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therefore this is to be understood, when,



272 OF HUMAN LAWS IN GENERAL,

1. Either the law expressly commands we should die
rather than break it. Or,

2. Hath declared that, in such circumstances, to comply
shall be a contempt by interpretation. Or,

3. When it is notorious that it is so intended by the
tyrant power : and,

4. The lawgiver expressly requires our fortitude and re-
sistance ; for unless it be in such cases, though the law can
bind, yet it does not. The sum is this ; when death is likely to
be the consequent of disobedience by accident and the chance
of things or the providence of God abstractly, then it is not
to be expounded to be contempj ; because, in such cases,
God tempts not. But when an enemy or a tyrant power
tempts with the fear of death, he does it in defiance of the law
or the authority, and therefore here we must obey and die.
And this distinction is very much to be regarded. For if a
prince or an ecclesiastic superior make a law, it is to be pre-
sumed that they do it not (for they have no interest to do
it) in despite of chance to bind to obedience in the danger
of death : and therefore it is a rack of their power to extend
it to such a case. But they may have interest and public
necessity to exact this obedience, when an opposite power
threatens death, that they may destroy the law.

14. (3.) The same also is the case of, 1. scandal, or,
2. injury to religion ; or, 3. the confession of our faith ; in all
which cases we are obliged to die rather than break a positive
law of God or man. And this is that which St. Austin said :
" Satius est fame mori quam idolothytis vesci; It is better
to die with hunger, than to save our lives by eating things
sacrificed to idols :" that is, when the so doing is an inter-
pretative renunciation of our religion, or the laws of our su-
perior forbidding it, or is a scandal to a weak brother. And
this is it that St. Paul said ; " I will eat no flesh as long as
the world stands, rather than cause my brother to offend."
But in this there is no difficulty.

15. (4.) Human laws bind to their observation though with
the danger of death, when that danger is either expressly in
the law, or in the matter and instance of it annexed to the
obedience. Thus the supreme power can command the

" Lib. de Bono Conjug. c. 16.



AND THEIR OBLIGATION.



273



curates of souls to attend a cure in the time of the plague,
to <ro to sea in a storm, to stand in a breach for the defence

O

of the army. For, in these cases, he that hath power to do
it, hath expressly commanded it ; and to undergo the danger
of death is of the substance of the action and obedience, and
is neither besides the intention nor the knowledge of the
lawgiver : and therefore if the law did not bind to obedience
notwithstanding the danger of death, it were no law at all.
For to a prince commanding to go to sea in a storm, it is in
vain to say, ' It is a storm ;' and that soldier is a fool that tells
his general ' he is afraid to die,' when he sends him upon an
honourable service.

16. (5.) But all these cases are to be provided so that
they be * in gravi materia,' that the cause be great, and the
necessity urgent, and the public good concerned, for men's
lives are not to be jested away : and though Scipio Major
had power to carry his three hundred brave fellows (that he
so boasted of in Sicily) to the African war, yet he had no
power to command them to run up the neighbouring tower
and leap headlong into the sea for bravery and to shew his
power.

17. (6.) One thing more is to be added. In those cases
in which human laws do oblige even in the danger of death,
they do not oblige but for their whole portion ; that is, when
the whole end of the law is not destroyed or hazarded by the
disobedience, but that the caution and end of the law may
be secured and observed in all or in the greatest part ; a man
may then, by not observing the law, save his own life and be
innocent. And this is the rule of Aquinas, and it is very
reasonable, " Quando est causa rationabilis, et non impeditur
finis legis, non peccat mortaliter qui non observat legem ;
Upon a just cause a man may, without a crime, break a
law, when, by such transgression, the end of the law is not
hindered." As, if a law be made that corn shall not be
transported, because of an imminent famine, and for the
preservation of the citizens, if any man, to save his life,
shall comply with an inevitable accident and necessity, and
carry some abroad, his necessity is a just excuse, because he
hath not destroyed the end of the law, since his proportion
and lading cause no sensible detriment to the public : and
though every single man must not pretend that his single

VOL. XIII. T



274 OF HUMAN LAWS IN GENERAL,

proportion will be no great matter (because that is not suffi-
cient unless there be a great necessity to do it), yet when
there is such a necessity, it will suffice that he did it not but
upon a violent need : and what he did was not a destruction
to the end of the law : and his example cannot have any evil
effect of itself; for other men cannot say, Why may not I as
well as he? unless the necessity be as exemplary as the
action, and unless they be in the like evident danger of death,
they cannot pretend to the like impunity. They that are in
no danger, may not, but he that is, may, when the subject's
safety can stand with the safety of the public. For although
the head may expose one member to loss and amputation to
preserve the whole, yet when the whole can be safe without
it, the member may preserve itself and refuse to be cut off :
and nothing is greater than the safety of a part, but the
safety of the whole.

