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against the public emolument, then the law ceases, and it
does not oblige. In the first case the particular is to be
relieved by a way of his own ; of which I am afterward to
speak : but in this case the conscience is at liberty. Thus
when the Church makes a law that upon a certain day the
people shall meet in public, and spend their day in fasting
and prayer; it is a good law, and may be for the public good,
though Petronia and Abbatilla be with child and cannot fast:
all are bound, but from these the yoke may be lifted up for
the present. But if a Church make a law, that all the clergy
shall lose their livings and their office if they marry ; here
there is a mischief to the public, to a whole order of men ;
and the law cannot do so much good accidentally, as it
directly does mischief. And the confession of Suarez x upon
another occasion, but in this very instance, is remarkable :
" Custodiam virginitatis esse opus supererogationis, quod
necessariam non habet conjunctionem cum fine publici corn-
modi; et ergo non posse praecipi lege humana; That vir-
ginity should be kept, is a work of supererogation, that hath
no necessary conjunction with the end of any public good ;
and therefore cannot be enjoined by a human law." Either
then the law of the Church of Rome, forbidding the clergy to
marry, does not tie them to be virgins, but gives them leave
to fornicate; or if it does tie them to a virgin state, she
makes a law which is not for the public good, and therefore
in which she hath no competent authority. This, therefore,

* Lib. iii. de Legib. c. 30. n. 13.


is an unjust law, and does not oblige the conscience.

Atdiftdy/Atda, ag^a/j xa.1 J^ourf/a/; TO 0eoy rray//,va/$ rifjt,r,v xard
TO tffoffrjxov rjjv ^ /SXacrroutfav r^a $ atovefteiv, said Polycarpus ;
" We are taught to give to princes and the powers set
over us by God, such honour and obedience as may not
hurt us."


A Law that zs founded upon a false Presumption, does not
oblige the Conscience.

1. THE case is this; Francisco Biretti, a Venetian gentle-
man, full of amours, and used to vain and wanton addresses,
courts Julia, a senator's daughter, but with secret intent to
abuse her and so to leave her. Marco Medici, the father of
Julia, by threats and harsh usages, forces his daughter Julia
to consent to a contract with Francisco : who perceiving
himself surprised, and that the matter was passed further
than he intended it, resolved to make the best of it, to make
a contract, to lie with her, and so to leave her. He does so,
surprises her in the careless hours of the day, and the naked-
ness of her soul, and with flatteries mingled with the affright-
ing name of her harsh father, acts his intention, and then
pursues it till he was weary of her, and then forsakes her.
She complains, and desires remedy. The law declares their
congress to be a marriage. But in the meantime Francisco
passed into Sicily, and there married Antonia Peronetta, a
Sicilian lady ; her he loved, intended to make her his wife,
and did so. Now the law a presumes that after contract,
their congress did declare a marriage ; for it supposes and
presumes a consent, and yet withal says, if there was no
consent, it was no marriage. Here Francisco is condemned
by the presumption, and relieved in conscience. For if he
did not lie with her * affectu maritali,' but only intended to
abuse her, he was indeed extremely impious and unjust; but
he made no marriage, for without mutual consent marriages
are not made. Yet because of this, the law could no way
judge but by outward significations, and ' ut plurimum, for

* Cap. Is qui Fidem, et cap. Tua nos, de Sponsal.


the most part' it is so that contract and congress do effect as
well as signify a marriage, the law did well to declare in the
behalf of Julia : hut Francisco, who knew that which the
law could not know, was bound to make amends to Julia as
well as he could, but to pursue the marriage of Aritonia and
dwell with her. For the presumption, upon which this law
was founded, was false ; the congress did not prove a mar-
riage, for it was never intended : the presumption was pro-
bable, but failed in this instance, and therefore in this case
did not oblige the conscience. Conscience is to be guided

