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Disobedience to human Laws.

16. (1.) He that breaks a law which is established upon
great penalties, commits a great sin : because it is regularly
to be presumed that the Supreme Power puts much upon it,
when he is so earnest for its observation. " Rem quae culpa
caret, in daumuin vocari non convenit," saith the law ; rr " If
there be no fault, there ought to be no punishment;" they
are relatives, and correspond also in their very degree.
" Quis dubitaverit hoc esse sceleratius comuiissum, quod est
gravius vindicatum?" saith St. Austin; 3 if the punishment
was more grievous, the wickedness also was the more intolera-
ble : " ut juxta niensuram delicti sit et plagarum modus :" that
is the measure of the punitive justice, " that the number of
the stripes be according to the measure of the iniquity."
And concerning those things where is any doubt, the sub-
ject is not to judge whether the law be very necessary or
no ; but to judge concerning the intention and mind of the
superior, and whether he thinks it very necessary : for he
knows best, and by his knowledge and his authority is
the most competent judge. This rule hath no exception,
unless it be evident that the punishment is imposed for
terror, and to affright men from doing that for which it is
not very fit they should be severely punished : as if a prince

rr Cap. ii.de Constit. Lib. ii. tie Baptis. c. 6.

VOL. XIII. II



242 OF HUMAN LAWS IN GENERAL,

should, under pain of death, forbid the hunting of a hare ; the
greatness of the punishment neither makes nor declares the
fact more criminal than it is, in its own nature, under a law
that forbids it under a smaller punishment. But if the case
be doubtful, whether the law be of great purposes and design,
the greatness of the punishment in a prudent and temperate
government, is the best exterior indication. But if the
punishment be light and trifling, the offence is so too ; for
the legislative power can put no more weight upon it than it
declares by punishment, but so much it does : and the rule of
Alphonso a Castro is very useful here and in some other arti-
cles, " Humana lex non magis gravat conscientias quam cor-
pora." For God's law, adding energy and sanction to the
constitutions of man, binds so far as the prince or as the pre-
late binds : and this is fully signified in the words and com-
mission of Christ 1 to his Church ; " Whatsoever ye shall bind
on earth, shall be bound in heaven;" for there our blessed
Lord constituting a government in his Church, as already
there was in the world, though of another nature, and by
compulsories external, and a proper jurisdiction (from which
the spiritual differs, as I shall explicate in the fourth chapter
of this book), did promise to them as to the princes of the
world ; that is, verify their ministry of laws and judgments.
He indeed appointed other manners of coercion, and a dis-
tinct administration ; but the power of giving laws and judg-
ments he gave them ; and he gave it as firmly as to the
greatest kings : that is, as he commands subjects to obey
their princes, so also to obey their spiritual superiors ; as
he will punish the rebellious and disobedient to kings, so
the disobedient to bishops, and to apostolical prelates ; that
is, according as every superior can and intends to bind by
his temporal or spiritual penalty, God will verify it and con-
demn the same person with an eternal. Since therefore God's
verification of human laws and judgments is after the sanction
and for it wholly, it must also be according to it. He that
binds what man binds, binds so much and no more ; as
therefore man intends the obligation, so God obliges the
conscience.

17. (2.) If the matter of human laws be great in itself, to
prevaricate those laws gives a proportion of greatness to the

1 John, xx.



AND THEIR OBLIGATION. 243

crime. But this seldom happens but when a Divine law is
complicated with the civil ; such as the prohibition of pub-
lic stews, the laws for keeping days of religion, the Lord's
day, Christmas, Ascension, and the Incarnation, the pre-
serving the persons of them who minister to religion sacred,
the immunity and intemeration of holy things as well as holy
persons, the matters of sacrilege, simony, keeping of vows,
together with all specifications and human instances of
iDvine commandments; as, that children should not marry
without their parents' consent, that marriages should not be
consummate before they be published. To these also are to
be added such laws, which, in their own nature, contribute
much to the public security or advantage : as, that men
should not, in a city, fire their own houses, nor cut the darn
of the sea upon their own ground ; that they should not, in
times of peace, fire a beacon, nor tell false and disheartening
news to an army ready to join battle, nor make false musters
when the enemy is near.