18. But the rule affirms, that not only danger of death,
but the avoiding of a very grievous and intolerable evil is
sufficient to excuse disobedience to human laws from being a
sin. But this is particularly to be considered in the following
rules.



RULE III.

The Laws of our Superior that are not just and good, do not
oblige the Conscience.

1. LAWS are public mischiefs, if they bind to injustice;
and therefore to establish any thing that is unjust or evil, is
against the nature of laws, and the power of the superior,
and the intendment of the supreme. For God gives to no
man power above or against himself.

Now a law is unjust upon many defects.

2. (1.) If it be made by an incompetent person, that is,
one who hath no authority. Caius and Seius were fellow-ser-
vants to Ruricanus. Caius commands Seius to go to plough,
Seius demands, ' quo jure?' And he was in the right. Caius
was the wiser man, and he was the older, and better em-
ployed, but he was not his lord. " Par in parem imperium
non habet," says the law. a

Clement. Exivi de Paradise, de verb. Signif.



AND THEIR OBLIGATION. 275

3. (2.) If it be made in an incompetent and undue matter.
When Saul commanded the man of Amalek, " Sta super me,
et interfice me, Fall upon me and kill me," he was indeed
a prince, but in that matter he could make no law, and there-
fore was not to be obeyed. And the ancients tell, that when
Mercury was accused for the murder of Argus, though he
pleaded that he did it by the command of Jupiter, yet the
gods did not acquit him: and though Mark Antony did
worse for his own revenge to kill Cicero, yet Photinus did
ill too when he killed the brave Pompey, though at the com-
mand of his master Ptolemy.

Antout tamen est pejor quam causa Photini ;
Hie facinus domino praestitit ; ille sibi : b

Antony was infinitely to be condemned, and Photinus not
to be justified. And upon this account, every law made
against religion, or any thing of Divine sanction and com-
mandment, is void, and cannot oblige the conscience. To
which purpose, who please may read an excellent discourse
of St. Bernard in his seventh epistle, which is to Adam the
monk. Upon this account a thief cannot begin a prescrip-
tion against the right of the just owner, because his theft,
being against the law of God, cannot begin a just title by
the laws of men. Thus although the laws permit a man to
possess what by an unjust price or bargain he hath acquired,
yet because this is unjust and uncharitable to deceive his
neighbour, the injurious person is bound to restore, and is
not indemnified before God by any warranty from the con-
trary civil law : " Ye shall not lie," saith our Lord God, d
** nor deceive every one his neighbour :" and let " no man
defraud or circumvent his neighbour in bargaining," saith
St. Paul. 6 Kara rr,v ayoodv a-^ivStfv, said the old Attic law,
from the voice of nature ; which Cicero f well renders, " Tol-
lendum esse ex rebus contrahendis omne mendacium, No lie
must at all be used in bargaining :" and therefore the law of
man to the contrary is invalid : though, I suppose, the civil
law intends only to bar an action in the outward court, but
not to give warrant to the conscience.

b Martial, iii. 6. Mattaire, p. 62.

c Lib. in Causx. sect, idem Pomponius. ff. de minoribus ; et lib.item si precio,
sect, quemadmodum. ff. locati et conduct!.

d Levit. xix. 1 Thess.ir.

' De Off. iii. 15. 5. Heusing. p. 677.



276 OF HUMAN LAWS IN GENERAL,

4. (3.) Human laws may be unjust, when a just power,
in a competent matter, passes on to excess, and goes beyond
its bounds. He that excommunicates one that is not of his
diocess, does not oblige the excommunicate person by the
sentence : and Pilate had nothing to do with the holy Jesus,
till Herod had sent him back to him ; for to his jurisdiction
he did belong. Thus if a priest or a bishop absolves a guilty
person, he binds himself, but looses not the other. For no
excess of power produces any effect of law, or tie upon the
conscience. And to this purpose is that rule of the law, g
" Sententia non a suo judice lata, nulla est :" which is ex-
cellently rendered by St. Paul,' 1 " What art thou, O man,
whojudgest another man's servant?" Upon this account,
all human laws prescribing to the conscience, or giving
bounds to the thoughts, are null. For in these things God
only is judge, and all other judicatories are incompetent ; I
say, all other judicatories : for as for sentences declaratory of
a Divine law, that is not under this restraint. But of that
in its own place.

