence on one ſide it ſeems to follow, that the ſafety of the Common-wealth doth depend on the ſtrict obſervance of the Laws, and on the other ſide, that all obſervancy of the Laws ought to give place to the ſafety of the Commonwealth; And from hence, ſome who within theſe few years have brought a new Divinity, and a new policy into the Church and Common-wealth, have no leſſe confidently, than perverſely collected and ſuggeſted, that the Liberty which they call the Right of the Subjects (for ſo they interpret the Safety of the People) is to be preferred above the prerogatives of Kings, or the enacting, or eſtabliſhing of Laws, and therefore all Regal Power and Authority of the Laws is to ſtoop unto it. For the reſolution of this doubt, you are to know, that all the deceit almoſt on this vulgar Axiom, doth ariſe from the Equivocation which lyeth hid in the Terms, eſpecially in that word People; For the people being a kind of a Metaphorical Body, may be taken two wayes, as the word Body may it ſelf, Collectively as it ſignifies the whole Commonalty of the Republick, that is both King and Subjects, and Diſcretively, as it ſignifies the Subjects preciſely by themſelves, and ſevered from the King; As when we ſay the King, and the people; So in the word Body ſometimes the other Members are to be underſtood with the Head, as when we ſay the Soul and the Body, And ſometimes the Members only are preciſely to be underſtood & the Head to be taken by its ſelf, as when we ſay the Head and the Body.
XVII. Firſt therefore I ſay, that moſt preciſely and by a very evil Counſel, that is wreſted, which is ſpoken of the people in the firſt ſence to be accommodated to them in the latter. There is no ſober man will deny, that the ſafety of the people, that is of the whole Commonalty, as that word comprehends the King, together with the Subjects, is the ſupreme Law; But that the Safety of the People, that is, of the Subjects, the King being excluded, is the ſupreme Law, there is no man will affirm it, unleſs he be a fool, or an Impoſter; A fool, if he doth believe what he himſelf ſaith, and an Impoſter, if he doth not believe it. But if any man will ſeriouſly look into the original of this Aphoriſm, I do believe he will more eaſily grant, that it ought more preciſely to be underſtood of the ſafety of the Prince, than of the ſafety of the Subjects. This ſaying ſo toſſed up and down in the mouths of all men came to us from the Romans, and was then uſed by them when their Republick did flouriſh moſt of all under a popular State: And there is no great Reaſon that any man ſhould wonder, that the peoples Safety was the ſupreme Law with them, with whom the people themſelves were the ſupreme Power; In the Judgment therefore of thoſe wiſe Antients, who were the firſt Authors of this Aphoriſm the ſafety of the ſupreme Power was the ſupreme Law, of the people indeed in a Democracy, but of a King in Monarchy.
XVIII. I ſay in the ſecond place, it being admitted, but not granted, that this Aphoriſm is properly underſtood of the Safety of the People, that is, of the Subjects, it is nevertheleſs perverſly wreſted to the prejudice of Regal Dignity, which even ſo doth render its Power more ample and illuſtrious. In this ſence. A King that gives Lawes and Statutes to his people will not be ſo bound up by his Laws, that it ſhall not be lawful for him, the Safety of the Common-wealth being in an apparent danger, to provide for the Safety of Kingdom and people committed to him by God, even againſt the words of the Law; Not that it is lawful for Subjects under the pretence of the defence of their liberty to break all the bonds of Laws and fidelity, and by an intollerable preſumption to trample on the Authority of their King, but that it is lawful for the Prince, in the preſervation of his own & his Subjects Safety, to lay aſide for a while all ſtrict obſervance of the Laws, & to make uſe a little of an arbitrary Right, leſt by a too unſeaſonable, and ſuperſtitious Reverence of the Laws, he may ſuffer both his own perſon, and his people that are ſubject to him, and even the Laws themſelves, to fall into the Power of his Enemies.
XIX. I ſay in the third place, it being again admitted, but not granted, that by this Aphoriſm ſome licence were indulged to the Subjects themſelves, as neceſſity ſo requiring, to lay by the Laws to provide for the publick Safety, yet from hence that cannot be inferred, which may would conclude; For it is not lawful for the Subjects, when they find their liberty in any thing to be injured, or when they cry out they are ſenſible of it, to break through all Bars of Laws and Duty, and without the knowledge of their Prince, to have immediately their recourſe to Arms, and to fill all things with tumults & ſeditions But when the defence of their Princes, & their own liberties, againſt all forein or domeſtick Enemies, upon an urgent neceſſity doth ſo call them to it, that a pious & a prudent man would make no doubt of it, but if the Law-maker himſelf was preſent he would diſpenſe with his own Laws, it is then lawful for the Subjects to have a greater regard of the Common ſafety, which is the ſupreme Law, and the end of all Laws, than to be fearful to prejudice any particular Laws, which were therefore made to be ſubſervient only to the publick ſafety.
XX. The ſum of all is, The ſafety of the Common-wealth, that is to ſay, of the Prince and of the Subjects, is the ſupreme Law, to which all inferiour Laws are ſo to ſubmit, that preſent neceſſity ſo requiring, it is lawful for the Prince by the prerogative of his own power, yea and it is lawful for the Subjects, the conſent of their Prince being according unto reaſon preſumed, to recede ſometimes from the words of particular Laws, to aſſiſt their indangered Country, and to be careful of its ſafety as the ſupreme Law, but ſo, that unleſs the will and conſent of the ſupreme power be expreſly obtained, or according unto reaſon preſumed, they are not to attempt any thing under the pretence of the publick ſafety and liberty, but what the Laws do permit them to.
XXI. There are not a few Doubts, that are yet remaining, which in ſome manner do pertain to this Final Cauſe, as concerning Privileges and Diſpenſations, and the Relaxation of the obligation, in the danger of life, and others of the ſame nature, which unto ſome may peradventure appear not altogether to agree with the End of Humane Laws; The Solution whereof I have thought it more expedient for to deferre unto another time, although never ſo long, than by too much prolixity, to tire and to torment ſo attentive and ſo courteous an Auditory.