PrintPDF

“How Reason Does Lead Men to the Making of Human Laws Whereby Political Societies Are Governed; and to Agreement about Laws by Which the Fellowship or Communion of Independent Societies Stands”

Chapter 10 of Book 1 in

Of the Laws of Ecclesiastical Polity

By Richard Hooker

1594

[Hooker, Richard. “Concerning Laws and Their Several Kinds in General.” Book 1 in Of the Laws of Ecclesiastical Polity. In Richard Hooker, The Works of that Learned and Judicious Divine Mr. Richard Hooker with an Account of His Life and Death by Isaac Walton. Arranged by the Rev. John Keble MA. 7th edition revised by the Very Rev. R.W. Church and the Rev. F. Paget (Oxford: Clarendon Press, 1888). 3 vols. Vol. 1. The Online Library of Liberty. http://oll.libertyfund.org/titles/921. In the public domain. Some modernized vocabulary and contructions have been substituted in the text by the Witherspoon Institute.]

Within the text, numbers within brackets indicate the page divisions of the 1888 edition from which this text was taken; prose within text are insertions of the Witherspoon Institute to supply words required by modern English usage. In places the Witherspoon Institute has modernized archaic or obsolete vocabulary or constructions in Hooker’s text. In cases where the changes are very basic and risk no alteration to the original meaning of the text (such as changing “whereof” to “of which”  and “saith” to “says”) there is no notation in the text; changes to more substantive vocabulary are noted with footnotes that show the original word that Hooker used.

Within the footnotes, text not within brackets are Hooker’s original notes; text within single brackets is supplied by the Witherspoon Institute; text within double brackets (that is, [[ ]] ) is supplied by the editors of the 1888 edition. 

Chapter 10: How Reason does lead men to the making of human laws whereby political Societies are governed; and to agreement about laws by which the fellowship or communion of independent societies stands.

[1.] That which hitherto we have set down is (I hope) sufficient to show the brutishness of them, which imagine that religion and virtue are only as men will account of them; that we might make as much account, if we would, of the contrary, without any harm to ourselves, and that in nature they are as indifferent one as the other. We see then how nature itself teaches laws and statutes to live by. The laws which have been hitherto mentioned do bind men absolutely even as they are men, even if[1] they have never any settled fellowship, never any solemn agreement among themselves what to do or not to do.[2] But inasmuch as we are not by ourselves sufficient to furnish ourselves with competent store of things needful for such a life as our nature does desire, a life fit for the dignity of man; therefore to supply those defects and imperfections which are in us if we live alone[3] and solely by ourselves, we are naturally induced to seek communion and fellowship with others. This was the cause of men’s uniting themselves at the first in political Societies, which societies could not be without Government, nor Government without a distinct kind of Law from that which has been already declared. Two foundations there are which bear up public societies[:] the one, a natural inclination, by which all men desire sociable life and fellowship; the other, an order expressly or secretly agreed upon touching the manner of their union in living together. The latter is that which we call the Law of a Commonwealth[4], the very soul of a political body, the parts of which are by law animated, held together, and set on work in such actions, as the common good requires. Political laws, ordained for external order and government[5] among men, are never framed as they [240] should be, unless they presume the will of man to be inwardly obstinate, rebellious, and averse from all obedience to the sacred laws of his nature; in a word, unless they presume man to be in regard of his depraved mind little better than a wild beast [and] do accordingly provide notwithstanding so to shape[6] his outward actions, that they be no hindrance to the common good for which societies are instituted: unless the laws[7] do this, they are not perfect. It remains therefore that we consider how nature finds out such laws of government as serve to direct even depraved nature to a right end.