5. (4.) Human laws may be unjust, by a defect of the
just and due end ; that is, when the law does not contribute
to the public advantage, but wholly to his private who made
the law. If the law be apt to minister to the public good,
whatever the private interest and design of the prince be,
it may spoil the man but not the law. If a prince, espying
the luxury of feasts and garments, make sumptuary laws, and
impose fines upon the transgressors, and does this only to
get the money, indeed he is not a good man : but so long as
the law is good, it does oblige the conscience. The enemies
of the memory of King Henry VIII". of England pretend
that he annulled the pope's authority in England, only upon
designs of lust and revenge. Suppose this true : yet as long
as he did good, though for evil ends, it is the worse for him,
but not for us : but if the prince does not, yet the law must,
intend the public benefit: and that also is the duty of the
prince. " Non prospectantes proprii jura commodi, sed con-
sulentes patriae atque genti," said the fathers' of the eighth
Council of Toledo; "Kings must not look after their own
profit, but make provisions for their country, and their peo-
ple." " Officium est imperare, non regnum ; To rule is not

t Cap. At si Clerici. in Princip. de Jud. h Rom. xiv. J Cap. r.



AND THEIR OBLIGATION. 277

empire, but office," said Seneca; and therefore the Greeks
calls kings, amx.ra$ anb roS avuxug 'iyjiv, says Plutarch, "that
signifies persons appointed to take care of and to defend the
people."

Tu civem patremque geras, tu console cunctis,
Non tibi ; nee tua te moveant, sed publica damna : k

" Take care of the public, not of thy particular ; and let
the common calamity move thee most:"'and since the power
itself is designed for the public good, the laws must be so
too. And therefore when the law says, that a law ought to
be a common precept ; that is, * pro communi utilitate sta-
tutum,' says the gloss; 1 that is, ' it must be for the common
good.' " Conditur utilitatis gratia lex," says Plato ; ra "Every
just law is made for the good of the people :" and from him
Marsilius Ficinus defines a law to be, " a true manner of
governing, which by profitable ways tends to the best end,"
that is, the public good : and Isidore" says, " Lex erit omne
quod ratione constiterit, duntaxat quod religioni congruat,
quod disciplinae conveniat, quod saluti proficiat; A law is
that which agrees with reason, that is consonant to religion,
and accords with discipline, and is profitable and does good."
And therefore if a prince make a law which is for his own
profit, and not for the public good, he is a tyrant ; and his
laws have no sanction but fear, and no tie at all upon the
conscience. And this is the doctrine of Aristotle, 'o IJLIV
ya.% riieavvog ro saurw avftp'tgov 6x.otfs7' o ds /Satf/Xsug TO ruv
agxppevuv' "A king and a tyrant differ very much : a ty-
rant considers his own profit, a king the profit of his peo-
ple :" and under this consideration comes that prince that
lays grievous burdens upon his people. Tots y&% r



oJov rouj -rvedwovf, xoXei; voedowra;, xa/ /tea ffuXwira;, d?.Xa
xovyso-jg jttaXXov, xa/ atfE/Se/J, xa/ a3/xouc, "Those that tal\e
great sums from them they ought not, and those which
they ought not, as tyrants, destroyers of cities and robbers
of temples, we do not call them covetous, but wicked, and
impious, and unjust. " p And therefore they who do such
things bylaws made on purpose, do it by tyranny, and there-

k Claud. 4. Cons. Hon. 294. Gesner, vol. i. p. 103.

1 Lib. i. ff. de Legibus. In Hippia. Lib. iii. c. 3.

Ethic, lib. viii. c. 10. Wilkinson, p. 346.

P Lib. ir. Eth. c. 1. Wilkinson, p. 142.



