for sovereigns, _That they procure, to the uttermost of their endeavour, the good of the people_.
[Sidenote: That sovereigns ought to establish the religion they hold for best.]
2. And forasmuch as eternal is better than temporal good, it is evident, that they who are in sovereign authority, are by the law of nature obliged to further the establishing of all such doctrines and rule, and the commanding of all such actions, as in their conscience they believe to be the true way thereunto. For unless they do so, it cannot be said truly, that they have done the uttermost of their endeavour.
[Sidenote: That to forbid unnatural copulation, promiscuous use of women, &c. is the law of nature.]
3. For the temporal good of the people, it consisteth in four points: 1. Multitude: 2. Commodity of living: 3. Peace amongst themselves: 4. Defence against foreign power. Concerning multitude, it is the duty of them that are in sovereign authority, to increase the people, in as much as they are governors of mankind under God Almighty, who having created but one man, and one woman, declared, that it was his will they should be multiplied and increased afterwards. And seeing this is to be done by ordinances concerning copulation, they are by the law of nature bound to make such ordinances concerning the same, as may tend to the increase of mankind. And hence it cometh, that in them who have sovereign authority, not to forbid such copulations as are against the use of nature; not to forbid the promiscuous use of women, not to forbid one woman to have many husbands, not to forbid marriages within certain degrees of kindred and affinity, are against the law of nature. For though it be not evident, that a private man living under the law of natural reason only, doth break the same, by doing any of the things aforesaid; yet it is manifestly apparent, that being so prejudicial as they are to the improvement of mankind, that not to forbid the same, is against the law of natural reason in him, that hath taken into his hands any portion of mankind to improve.
[Sidenote: That to leave man as much liberty as may be, &c. is the duty of a sovereign by the law of nature.]
4. The commodity of living consisteth in liberty and wealth. By liberty, I mean, that there be no prohibition without necessity of any thing to any man, which was lawful to him in the law of nature; that is to say, that there be no restraint of natural liberty, but what is necessary for the good of the commonwealth, and that well-meaning men may not fall into the danger of laws, as into snares, before they be aware. It appertaineth also to this liberty, that a man may have commodious passage from place to place, and not be imprisoned or confined with the difficulty of ways, and want of means for transportation of things necessary. And for the wealth of people, it consisteth in three things, the well ordering of trade, procuring of labour, and forbidding the superfluous consuming of food and apparel. All those therefore that are in sovereign authority, and have taken upon them the government of people, are bound by the law of nature to make ordinances consisting in the points afore named, as being contrary to the law of nature, unnecessarily, either for one’s own fancy, to enthral, or tie men so, as they cannot move without danger; or to suffer them whose maintenance is our benefit, to want anything necessary for them, by our negligence.
[Sidenote: _Meum_ and _tuum_, to be set out to the subjects, distinct from one another, &c. a duty of sovereigns by the law of nature.]
5. For maintaining of peace at home, there be so many things necessarily to be considered, and taken order in, as there be several causes concurring to sedition. And first, it is necessary to set out to every subject, his propriety, and distinct lands and goods, upon which he may exercise and have the benefit of his own industry, and without which men would fall out amongst themselves, as did the herdsmen of Abraham and Lot, every man encroaching and usurping as much of the common benefit as he can, which tendeth to quarrel and sedition. Secondly, to divide the burthens and charges of the commonwealth proportionably. Now there is a _proportionably_ to every man’s ability, and there is a _proportionably_ to his benefit by commonwealth: and this latter is it, which is according to the law of nature. For the burdens of the commonwealth being the price that we pay for the benefit thereof, they ought to be measured thereby. And there is no reason, when two men equally enjoying, by the benefit of the commonwealth, their peace and liberty, to use their industry to get their livings, whereof one spareth, and layeth up somewhat, the other spendeth all he gets, why they should not equally contribute to the common charge. That seemeth therefore to be the most equal way of dividing the burden of public charge, when every man shall contribute according to what he spendeth, and not according to what he gets. And this is then done, when men pay the commonwealth’s part in the payments they make for their own provision. And this seemeth not only most equal, but also least sensible, and least to trouble the mind of them that pay it. For there is nothing so aggravateth the grief of parting with money to the public, as to think they are over-rated, and that their neighbours whom they envy, do thereupon insult over them, and this disposeth them to resistance, and, after that such resistance hath produced a mischief, to rebellion.