18. (3.) Though the matter of the laws be, in itself, light
and trifling, yet if, by reason of some present appendages and
visible or probable consequences, it be great, the conscience
is tied to obedience under a great crime. For a single sol-
dier to fly from a battle is of itself no great matter, were it
not for the evil example ; but because it may affright the next
man, and that may scare the rank, and the rank may disorder
the company, and so proceed to an intolerable mischief,
therefore the sin is great by the proportion to the evil it is
likely and apt to produce. To carry corn abroad is no great
matter of itself; but when the price is great and the plenty
is little, the mischief it does by accident is the measure of
the sin.

Of the same consideration it is, when an action, of it-
self light and impertinent, is made the matter of a great
scandal. To kneel or to stand at the holy communion, hath
been severally used in divers churches ancient and modern ;
but when a law is made that we shall kneel, and if I do not
kneel, he that observes, will think I do no reverence to
Christ's body and blood, and, by my example, will learn to
despise it ; the conscience is burdened with .the sin of irre-
verence something, but very greatly with the sin of scandal.

When the thing of itself is indifferent, and yet the



244 OF HUMAN LAWS IN GENERAL,

custom of it is passed into superstition, or causes horror, or
some notorious evil effect, the laws that prohibit any such
thing, do bind the conscience to obey under the pain of being
guilty of the great evil that is introduced by it. To light up
candles by dead bodies is as harmless as any thing ; but if
it be prohibited for the avoiding of superstition, to which it
ministers in some persons, the disobedience hath its value
not according to the action, but the evil intention to which
it is supposed to contribute. Thus we find a title in the
canon" law, " de cadaveribus non exenterandis et in frusta
concidendis, ut ad alia loca transferantur :" and it is for-
bidden under the pain of the greater excommunication,
" that bodies should be embalmed," that is, " unbowelled
and cut in pieces, to be carried to other places of sepulchre
remote from where they died." The thing in itself was inno-
cent, and warranted by the practice of whole nations, and
had countenance from the examples of Jacob and Joseph ;
but it did light into the observation of people that thought it
cruel, unnatural, and inhuman ; and there that opinion, not
the nature of the action, gave the weight and value to the
disobedience.

When an action, in itself indifferent, is by the law ex-
pounded to signify a sin, though in itself it do not, nor in
the heart of him that does it, the disobedience to that law
is an act of that sin, or at least of a scandal relative to it.
Thus if a civil law were made to forbid women to go in men's
clothes, as presuming they that did so were incontinent and
wanton, she that disobeyed that law, was really to be judged
wanton, because she would do that which the law so ex-
pounded ; and her crime was great, not according to the
thing itself, but to the sense of the law ; she despises her
own reputation, does that thing which the law, by which the
best judgments are made, judges to be incontinence, and
therefore she is justly to be condemned as an incontinent :
and upon this account there was a law made, and it is recited
* cap. Si qua Mulier, dist. 30,' where women, under pain of
anathema, are forbidden to appear in a man's habit ; where
the gloss adds, " scilicet ob malum finem ; if it be for an evil
end," it is a sin proportionate to that evil end : and therefore
when the law declares beforehand, that it shall be judged to

De Sepultur. cap. Corripiantur, c. 25, q. 3. gl. ad verbum Major.



AND THEIR OBLIGATION. 245

be a ministry to that evil end, the action is that sin which is
so adjudged, and the conscience bound accordingly. But
this caution hath no limitation, viz. though the law expounds
such an action to be incontinence, and therefore ordinarily it
is so to be judged; yet if it really be not so, but be done
upon some great necessity, or for some very good end, though,
till the publication and approbation of the cause, it be exter-
nally and legally dishonest, yet the conscience is clear :
because in an action that is indifferent, and condemned
only for a presumptive end, when that presumption fails in
the particular, and the indifferent action serves really to a
pious, a charitable, or a necessary end, the action is made
good, and therefore the conscience is disobliged. For that
which is really so, prevails over that which is but presumed
so. Thus we find that St. Euphrosyna lived long in a mo-
nastery of men ; and the Church which took cognizance of it,
did, upon evidence of her piety and purity, after death declare
her a saint : and that St. Eugenia went in a man's habit, to
avoid the persecutors of Christianity for awhile, is told in
the ' Menologion' of the Greeks ; and her memory, as of a
virgin and martyr, is celebrated in the Greek Church, upon
Christmas-eve. And when Nonnus, the bishop of Edessa,
had converted St. Pelagia, who, from a common courtesan,
became a glorious saint, after the suffering of most severe
penances in the Mount Olivet, she estranged herself from
all probabilities of temptation from vain men, by living in a
man's habit concealed all her lifetime : and the Church keeps
her memorial in honour upon the eighth of October.