[2.] All men desire to lead in this world a happy life. That life is led most happily, in which all virtue is exercised without impediment or obstacle[8]. The Apostle, in exhorting men to contentment although they have in this world no more than very bare food and raiment, (1 Tim. 6:8) gives us thereby to understand that those are even the lowest of things necessary; that if we should be stripped of all those things without which we might possibly be, yet these must be left; that destitution in these is such an impediment, [that] till it be removed [it does] not allow[9] the mind of man to admit any other care. For this cause, first God assigned Adam maintenance of life, and then appointed him a law to observe (Gen. 1:29, 2:17). For this cause, after men began to grow to a number, the first thing we read they gave themselves to was the tilling of the earth and the feeding of cattle. Having by this mean[s] on which to live, the principal actions of their life afterward are noted by the exercise of their religion (Gen. 4:2, 26). True it is, that the kingdom of God must be the first thing in our purposes and desires (Matt. 6:33). But inasmuch as righteous life presupposes life; inasmuch as it is impossible to live virtuously unless we live; therefore the first impediment, which naturally we endeavour to remove, is penury and want of things without which we cannot live. For life many implements are necessary; more, if we seek (as all men naturally do) such a life as has in it joy, comfort, delight, and pleasure. To this end we see how quickly sundry mechanical arts were found out, in the very beginning[10] of the world (Gen. 4:20–22). As things of greatest [241] necessity are always first provided for, so things of greatest dignity are most accounted of by all such as judge rightly. Although therefore riches be a thing which every man wishes, yet no man of judgment can esteem it better to be rich, than wise, virtuous, and religious. If we be both or either of these, it is not because we are so born. For into the world we come as empty of the one as of the other, as naked in mind as we are in body. Both which necessities of man had at the first no other helps and supplies than only domestical; such as that which the Prophet implies, saying, “Can a mother forget her child?” (Is. 49:15) such as that which the Apostle mentions, saying, “He that cares not for his own is worse than an infidel;” (1 Tim. 5:8) such as that concerning Abraham, “Abraham will command his sons and his household after him, that they keep the way of the Lord” (Gen. 18:19).

[3.] But neither that which we learn of ourselves nor that which others teach us can prevail, where wickedness and malice have taken deep root. If therefore when there was but as yet one only family in the world, no means of instruction human or divine could prevent effusion of blood (Gen. 4:8); how could it be helped[11] but that when families were multiplied and increased upon earth, after separation each providing for itself, envy, strife, contention and violence must grow among them? For has not Nature furnished man with reason and valour, as it were with armour, which may be used as well for extreme evil as good? Yea, were they not used by the rest of the world for evil; for the contrary only by Seth, Enoch, and those few the remnant[12] in that line (Gen. 6:5; Gen. 5)? We all make complaint of the iniquity of our times: not unjustly; for the days are evil. But compare them with those times in which there were no civil societies, with those times in which there was as yet no manner of public government[13] established, with those times in which there were not above eight persons righteous living upon the face of the earth (2 Pet. 2:5); and we have surely good cause to think that God has blessed us exceedingly, and has made us behold most happy days.

[4.] To take away all such mutual grievances, injuries, and wrongs, there was no way but only by growing unto compromise[14] [242] and agreement among themselves, by ordaining some kind of government public, and by yielding themselves subject to it; that to whom they granted authority to rule and govern, by them the peace, tranquillity, and happy estate of the rest might be procured. Men always knew that when force and injury was offered they might be defenders of themselves; they knew that however men may seek their own advantage[15], yet if this were done with injury to others it was not to be suffered, but by all men and by all good means [was] to be withstood; finally they knew that no man might in reason take upon him to determine his own right, and according to his own determination proceed in maintenance of it, inasmuch as every man is towards himself and them [for] whom he has great affection[16] partial; and therefore that strifes and troubles would be endless, unless they gave their common consent all to be ordered by some whom they should agree upon: without which consent there would be no reason that one man should take upon him to be lord or judge over another; because, although there be according to the opinion of some very great and judicious men a kind of natural right in the noble, wise, and virtuous, to govern them which are of servile disposition[17]; nevertheless for manifestation of this their right, and men’s more peaceable contentment on both sides, the assent of them who are to be governed seems necessary.

To fathers within their private families Nature has given a supreme power; for which cause we see throughout the world even from the foundation thereof, all men have always been taken as lords and lawful kings in their own houses. Nevertheless over a whole grand multitude having no such dependency upon any one, and consisting of so many families as every political society in the world does, impossible it is that any should have complete lawful power, but by consent of men, or immediate appointment of God; because not having the natural superiority of fathers, their power must necessarily be either usurped, and then unlawful; or, if lawful, then either granted or consented to by them over whom they exercise the same, or else given extraordinarily from God, to whom all the world is subject. It is no improbable opinion therefore which the arch-philosopher was of, that as the chiefest person [243] in every household was always as it were a king, so when numbers of households joined themselves in civil society together, kings were the first kind of governors amongst them.[18] Which is also (as it seems) the reason why the name of Father continued still in them, who of fathers were made rulers; as also the ancient custom of governors to do as Melchisedec, and being kings to exercise the office of priests, which fathers did at the first, grew perhaps by the same occasion.

