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that divines use here to take the word 'conscience' in the narrower theological sense, as respect to God's law and judgment doth enter the definition of it.
8. Taking conscience in this narrower sense, to ask, Whether man's law as man's do bind us in conscience,' is all one to ask, 'Whether man be God '.'
9. And taking conscience in the large or general sense, to ask, Whether man's laws bind us in conscience,' subjectively is to ask, Whether they bind the understanding to know our duty to man?' And the tenor of them will shew that; while they bind us to or from an outward act, it is the man that they bind to or from that act, and that is, as he is a rational voluntary agent; so that a human obligation is laid upon the man, on the will, and on the intellect by human laws.
10. And human laws while they bind us to or from an outward act, do thereby bind us as rational free agents, knowingly to choose or refuse those acts; nor can a law which is a moral instrument any otherwise bind the hand, foot or tongue, but by first binding us to choose or refuse it knowingly, that is, conscientiously, so that a human bond is certainly laid on the mind, soul or conscience, taken in the larger sense.
11. Taking conscience in the stricter sense, as including essentially a relation to God's obligation, the full sense of the question plainly is but this, Whether it be a sin against God to break the laws of man? And thus plain men might easily understand it. And to this it must be answered, That it is in two respects a sin against God to break such laws or commands as rulers are authorized by God to make:
Having spoken of this controversy, in my "Life of Faith." in which I thought we were really agreed, while we seemed to differ, which I called 'A pitiful case,' some brethren (who say nothing against the truth of what I said) are offended at me as speaking too confidently, and calling that so easy which Bishop Sanderson and so many others did make a greater matter of; I retract the words, if they be unsuitable either to the matter or the readers: but as to the matter and truth of the words, I desire the reader but to consider how easy a case Mr. P. maketh of it, Eccl. Pol., and how heinous a matter he maketh of our supposed dissent: and if after all this it shall appear, that the Nonconformists do not at all differ from Hooker, Bilson and the generality of the Conformists in this point, let him that is willing to be represented as odious and intolerable to rulers and to mankind, for that in which we do not differ, proceed to backbite me for saying that it is a pitiful case; and pretending that we are agreed.
1. Because God commandeth us to obey our rulers: therefore he that (so) obeyeth them not, sinneth against a law of God. God obligeth us in general to obey them in all things which they are authorized by him to command; but their law determineth of the particular matter; therefore God obligeth us (in conscience of his law) to obey them in that particular. 2. Because by making them his officers, by his commission he hath given them a certain beam of authority, which is Divine as derived from God; therefore they can command us by a power derived from God: therefore to disobey is to sin against a power derived from God. And thus the general case is very plain and easy, How man sinneth against God in disobeying the laws of man, and consequently how (in a tolerable sense of that phrase) it may be said, that man's laws do or do not bind the conscience (or rather, bind us in point of conscience;) or by a Divine obligation. Man is not God; and therefore as man, of himself can lay no Divine obligation on us. But man being God's officer, 1. His own law layeth on us an obligation derivatively Divine (for it is no law which hath no obligation, and it is no authoritative obligation which is not derived from God). 2. And God's own law bindeth us to obey man's laws.
Quest. 11. But is it a sin to break every penal law of man?'
Answ. 1. You must remember that man's law is essentially the signification of man's will; and therefore obligeth no further than it truly signifieth the ruler's will.
2. That it is the act of a power derived from God; and therefore no further bindeth, than it is the exercise of such a power.
3. That it is given, 1. Finally for God's glory and pleasure, and for the common good (comprehending the honour of the ruler and the welfare of the society ruled). And therefore obligeth not when it is, (1.) Against God. (2.) Or against the common good. 2. And it is subordinate to God's own laws, (in nature and Scripture) and therefore obligeth not to sin, or to the violation of God's law ".
It is not Mr. Humphrey alone that hath written that laws bind not in conscience to obedience which are against the public good. The greatest casuists say the same, excepting the case of scandal: he that would see this in them may choose but
4. You must note that laws are made for the government of societies as such universally; and so are fitted to the common case, for the common good. And it is not possible but that a law which prescribeth a duty which by accident is so to the most, should meet with some particular subject to whom the case is so circumstantiated as that the same act would be to him a sin: and to the same man it may be ordinarily a duty, and in an extraordinary case a sin. Thence it is that in some cases (as Lent fasts, marriages, &c.) rulers oft authorize some persons to grant dispensations in certain cases; and hence it is said, that necessity hath no law.
Hereupon 1 conclude as followeth.
1. It is no sin to break a law which is no law, as being against God, or not authorized by him, (as of a usurper, &c.) See R. Hooker, Conclus. lib. viii.
2. It is no law so far as it is no signification of the true will of the ruler, whatever the words be: therefore so far it is no sin to break it.