If the matter of human laws be, in itself, trifling and
inconsiderable, yet if it meets with a people where it is
esteemed a crime, and the laws forbid it upon that account of
a public disestimation, it is to be presumed that the laws
do condemn it equally to the public fame ; and therefore that
the conscience is bound accordingly. Thus in the days of
Clemens Alexandrinus, the Christians thought it a very hor-
rid thing to wear false hair ; and

Calvo turpius est nihil comato,

said Martial" to Marinus, * Nothing is more deformed/ no-
thing more unhandsome. Now though it be not so in itself,

* Lib. x. ep. 83.



246 OF HUMAN LAWS IN GENERAL,

yet when the hearts of men are generally against it, as it was
then (though it be not so now), if any law had prohibited the
wearing of perukes, the conscience had be6n greatly obliged,
for the law did lay much upon it, even as much as all the
evil of the public infamy did amount to. Thus to break a
fasting-day, which by custom hath been observed in a church,
is a matter of small account ; but if a law have forbidden it,
and forbids it there where it is commonly accounted a very
high impiety, though of itself it be not so, yet under such a
law in such circumstances it becomes so, and is to be valued
accordingly. And upon this account are those words of
St. Chrysostom to be understood ; " Adveniente tempore
jejunii, etiamsi quis millies urgeat, et infinita cruciet, et co-
gat vinum delibare, aut aliquid aliud quod jejunii lege non
est licitum gustare, patiendum potius esse, quam prohibitum
tangere nutrimentum." It was accounted a great matter
then to break an ecclesiastical fast : and therefore when a
law is supported by such an estimate, that law binds heavily ;
and it will be a great sin to break it, unless there be a great
cause to legitimate or excuse it. In such cases, we must
endure a great inconvenience rather than disobey.

Though the matter be little, yet if the legislative power
hath a particular eye and value upon it, however it be ex-
pressed, if such a value be known or observed, the smallness
of the matter is no argument of the smallness of the sin.
Thus also, in the foregoing instance of ecclesiastical fasts, are
those words of St. Basil to be understood, saying, " Non minus
crimen esse violare jejunium ecclesiasticum, quam militi ab-
jicere scutum in bello, aut stationem deserere." Ecclesiasti-
cal fasts in his time were the cognizance of a Christian, his
defence and guard ; and therefore " not to keep them was as
if a soldier did throw away his shield in a day of battle, or
desert his station." So the prelates of the Church did then
understand it, so they intended it. When a trifle is made a
mark of union, as to wear a branch in Avar, when the superior
sets his heart upon it ; in this case, the mind of the supreme
becomes a law to his subjects ; in the former they become a
law unto themselves. Sometimes a small instance is made
the trial of obedience ; and the superior hath a great au-
thority, but a little diocess, or a few subjects, or small occa-
sions to rule in; in these and the like cases, the smallness of



AND THEIR OBLIGATION. 247

the matter is not only to be considered, but the interpretation
and effort which the superior puts upon it. If he calls every
such disobedience a contempt of his authority, and accounts
it a dissolution of that community where he governs, or a
great violence of order; it is so in conscience, that is, to be
valued beyond the matter. For he that takes a little piece of
iron from an iron forge, does no great harm ; but if he takes
it from a lock or a chain, he disorders the whole contexture.

19. (4.) When an ecclesiastical punishment is superadded
to a civil law, or a civil punishment to an ecclesiastical law,
it is to be presumed that the lawgiver puts much upon it, and,
therefore, the conscience is obliged to obedience under a
great sin. The reason is plain; because he can by no
means better and more earnestly signify his purpose of
obliging strongly than by using both the swords : he binds
more strongly than all the terror of the civil punishment, who,
besides that, calls in the aids of religion ; and that prelate is
passionately desirous to secure obedience to his laws, when,
besides the bands of God, he calls in to his help the cords
of a man, and so secures it by all means. And therefore
whatsoever is decreed under pain of solemn excommunication,
is therefore ordinarily presumed to be of great band unto
the conscience, not only by force of the first rule, y because
it is a great punishment ; but also because the civil power
does verify that sentence, and inflicts some great temporal
evil upon them that abide in contempt or disobedience to
the orders and censures of the Church.