However, this is not[19] the only kind of government[20] that has been received in the world. The inconveniences of one kind have caused sundry other to be devised. So that in a word all public government of whatever kind seems evidently to have risen from deliberate advice, consultation, and agreement[21] between men, judging it convenient and necessary[22]; there being no impossibility in nature considered by itself, but that men might have lived without any public government. Nevertheless, the corruption of our nature being presupposed, we may not deny that the Law of Nature does now require of necessity some kind of government, so that to bring things to the first course they were in, and utterly to take away all kind of public government in the world, would be apparently to overturn the whole world.

[5.] The case of man’s nature standing therefore as it does, some kind of government[23] the Law of Nature does require; yet the kinds of it being many, Nature ties not to any one, but leaves the choice as a thing arbitrary. At the first when some certain kind of government was once approved, it may be that nothing was then further thought upon for the manner of governing, but all left them who were to rule to their wisdom and discretion[24];[25] till by experience they found this for all parts very inconvenient, so as the thing which they had devised for a remedy did indeed but increase the sore which it should have cured. They saw that to live by one man’s will became the cause of all men’s misery. This constrained [244] them to come to laws, in which all men might see their duties beforehand, and know the penalties of transgressing them. If things be simply good or evil, and moreover[26] universally so acknowledged, one does not need a new law to be made for such things.[27] The first kind therefore of things appointed by human laws contains whatever being in itself naturally good or evil, is notwithstanding more secret than what can be discerned by every man’s present understanding[28], without some deeper discourse and judgment. In which discourse because there is difficulty and possibly[29] many ways to err, unless such things were set down by laws, many would be ignorant of their duties who now are not, and many that know what they should do would nevertheless dissemble it, and to excuse themselves pretend ignorance and simplicity, which now they cannot.[30]

[6.] And because the greatest part of men are such as prefer their own private good before all things, even that good which is sensual before whatever is most divine; and because the labour of doing good, together with the pleasure arising from the contrary, does make men for the most part slower to the one and more prone to the other, than that duty prescribed to them by law can prevail sufficiently with them: therefore to laws that men do make for the benefit of men it has seemed always needful to add rewards, which may more allure to good than any hardness deters from it, and punishments, which may more deter from evil than any sweetness thereto allures. Wherein as the generality is natural—virtue rewardable and vice punishable—so the particular determination of the reward or punishment belongs to them by whom laws are made. Theft is naturally punishable, but the kind of punishment is positive, and is made lawful[31] as men shall think with discretion convenient by law to appoint.

[7.] In laws, that which is natural binds universally, that which is positive not so. Leaving aside[32] those kinds of positive [245] laws which men impose upon themselves, as by vow to God, contract with men, or such like; somewhat it will make to our purpose, a little more fully to consider what things are involved in[33] the making of the positive laws for the government of them that live united in public society. Laws do not only teach what is good, but they enjoin it, they have in them a certain constraining force. And to constrain men to anything improper[34] does seem unreasonable. Most requisite therefore it is that none but wise men be admitted to devise laws which all men shall be forced to obey. Laws are matters of principal consequence; men of common capacity and only ordinary judgment are not able (for how should they?) to discern what things are fittest for each kind and state of government[35]. We cannot be ignorant how much our obedience to laws depends upon this point. Let a man[,] [even] though entirely[36] justly[,] oppose himself to them that are disordered in their ways, and what one amongst them commonly does not resent[37] such contradiction, storm at reproof, and hate such as would reform them? Notwithstanding[,] even they which brook it worst that men should tell them of their duties, when they are told the same by a law, think very well and reasonably of it. Why? They presume that the law does speak with all indifference; that the law has no side-respect to their persons; that the law is as it were an oracle proceeded from wisdom and understanding.[38]

[8.] Nevertheless laws do not take their constraining force from the quality of such as devise them, but from that power which does give them the strength of laws. That which we spoke before concerning the power of government must here be applied to the power of making laws by which to govern; which power God has over all: and by the natural law, to which he has made all subject, the lawful power of making laws to command whole political societies of men belongs so properly to the same entire societies, that for any prince or potentate of whatever kind upon earth to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority derived at the first from [246] their consent upon whose persons they impose laws, it is no better than mere tyranny.