[Sidenote: An extraordinary power for judging the abuses of magistrates, necessary, &c.]
6. Another thing necessary for the maintaining of peace, is the due execution of justice, which consisteth principally in the right performance of their duties, which are the magistrates, ordained for the same by and under the authority of the sovereign power, which being private men in respect of the sovereign, and consequently such as may have private ends, whereby they may be corrupted with gifts, or intercession of friends, ought to be kept in awe by an higher power, lest people, grieved by their injustice, should take upon them to make their own revenges, to the disturbance of the common peace; which can by no way be avoided in the principal and immediate magistrates, without the judicature of the sovereign himself, or some extraordinary power delegated by him. It is therefore necessary, that there be a power extraordinary, as there shall be occasion from time to time, for the syndication of judges and other magistrates, that shall abuse their authority, to the wrong and discontent of the people; and a free and open way for the presenting of grievances to him or them that have the sovereign authority.
[Sidenote: The suppressing of popularity, &c. necessary, &c.]
7. Besides these considerations, by which are prevented the discontents that arise from oppression, there ought to be some means for the keeping under of those, that are disposed to rebellion by ambition; which consist principally in the constancy of him that hath the sovereign power, who ought therefore constantly to grace and encourage such, as being able to serve the commonwealth, do nevertheless contain themselves within the bounds of modesty, without repining at the authority of such as are employed, and without aggravating the errors, which, as men, they may commit, especially when they suffer not in their own particular; and constantly to show displeasure, and dislike of the contrary. And not only so, but also to ordain severe punishments for such, as shall by reprehension of public actions, affect popularity and applause amongst the multitude, by which they may be enabled to have a faction in the commonwealth at their devotion.
[Sidenote: The instruction of youth, &c. necessary, &c.]
8. Another thing necessary, is the rooting out of the consciences of men, all those opinions which seem to justify and give pretence of right to rebellious actions; such as are the opinions, that a man can do nothing lawfully against his private conscience; that they who have the sovereignty, are subject to the civil laws; that there is any authority of subjects, whose negative may hinder the affirmative of the sovereign power; that any subject hath a propriety distinct from the dominion of the commonwealth; that there is a body of the people without him or them that have the sovereign power; and that any lawful sovereign may be resisted under the name of a tyrant; which opinions are they, which, Part II. chap. VIII. sect. 5-10, have been declared to dispose men to rebellion. And because opinions which are gotten by education, and in length of time, are made habitual, cannot be taken away by force, and upon the sudden; they must therefore be taken away also by time and education. And seeing the said opinions have proceeded from private and public teaching, and those teachers have received them from grounds and principles, which they have learned in the Universities, from the doctrine of Aristotle, and others, who have delivered nothing concerning morality and policy demonstratively; but being passionately addicted to popular government, have insinuated their opinions by eloquent sophistry. There is no doubt, if the true doctrine concerning the law of nature, and the properties of a body politic, and the nature of law in general, were perspicuously set down and taught in the Universities, but that young men, who come thither void of prejudice, and whose minds are as white paper, capable of any instruction, would more easily receive the same, and afterward teach it to the people, both in books and otherwise, than now they do the contrary.
[Sidenote: Avoiding of unnecessary war, a necessary duty of the sovereign, &c.]
9. The last thing contained in that supreme law, _salus populi_, is their defence; and consisteth partly in the obedience and unity of the subjects, of which hath been already spoken, and in which consisteth the means of levying soldiers, and of having money, arms, ships, and fortified places in readiness for defence; and partly, in the avoiding of unnecessary wars. For such commonwealths, or such monarchs, as affect war for itself, that is to say, out of ambition, or of vain-glory, or that make account to revenge every little injury, or disgrace done by their neighbours, if they ruin not themselves, their fortune must be better than they have reason to expect.
------- CHAPTER X.
1. All expressions, &c. concerning future actions, are either covenant, counsel, or command. 2. The difference between a law and a covenant. 3. The command of him whose command is law in one thing, is law in every thing. 4. The difference between law and counsel. 5. The difference between _jus_ and _lex_. 6. The division of laws, &c. 7. That the divine moral law, and the law of nature, is the same. 8. That the civil laws are the common measure of right and wrong, &c. 9. Martial law is civil law. 10. Written laws, &c. Unwritten, &c. Customs and opinions, &c.
[Sidenote: All expressions, &c. concerning future actions, are either covenant, counsel, or command.]