O o

by presumptions when it hath no better guide ; but when it
hath a certain truth to guide it, it is better than the best
presumption or probability. Besides this, when a law is
made upon a supposition, and relies upon that alone, in case
that should fail, it is to be presumed that the lawgiver does
not intend to bind. When the men of ^Egina were at war
with the Athenians, they made it death by their law for any
Athenian to be seen in their country. But when Plato was
made a slave and was carried thither by a storm, one of the
citizens saved his life by an artifice, and did it according to
the intention of the law. For the law being founded upon a
presumption, that if an Athenian came thither, it was for evil
to their town, they could not suspect that Plato had such
an evil intention, when they knew his case and his sad
story ; and therefore ought to judge him quit from the bur-
den of that law. Don Joseph, of Carreras, a Spaniard, walk-
ing one night in Seville, was taken by the alcadi, and found
to have arms about him, against the law ; but carrying of
him to prison they found at the end of that street a man
newly murdered : the law presumed him to be the murderer,
as it does aptly suspect such persons, who, at unseasonable
times, walk armed : he was accused, but finding friends was
acquitted for his life, but sentenced to maintain the widow
and children of the dead man. He knew himself innocent,
and therefore was not bound in conscience to maintain her ;
because the law, relying upon a false presumption, was a
dead letter, and could not bind.

2. But that there be no error in the practice of this, we
must distinguish of presumptions. One sort is in matter of
fact, the other is upon presupposition of dangers usually
arising: that is of justice, this of caution. The examples


which I have already brought, are all mere arid unmixed pre-
sumptions of fact; in which cases the rule does hold without
exception. But in presumptions of caution it is otherwise. The
law does irritate and evacuate the contracts of minors, because
they being weak and indiscreet, it is presumed that they do it
foolishly whatever they do ; and it is fit that the laws should
be their defensatives against the evils of their ignorance. But
now some minors under sixteen years of age are of a ripe wit,
and competent judgment, and have craft enough to make a
bargain, to consider what they promise, and to beware of the
artifices of evil men. But yet although the presumption of
the law fails as to their particulars, yet their parents may
annul their promises, their vows, and their professions,
though the presumption of the law in their case do fail. The
reason of the difference is this : in presumptions of fact, if
the truth of the fact fails, the whole foundation of the law
does fail ; for the foundation is indivisible, and the law had
no other support; if any thing of it fails, it all fails. But in
presumptions of caution, or of presupposition of danger
which does usually happen, it is wholly otherwise ; for though
it does fail in some instances, yet it is true in most, and is
sufficient to support a law, which looks after that which is
most common, not after rare emergencies. And therefore
the law, in this case, does not, in proper speaking, rely upon
a presumption, but a certain judgment; for it is certainly
true, that it is so most commonly ; and it is presumed so of
every particular : at least the law knows not how to distin-
guish them, and therefore is a just and a wise law, conducing
to the public benefit, and consequently is a good measure to
the conscience.

3. Only this caution is to be inserted, that if a minor
make a contract, as if a young man under sixteen, or a
maiden under fourteen, make a contract of marriage, although
this is not valid in law till their years of consent be com-
pleted; yet if they have a mature judgment otherwise than
the law did presume them to have, they are tied in con-
science to verify this contract, if all these conditions were
observed, which could make the act valid in the law of na-
ture, because no civil law can evacuate a natural ; and where
they are naturally able, they are, by their own act, under that
law, naturally obliged : but this, although it be an essential


consideration as to conscience, yet it is wholly extrinsical
to this rule.

4. But there is one distinction more, of use to the expli-
cation of this rule. Laws founded upon presumption are
either laws of favour or laws of duty. Those that are made
in favour, may be made use of only when that supposition
upon which it is founded, is really true, but must not be
used to the prejudice of any, whether it be true or false.
And of this nature, or reducible to it, is the case that Cicero
* de Oratore,' b speaks of. A Roman citizen, supposing his
only son to be dead, declares a kinsman to be his heir. The
son afterward appears ; and, by a true presumption that if
his father had supposed him living, he would not have disin-
herited him, is relieved against a false presumption, which
supposed him dead. And it hath left a stain upon the
honour of David's justice and friendship with Jonathan, that
when he had listened to the false information of Ziba against
his friend's son Mephibosheth, and gave the land to the in-
former ; he yet, upon a right notice of the cause, restored
but half. For this cause, say the doctors of the Jews, God
divided his kingdom, and gave the bigger half from his
grandchild Rehoboam to his servant. But if the laws be
matter of duty, and enjoin something that is good or useful
to the public, whether the presumption be right or wrong,
they do oblige : and the reason is, because the presumption,
whether it was in fact or in caution, yet it was not the whole
foundation of the law ; or if it was alone built upon it at
first, yet it is supported by other arguments strong enough
to affirm the law. If a law were made in England, that who-
ever comes not to Divine service in public churches, should
be punished by a mulct of twenty pounds a month, the fine of
recusancy, upon a presumption that he that is absent is so
indeed, this law were as much incumbent upon them that
are not recusants : for although the law was, at first, made
upon that presumption, yet, because otherwise it commands
a very good act, which alone and without the presumption
were a sufficient inducement to the law, the conscience of
those who are, and those who are not, in the first presumption
are equally obliged.