Laws they are not therefore which public approbation has not made so. But approbation not only they give who personally declare their assent by voice sign or act, but also when others do it in their names by right originally at the least derived from them. As in parliaments, councils, and the like assemblies, although we be not personally ourselves present, notwithstanding our assent is by reason of others [who are] agents there in our behalf. And what we do by others, [there being] no reason that it should not stand as our deed, no less effectually binds us than if [we] ourselves had done it in person. In many things assent is given, they that give it not imagining they do so, because the manner of their assenting is not apparent. As for example, when an absolute monarch commands his subjects that which seems good in his own discretion, has not his edict the force of a law whether they approve or dislike it? Again, that which has been received long since and is by custom now established, we keep as a law which we may not transgress; yet what consent was ever thereto sought or required at our hands?

On[39] this point therefore we are to note, that since men naturally have no full and perfect power to command whole political multitudes of men, therefore we could not be living at any man’s commandment utterly without our consent.[40] And to be commanded we do consent, when that society of which we are part has at any time before consented, without revoking the same after by the like universal agreement. Wherefore as any man’s deed past is good as long as he himself continues; so the act of a public society of men done five hundred years since stands as theirs who presently are of the same societies, because corporations are immortal; we were then alive in our predecessors, and they in their successors do live still. Laws therefore human, of whatever kind, are valid[41] by consent.

[9.] If here it be demanded how it comes to pass that this being common to all laws which are made, there should be found even in good laws so great variety as there [247] is; we must note the reason of this to be the sundry particular ends, to which the different disposition of that subject or matter, for which laws are provided, causes them to have especial respect in making laws. A law is mentioned among the Greeks of which Pittacus is reported to have been author; and by that law it was agreed, that he which being overcome with drink did then strike any man, should suffer punishment double as much as if he had done the same being sober.[42] No man could ever have thought this reasonable, that had intended thereby only to punish the injury committed according to the gravity of the fact: for who knows not that harm deliberately[43] done is naturally less pardonable, and therefore worthy of the sharper punishment? But inasmuch as none did so commonly[44] this way offend as men in that case, which they wittingly fell into, even because they intended to[45] be so much the more freely outrageous; it was for their public good where such disorder was grown to frame a positive law for remedy of it accordingly. To this appertain those known laws of making laws; as that law-makers must have an eye to the place where, and to the men among whom; that one kind of law cannot serve for all kinds of government[46]; that where the multitude bears sway, laws that shall tend to preservation of that state must make common smaller offices to be assigned[47] by lot, for fear of strife and division likely to arise; by reason that ordinary qualities sufficing for discharge of such offices, they could not but by many be desired, and so with danger contended for, and not missed without grudge and discontentment, whereas at an uncertain lot none can find themselves grieved, on whomever it lights; contrariwise the greatest, of which but few are capable, to pass by popular election, that neither the people may envy such as have those honours, inasmuch as they themselves bestow them, and that the chiefest may be kindled with desire to exercise all parts of rare and beneficial virtue, knowing they shall not lose their labour by growing in fame and estimation among the people: if the helm of chief government be in the hands of a few of the wealthiest, that then laws providing for continuance thereof must make the punishment of contumely and wrong offered [248] to any of the common sort sharp and grievous, that so the evil may be prevented by which the rich are most likely to bring themselves into hatred with the people, who are not wont to take so great offence when they are excluded from honours and offices, as when their persons are contumeliously trodden upon. In other kinds of government[48] the like is observed concerning the difference of positive laws, which to be everywhere the same is impossible and against their nature.