1. Thus far concerning the Nature of Man, and the constitution and properties of a Body Politic. There remaineth only for the last chapter, to speak of the nature and sorts of law. And first it is manifest, that all laws are declarations of the mind, concerning some action future to be done, or omitted. And all declarations and expressions of the mind concerning future actions and omissions, are either _promissive_, as _I will do, or not do_; or _provisive_, as for example, _If this be done or not done, this will follow_; or _imperative_, as _Do this, or do it not_. In the first sort of these expressions, consisteth the nature of a covenant; in the second, consisteth counsel; in the third, command.
[Sidenote: The difference between a law and a covenant.]
2. It is evident when a man doth, or forbeareth to do any action, if he be moved thereto by this only consideration, that the same is good or evil in itself; and that there be no reason why the will or pleasure of another, should be of any weight in his deliberation, that then neither to do nor omit the action deliberated, is any breach of law. And consequently, whatsoever is a law to a man, respecteth the will of another, and the declaration thereof. But a covenant is a declaration of a man’s own will. And therefore a law and a covenant differ: and though they be both obligatory, and a law obligeth no otherwise than by virtue of some covenant made by him who is subject thereunto, yet they oblige by several sorts of promises. For a covenant obligeth by promise of an action, or omission especially named and limited; but a law bindeth by a promise of obedience in general, whereby the action to be done, or left undone, is referred to the determination of him, to whom the covenant is made. So that the difference between a covenant and a law, standeth thus: in simple covenant, the action to be done, or not done, is first limited and made known, and then followeth the promise to do or not do; but in a law, the obligation to do or not to do, precedeth, and the declaration what is to be done, or not done, followeth after.
[Sidenote: The command of him whose command is law in one thing, is law in every thing.]
3. And from this may be deduced, that which to some may seem a _paradox, That the command of him, whose command is a law in one thing, is a law in every thing_. For seeing a man is obliged to obedience before what he is to do be known, he is obliged to obey in general, that is to say, in every thing.
[Sidenote: The difference between law and counsel.]
4. That the counsel of a man is no law to him that is counselled, and that he who alloweth another to give him counsel, doth not thereby oblige himself to follow the same, is manifest enough. And yet men usually call counselling, by the name of governing; not that they are not able to distinguish between them, but because they envy many times those men that are called to counsel, and are therefore angry with them that they are counselled. But if to counsellors there should be given a right to have their counsel followed, then are they no more counsellors, but masters of them whom they counsel; and their counsels no more counsels, but laws. For the difference between a law and a counsel being no more but this, that in counsel the expression is, _Do, because it is best_; in a law, _Do, because I have a right to compel you_; or _Do, because I say, do_; when counsel should give the reason of the action it adviseth to, because the reason thereof itself is no more counsel, but a law.
[Sidenote: The difference between _jus_ & _lex_.]
5. The names _lex_ and _jus_, that is to say, law and right, are often confounded, and yet scarce are there any two words of more contrary signification. For right is that liberty which law leaveth us, and laws those restraints by which we agree mutually to abridge one another’s liberty. Law and right therefore are no less different than restraint and liberty, which are contrary; and whatsoever a man doth, that liveth in a commonwealth _jure_, he doth it _jure civili_, _jure naturæ_, and _jure divino_. For whatsoever is against any of these laws, cannot be said to be _jure_. For the civil law cannot make that to be done _jure_, which is against the law _divine_, or of _nature_. And therefore whatsoever any subject doth, if it be not contrary to the civil law, and whatsoever a sovereign doth, if it be not against the law of nature, he doth it _jure divino_, by _divine right_. But to say, _lege divinâ_, by _divine law_, is another thing. For the laws of God and nature allowing greater liberty than is allowed by the law civil; for subordinate laws do still bind more than superior laws, the essence of law being not to loose, but to bind, a man may be commanded that by a law civil, which is not commanded by the law of nature, nor by the law divine. So that of things done _lege_, that is to say, by command of the law, there is some place for a distinction between _lege divinâ_, and _lege civili_. As when a man giveth an alms, or helpeth him that is in need, he doth it not _lege civili_, but _lege divinâ_, by the divine law, the precept whereof is _charity_. But for things that are done _jure_, nothing can be said to be done _jure divino_, that is not also _jure civili_, unless it be done by them that having sovereign power, are not subject to the civil law.
[Sidenote: The division of laws, &c.]