20. (5.) The preceptive or prohibitive words in human
laws, ordinarily are no sign of a greater obligation of the
conscience ; that is, when the words of strict command are
the usual style of the court, as it is both in civil and eccle-
siastic courts. 1. But if some laws are published with
severe clauses of command, and others on purpose and by
design with lesser and the more gentle, then the case is
evident that there is a difference to be made also by the con-
science. And this is in particular made use of by the Fran-
ciscans in the observation of the rule of their order. For,
" in Clementina, Exivi de Paradise, sect. Cum autem, de
Verborum Significatione," it is determined, that that part of
the rule of St. Francis, which is established by preceptive or

i Numb. 16.



248 OF HUMAN LAWS IN GENERAL,

prohibitive words, shall oblige the friars minors, under a
great sin, the rest not ; and this wholly upon the account
of the different clauses of sanction and establishment. 2. An-
other exception there is to this rule ; for when the preceptive
or prohibitive clauses are reduplicated directly or by some so-
lemn appendage, it is presumed that the conscience is highly
bound. Such as are, " We strictly charge and command, we
command in the virtue of obedience, upon our duty and alle-
giance, upon my blessing, as you will answer it at the dreadful
day of judgment, upon your oath," and suchlike. And here
the reason is plain, because the superior calls in to his aid
the interest of some other virtue besides the obedience ; as
justice or veracity, hope or fear, the helps of God immediately,
or a proper appeal to some other great tie of conscience.

21 . (6.) However the laws were established, yet according
as they go off, or go less, or fall into desuetude, or disobliga-
tion, so the band of conscience grows less, till it be quite eased
by abrogation ; for the law binding by its establishment, and
the conscience being bound by the life of the law, as the law
dies, the conscience is at ease : and by this rule St. Paul
largely proves the Christian churches not to be obliged in
conscience to observe the law of Moses, in the seventh
chapter to the Romans.

22. (7.) The contempt of any law, be the matter ever so
trifling, be the lawgiver ever so much unconcerned, be the
public interest ever so little, yet if it be a law, and still in
force, is a great sin, and lays a great load upon the conscience.
" Conteniptus in omni specie mandatorum pari ponderegra-
vis, et communiter damnabilis," saith St. Bernard ; z "All
contempt of laws, be the matter little or great, is highly
damnable ; " and the reason he subjoins a while after : a " Con-
vertit in crimen gravis rebellionis culpam levis transgressi-
onis ; Contempt makes the smallest transgression become
a great rebellion." Because here it is not the violation of the
law, but of the authority ; not the decree, but the power, is
undervalued, and ever accuses the lawgiver of want of wis-
dom, or supposes him to have no power. This is that which
in Leviticus, 6 is expressed by "si spreveritis mandata mea,
et Riiima vestra fastidierit judicia mea, a contemning the

Lib. i. de Praecept. etDispens. c. 11.
Cap. xii. b Lev. xxvi. 15.



