Ductor dubitantium, or, The rule of conscience in all her generall measures serving as a great instrument for the determination of cases of conscience : in four books / by Jeremy Taylor ...

RULE VII. That a law should oblige the Conscience, does not depend upon the acceptation of the Law by the people.

THis Rule hath suffered great prejudice,* 1.1 not onely by the contrary opi∣nion of the Civilians and Canonists, who in very great numbers op∣pose it, but by all persons almost who live under Governments Democra∣tical, or doe not well consider the powers and consequents of government. But the case in short is this;

All Governments in the world did either begin right or wrong.* 1.2 If right, it was by Divine appointment, or by the multiplication of the po∣sterity of a Patriarch, and the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 increase of Paternal Government. This is the natural way, and this is founded upon natural reason, and a Divine Commandement. This hath in it no evil, and no question, and it is the just beginning of Monarchy, it produces no other Government.

But if the Government comes not this way,* 1.3 it comes in wrong. Ei∣ther from tumults, by necessity and evil experience being forc'd to per∣mit and establish an order and government; or directly by warre and vio∣lence; or else in the destitution of a Governour when all are left to them∣selves, and none hath power over them, they may doe what they list, and order things as they please, and part with as much power as they think fit, and keep some to themselves, and confound all politick principles, and di∣vide power, as two earnest disputants doe divide the truth when they have torn her in pieces, each part running away with that share that comes next his hand.

Now from these beginnings of Governments several Republicks and Principalities have been established;* 1.4 and when it hapned that any famous

government entred the wrong way, they became exemplary to others in their policy and in their principles, and made their actions become rules to others. Thus it was that the Roman people, keeping the legislative power in their own hands, made Kings and Consuls and officers at their pleasure, but their consent was alwaies demanded when a law was to be made, as is affirmed by Asconius Pedianus in orationem pro C. Cornelio, and by Budaeus and Zasius in l. 2. ff. de origine juris. These laws were made in a convocation of the people in thirty Courts, and were called Curiatae, as is affirm'd by Suetonius in Augusto, and in Cicero in his epistles to Lentulus: they were also called Populares by Cicero in his orations. Now this people so largely reigning over the world, and being exemplary by their wis∣dome and their laws, did easily transmit this licence unto the people of most Nations, who needed but little teaching to bridle the power of their Prin∣ces, to which they were but too much tempted by that libido regnandi, that lust of empire which possesses the greatest part of the world; and by their own strength, which they often made their Kings to feel, and would not lend to them in their needs but upon hard conditions. * Adde to all this, that many princes have been gentle and kind, and many wise, and would not put a bridle upon such an untam'd beast without their own con∣sent; not onely that they might obey more willingly, but lest they should not obey at all, as knowing it to be better that they should be rul'd as they please, then not at all.

—Libertatis servaveris umbram Si quicquid jubeare velis—

This phantastick liberty the people would seldome be without; and they must have what they were resolv'd on; for when they please, they are all Kings.

Upon the account of these and some other causes it is come to pass that in many places laws have their binding power onely by the consent of the people;* 1.5 in their tribes and Courts, or by their representatives, or by their manners and customes: and from hence from these sayings of some very wise men; Lex nullam vim obligandi habet nisi ex more;* 1.6 so Ari∣stotle: and, Leges promulgatione constitui, firmari autem usu, saies Gratian: and the civil law most expressly, Ipsae leges nullâ aliâ causâ nos tenent quam quod judicio populi receptae sunt, The reception and approbation of the people is the onely firmament and Sanction of the law. Now that the civil law saies it, it was ex more Romanorum; among the old Romans it alwaies was so: and Aristotle speaks at the rate of him who had been bred under the popular government of the Greeks, and therefore it is no wonder that any of them speaks so: but as for the words of Gratian, Laurentius and the Arch-Deacon expound them to mean that the laws receive from the use of the people firmitatem stabilitatis, non authoritatis; that is, de facto they are made more firm and lasting by the consent and manners of the people, but not de jure more obliging;* 1.7 according of that of Tertullian, Neque civis fideliter legi obsequitur ignorans quale sit quod ulciscitur lex. Nulla lex sibi soli conscientiam justitiae suae debet, sed eis à quibus obsequium expectat: caete∣rum suspecta lex est quae probari se non vult; improba autem si non probata dominetur. A Citizen does not faithfully obey that law (meaning of going to warre) who knows not what that is which is to be punish'd. For that a law is just is owing in part to him that is to obey it. That law is to be su∣spected

which will not indure a trial; but if being tried it be rejected, it cannot prevail without injustice.