6. The differences of laws, are according to the differences, either of the authors and lawmakers, or of the promulgation, or of those that are subject to them. From the difference of the authors, or lawmakers, cometh the division of law into _divine_, _natural_, and _civil_. From the difference of promulgation, proceedeth the division of laws into _written_ and _unwritten_. And from the difference of the persons to whom the law appertaineth, it proceedeth, that some laws are called simply laws, and some penal. As for example, _thou shalt not steal_, is simply a law; but this, _he that stealeth an ox, shall restore four-fold_, is a penal, or as others call it, a judicial law. Now in those laws, which are simply laws, the commandment is addressed to every man; but in penal laws the commandment is addressed to the magistrate, who is only guilty of the breach of it, when the penalties ordained, are not inflicted; to the rest appertained nothing, but to take notice of their danger.
[Sidenote: That the divine moral law, and the law of nature, is the same.]
7. As for the first division of law into _divine_, _natural_, and _civil_, the first two branches are one and the same law. For the law of nature, which is also the moral law, is the law of the author of nature, God Almighty; and the law of God taught by our Saviour Christ, is the moral law. For the sum of God’s law is, _Thou shalt love God above all, and thy neighbour as thyself_; and the same is the sum of the law of nature, as hath been showed, Part I. chap. V. And although the doctrine of our Saviour be of three parts, _moral_, _theological_, and _ecclesiastical_; the former part only, which is the moral, is of the nature of a law universal; the latter part is a branch of the law civil; and the theological, which containeth those articles concerning the divinity and kingdom of our Saviour, without which there is no salvation, is not delivered in the nature of laws, but of counsel and direction, how to avoid the punishment, which by the violation of the moral law, men are subject to. For it is not infidelity that condemneth, though it be faith that saveth, but the breach of the law and commandments of God, written first in man’s heart, and afterwards in tables, and delivered to the Jews by the hands of Moses.
[Sidenote: That the civil laws are the common measure of right and wrong, &c.]
8. In the state of nature, where every man is his own judge, and differeth from other concerning the names and appellations of things, and from those differences arise quarrels and breach of peace, it was necessary there should be a common measure of all things, that might fall in controversy. As for example; of what is to be called right, what good, what virtue, what much, what little, what _meum_ and _tuum_, what a pound, what a quart, &c. For in these things private judgments may differ, and beget controversy. This common measure, some say, is _right reason_: with whom I should consent, if there were any such thing to be found or known _in rerum naturâ_. But commonly they that call for _right reason_ to decide any controversy, do mean their own. But this is certain, seeing _right reason_ is not existent, the reason of some man or men must supply the place thereof; and that man or men, is he or they, that have the sovereign power, as hath been already proved; and consequently the civil laws are to all subjects the measures of their actions, whereby to determine, whether they be right or wrong, profitable or unprofitable, virtuous or vicious; and by them the use and definition of all names not agreed upon, and tending to controversy, shall be established. As for example, when upon occasion of some strange and deformed birth, it shall not be decided by Aristotle, or the philosophers, whether the same be a man, or no, but by the laws; the civil law containing in it the ecclesiastical, as a part thereof, proceeding from the power of ecclesiastical government, given by our Saviour to all Christian sovereigns, as his immediate vicars, as hath been said Part II. chap. VII. sect. 10.
[Sidenote: Martial law is civil law.]
9. But seeing it hath been said, that all laws are either natural or civil, it may be demanded, to which of these shall be referred that law, which is called martial law, and by the Romans, _disciplina militaris_? And it may seem to be the same with the law of nature; because the laws by which a multitude of soldiers are governed in an army are not constant, but continually changing with the occasion; and that is still a law, which is reason for the present, and reason is the law of nature. It is nevertheless true, that martial law is civil law, because an army is a body politic, the whole power whereof is in the General, and the laws thereof made by him; and though they still follow and change as reason requireth, yet it is not, as the reason of every private man, but as the reason of the General requireth.
[Sidenote: Written laws, Unwritten, &c. Customs, and Opinions, &c.]