AND THEIR OBLIGATION. 249

commandment, and that your soul hate and loathe the judg-
ments." Such a thing as this is a deletory to the whole law,
and tears the knot that ties the mantle upon the prince's
shoulders : and this is acknowledged even by them who
believe that human laws do not oblige the conscience ; for
they confess that the conscience is at least bound so far that
the law be not despised. Now then beside that this rule is
established not only by its own reason but by concession, there
is this advantage to be made of it ; that if the conscience
be bound so far that the law be not despised, then the con-
science is bound so far that the law be obeyed if it can ; that
is, that it be always obeyed, unless there be a competent and
sufficient or probable reason to the contrary. And therefore it
is remarkable, that God calls the not obeying of his laws,
a despising and loathing them in their hearts : " Si judicia
mea exhorruerit anima vestra, ita ut non faciatis, If your
soul so hate my judgments that you do them not ; " that is
properly to despise them : and so it is in human laws ; he that
breaks them without cause, despises them, for nothing else
does make him not to obey. For this is a certain rule, ' Cause-
lessly and contemptuously are all one.' If therefore the ad-
versaries' 1 in this rule do affirm, that the conscience is bound
to obey, unless there be reason to the contrary, then we
agree together, and both with truth ; and if there be any
difference afterward, it is only in assigning what reasons and
what causes are sufficient. But if they mean that the con-
science is only bound not to despise the law, but may break
the law when there is no reason for it, and if she does, commits
no sin against God ; then by despising the law they must
mean something that no grammar and no lexicon ever under-
stood ; and that none despises the law but he that rails upon
it, and reviles it, or reproaches the authority directly ; for
indirectly he reproaches the authority that despises the law,
and he directly despises, that for no reason disobeys it : for
if for no reason, then it is contempt, for else there can be no
account given of the omission ; and nothing is a greater con-
tempt than to esteem the law so inconsiderable as to be less
than nothing. He that thinks it unlawful, hath a reason, real
or imaginary : but he that thinks it lawful, and yet will not
obey, and hath no reason why he will not, does despise it

c Lev. xxvi. 15. < Gloss, in cap. Metropolitanum, ii. quaest. 7.



250 OF HUMAN LAWS IN GENERAL,

infinitely. Some suppose that to break a law frequently or
customarily is contempt : but to this I assent not, because
there may be a lasting reason why the law is by custom bro-
ken : indeed if there be no reason, then the greater the custom
is, the greater is the contempt ; but if there be a reason, neither
one omission nor twenty can be criminal. But in this par-
ticular I like well what is said by the lawyers : " Ex consue-
tudine indici prsesumptionem contemptus, licet ipsa con-
temptus non sit ; It is a very great presumption, that who-
ever frequently breaks the law, does despise it ; " and upon
him that does so, the burden of proving that he does not, by
proving his reason, is incumbent.

23. These are the measures by which we shall account
concerning the degrees of obligation of conscience to obey
human laws. The use of them is this, that, besides they
are helps to alleviate the scruples or the doubts of conscience
concerning the greatness of a sin in this instance, and in
proportioning our repentance and amends, they are also of
great use both in the judging concerning the reasons of dis-
obeying, that is, whether the reason be weighty enough to
outweigh the impress and intention of the law, and also of
judging what inconvenience is to be suffered to preserve our
obedience respectively to any law.

24. It now remains, that, for the confirmation of the
truth and explication of the sense of this rule, the objections
made be considered,

25. To the first I answer, that to suppose human laws
to bind the conscience, is so far from divesting God of his
royalty, that it does very much establish it ; for it is a part
of his royalty to bind the conscience, and therefore he that
says that * God does bind the conscience to obey human
laws,' makes no entrenchment upon that. For although hu-
man laws do bind the conscience, yet it is not by virtue or
formal energy of the civil power, but by the authority and
power of God ; the king and the bishop are but Christ's de-
puties ; and his power they exercise, by his power they rule,
and to his kingdom they minister. And therefore the civil
power does not take cognizance of the conscience, nor pre-
tend a compulsory over it : but God does ; and does exer-
cise it, when he punishes the soul eternally for contempt and
rebellion against the princes of the people.



AND THEIR OBLIGATION. 251

26. To the second : We are to consider, that when it is
said, that ' human laws bind the conscience,' the meaning
is, it ties us to duty ; and we are guilty before God if we do
not obey man : and conscience is not here taken in the phy-
sical or natural sense, for a practical understanding alone,
but for the whole mind of man informed and commanded by
God ; in which mind one of the principles or laws of God
written there is, that we should " obey them that have the
rule over us :" but besides this, this whole argument is a
plain paralogism ; for it supposes that because human laws
are tied upon the conscience, that they are tied by man, not
by God ; which is against the true state of the question :
therefore if conscience were wholly a habit or an act, or the
faculty of understanding, and consequently, in this last case,
subject to God alone, who is truth, yet the truth remains
unharmed ; for it is not man that rules in the conscience,
but God, who commands it to obey man, for fear of God's
displeasure. Human laws are but the material part in this
obligation ; the authority and command of God give it life
and force upon the conscience : it is like the body prepared
by the father of the country, into which God inspires a living
and an operative principle.

27. To the third the answer is easy and short; for



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