[10.] Now as they who are learned in the laws of this land observe, that our statutes sometimes are only the affirmation or ratification of that which by common law was held before[49]; so here it is not to be omitted that generally all human laws, which are made for the ordering of political societies, be either such as establish some duty to which all men by the law of reason did before stand bound; or else such as make that a duty now which before was none. The one sort we may for distinction’s sake call “mixedly,” and the other “merely” human. That which plain or necessary reason binds men to may be in sundry considerations expedient to be ratified by human law. For example, if confusion of blood in marriage, the liberty of having many wives at once, or any other the like corrupt and unreasonable custom does happen to have prevailed far, and to have gotten the upper hand of right reason with the greatest part; so that no way is left to rectify such foul disorder without prescribing by law the same things which reason necessarily does enforce but is not perceived that so it does; or if many be grown unto that which the Apostle did lament in some, concerning whom he writes, saying, that “even what things they naturally know, in those very things as beasts void of reason they corrupted themselves;” (Jude 10) or if there be no such special accident, yet inasmuch as the common sort are led by the sway of their [249] sensual desires, and therefore do more shun sin for the sensible evils which follow it among men, than for any kind of sentence which reason does pronounce against it:[50] this very thing is cause sufficient why duties belonging to each kind of virtue, although the Law of Reason teach them, should notwithstanding be prescribed even by human law. Which law in this case we term mixed, because the matter to which it binds is the same which reason necessarily does require at our hands, and from the Law of Reason it differs in the manner of binding only. For whereas men before stood bound in conscience to do as the Law of Reason teaches, they are now by virtue of human law become constrainable, and if they outwardly transgress, punishable. As for laws which are merely human, the matter of them is anything which reason does but probably teach to be fit and convenient; so that till such time as law has passed among men about it, of itself it binds no man. One example of which may be this. Lands are by human law in some places after the owner’s decease divided among all his children, in some all descends to the eldest son. If the Law of Reason did necessarily require but one of these two to be done, they which by law have received the other should be subject to that heavy sentence, which denounces against all that decree wicked, unjust, and unreasonable things, woe (Is. 10:1). Whereas now whichever be received there is no Law of Reason transgressed; because there is probable reason why either of them may be expedient, and for either of them more than probable reason there is not to be found.

[11.] Laws whether mixedly or merely human are made by political societies: some, only as those societies are civilly united; some, as they are spiritually joined and make such a body as we call the Church. Of laws human in this latter kind we are to speak in the third book following. Let it therefore suffice thus far to have touched the force with which Almighty God has graciously endowed our nature, and thereby enabled the same to find out both those laws which all men generally are forever bound to observe, and also such [250] as are most fit for their benefit[51], who lead their lives in any ordered state of government.

[12.] Now besides that law which simply concerns men as men, and that which belongs to them as they are men linked with others in some form of political society, there is a third kind of law which touches all such several bodies politic, so far forth as one of them has public commerce with another. And this third is the Law of Nations. Between men and beasts there is no possibility of sociable communion, because the well-spring of that communion is a natural delight which man has to transfuse from himself into others, and to receive from others into himself especially those things in which the excellency of his kind does most consist. The chiefest instrument of human communion therefore is speech, because by it we impart mutually one to another the ideas[52] of our reasonable understanding.[53] And for that cause[,] seeing beasts are not capable of speech[54], inasmuch as with them we can engage in[55] no such discourse[56], they being in degree, although above other creatures on earth to whom nature has denied sense, yet lower than to be sociable companions of man to whom nature has given reason; it is of Adam said that among the beasts “he found not for himself any suitable[57] companion” (Gen. 2:20). Civil society does more content the nature of man than any private kind of solitary living, because in society this good of mutual participation is so much more ample[58] than otherwise. With this nevertheless we are not satisfied, but we covet (if it might be) to have a kind of society and fellowship even with all mankind. Which thing Socrates intending to signify professed himself a citizen, not of this or that commonwealth, but of the world.[59] And an effect of that very natural desire in us (a manifest token that we wish after a sort a universal fellowship with all men) appears by the wonderful delight men have, some to visit foreign countries, some to discover nations not heard of in former ages, we all to know the affairs and dealings of other people, yea to be in league of amity with them: and this not only for the sake of trade[60], or to the end that when many are confederated each may make the other the more strong, but [251] for such cause also as moved the Queen of Sheba to visit Solomon;[61] and in a word, because nature does presume that however many men there are in the world, so many gods as it were there are, or at leastwise such they should be towards men.[62]