10. When he or they in whom is the sovereign power of a commonwealth, are to ordain laws for the government and good order of the people, it is not possible they should comprehend all cases of controversy that may fall out, or perhaps any considerable diversity of them: but as time shall instruct them by the rising of new occasions, so are also laws from time to time to be ordained: and in such cases where no special law is made, the law of nature keepeth its place, and the magistrates ought to give sentence according thereunto, that is to say, according to natural reason. The constitutions therefore of the sovereign power, by which the liberty of nature is abridged, are written, because there is no other way to take notice of them; whereas the laws of nature are supposed to be written in men’s hearts. Written laws therefore are the constitutions of a commonwealth expressed; and unwritten, are the laws of natural reason. Custom of itself maketh no laws. Nevertheless when a sentence hath been once given, by them that judge by their natural reason, whether the same be right or wrong, it may attain to the vigour of a law; not because the like sentence hath of custom been given in the like case, but because the sovereign power is supposed tacitly to have approved such sentence for right, and thereby it cometh to be a law, and numbered amongst the written laws of the commonwealth. For if custom were sufficient to introduce a law, then it would be in the power of every one that is deputed to hear a cause, to make his errors laws. In the like manner, those laws that go under the title of _responsa prudentum_, that is to say, the opinions of lawyers, are not therefore laws, because _responsa prudentum_, but because they are admitted by the sovereign. And from this may be collected, that when there is a case of private contract between the sovereign and the subject, a precedent against reason shall not prejudice the cause of the sovereign; no precedent being made a law, but upon supposition that the same was reasonable from the beginning.
And thus much concerning the elements and general grounds of laws natural and politic. As for the law of nations, it is the same with the law of nature. For that which is the law of nature between man and man, before the constitution of commonwealth, is the law of nations between sovereign and sovereign, after.
OF LIBERTY AND NECESSITY: A TREATISE, WHEREIN ALL CONTROVERSY CONCERNING PREDESTINATION, ELECTION, FREE-WILL, GRACE, MERITS, REPROBATION, &c.
IS FULLY DECIDED AND CLEARED.
IN ANSWER TO A TREATISE WRITTEN BY THE BISHOP OF LONDONDERRY, ON THE SAME SUBJECT.
TO THE SOBER AND DISCREET READER.
It made St. Chrysostom tremble whenever he reflected on the proportion, which those that went the _narrow_ way, bore to those which marched in the _broad_, how _many_ were the called, and how _few_ the chosen, how many they were that were created for and in a capacity of eternal beatitude, and how few attained it. This consideration certainly would make a man look upon the Holy Scriptures, among Christians, as the greatest indulgence of heaven, being all the directions it hath been pleased to afford poor _man_ in so difficult a journey as that of his eternal bliss or misery. But when a man cometh to look into those transcendant writings, he finds them to be the works of a sort of innocent harmless men, that had little acquaintance or familiarity with the world, and consequently not much interested in the troubles and quarrels of several countries; that though they are all but necessary, yet were they written occasionally, rather than out of design; and lastly, that their main business is, to abstract man from this world, and to persuade him to prefer the bare hope of what he can neither _see_, _hear_, nor _conceive_, before all the present enjoyments this world can afford. This begat a reverence and esteem to them in all those who endeavour to work out their salvation out of them. But if a man, not weighing them in themselves, shall consider the practices of those, who pretend to be the interpreters of them, and to make them fit meat for the people; how that instead of renouncing the world, they endeavour to raise themselves into the greatest promotions, leisure, and luxury; that they make them the decoys of the people, to carry on designs and intrigues of state, and study the enjoyments of this world more than any other people: he will find some grounds to conclude, the practices of such men to be the greatest disturbance, burden, and vexation of the Christian part of the world. The complaint is as true as sad; instead of acquainting the credulous vulgar, with the main end of their functions, and the great business of their embassy, what a great measure of felicity is prepared for them, and how easily it may be forfeited; they involve their consciences in the briars of a thousand needless scruples, they spin out volumes out of half sentences, nay, out of points and accents, and raise endless controversies about things, (were men free from passion and prejudice), in themselves clear enough: and when they have canvassed their questions, till they are weary themselves, and have wearied hearers and readers, and all they have to do with, every one sits down under his own vine, and hugs his own apprehensions; so that after all their pains, bandings, and implacable adhesion to parties, the inconvenience remains still, and we as far from any solid conviction, as at first setting out.
The controversies betwixt _Rome_ and the _Reformation_ are long since beaten out of the pit, by other combatants of their own brood; so that if we speak of _Protestant_ and _Catholic_, they are in a manner content to sit down with their present acquests: for as to conviction, he certainly is a rare _proselyte_, at whose conversion, _interest_, _humour_, _discontent_, _inclination_, are not admitted to the debate.