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as that it is become a marriage in the law and state of nature, the prohibition ought to prevail upon them.
8. Lastly, In privileges there is no difficulty, because the law is not bound to give any at all; and therefore may restrain them at any time, without giving a reason. Thus if a law were made, that all illegitimate children, that were born after the death of the emperor Maximilian, should be incapable of a prebend or benefice in a church; he that heard not of the law, might justly be put out after solemn investiture. For no man is injured, because he hath not a favour done him.
That a Law should oblige the Conscience, does not depend upon
the Acceptation of the Law by the People. 1. This rule hath suffered great prejudice, not only by the contrary opinion of the civilians and canonists, who in very great numbers oppose it, but by all persons almost who live under governments democratical, or do not well consider the powers and consequents of government. But the case in short is this:
2. All governments in the world did either begin right or wrong. If right, it was by divine appointment, or by the multiplication of the posterity of a patriarch, and the av&nois, • increase' of paternal government. This is the natural way, and this is founded upon natural reason, and a divine commandment. This hath in it no evil, and no question; and it is just the beginning of monarchy, it produces no other government.
3. But if the government comes not this way, it comes in wrong. Either from tumults, by necessity and evil experience, being forced to permit and establish an order and government; or directly by war and violence; or else in the destitution of a governor, when all are left to themselves, and none hath power over them, they may do 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 politic principles, and divide power, as two earnest disputants
do divide the truth when they have torn her in pieces, each part running away with that share that comes next his hand.
4. Now from these beginnings of government, several republics and principalities have been established ; and when it happened that any famous government entered the wrong way, they became exemplary to others in their polity 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 always demanded when a law was to be made, as is affirmed by Asconius Pedianus 'in Orationem pro C. Cornelio,' and by Badæus and Zasius. These laws were made in a convocation of the people, in thirty courts, and were called Curiatæ, as is affirmed by Suetonius in Augusto b,' and in Cicero in his epistles to Lentulus; they were also called · Populars' by Cicero in his Orations. Now this people so largely reigning over the world, and being exemplary by their 'wisdom and their laws, did easily transmit this license unto the people of most nations, who needed but little teaching to bridle the power of their princes, 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. Add to all this, that many princes have been gentle and kind, and many wise, and would not put a bridle upon such an untamed beast without their own consent: not only that they might obey more willingly, but lest they should not obey at all, as knowing it to be better that they should be ruled as they please, than not at all.
Libertatis servareris ombram,
This fantastic liberty the people would seldom be without, and they must have what they were resolved on: for when they please, they are all kings.
5. Upon the account of these and some other causes, it is come to pass, that, in many places, laws have their binding
a In lib. 2. ff. de Origine Juris.
power only by the consent of the people; in their tribes and courts, or by their representatives, or by their manners and customs: and from hence come these sayings of some very wise men; “ Lex nullam vim obligandi habet nisi ex more;' so Aristotle': and, “ Leges promulgatione constitui, firmari autem usu,', says Gratian: and the civil law expressly, “ Ipsæ legesnulla alia causa nos tenent quam quod judicio populi receptæ sunt;” “The reception and approbation of the people is the only firmament and sanction of the law.”— Now that the civil law says it, it was 'ex more Romanorum;' among the old Romans it always 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 Archdeacon expound them to mean that the laws receive from the use of the people ‘firmitatem stabilitatis, non auctoritatis ;' 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; according to that of Tertullian": “ Neque civis fideliter legi obsequitur ignorans quale sit quod ulciscitur lex. Nulla lex sibi soli conscientiam justitiæ suæ debet, sed eis à quibus obsequium expectat: cæterum suspecta lex est quæ probari se non vult ; improba autem, si non probata, dominetur:" "A citizen does not faithfully obey that law (meaning of going to war), who knows not what that is which is to be punished. For that a law is just, is owing in part to him that is to obey it. That law is to be suspected, which will not endure a trial ; but if, being tried, it be rejected, it cannot prevail without injustice."
6. Having now, by this narrative, laid open the secretand foundation of this opinion, 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; and there is no way necessary to the sanction and constitution, save only to prevent violence, rebellion, and disobedience. But because I am not writing rules of policy, but rules of conscience, 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 wherever I Lib. 2. Polit. cap. 6. & Sect. Leges, dist. 4. lib. de quibus ff. de Legibus.
b Apolog. cap. 4.
the authority be, that authority is derived from God, and is ónly less than he: and although a horse sometime cannot be ruled without strokings and meet and gentle usages, yet, for all that, his rider is his master: and he that said, "Obey them that have the rule over you, and submit yourselves to every ordinance of man for the Lord's sake, whether to the king, as to the supreme,”—&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 contradiction in the terms, that a law be imposed, and yet that it be no law of itself; that is, that the effect of the cause should be a necessary condition in the cause itself; and that its 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.
7. In popular governments, the people have their suffrages in the legislative; 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 supposed 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) “ tanta tamque libera potestate instructus," invested with a princely power, and the legislative ; he, by himself or by his senate, according to the constitution 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 instituitur, cum promulgatur," says the Authentic: and therefore whosoever does not obey, whether it be a single person, or a multitude, they sin against God; it is obedience 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.
8. This rule does also fail in all arbitrary conventions and precarious governments; in such which have no coercitive power, but what is by voluntary 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.
9. Some insert one case here, saying, that. If a law be refused by the greater part of the people, then single persons are excused, because it is to be supposed that the prince cares not, that 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 used, so many provisos, and so much probability to the contrary, 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 do secretly give leave or no, is a presumption of infinite uncertainty. 2. The contrary may very well be supposed; for he that is troubled at the rebellion of many, will not give leave to one to disobey. 3. If these few single persons do submit, they become good examples, and are confessors for the reputation of the king's wisdom 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 do 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 men's 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 crowd. But this rule is only true when the law is just and good for public 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 præcepti tollitur, si moribus utentium non recipitur;” “The obligation of the law is taken off, unless it be received 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, quæ potest persuaderi, imperari autem non;" “ because continence is a thing that i Rale 3.
Puno.mit. cap. Cum Olim. de Cleric. Conjug.