Having now by this narrative laid open the secret and foundation of this opinion,* 1.8 and prevented the objections that can be made, the Rule is certain and easy. The consent of the people gives no authority to the law; & therefore is no way necessary to the Sanction and constitution, save onely to prevent violence, rebellion and disobedience. But because I am not writing rules of policy, but rules of consciēce, I am to say, that if the legislative power be in the Prince, that is, if he be supreme, he is to decree the law; but where∣ever the authority be, that authority is derived from God, and is onely less then him: and although a horse sometime cannot be ruled without stroak∣ings and meat and gentle usages, yet for all that his rider in his Master: and he that said, obey them that have the rule over you, and submit your selves to every ordinance of man for the Lords sake, whether to the King as to the su∣preme, &c. did not appoint the supreme to rule by a precarious power; and if he who hath authority makes a just law, either the people are bound to accept the law, or they despise the authority. And indeed it is a contra∣diction in the terms, that a law be impos'd, and yet that it be no law of it self; that is, that the effect of the cause should be a necessary condition in the cause it self; and that it's own work is nothing, unless what it does work give it force. It must be a law before they accept it, and if it be a law they are bound to accept it; and therefore their accepting cannot make it a law.

In popular governments the people have their suffrages in the legis∣lative;* 1.9 but then it is because they govern: but when they have not the legislative, he that hath it must not ask them leave to use it, when God hath given him power. They indeed who suppose Kings to be trustees and ministers of the people have some pretence (if they suppos'd true) to affirm the acceptation of the people to be necessary. But yet if they did suppose true, it were indeed a pretence but no more. For when the King is chosen, and is by the people (that I may use the expression of Tiberius) tantâ temque liberâ potestate instructus, invested with a Princely power, and the legislative; he, by himself or by his Senate, according to the constitu∣tion of the province, is to make the law, and to punish them that break it, and not to ask them if they will please to obey it. Lex institutir cum pro∣mulgatur, saies the Authentick: and therefore whosoever does not obey, whether it be a single person or a multitude, they sin against God; it is disobedience in a single person, and rebellion in the multitude. All which is true with the provisos of the former rules, that the laws be upon all their just accounts in all other things obligatory.

This Rule does also fail in all arbitrary conventions and precarious governments;* 1.10 in such which have no coercitive power but what is by vo∣luntary concession; such which can convene and dissolve at pleasure, as Colleges and Fraternities. For as they meet at pleasure, so they must be governed as they please; their power comes not from God, but from man; and their authority is equivocal.

Some insert one case here,* 1.11 saying that if a law be refus'd by the greater part of the people, then single ••••sons are excus'd, because it is to be sup∣pos'd that the Prince cares not 〈◊〉〈◊〉 single persons observe the law, since so

little will serve no interest. But if this were true, yet there is in it so much caution to be us'd, so many provisos, and so much probability to the con∣trary, that it were as good that it were not true; for it cannot give rest or peace to the Conscience. For 1. whether the Prince doe secretly give leave or no, is a presumption of infinite uncertainty. 2. The contrary may very well be suppos'd; for he that is troubled at the rebellion of many will not give leave to one to disobey. 3. If these few single persons doe sub∣mit, they become good examples, and are confessors for the reputation of the Kings wisdome and authority. 4. What is evil in the whole is so in every particular; because the people is but an aggregate body of single persons. 5. We must not follow a multitude to doe evil: and all rebellion is of that nature, that it is as the sin of witchcraft; and who would be a witch because all the Country is so? 6. He that partakes of other mens sins shall also partake of their punishment. Upon these accounts, I judge it very unsafe for any single person to resist a just law of a just superior, upon hope of escaping in the Croud.* 1.12 But this Rule is onely true when the law is just and good for publick profit and usefulness of the people. For if it be an unreasonable law, it binds not as a law, but as by promise and contract; that is, it does not bind by the sanction of the law, but the acceptation of the people. And so the ancient lawyers are to be understood; Lex praecepti tollitur,* 1.13 si moribus utentium non recipitur, The obligation of the law is taken off, unless it be receiv'd into the manners of the Subjects. But the instance tells in what sense this is true. The Pope and Council cannot command continence to a certain sort of persons after promotion against their wills; quia continentia est res quae potest persuaderi, imperari autem non, Because continence is a thing that may be perswaded, but not commanded. The matter of the law is to be order'd according to the measures of the third Rule; but supposing that, this Rule is certain.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  3.
• * 1.4

  4.
• * 1.5

  5.
• * 1.6

  Lib. 2. Polit. c. 6. § leges dist. 4. l. dequibus ff. de legibus.
• * 1.7

  Apolog. c. 4.
• * 1.8

  6.
• * 1.9

  7.
• * 1.10

  8.
• * 1.11

  9.
• * 1.12

  Rule 3.
• * 1.13

  Panormit. c. cum olim. de cleric. conjug.