b Cap. xxiviii. sect. 175. Harles, p. 116.



Human Laws do bind the Conscience to or from an Act in
secret, as well as in public.

1. SOME things are secret or private in their own nature,
such as are only the prerogative of God to judge of; as the
word of the mind, the thoughts of the heart, the desires and
repudiations of the affections, the inclinations and tend-
encies to an object, love and hatred, the pleasures or dis-
pleasures of the fancy, acts of judgment and understanding.
These God only knows, and he only punishes. Others are
secret, but yet they are such only by accident, and for want
of proof; and these also are more or less ; for some are seen
by one witness, and some by more ; and they that are seen,
either are brought to judgment, or not. Now according to
the parts of these distinctions, this rule is, in several man-
ners, to be verified.

2. (1.) Those actions which were done in secret, but
under the observation of a few, when they are brought to
judgment change their nature, and become public ; and there-
fore are equally under the power of the law, as if they were
done in the market. For in the law, that is called notorious
which is either declared in judgment, or proved by witnesses,
or evident by the intuition of the fact. And that actions, in
this sense, at first secret, are subjicible to laws, is clear by
the very examination of witnesses, and the whole process of
law. For the judge takes notice of no other notoriety : if a
judge sees a thing done, he cannot punish it; he must wit-
ness it, and another punish it. All that is notorious to the
judge, must be first secret, and then public ; that is, made
manifest or notorious by witnesses and sentences of judges.

3. (2.) Some actions are secret, because they can be
proved only by one witness. Now it is true, that, in some
cases, one witness is sufficient, as in the case of treason ; or,
in case of confession, for his own witness against himself is
as good as ten thousand, when it is so, it is * manifestum' as
before, and therefore the same thing is to be affirmed of it.
But if it be a secret, so that it cannot be competently proved,
it is true that the law does not punish it, but it fain would ;


and, therefore, declares that the private action is a disobe-
dience and transgression.

4. (3.) If the action be done wholly in secret, then indeed
the criminal judges take no notice of it, any more than a man
abiding in the city does of his country-house on fire before
he knows of it ; but as one is an unknown calamity to the
man, so the other is an unknown transgression of the law.
For that the thing is known or unknown, it alters the case as
to the punishment, yet nothing at all as to the offence, the
scandal only excepted and the example. Now that the law
does intend to forbid such actions, it appears by the acts of
scrutiny, and the proceedings against such as come acci-
dentally to be discovered. If a suspicion do arise, or any pro-
bability, any fame or rumour, the law begins her process,
somewhere by torture, somewhere by examination upon oath,
and sometimes gives sentence upon conjectures. Now if to
this it be replied, that ' this is the beginning of publication,
and the law proceeds only in proportion to its being public ;'
I answer, that it is true, she can proceed no otherwise : and
therefore, if the question here had been, Whether secret actions
were punishable by human laws? I should have answered
otherwise, and so the lawyers dispute it : but here the in-
quiry being, Whether, the conscience being obliged, I am to
say that the publication of it does not make it to be a sin?
this reveals the action, and the law declares or makes it to be
a sin ; for a man is not hanged for theft unless he be dis-
covered ; but if he be, then it is for his theft he is punished,
not for his discovery. The consequent of which is this ; that
if the action be against the law, be it ever so secret, it is a
sin ; and here is the advantage of the wisdom and economy
of God in the verification of human laws : he confirms the
laws of men, and he binds in heaven what they bind on earth,
and he also knows in earth what is done in the most secret
corner, and judges accordingly.