3. The will of the ruler is to be judged of, not only by the words, but by the ends of government, and by the rules of humanity.
4. It being not possible that the ruler in his laws can foresee and name all exceptions, which may occur, it is to be supposed that it is his will that the nature of the thing shall be the notifier of his will, when it cometh to pass; and that if he were present, and this case fell out before him, which the sense and end of the law extendeth not to, he would say, This is an excepted case.
5. There is therefore a wide difference between a general law, and a personal, particular mandate; as of a parent to a child, or a master to a servant; for this latter fully notifieth the will of the ruler in that very case, and to that very person. And therefore it cannot be said that here is any exception, or that it is not his will; but in an universal or general law, it is to be supposed that some particular excepted cases will fall out extraordinarily, though they cannot be named; and that in those cases, the ruler's will dispenseth with it.
these two special authors, Bapt. Fragos. de Regimine Reipublicæ, and Greg. Sayrus in his Clavis Regia, and in them he shall find enow more cited. Though I think some further cautions would make it more satisfactory.
6. Sometimes also the ruler doth by the mere neglect of pressing or executing his own laws, permit them to grow obsolete, and out of use; and sometimes he forbeareth the execution of them for some time, or to some sort of persons ; and by so doing, doth notify that it was not his will that at such a time, and in such cases they should oblige. I say not that all remissness of execution is such a sign; but sometimes it is: and the very word of the lawgiver may notify his dispensation or suspending will. As for instance, upon the burning of London, there were many laws (about coming to parish-churches, and relief of the poor of the parish, and the like,) that the people became incapable of obeying; and it was to be supposed, that the ruler's will would have been to have excepted such cases if foreseen; and that they did dispense with them when they fell out.
Sometimes also the penalty of violating a law, is some such mulct or service, which the ruler intendeth as a commutation for the duty, so that he freely leaveth it to the choice of the subject which he will choose. And then it is no sin to pay the mulct, and omit the action; because it crosseth not the lawgiver's will.
8. Sometimes also the law may command this principally for some men's sake, which so little concerns others, that it should not extend to them at all, were it not lest the liberty of them should be an impediment to the obedience of others, and consequently of the common good. In which case, if those persons so little concerned, do but omit the action secretly, so as to be no scandal or public hurt, it seemeth that they have the implicit consent of the rulers.
9. Sometimes particular duties are commanded with this express exception, "Unless they have just and reasonable impediment." As for coming every Lord's day to church, &c.; which seemeth to imply, that (though in cases where the public good is concerned, the person himself shall not be judge, nor at all as to the penalty; yet that (in actions of an indifferent nature in themselves, this exception is still supposed to be implied, " unless we have just and reasonable impediments," of which in private cases, as to the crime, we may judge.
10. I need not mention the common, natural exceptions: as that laws bind not to a thing when it becometh naturally
impossible; or cessante materia, vel capacitate subjecti obligati,' &c.
11. Laws may change their sense in part by the change of the lawgiver; for the law is not formally to us his law that is dead and was once our ruler, but his that is alive and is now our ruler. If Henry the eighth make a law about the outward acts of religion, (as for coming to church, &c.) and this remain unrepealed in King Edward's, Queen Mary's, Queen Elizabeth's, King James's days, &c., even till now; as we are not to think that the lawgivers had the same sense and will, so neither that the law hath the same sense and obligation; for if the general words be capable of several senses, we must not take it as binding to us in the sense it was made in, but in the sense of our present lawgivers or rulers, because it is their law.
12. Therefore if a law had a special reason for it at the first making, (as the law for using bows and arrows,) that reason ceasing, we are to suppose the will of the lawgiver to remit the obligation, if he urge not the execution, and renew not the law.
13. By these plain principles many particular difficulties may be easily resolved, which cannot be foreseen and named, e. g. the law against relieving a beggar bindeth not, when he is like to die if he be not relieved; or in such a case as after the burning of London, when there was no parish to bring him to. A law that is but for the ordering of men's charity, (to soul or body, by preaching or alms,) will not disoblige me from the duties of charity themselves, in cases where Scripture or nature proveth them to be imposed by God. A law for fasting will not bind me, when it would be destructive to my body; even on God's sabbaths duties of mercy were to be preferred to rest and sacrifices.
14. If God's own laws must be thus expounded, that "When two duties come together, and both cannot be done, the lesser ceaseth at that time to be a duty, and the greater is to be preferred," man's laws must also be necessarily so expounded: and the rather, because man's laws may be contradictory when God's never are so, rightly understood.
15. Where the subject is to obey, so far he must discern which of the laws inconsistent, is to be preferred: but in the magistratical execution, the magistrate or judge must deterine.