278 OF HUMAN LAWS IN GENERAL,

fore not by law, or just authority, and consequently by none.
In such cases we must suffer as it happens : but we may
avoid the burden of the law, where we can peaceably and
privately. For all such things as are against the good of the
subjects, the law itself declares to be no law ; that is, to be
more than the superior hath right or leave to do. " Null a
juris actio aut benignitas patitur, ut quae salubriter pro homi-
num utilitate iutroducuntur, ea nos duriore interpretatione
contra ipsorum commodum producamus ad severitatem ;"
says the law : q " No law, no charity, suffers us to make that
by interpretation hard and against their profit, for whose
profit it was first decreed by a salutary sanction." And there-
fore it is observable, that all laws do infinitely decline all
harsh senses, and are ambitious of gentle and benign inter-
pretations ; which is, in the whole world, the greatest decla-
ration that lawgivers, as they ought not, so, they profess,
they do not, intend to grieve the subject by an unequal bur-
den. It was a princely saying of Trajan/ when he put a
sword upon the thigh of the prefect of the praetorian bands ;
" Cape hunc, et, si quid em recte et ex utilitate omnium im-
peravero, pro me : sin aliter, contra me utere ; Use this
sword on my behalf, if I govern rightly and to the public
benefit: if not, use it against me." That was too much,
but his purpose was excellent; he knew it was his duty
to rule by that measure only ; beyond that his power was
incompetent. 'O yag (ty roiovrog xXjjowros av n$ i7ri (3aai-
Xgug* jj 8s rugawg smvrittg raurjj' " He that does not SO,
is a king by fortune, but indeed a tyrant, and any thing
rather than a king." Ti> JO.P saurf a-yadbv Stuxti, says Aris-
totle; 5 "For he pursues his own, not his people's good:"
and that is <pa\>X6rr)$ fiov&o^iag, " the stain of monarchy,"
that is, plainly tyranny. Tiberius said well, " Dixi et nunc et
saepe alias, patres conscripti, bonum et salutarem principem,
quern vos tanta et tarn libera potestate instruxistis, senatui
servire debere, et universis civibus ; saepe ac plerumque etiam
singulis, neque id dixisse me poenitet." A good and a gentle
prince ought to serve the profit of his nobility, his senate,
and citizens ; not only all, but each single citizen, as there is
occasion : and therefore Rodolphus of Austria was very



* Lib. nulla, ff. de Legibus.

r Aurel. Victor, xiii. 2. Dion. Xipb. p. 778.



Ubi supra.



AND THEIR OBLIGATION. 279

angry with his guards for hindering petitioners to come to him ;
" Let them come," says he, " for I was not made an emperor
to be shut up in a box." " Sinite parvulos ad me venire,"
saith our blessed Lord, the King of kings, and the Lord of
lords, " Suffer my little ones to come unto me." But the
reason and demonstration of all are contained in those words
of Seneca, 1 saying a prince should think with himself, " Ego
ex omnibus mortalibus placui, electusque sum, qui in terris
Deorum vice fungerer, I am chosen from the heap of mor-
tals to stand in the place of God," to do as he does; that is,
to do all things justly, and to do all things for the benefit of
the people: now since the prince hath his power from God,
he can have no power to do otherwise than God does. " Ad-
mittere in animum totius reip. curam, et populi fata suscipere,
et oblitum quodammodo sui, gentibus vivere; noctes omnes
diesque perpeti solicitudinem, pro salute omnium cogitare ;"
so Pliny describes the office of a prince, " to take care of
the whole republic; to live to them, not to himself; days and
nights to suffer anxiety in thinking for the profit and welfare
of all." This is the limit of a prince's power, so far as he
relates to conscience. For beyond this the conscience is not
bound. The body is, and we must suffer patiently the evil
which we cannot deprecate; but laws that are made to pur-
poses beyond these measures, do noways oblige the con-
science. " He is the minister of God for thy good," saith
St. Paul ; otherwise he is not God's minister, and hath to
other purposes none of God's authority, and therefore cannot
oblige the conscience to an active obedience in such things

O O

where his power is incompetent to command.

6. (5.) Thus, when a law by change of things or cases
is become an enemy to the common good, it is not to be ob-
served, saith Aquinas; and he gives this instance: A law is
made that in the time of sieges, the gates of a city be always
kept shut ; but the guards are not tied to obey this law when
the citizens fly thither from the danger of the enemy: and so
in all equal cases, concerning which this is the rule.

7. The prince is to be presumed good and gentle: and if
he be not so, he is to be supposed so, and made so at least by
fiction of law : whatsoever case, therefore, does happen in
which the citizens are grieved, it is to be supposed that it is

De Clement, i. 1, 2. Ruhkopf, rol. i.p. 434.



280 OF HUMAN LAWS IN GENERAL,

besides the intention of the law, and was not in the provision
of the prince ; but we are to rely upon this, that he who is
good and gentle, and a father of his country, would, if he
were here and observed this evil, untie the law, that he might
not tie us to the evil: and because he is not here, but his will
is here, the law with so much evil to us is not to be observed ;
for his leave to break it is to be presumed.