[13.] Touching laws which are to serve men in this behalf; even as those Laws of Reason, which (man retaining his original integrity) had been sufficient to direct each particular person in all his affairs and duties, are not sufficient but require the addition[63] of other laws, now that man and his offspring are grown thus corrupt and sinful; again, as those laws of polity and government[64], which would have served men living in public society together with that harmless disposition which then they should have had, are not able now to serve, when men’s iniquity is so hardly restrained within any tolerable bounds: in like manner, the national laws of mutual commerce between societies of that former and better quality might have been other than now, when nations are so prone to offer violence, injury, and wrong. Hereupon has grown in each of these three kinds that distinction between Primary and Secondary laws; the one grounded upon sincere, the other built upon depraved nature. Primary laws of nations are such as concern embassies, such as belong to the courteous entertainment of foreigners and strangers, such as serve for commodious trade, and the like. Secondary laws in the same kind are such as this present unquiet world is most familiarly acquainted with; I mean laws of arms, which yet are much better known than kept. But what matter the Law of Nations does contain I omit to search.

The strength and virtue of that law is such that no particular nation can lawfully prejudice the same by any of their several laws and ordinances, more than a man by his private resolutions [may prejudice] the law of the whole commonwealth or state wherein he lives. For as civil law, being the act of a whole body politic, does therefore overrule each several part of the same body; so there is no reason that any one commonwealth of itself should to the prejudice of another [252] annihilate that upon which the whole world has agreed. For which cause, the Lacedæmonians forbidding all access of strangers into their coasts, are in that respect both by Josephus and Theodoret deservedly blamed,[65] as being enemies to that hospitality which for common humanity’s sake all the nations on earth should embrace.

[14.] Now as there is great cause of communion, and consequently of laws for the maintenance of communion, among nations; so among Christian nations the like in regard even of Christianity has been always judged needful.

And in this kind of correspondence among nations the force of general councils does stand. For as one and the same divine law, of which in the next place we are to speak, is to all Christian churches a rule for the chiefest things; by means of which they all in that respect make one church, as having all but “one Lord, one faith, and one baptism:” (Eph. 4:5) so the urgent necessity of mutual communion for preservation of our unity in these things, as also for order in some other things convenient to be everywhere uniformly kept, makes it requisite that the Church of God here on earth have her laws of spiritual commerce between Christian nations; laws by virtue of which all churches may enjoy freely the use of those reverend, religious, and sacred consultations, which are termed Councils General. A thing of which God’s own blessed Spirit was the author (Acts 15:28); a thing practised by the holy Apostles themselves; a thing always afterwards kept and observed throughout the world; a thing never otherwise than most highly esteemed of, till pride, ambition, and tyranny began by factious and vile endeavours to abuse that divine invention to the furtherance of wicked purposes. But [just] as the just authority of civil courts and parliaments is not therefore to be abolished, because sometimes there is cunning used to frame them according to the private intents of men over potent in the commonwealth; so the grievous abuse which has been of councils should rather cause men to study how so gracious a thing may again be reduced to that first perfection, than in light[66] of stains and blemishes since growing be held forever in extreme disgrace.

[253]

To speak of this matter as the cause requires would require very long discourse. All I will presently say is this: whether it be for the finding out of anything to which divine law binds us, but yet in such sort that men are not thereof on all sides resolved; or for the setting down of some uniform judgment to stand touching such things, as being neither way matters of necessity, are notwithstanding offensive and scandalous when there is open opposition about them; be it for the ending of strifes, touching matters of Christian belief, wherein the one part may seem to have probable cause of dissenting from the other; or be it concerning matters of polity, order, and government[67] in the church; I nothing doubt but that Christian men should much better conform[68] themselves to those heavenly precepts, which our Lord and Saviour with so great insistence[69] gave as concerning peace and unity (John 14:27), if we did all concur in desire to have the use of ancient councils again renewed, rather than these proceedings continued, which either make all contentions endless, or bring them to one only determination, and that of all others the worst, which is by sword.

[15.] It follows therefore that a new foundation being laid, we now adjoin hereto that which comes in the next place to be spoken of; namely, wherefore God has himself by Scripture made known such laws as serve for direction of men.