5. (4.) But as for those things which are secret in their
own nature, such which are not only not known, but not
cognoscible by human laws and judicatories, the case is
much more difficult ; it being generally taught by divines,
that no human laws have power to prescribe internal acts ;
and consequently that whatever we think or wish, so we
do the thing that is commanded, the law of man is satisfied.


Question, Whether human laws can command or forbid
inward acts ?

6. But having, as well as I could, considered the secret
of this thing, I rest finally upon this account. It being cer-
tain and confessed, that the laws of man have power to con-
stitute actions of themselves indifferent, into the order of
virtue arid vice, making that to be incest which before the
law was not, and that to be theft which in other countries is
lawful, and so in other instances : if the law does change
the action only so as to make it merely to be an instance of
obedience or disobedience, then the law hath no power over
internal actions : for man is not the lord of consciences and
minds, and we are not tied to obey any man commanding an
internal act ; his judicatory here is not competent, his author-
ity is not sufficient. For it serves no end of the public, and
it hath no judicatory, no cognizance, and no interest: and it
were as foolish as for a king to sit upon the strand and com-
mand the waters not to flow to his feet. But if the law of
man have changed an action not only to an instance of obe-
dience or disobedience, but placed it also in the order of
some other virtue or vice, as by changing it to incest, or
adultery, or chastity, or temperance, respectively, then the
law of man hath power over the conscience even in the most
secret act ; not directly, and by the energy of its own power,
but indirectly, collaterally, and by accident, by reason of the
laws of God. The reason is plain : because it is not lawful
to commit adultery, or murder, or incest, in our heart ; the
law, therefore, that constitutes this action arid makes it to be
murder, does consequently oblige the conscience not so
much as to desire it. " Voluntas facti origo est, quae ne
tune quidem liberatur quum aliqua difficultas perpetrationem
intercepit. Ipsa enirn sibi imputatur, nee excusari poterit
per illam perficiendi infelicitatem, operataquod suum fuerat;"
so Tertullian : a " The will is the original of action ; and is
not freed, when she is hindered from doing what she would.
Her own act is imputed to her ; for though no event suc-
ceeded, yet she did all her part." Thus in the canon law, b
the inquisitor of heretical pravity is excommunicate, if, either
out of hatred or hope of gain, he condemn the innocent,

* De Poenit. b ClemerUin. i. sect. Verum de Haereticis.



or, for love and favour, absolve the criminal : upon which
the gloss observes, that ' the superior can punish the sin
of the heart, thought it never proceed to action ;' and to this
gloss Panormitan and Adrianus do consent. Now if it be
objected, that * here is an action external complicated with
the internal, and that the law proceeds against that, not
against this ;' I answer, that it is certain the law cannot pro-
ceed to sentence against the internal, unless it be, some way
or in some degree, public : but that which I affirm is, that
the law forbids the internal, or commands it, and that, in
case the action be placed in the rank of virtue or vice distinct
from the mere obedience or disobedience, and this is a preg-
nant instance of it; for the condemning the innocent is
therefore the more forbidden and the more condemned, be-
cause it is presumed to proceed from hatred. And, therefore,
Cato argued well in behalf of the Rhodians, against whom it
was moved in the senate that a war should be made, because
they had some little light conjectures that they were not
well affected to them ; and because some of the Rhodians
had moved that they might help Perseus, the king of Mace-
donia, in case peace could not be obtained for him ; Cato
made an oration in their behalf, affirming it to be unreason-
able to punish them, because they had a mind once to have
made a war. But this was therefore well said of Cato, be-
cause there was no proof that the Rhodians did intend it,
and secretly or openly decree it. If they had intended it, it
was penal ; and when the intention had been proved, it might
have been more reasonable to proceed to punish their breach
of friendship. And thus the Rhodians themselves confessed,
that the Romans warred justly with Perseus for intending a
war against them ; but he so intended it, that he did some-
thing towards it ; but no city, no nation, would destroy them
who did nothing towards the evil which they secretly in-
tended. " Quis hoc statuit unquarn, aut cui concedi sine
sumnio omnium periculo potest, ut eum jure potuerit occidere,
a quo metuisse se dicat, ne ipse posterius occideretur ?" said
Cicero ; c " He indulges too much to his fear, and destroys
the public, that will kill any man whom he is pleased to fear,
or say that he would first kill him." And the reason of that
is, because there can be no sufficient proof of the secret

Pro M. Tull Priestley's Cicero, vol- rii. p. 963.


thought, without it break forth at least into words and de-
crees and preparations. But "Injuriam facit, qui facturtis
est," said Seneca. If it appears he was about to do a mis-
chief, he is guilty ; his secret was criminal : and that is it
which is punished as often as it can.