8. (6.) Hither is to be reduced the injustice of unequal
distributions ; such as is a law forbidding beggars to go from
place to place to seek relief, when there is no relief at home ;
the law of commanding every village or parish to provide for
their poor, which indeed is piously and charitably intended,
but because when it is reduced to practice, it falls heavily
upon some, and others touch it not with the top of their fin-
gers, the law which was good 'in thesi,' proves unjust 'in
hypothesi,' and therefore does not oblige the conscience ;
but they who are under it, may not only seek relief by peti-
tion, but by avoiding it where they can piously and charit-
ably, according to the measures by and by to be described.
For it is the voice of natural justice and reason, which St.
Paul urges to his charges, " not that there should be ease to
one and burden to another:" this is against equity, as having
in it so great disproportionate inequality.

9. (7.) Lastly, of the same consideration it is, that, in the
making laws of burden, there be equality and proportion be-
tween the burden and the cause of the imposition; that the
burden be not greater than the evil it intends to remedy, nor
the remedy greater than the disease needs, nor yet greater
than men can bear. For what is excessive in these cases, is
against the charity and justice of the prince, and is matter of
rapine and impiety, not of subsidy and prudent provisions :
and therefore, though it may oppress the subject, who hath
no remedy but prayers and tears, yet the conscience is at
liberty, and may procure remissions by any ways of peace
and piety.

10. But in the reducing of this to practice, these cautions
are to be observed.

(1.) That though the conscience be free from all laws
which are unjust upon any of these accounts, yet that the
law be not disobeyed with the scandal and offence of others,
it must be so done that none be taught to rebel, or evacuate



AND THEIR OBLIGATION. 281

the law upon pretences and little regards ; nor that our duty
and religion be evil spoken of, nor that the superior be made
jealous and suspicious. When our blessed Saviour had
proved himself free from tribute, and that in conscience he
was not bound to pay it, yet that he might not give offence,
he submitted to the imposition. And this caution is given
by all the doctors, who follow Bartholus" in it.

11. (2.) The inconvenience of the republic must not be
trifling and contemptible, but so great as must, in the judg-
ment of good and prudent men, be a sufficient cause of an-
nulling the law, so great as must reasonably outweigh the
evil of material disobedience. And therefore, in the injustice
of unequal distributions, and imposition of taxes, we are not
to complain for every little pressure, nor yet to weigh the
proportions in gold scales; for it is a greater duty of charity
that the subject quietly bear a little load for peace' sake and
example and compliance, than it can be of duty in the prince
to make such exact, curious, and mathematical proportions.

12. (3.) The inconvenience and injustice must be certain,
notorious, and relied upon, before it can be made use of to
the breach of a law. For it is no warranty to disobey, that
I fancy the law to be unjust; and therefore, in this case the
best scrutiny we can have, is, that either it be so declared by
the voice of all men, or the more sober accents of the wise
men, or be evident in itself according to the strictest mea-
sures ; for where there is a doubtful case, the presumption
always is for obedience, not against it : for although usually
in doubts the presumption is for liberty, yet that is either
between private persons, or when the superior makes a doubt
concerning his own laws, then he is to judge for liberty and
ease ; but in our own cases, and in dispute with a law, the
presumption is on behalf of the law, because ordinarily that
is the greatest interest, and the greatest reason.

13. (4.) When there is a favourable case for breaking a
law, if we have time and opportunity, we must ask leave of
the superior. Because as that does honour to the superior,
and gives value to the law, so it is the greatest course of se-
curity, because it makes him judge, who only can complain.
But to this we are not obliged, if the case be evident, or if
the danger of evil be imminent and sudden, and there be no

CupHe i. de Consiitutionibus.



282 OF HUMAN LAWS IN GENERAL,

time or opportunity to require it : in these cases, a leave
is to be presumed, or else it need not, for the law does not
oblige.

14. (5.) This is to be practised only when the law is
against the public good. For if it be still consistent with
the public interest, though it be against the good of a parti-
cular person, the law hath left a power of dispensation in the
appointed ministers ; but a private person may not so easily
break the law, at least he is tied to other conditions, and
more caution, and a severer conduct : of which I am to give
account in the chapter of the Diminution of Laws. But, for
the present, the difference is only in speculation : for not-
withstanding the personal inconvenience, the law does still
bind the conscience of the subjects in general ; but if it be



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