7. And this is more evident in the civil law, d where the
very thought of ravishing a virgin is punished. It is true,
this thought was declared by the attempt or address to it :
but because it was not consummate, it is evident that human
laws bind to more than to or from the external action. The
law that punishes the criminal before he hath acted the evil,
punishes the internal principally : for in the address and first
preparations nothing is done but the discovery of the thought ;
but when the thought is so discovered, and the action is not
done, if the man be punished, it is not for the action, but for
the thought. And to this purpose is that of Cicero, in his
oration 6 ' pro T. Annio Milone,' " Nisi forte, quiaperfecta res
non est, non fuit punienda : perinde quasi exitus rerum, non
hominum consilia legibus vindicentur. Minus dolendura
fuit, re non perfecta ; sed puniendum certe nihilo minus ;
Not to punish the fault, because the mischief was not done,
is as much as to say, that the laws are not avengers of evil
purposes, but of evil events only. Indeed if the mischief be
not done, we grieve the less ; but if it was but intended, we
punish it nevertheless." And to this Seneca, in his Con-
troversies, gives testimony : " Scelera quoque, quamvis citra
exitum subsederunt, puniuntur." The same with that of
Periandert* M^ [tovov roi>; apaordyovras, aXXa xai robs ^tlXXovT-aj,
xo'Xa^f, "Not only those that do, but those that would
sin, are to be punished." And to this sense all those laws
which punish the affection, though the effect follows not, are
to be understood. 8

8. But this is also further manifest in the differences of
chance-medley, manslaughter, and wilful murder; where the
action being wholly differenced by the thought of the heart,
proves plainly, that the thoughts also are punished by human

d Lib. Si quis non dicam rapere, cap. de Episcopis et Clericis.

e Cap. vii. Wetzel, p. 236.

1 Diog. Laert. i. c. 7, n. 4. Long-olii.p. 103.

* Cap. pro Humani, sect. Sacri, de homicidio, lib. vi. et lib. quisquis, C. ad
legem Juliam majestatis ; et c. 1 . de Schismatics, sect. Orauem, lib. vi. et lib. Fugi.
tivus, ff. de veiborum Siguif. lib. Divus, &\ ad leg. Coruel. de Sicariis.


laws, ever, when they are manifest. And if the divines and law-
yers would distinguish in this question the punishment from
the crime, the court external from the court of conscience,
they would not err in this article. For although a man's
thoughts without some external action are not punished, be-
cause they are not known ; yet they could not be punished,
when they are known, if they were not punishable and cri-
minal in themselves even against the laws of man. And
therefore when Ulpian h had said, " Cogitationis poenam nemo
patitur :" Accursius adds, " Si statum in finibus cogitationis
est; No man can be punished for his thought;" that is,
if it proceeds no further ; for then it is known to none but

9. Upon this account we find sometimes in laws com-
mands expressly enjoining the internal action. Thus when
the Council of Lateran had complained of some clerks and
prelates, that either wholly omitted their office, or said it
negligently, it adds, " Hsec et similia sub poena suspensionis
penitus inhibemus, districte praecipientes in virtute obedien-
tise, ut Divinum officium nocturnum pariter et diurnum, quan-
tum eis dederit Deus, studiose celebrent pariter et devote:"
viz. that " they say their office diligently and devoutly ;"
which because it is an act of the heart as well as of the out-
ward man, it gives a clear evidence in this inquiry. But
above all is that novel of Justinian,' which the late Greek
books have brought to light, it never having been noted
by the Latin interpreters ; in which the emperor command-
ed that insolvent debtors who, by misfortune, not by their

Online LibraryJeremy TaylorThe whole works of the Right Rev. Jeremy Taylor (Volume 13) → online text (page 29 of 61)